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Loret v. Selsky

January 26, 2009


The opinion of the court was delivered by: David G. Larimer United States District Judge


Plaintiff, David Loret, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that his constitutional rights have been violated in a number of respects in connection with certain incidents that occurred in connection with a misbehavior report that was issued against him in February 2006, while plaintiff was confined at Wyoming Correctional Facility. Both plaintiff and defendants have moved for summary judgment.


On February 14, 2006, a misbehavior report was issued against plaintiff. The violations charged in that report arose from the delivery of a package addressed to plaintiff, which had been received at Wyoming twenty-two months earlier, on May 18, 2004. See Plaintiff's Statement of Undisputed Facts (Dkt. #15) ¶ 1; Defendants' Rule 56 Statement (Dkt. #17) ¶¶ 1, 3. The reasons for the long delay between the receipt of the package and the issuance of the misbehavior report are not apparent from the record before me.

Upon its delivery, the package was opened by DOCS employees, and was found to contain a quantity of marijuana and some small bottles of liquor. The package, which according to defendants was later identified as having been sent to plaintiff by his adult son, was immediately confiscated.

That same day, DOCS officers questioned plaintiff about the package. Plaintiff, who disclaimed all prior knowledge of the package, was also placed in the Special Housing Unit ("SHU") at Wyoming, where he remained for about four days, after which he was returned to general population. It appears to be undisputed that plaintiff never signed for, or had possession of, the package or its contents.

Apparently nothing further happened in connection with the matter until the issuance of the misbehavior report nearly two years later. Plaintiff was charged with four violations involving conspiracy to smuggle contraband into the facility, as well as "telephone abuse."

A Tier III hearing was conducted before defendant Lt. Dixon, beginning on February 18, 2006. Plaintiff testified at the hearing. At the conclusion of the hearing, Lt. Dixon found plaintiff guilty of all four charges against him. He was sentenced to twenty-four months' confinement in SHU and loss of privileges.

On administrative appeal, defendant Donald Selsky, the DOCS Director of the Special Housing/Inmate Disciplinary Program, affirmed the determination of guilt, but reduced the sentence from twenty-four to twelve months. Plaintiff then brought an Article 78 proceeding in state court, and on March 16, 2007, the Appellate Division, Fourth Department, annulled the determination of guilt, based on the unexplained delay in the issuance of the misbehavior report, which the court found had violated plaintiff's due process rights. See Loret v. Goord, 38 A.D.3d 1267, 1268-69 (4th Dep't 2007) (citing Di Rose v. New York State DOCS, 276 A.D.2d 842, 843 (3d Dep't 2000)). By that point, however, plaintiff had served his entire twelve-month sentence.*fn1

Plaintiff filed the complaint in this action on August 13, 2007. He asserts five claims alleging that his procedural due process rights were violated in connection with the Tier III hearing before defendant Dixon.


In support of their motion for summary judgment, defendants contend that the record establishes that plaintiff was not denied due process. Defendants point to evidence showing that plaintiff was given more than twenty-four hours' notice of the charges against him, and that he was allowed to testify and present evidence at the hearing.*fn2

In support of his motion, and in response to defendants' motion, plaintiff asserts that he was wrongfully denied certain evidence at the Tier III hearing, particularly a tape or transcript of an alleged telephone conversation between him and his son. That conversation formed a part of the basis for the charges against plaintiff. Dixon denied plaintiff's request for that evidence on the ground that disclosure of the contents of that recording would "jeopardize[] ... institutional goals and safety," Dkt. #20 at 59, although he did not articulate how it would do so. Plaintiff also contends that his rights were violated by Dixon's failure to call as a witness the officer who actually opened the package in question, and by the delay in filing the misbehavior report.

After reviewing the record, I conclude that both plaintiff's and defendants' motions for summary judgment must be denied, with one exception, as explained below. The record before me is simply too sparse for the Court to resolve ...

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