The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #14.
Currently before the Court is plaintiff's motion for partial summary judgment (Dkt. #31), and defendants' motion for summary judgment. Dkt. #35. For the reasons set forth below, plaintiffs' motion is denied and defendants' motion is granted.
Corrections Officer ("C.O."), Paul Dentinger declares that he began processing plaintiff into the Wyoming Correctional Facility ("Wyoming"), upon plaintiff's arrival from the Attica Correctional Facility ("Attica"), at approximately 8:30 p.m. on February 17, 2004 and discovered 114 copies of a counseling memorandum of a DOCS' employee at Arthur Kill Correctional Facility ("Arthur Kill"), among plaintiff's possessions. Dkt. #38, ¶ 3. Inmate Rule 116.12 prohibits inmates from possessing or distributing facility documents without authorization.
C.O. Dentinger also observed two State-issued winter coats among plaintiff's possessions. Dkt. #38, ¶ 5. Only one State-issued winter coat is permitted. Dkt. #38, ¶ 5. C.O. Dentinger observed that the coats were "identical to outside gang State-issed coats with a quilted liner, hood zipper and no label indicating any brand name." Dkt. #38, ¶ 5. In response to plaintiff's complaint to the Commissioner's Office, C.O. Dentinger informed Captain Gilbert, noted that the confiscated coat had B-24*fn1 as a tag on the inside of this coat. All state issue coats like this one have B-24 sewed in them to identify them from state or personal coats.
Dkt. #45-3, p.12. C.O. Dentinger notes that
Such jackets are only issued to inmates during the winter based upon an outdoor working assignment which plaintiff did not have. Given my years of service, I am very familiar with State-issued property. Moreover, for security purposes, inmates are prevented from obtaining quilted materials through the package room which would have been the only other means plaintiff could have obtained the jacket.
Dkt. #38, ¶ 5. C.O. Dentinger's supervisor, Sergeant Johnson, similarly declared that given my years of experience in the draft area, the confiscated coat was clearly a State-issued outside gang coat. Plaintiff did not have a work assignment outside the facility, so he was not allowed to have the confiscated coat.
It was distinguished with a quilted liner, zippered hood and no label indicating any brand name. It also has a number assigned to it which the State shop does prior to issuing the coat to outside gang inmates. Moreover, for security purposes, inmates are prevented from obtaining quilted materials through the package room because they could hide contraband in them. Because plaintiff had another State-issued coat, he violated inmate rule 113.20 concerning excessive State property.
C.O. Dentinger issued an inmate misbehavior report charging plaintiff with violation of inmate rule 116.12 (Possessing, Distributing Facility Document without Aurhtorization), for possession of 114 copies of the counseling memorandum and violation of inmate rule 113.20 (Excessive State Clothing), for possession of the jacket. Dkt. #25, p.6; Dkt. #38, ¶ 6. Sgt. Johnson endorsed the misbehavior report. Dkt. #38, ¶ 6; Dkt. #39, ¶ 7.
Sgt. Johnson and C.O. Dentinger declare that C.O. Patrick was not involved in the processing of plaintiff because she worked the prior shift. Dkt. #38, ¶ 3; Dkt. #39, ¶ 3. C.O. Patrick declares that she left Wyoming at 3:00 p.m. on February 17, 2004, as scheduled, and did not return to Wyoming until February 21, 2004. Dkt. #41, ¶ 3. Although prison records indicate that C.O. Patrick escorted plaintiff to Buffalo for court proceedings in September of 1997, C.O. Patrick denies any specific recollection of plaintiff. Dkt. #41, ¶ 4.
Captain Malenski conducted plaintiff's Tier III disciplinary hearing on February 19, 23 & 24, 2004. Dkt. #25, p.8; Dkt. #40, ¶ 2. Plaintiff argued that the coat was not a state coat, but had been purchased from J. L. Marcus and delivered to him via the package room at Arthur Kill in July of 2001. Dkt. #25, pp.11-12. Plaintiff stated that he received the coat in Arthur Kill, was required to send the hood home by officials at Groveland Correctional Facility ("Groveland"), and transferred the coat with his possessions to Attica prior to his transfer to Wyoming. Dkt. #25, pp.13-14 & 36. With respect to the counseling memo, plaintiff stated that it was an exhibit to 20 copies of a complaint provided to him by his lawyer. Dkt. #25, pp.16-17. Captain Malenski noted there was no mark identifying the counseling memo as a court document or exhibit. Dkt. #25, p.17. Plaintiff responded that another bag containing his legal work would identify the counseling memo as a court exhibit, so Captain Malenski adjourned the hearing to review plaintiff's property record and allow for the remainder of plaintiff's property to arrive at Wyoming. Dkt. #25, p.18.
When the hearing resumed on February 23, 2004, Captain Malenski informed plaintiff that property records indicated he received a green coat at Arthur Kill in 1987 after removing the quilted lining. Dkt. #25, pp.20-21. Plaintiff indicated that he no longer possessed that coat, but had subsequently purchased the coat at issue from the J. L. Marcus catalog. Dkt. #25, p.22. Captain Malenski noted there was nothing in plaintiff's package room folder with respect to a coat from J. L. Marcus. Dkt. #25, p.22. Captain Malenski noted that the coat confiscated from plaintiff upon his arrival at Wyoming, was a quilted parka with no liner, well, with no zip out liner, no removable liner. It is, it has the quilted liner that's part of the actual coat and it is identical to the state issue coat. There is no company label in the back of the coat, showing that it came from any company. The only label on the back says B-04 and it appears to have been added to that coat but there is no company coat logo [sic] it is similar to what is done for a state shop issue. And it is identical to what we issue to the outside inmates at this facility.
Plaintiff asked to call a Lieutenant from Arthur Kill as a witness to verify that he gave plaintiff the coat and also asked to call the Deputy Superintendent of Groveland to testify that the coat belonged to plaintiff. Dkt. #25, p.27. Captain Malenski adjourned the hearing because plaintiff had not yet received the remainder of his personal property. Dkt. #25, p.26.
On February 24, 2004, plaintiff presented Captain Malenski with a copy of his discovery demand in an action pending in the Eastern District of New York which sought documents related to any misconduct report against the correction officers named as defendants, stating that the counseling memo was produced in response to that demand. Dkt. #25, pp.29-30.
With respect to the coat, plaintiff repeated that he had worn that coat for three years, prompting Captain Malenski to opine that he had inspected the coat and found it "in perfect condition without a speck of dust, inside the pockets, no discoloration, no marks on the collar, no evidence of it ever having been worn." Dkt. #25, p.34. Captain Malenski further noted, "no evidence of anything in those pockets . . . They are crisp and bright and white." Dkt. #25, p.34. Plaintiff responded that he is clean and neat and careful with his possessions. Dkt. #25, pp.34 & 40.
Plaintiff informed Captain Malenski that another inmate at Wyoming had the same coat from J. L. Marcus and that inmate was called as a witness. Dkt. #25, p.36. The inmate informed Captain Malenski that he received his coat, which Captain Malenski acknowledged was "identical" to plaintiff's, from J. L. Marcus. Dkt. #25, pp.38-39. Captain Malenski telephoned the State Shop and was informed that the identifying tag in the model of the state coat is B-34. Which is exactly what is in the model of this coat. Which is also . . . in inmate Elwadi's coat. I called the package room, just now, you were present for me calling them . . . The package room officer pulled out the J. L. Marcus catalog. The J. L.
Marcus catalog identifies a green hooded zip up parka. But does not identify any particular number, in regards to the parka.
Dkt. #25, p. 39. Captain Malenski reiterated that his review of plaintiff's personal package room folder did not reveal any purchase of a coat from J.L. Marcus, even though the record revealed extensive purchases of other items from J.L. Marcus. Dkt. #25, pp.39 & 49. Captain Malenski also reiterated that although plaintiff claimed to have purchased the coat in 2001, the coat was "in absolutely perfect condition." Dkt. #25, p.40.
Plaintiff requested Ms. Crawford, program committee chair at Groveland, as a witness to testify that plaintiff wore the coat to work as a peer counselor for Transitional Services at Groveland in 2001. Dkt. #25, p.41. Ms. Crawford, who was now at Wyoming, recognized plaintiff, but did not recognize the coat. Dkt. #25, pp.42 & 44. Plaintiff requested two additional witnesses -- Lt. Cauldwell at Arthur Kill and Deputy Superintendent Perkins at Groveland -- to verify plaintiff's possession of the coat at those facilities, but Captain Malenski accepted plaintiff's statement that he received a green coat at Arthur Kill and denied the witnesses on the ground that they could not identify this coat as the coat received at Arthur Kill over the telephone. Dkt. #25, pp.49, 52 & 56.
Captain Malenski found plaintiff guilty of both charges, explaining that plaintiff's package room file failed to identify any purchase of a coat and that plaintiff was unable to produce an authorization to possess the counseling document. Dkt. #25, p.52. Captain Malenski confined plaintiff to the Special Housing Unit, with loss of phone, packages and commissary privileges, for 75 days, stating that the disposition was rendered to reflect plaintiff's attempt to circumvent proper procedures and his extensive disciplinary record and disregard for regulations. Dkt. #25, pp.53 & 57. Upon review of the Superintendent's Hearing, DOCS affirmed the disposition. Dkt. #25, p.59. Plaintiff's article 78 ...