The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Plaintiff pro se Reuben McDowell ("McDowell"), an inmate presently in the custody of the New York State Department of Correctional Services and formerly incarcerated at the Warren County Correctional Facility ("WCCF"), brings this action pursuant to 42 U.S.C. § 1983 alleging that the four defendants, all Warren County employees,*fn2 violated his constitutional rights under the Fourteenth Amendment Due process Clause. Second Am. Compl. (Docket No. 45). Presently pending is defendants' motion for summary judgment or to dismiss the second amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 56. Docket No. 64. McDowell opposes the motion. Docket No. 65. For the following reasons, it is recommended that defendants' motion be granted in part and denied in part.
The facts are related herein in the light most favorable to McDowell as the non-moving party. See subsection II(A) infra.
On June 15, 2006, while incarcerated at the WCCF, McDowell was involved in an altercation with another inmate, Scott Martin. Gates Aff. (Docket No. 64-4) ¶ 3; see also Docket No. 64-5 (criminal investigation of altercation); Docket No. 65-2 at 21-23 (same). A criminal investigation followed. Docket Nos. 64-5, 65-2 at 21-23. During the investigation, New York State Police investigator Douglas David interviewed defendants Harpp and Gates, Corrections Officers Lemelin and Burch, Sgt. Vaisey, and inmates Bowling and Martin. Docket Nos. 64-5 at 3-5. 65-2 at 21-23. The investigation revealed as follows.
Harpp was letting inmates out of their cells to move around the cell block when he heard what he thought was a fight. Docket Nos. 64-5 at 3- 6, 64-6 at 4, 65-2 at 21. Harpp saw McDowell atop Martin, who was pinned to the floor, punching Martin repeatedly. Docket Nos. 64-5 at 3, 64-6 at 4, 65-2 at 21. The altercation resulted from a disagreement over a chair in front of the television. Docket Nos. 64-5 at 4-7, 65-2 at 22. Another inmate, Bowling, was seated in the chair when McDowell ordered him to move. Docket Nos. 64-5 at 4-7, 65-2 at 22-23. When Bowling arose, Martin sat in the chair and McDowell and Martin exchanged words. Docket Nos. 64-5 at 4-7,;65-2 at 23. McDowell then struck Martin in the back of the head, using both hands, one with a pen and the other with a fork, to slash at Martin, eventually knocking him from the chair. Docket Nos. 64-5 at 4-7, 65-2 at 22- 23. Martin released McDowell when Harpp directed the two to cease fighting, but Martin continued to punch. Docket No. 64-5 at 4, 7.
Another inmate, Salmans, submitted an affidavit in support of McDowell alleging that the genesis of the altercation was racial animus. Salmans Aff. (Docket No. 65-2 at 11-12) at 1. Salmans overheard Bowling and some other gentlemen plotting to "inflict bodily harm upon... McDowell because, one he was African American, and two because they didn't like the fact that he watched discovery channel...." Id. Salmans also affirms that Bowling had "sharpened spoon handles in [his] socks prior to the incident happening." Id. Salmans asserts that on June 15, 2006, Martin and Bowling approached McDowell in a hostile manner and that they were the aggressors. Id. at 2. Additionally, Salmans states that no one sought eye witness testimony from any inmates in the cell block. Id.
Harpp called for assistance, separated the two inmates, and ordered everyone else back to their cells. Docket Nos. 64-5 at 3-6, 64-6 at 4. McDowell was ordered back to his cell, but sought to continue fighting with Martin, ceasing only when other corrections officers appeared. Docket Nos. 64-5 at 3-6, 64-6 at 4. Officers Lemelin and Burch responded to the call. Docket No. 64-5 at 3, 4. Lemelin arrived as the inmates were returning to their cells and noticed that McDowell had blood on the back of his clothes. Id. at 3. Lemelin then checked on Martin and observed blood on his face. Id. Martin was found to be bleeding from his nose, neck, and back of the head. Id. at 4, 7. Lemelin escorted Martin to the infirmary. Id. at 3, 7. While in the infirmary, Lemelin heard Martin tell medical staff that he was stabbed with something during the altercation. Id. at 3. Shortly thereafter, Martin was transported to the hospital where he received a staple in the back of his head to close a laceration. Id. at 4, 7.
With two other officers, Lemlin went to McDowell's cell to search for the weapon. Docket No 64-5 at 3. A tan, hard, plastic fork with blood on it was found hidden in a tote bag. Id. at 4. Lemelin observed blood on a plastic chair by the television and on the nearby carpet. Id. at 3. Lemelin found a black Bic pen on one of the chairs, though it appeared to have sustained no damage and had no noticeable blood on it. Id. at 3.
B. The Disciplinary Proceedings
McDowell was issued a misbehavior report charging him with assault, failure to obey an order to stop fighting, failure to obey an order to return to his cell, and offenses against the public order. Docket Nos. 45 at 21, 64-6 at 2. McDowell was confined to administrative segregation pending a disciplinary hearing. Docket No. 64-6 at 3. On June 16, 2006, David met with Gates, a Captain in the Warren County Sheriff's Department with responsibility for overseeing the operations of the WCCF, to review the video of the fight. Docket No. 64-5 at 4. The video confirmed the witness testimony, showing McDowell holding objects and making chopping motions toward Martin as if he is attempting to stab him. Id. Gates directed that McDowell be charged with second degree assault, which David did on June 19, 2006. Id. at 5, 8-9.
On June 26, 2006, McDowell was summoned by Hall for an informal meeting. McDowell Aff. (Docket No. 65-3) ¶¶ 11-12. During the meeting, Hall disclosed the contents of Harpp's memorandum and the video of the incident. Id. ¶ 12. Hall offered McDowell a plea bargain on the disciplinary charges of 240 days of keeplock*fn3 which McDowell refused and requested a formal hearing. Id. McDowell was allowed to view neither the report nor the video. Id.; Docket No. 65-2 at 27-28. On June 30, 2006, McDowell was notified that his formal disciplinary hearing would commence on July 1, 2006. Docket Nos. 45 at 55, 64-6 at 5, 8. The hearing was convened on July 1 with Hall as the hearing officer and then adjourned. Docket Nos. 45 at 56, 64-6 at 7-8.*fn4 The hearing was reconvened on July 7, 2006. Docket Nos. 45 at 24, 64-6 at 7-8. On July 7, 2006, McDowell was found guilty of all four charges based on the facility's video of the fight and Harpp's written statement. Docket Nos. 45 at 24, 64-6 at 6-8. McDowell was sentenced to 240 days of keeplock. Docket Nos. 45 at 24, 64-6 at 8.
On July 11, 2006, McDowell appealed the disciplinary hearing findings. Docket Nos. 45 at 45-52, 64-6 at 11-18, 65-2 at 45-55. McDowell claimed that the misbehavior report failed to (1) include McDowell's side of the story,*fn5 (2) contain any grounds for the two charges that McDowell failed to follow an order, and (3) make sense in the fourth charge. Docket Nos. 45 at 45-47, 64-4 at 12-13,. McDowell also contended that Harpp's statement was insufficient to support the charge of assault, McDowell was improperly held in administrative segregation without being informed of the particulars of his status in contravention of the facility's policies,*fn6 he was denied necessary assistance for his disciplinary hearing,*fn7 and Hall was a biased hearing officer. Docket Nos. 45 at 47-52, 64-6 at 13-18. On July 15, 2006, McDowell amended his appeal alleging that the meeting on June 26, 2006 served as his first formal hearing for which he was provided no notice and the subsequent hearing and resulting disposition of July 1 and 7 were untimely. Docket Nos. 64-6 at 19-20, 65-2 at 53-54. McDowell further contended that the proceedings should have been recorded, the disposition should have included a more precise statement of the evidence relied upon in rendering the decision, and the end and start dates of his punishment were overly vague. Docket Nos. 64-6 at 20-21, 65-2 at 54-55. On July 13, 2006, defendant VanWinkle affirmed the disciplinary conviction and sentence. Docket Nos. 45 at 53-54, 64-6 at 9-10, 65-2 at 39-40.
On July 24, 2006, McDowell filed two grievances regarding the "failure of the Administration to provide [McDowell] with a copy of the admin[instrative] seg[regation] order and [the] reason for such segregation within 24 hours of confinement as required by... [law]..." and the fact that both the formal and informal hearings were functional equivalents and both deemed formal proceedings. Docket Nos. 64-7 at 5-6, 65-2 at 35-36. McDowell sought dismissal of the misbehavior report. Docket Nos. 45 at 26, 64-7 at 8, 65-2 at 35.
On July 27, 2006, Gates sent a memorandum to McDowell setting forth his determinations. Docket Nos. 45 at 26, 64-7 at 8-10, 65-2 at 37. Gates found that McDowell should have received a copy of the administrative segregation order and that the regulations, policies, and administrative segregation order sheets would be modified to allow inmates automatically to receive a duplicate of those orders when issued. Docket Nos. 64-7 at 8, 65-2 at 37. Gates rejected McDowell's arguments that both hearings were functional equivalents as informal hearings were a common method for attempting to resolve disciplinary actions without the need for a formal proceeding. Docket Nos. 64-7 at 8, 65-2 at 37. Finally, Gates found that "there is no evidence that the formal disciplinary hearing process was violated [by McDowell's failure to receive a copy of the administrative segregation order]." Docket Nos. 64-7 at 8, 65-2 at 37.
During July 2006, McDowell filed five grievances with the New York State Commission on Corrections. Docket No. 45 at 28-35. The grievances alleged that (1) the disciplinary hearing practices were inadequate and the opportunity to appeal did not exist, id. at 28;, (2) WCCF employees were not following their own procedures and protocols in preparing misbehavior reports, id. at 29-30;*fn8 (3) charges were being applied in a racially discriminatory manner*fn9 and due process protections were not being observed, id. at 31-32; (4) McDowell received no assistance in preparing for his disciplinary hearing despite his request, id. at 33; and (5) his misbehavior report should have been dismissed, id. at 34-35. On September 14, 2006, McDowell's appeal of Gates' determinations was denied by the Commission. Id. at 27, 44.
McDowell was indicted on criminal charges by a grand jury for assault and criminal possession of a weapon. Docket No. 64-5 at 10. On December 22, 2006, McDowell entered a plea of guilty to criminal possession of a weapon. Id. at 10. On January 31, 2007, McDowell was sentenced as a second felony offender principally to ...