The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
On February 24, 2009, the parties to this action consented, pursuant to 28 U.S.C. § 636(c)(1), to proceed before the undersigned. The matter is presently before the court on motions for summary judgment filed by Defendants on December 1, 2009 (Doc. No. 23), and by Plaintiff on January 21, 2010 (Doc. No. 29).
On February 21, 2007, Plaintiff Osvaldo Santana ("Plaintiff" or "Santana"), while incarcerated at Wende Correctional Facility ("the correctional facility"), in Alden, New York and proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges Defendants, all employees of New York State Department of Corrections ("DOCS"), including Corrections Officer M. Olson ("Olson"), Captain Martin Kearney ("Kearney"), and Superintendent Anthony Zon ("Zon"), deprived Plaintiff of due process in violation of the Fourteenth Amendment. Plaintiff particularly alleges Olson subjected Plaintiff to a false Inmate Misbehavior Report ("the misbehavior report" (First Claim), that in conducting a Tier III disciplinary hearing regarding the misbehavior report, Defendant Kearney, the hearing officer, repeatedly and improperly postponed the hearing, denied Plaintiff the right to call inmate witnesses, and took testimony from a witness outside Plaintiff's presence (Second Claim), and Defendant Zon failed to adequately supervise Olson and Kearney (Third Claim). By Order filed September 13, 2007 (Doc. No. 5), the claims against Olson and Zon were dismissed, such that only the Second Claim against Defendant Kearney ("Defendant"), remains in the action.
On December 1, 2009, Defendant filed a motion for summary judgment (Doc. No. 23) ("Defendant's Motion"), supported by the Declaration of Martin Kearney (Doc. No. 24) ("Kearney Declaration"), with attached exhibits A through F ("Kearney Declaration Exh(s). __"), the Declaration of Donald Selsky (Doc. No. 25) ("Selsky Declaration"), with attached exhibits A through C ("Selsky Declaration Exh(s). __"), a Statement of Undisputed Facts (Doc. No. 26) ("Defendant's Statement of Facts"), and a Memorandum of Law in Support of Defendant's Motion for Summary Judgment (Doc. No. 27) ("Defendant's Memorandum"). On January 21, 2010, Plaintiff filed a motion for summary judgment (Doc. No. 29) ("Plaintiff's Motion"), supported by the attached Affidavit of Osvaldo Santana ("Santana Affidavit"), and exhibits A through F ("Plaintiff's Exh(s). __"). On February 16, 2010, Defendant filed the Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment (Doc. No. 31) ("Defendant's Response"), and the Declaration of Assistant Attorney General Michael A. Siragusa in Opposition to Plaintiff's Motion for Summary Judgment (Doc. No. 32) ("Siragusa Declaration"). Oral argument was deemed unnecessary.
Based on the following, Defendant's Motion is GRANTED; Plaintiff's Motion is DENIED.
In a misbehavior report prepared by Olson on January 11, 2006 ("the misbehavior report"), Plaintiff was with charged with possession of a weapon, a razor blade, Olson found during a pat frisk of Plaintiff prior to a scheduled sergeant's interview. Upon finding the weapon, Plaintiff was placed in the correctional facility's Special Housing Unit ("SHU"), pending a Tier III disciplinary hearing commenced on January 17, 2006. Hearing Tr.*fn2 at 1 Because two employee witnesses, Olson and Corrections Officer Benson ("Benson"),*fn3 requested by Kearney were not available, the hearing was adjourned several times. Hearing Tr. at 3. On February 7, 2006, the hearing resumed and testimony was taken from one Sergeant Zydel ("Zydel"), at Plaintiff's request. Hearing Tr. at 3-4. Because Olson was still unavailable to testify, the hearing was again adjourned. Plaintiff remained confined in SHU throughout the hearing extensions. In total, the hearing was adjourned nine times, and finally concluded on February 15, 2006, without any testimony having been given by Olson or Benson, or any inmates. Plaintiff maintains that instead of permitting Plaintiff to call certain inmates as witnesses at the hearing, Kearney interviewed the inmates outside Plaintiff's presence, and then refused to permit Plaintiff to listen to tape recordings of Kearney's interviews of the inmate witnesses.
On February 15, 2006, Kearney found Plaintiff guilty of the charged violation, and sentenced Plaintiff to sixty days confinement in the correctional facility's Special Housing Unit ("SHU"), along with a loss of privileges, and an additional thirty days SHU confinement which was suspended. Plaintiff served a total of 60 days in SHU.
Through DOCS's administrative appeals process, Plaintiff appealed the disposition claiming he was only returning the weapon and that he was improperly denied witnesses at the hearing. On April 24, 206, Plaintiff's guilty disposition was vacated by SHU Director Donald Selsky ("Selsky"), on the ground that "the circumstances surrounding the incident [did] not warrant disciplinary action." Selsky Memorandum, Kearney Declaration Exh. E. According to Selsky, his decision to reverse Kearney's disposition was based on questions Selsky had regarding Plaintiff's culpability, including whether Plaintiff, as Plaintiff maintained at the disciplinary hearing, intended to return the razor blade to the sergeant during the interview prior to which Olson found the weapon during the pat frisk. Selsky Declaration ¶¶ 8-9.
Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party's favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, 477 U.S. at 322. "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007)). Once a party moving for summary judgment has made a properly supported showing of the absence of any genuine issue as to all material facts, the nonmoving party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995).
Once a party moving for summary judgment has made a properly supported showing as to the absence of any genuine issue as to all material facts, the nonmoving party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor and "may not simply rely on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (citing cases). Furthermore, "factual issues created solely by an affidavit ...