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Eleby v. Selsky

February 8, 2010

TERRELL ELEBY, PLAINTIFF,
v.
DONALD SELSKY AS DIRECTOR OF SPECIAL HOUSING INMATE DISCIPLINARY PROGRAM, DEFENDANT.



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

DECISION AND ORDER

Plaintiff, Terrell Eleby, appearing pro se, commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), asserts a claim against Donald Selsky, who at the time of the relevant events was the DOCS Director of Special Housing/Inmate Disciplinary Program, arising out of certain events that occurred during 2007 and 2008, while plaintiff was confined at Elmira Correctional Facility ("Elmira").

Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, defendant's motion is granted.

BACKGROUND

On January 29, 2007, plaintiff was ordered to submit to a urinalysis test. Three days later, he was issued a misbehavior report charging him with use of a controlled substance, based on the results of that test, which allegedly tested positive for marijuana. Dkt. #1 at 14.

Following a disciplinary hearing, plaintiff was found guilty, and sentenced to one year's confinement in the Special Housing Unit ("SHU"), plus additional loss of good time and privileges. Dkt. #1 at 21.

Plaintiff filed a DOCS administrative appeal, and Selsky affirmed the hearing officer's decision. Dkt. #1 at 24. Plaintiff then filed an Article 78 proceeding in state court. Dkt. #1 at 26-28.

On March 24, 2008, Selsky's successor, Norman Bezio, issued a decision reversing the hearing officer's decision. Dkt. #1 at 41. Bezio did not give any specific reasons for that decision, other than his statement that it was "[p]ursuant to a discussion with the Attorney General's Office ... ." Dkt. #1 at 42. Apparently on motion by DOCS, the state court then dismissed plaintiff's Article 78 petition as moot on June 26, 2008. Dkt. # 1 at 33-34. By that time, plaintiff had served his entire SHU confinement, which began on January 29, 2007. Dkt. #1 at 21.

Plaintiff commenced this action in September 2008. He asserts three causes of action. The first alleges that plaintiff's due process rights were violated at his disciplinary hearing, that Selsky knew or should have known of those violations, and that Selsky "should have ... reversed" the hearing officer's finding of guilt. Complaint ¶ 42.

Plaintiff's second cause of action alleges that "it is the regular policy and practice of DOCS to dismiss and expunge the record of most inmates that brings [sic] suit under Article 78, showing a clear violation of the laws, rules, and/or regulations of the State of New York." Complaint ¶ 48. Plaintiff's third cause of action alleges that on June 18, 2008, he was terminated from his job at the Elmira barber shop, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.

DISCUSSION

Defendant alleges, first, that plaintiff's constitutional rights were not violated at the disciplinary hearing in the first place. Therefore, defendant argues, there is no basis upon which Selsky can be held liable. See Black v. Selsky, 15 F.Supp.2d 311, 318 (W.D.N.Y. 1998) ("because Black's claims against Ryan are meritless and Selsky's alleged wrongdoing was based on his affirming Ryan's determination, there is no basis for the claims against Selsky either").

Plaintiff alleges that his rights were violated in several respects at the disciplinary hearing. He alleges that the hearing officer denied plaintiff's requests to call certain witnesses, as well as his request for certain documents.

Although a New York inmate has a due process right to call witnesses, see 7 N.Y.C.R.R. § 254.5(b), that right is not absolute. See Ponte v. Real, 471 U.S. 491, 495 (1985); Wolff v. McDonnell, 418 U.S. 539, 566 (1974). "Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority ... ." Ponte, 471 U.S. at 496 (quoting Wolff, 418 U.S. 566). A hearing officer may also refuse to call a witness "on the basis of irrelevance or lack of necessity." Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991); see ...


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