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Livingston v. Kelly

April 26, 2010

DETROY LIVINGSTON, PLAINTIFF,
v.
WALTER B. KELLY, IN BOTH HIS OFFICIAL AND INDIVIDUAL CAPACITY, ET AL., DEFENDANTS.



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

DECISION AND ORDER

Plaintiff, Detroy Livingston, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), commenced this action pro se against a number of DOCS employees, alleging that they had violated his constitutional rights in several respects, and asserting various claims pursuant to 42 U.S.C. § 1983.

On appeal from a judgment entered in favor of defendants, pursuant to a jury verdict finding no cause of action, the Court of Appeals for the Second Circuit affirmed in part, vacated in part, and remanded for further consideration of certain claims that this Court had dismissed prior to trial. 153 Fed.Appx. 769 (2d Cir. 2005).

On remand, plaintiff, through assigned counsel, filed an amended complaint (Dkt.# 171), asserting six causes of action against five defendants. Defendants moved to dismiss some of those claims, and this Court issued a Decision and Order granting that motion in part and denying it in part. 561 F.Supp.2d 329 (W.D.N.Y. 2008).

Pursuant to the Court's 2008 Decision and Order, the following claims remain: (1) a due process claim against defendant John Bennis based on Bennis's issuance of an allegedly false misbehavior report against plaintiff in 1996; (2) a due process claim against defendant Thomas Piskor based on Piskor's issuance of an allegedly false misbehavior report in 1997; (3) a due process claim against then-Director of Special Housing Donald Selsky, based on Selsky's affirmance of the finding of guilt against plaintiff on the 1996 misbehavior charge; (4) a due process claim against Selsky based on Selsky's affirmance of the finding of guilt against plaintiff on the 1997 misbehavior charge; and (5) a due process claim against defendant Walter Kelly based on Kelly's alleged destruction of a videotape of the incident giving rise to the July 1996 misbehavior report.

Defendants have now moved for summary judgment dismissing all of plaintiff's remaining claims, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, defendants' motion is granted, and the complaint is dismissed.

DISCUSSION

I. Selsky

A. 1996 Misbehavior Charge

As stated, plaintiff's claims against Selsky are twofold. Plaintiff alleges that Selsky violated his due process rights, first by affirming the guilty finding relating to the 1996 misbehavior charge, and again by affirming the guilty finding stemming from the 1997 misbehavior charge.

Although the relevant facts of this case have been set forth in the prior decisions of this Court and of the Court of Appeals, familiarity with all of which is assumed, a brief recitation of the chronology of events concerning the 1996 charge is warranted. Plaintiff was found guilty after the first hearing on that charge, and that guilty finding was reversed by Selsky on plaintiff's administrative appeal. Plaintiff was also found guilty after the second hearing, which was conducted by a different hearing officer. Selsky affirmed that finding, but the finding was later reversed in plaintiff's Article 78 proceeding in state court. A third hearing was held in December 1997, again before a different officer, plaintiff was again found guilty, and was sentenced to twelve months in the Special Housing Unit ("SHU"). Plaintiff served the full sentence. It is Selsky's affirmance of that third disposition that is at issue in plaintiff's first claim against Selsky in this action.

Plaintiff alleges that his due process rights were violated at the third hearing, because the videotape of the underlying incident had been destroyed, and because certain persons whom he wished to call as witnesses were either unavailable or refused to testify, partly because of the length of time that had passed since the underlying incident.*fn1

Those allegations, however, fail to support a due process claim against Selsky. First, I note that the guilty finding at the second hearing was reversed in plaintiff's Article 78 proceeding, not because of the loss of the videotape, but because of the second hearing officer's ejection of plaintiff from the hearing. The state court addressed Livingston's allegations concerning the videotape, but stated that he had "made no effort to describe what the videotape revealed," and that the videotape "evidently failed to support [Livingston's] defense at the first hearing because he was found guilty of the charges [at that hearing]." Dkt. #199-4 at 5.

For essentially the same reasons given by the state court, I find that there was no due process violation here in the first place. Plaintiff's contention that he was prejudiced by the loss of the tape is ...


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