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. #20.
Plaintiff, proceeding pro se, commenced this suit pursuant to 42 U.S.C. § 1983 alleging that defendant Barrett violated his constitutional right to due process during the course of an administrative segregation hearing at the Elmira Correctional Facility ("Elmira"), on January 16, 2001. Dkt. #1. By Decision and Order entered January 15, 2008, this Court granted defendant's motion for summary judgment on the ground that plaintiff failed to demonstrate that the conditions of his administrative confinement from January 3, 2001 through February 26, 2001 created a constitutionally protected liberty interest. Dkt. #81. In light of this conclusion, the Court did not address defendant's argument that he was entitled to qualified immunity because the obligation of a hearing officer to independently assess the credibility of confidential informants was not clearly established at the time of plaintiff's administrative segregation hearing. Dkt. #64, p.9.
The Court of Appeals for the Second Circuit vacated this Court's Decision and Order and remanded the case for further fact-finding on the issue of the actual conditions of plaintiff's confinement in comparison to ordinary prison conditions. Davis v. Barrett, 576 F.3d 129 (2d Cir. 2009). The Court of Appeals did not reach the ultimate issue of whether the administrative hearing violated plaintiff's right to due process. Id.
Currently before the Court is defendant's renewed motion for summary judgment on the qualified immunity issue, as well as defendant's motion for summary judgment of plaintiff's argument before the Court of Appeals (which was not set forth in his complaint), that he did not receive sufficient notice of the conduct which warranted his placement in administrative segregation. Dkt. #100. For the following reasons, defendant's motion is granted.
On January 3, 2001, Sergeant J. Perry issued an administrative segregation recommendation for the plaintiff, Samuel Davis, which stated as follows:
Over the past two weeks I have received confidential information from three separate sources indicating that inmate Davis has been involved in fights, extortion and possible drug involvement. The information was verified with a fourth confidential source who has been reliable in the past. The main theme of the accusations is that Davis targets weaker inmates and then extorts them for Commissary products. There is [sic] strong statements that Davis uses a weapon sometimes.
On January 16, 2001, defendant Barrett conducted a hearing with respect to the recommendation. Dkt. #103, Exh. A. During the course of the hearing, plaintiff requested that defendant Barrett interview the confidential informants outside of his presence so that he could "see their credibility." Dkt. #103, p.9. CHO Barrett denied plaintiff's request. Dkt. #103, p.15. In support of his motion for summary judgment, CHO Barrett opined that attempting to interview the confidential informants outside of plaintiff's presence would pose a risk to them because I believed it would be difficult to conduct such an interview without another inmate becoming suspicious of what was happening and reporting his suspicion to the Plaintiff, an influential inmate. I was aware that Sgt. Perry had interviewed the confidential informants himself, and I had confidence in his ability to assess their credibility. Accordingly, I saw no need to interview them myself, as I thought it would jeopardize institutional safety and put the confidential informants' lives in danger.
Relying upon the administrative segregation recommendation written by Sgt. Perry, CHO Barrett found plaintiff involved in the extortion of inmates. Dkt. #103, p.20. Plaintiff complained that CHO Barrett hadn't interviewed Sgt. Perry and didn't indicate why Sgt. Perry had not been called to testify at the hearing. Dkt. #103, p.15. CHO Barrett responded that plaintiff had not requested Sgt. Perry as a witness. Dkt. #103, p.16. CHO Barrett also noted that he "read some of the notes . . . that were supplied along with my copy of the hearing, the confidential information." Dkt. #103, p.16.*fn1 Plaintiff asked to see that information "with the names deleted," but CHO Barrett refused the request on the ground that "it's confidential information." Dkt. #103, p.16.
Plaintiff remained in administrative segregation until February 26, 2001, when he was transferred to the Attica Correctional Facility and housed in the ...