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Christopher Shapard v. John Attea

November 30, 2011


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is an action pursuant to 42 U.S.C. § 1983, in which Plaintiff, a prison inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), alleges that Defendants, all employees of DOCCS, violated his federal constitutional rights. Now before the Court is a motion for summary judgment (Docket No. [#47]) by defendants Thomas Schoellkopf ("Schoellkopf") and Donald Selsky ("Selsky"). The application is granted.


Unless otherwise noted, the following are the facts of this case, viewed in the light most-favorable to Plaintiff, the non-moving party. At all relevant times, Plaintiff was housed at Wende Correctional Facility ("Wende"). All defendants except Selsky, DOCCS Director of Special Housing, were employed at Wende. Specifically, Anthony Zon ("Zon") and Robert Kirkpatrick ("Kirkpatrick") were Superintendents of Wende, Martin Kearney ("Kearney") was a Corrections Captain, Al Herdzik ("Herdzik") was a Corrections Lieutenant, John Attea ("Attea"), Edwin Mendez ("Mendez"), and Robert Kyle ("Kyle") were Corrections Officers, and Schoellkopf was a Hearing Officer.

On or about May 16, 2005, Plaintiff was housed in Wende's Special Housing Unit ("SHU"), when Kyle, Mendez, and Attea physically removed another inmate, Figueroa, from a cell adjacent to Plaintiff's cell. Plaintiff "verbally intervened" in the conflict by telling the officers that Figueroa was deaf, and that he therefore could not comprehend their verbal commands to him. Plaintiff maintains that the officers responded by taunting him, and by telling him that he would "be next." Defendants, however, contend that Plaintiff was being taunted by other inmates.*fn1 In any event, Plaintiff contends that Herdzik told him that by verbally intervening in the situation with Figueroa, he was "inciting" the other inmates, and that Herdzik would "remember this," which Plaintiff characterizes as "an overt threat of retaliation." Later that day, Plaintiff filed an inmate grievance, claiming that Herdzik had threatened him. (Grievance Dated May 16, 2005).

At that time, Plaintiff was nearing the end of his SHU sentence, when he would return to general population. Plaintiff wrote to Zon and Kearney, asking that he not be placed in B Block, where Kyle, Attea, and Mendez were assigned to work. Plaintiff also claims that sometime between May 23, 2005 and May 27, 2005, he verbally asked Kearney not to house him in B Block. In a letter to Kearney, Plaintiff described their conversation as follows: "[W]e had a discussion where I requested not to be released from SHU to B Block. In turn, you walked away stating, 'Well, Shapard, you know, you have to go wherever we have room for you.' Or something to that effect." (June 13, 2005 letter to Kearney, attached to Complaint). On or about May 27, 2005, Plaintiff was released from the SHU and placed in B Block.

On or about June 7, 2005, in B Block, Plaintiff alleges that Kyle, Attea, and Mendez assaulted him without provocation, causing him lacerations, contusions, and a concussion. Defendants counter that it was Plaintiff who attacked Attea without provocation, and that they merely used reasonable force to subdue him.*fn2 Kyle issued Plaintiff a misbehavior report, charging him with assault on staff and refusing a direct order. Plaintiff subsequently wrote a letter to Zon, complaining about the assault by Attea, Mendez, and Kyle.

Prior to the ensuing Tier III disciplinary hearing on the misbehavior report issued by Kyle, Plaintiff, who was confined to the SHU pending the hearing, requested the aid of an employee assistant. Angelo Amato ("Amato") was the employee assistant assigned to help Plaintiff. See, Def. Summary Judgment Motion, Ex. A, Pl. Article 78 Complaint ¶ 7. Plaintiff provided Amato with several pages of requests, asking him, among other things, to interview witnesses and obtain documents and videotape evidence. Amato complied with many of the requests, but not others. Plaintiff complains that Amato did not conduct all of the tasks himself, but instead delegated them to "the Captain's secretary." Def. Summary Judgment Motion, Ex. A, Article 78 Complaint ¶ 7.

On or about June 14, 2005, Schoellkopf, the designated hearing officer, commenced Plaintiff's Tier III disciplinary hearing. See, Transcript of Hearing [#16-2] Part I, [#16-3] Part II. Before the presentation of any evidence, Plaintiff raised various objections, including an objection that Amato had not provided adequate assistance, and that Schoellkopf was biased. Plaintiff also requested that a number of additional documents be produced.

With regard to Amato's assistance, Plaintiff believed that Amato had falsely indicated that certain inmate witnesses had declined to testify at the hearing. In response to that objection, Schoellkopf called Amato to testify, and extensively questioned him about the steps he had taken to assist Plaintiff. See, [#16-2] at pp. 46-59. Amato indicated that Plaintiff had given him a three-page list of information that he wanted, consisting of thirty items. Id. at 47. Amato indicated that he gathered "the vast majority" of information that Plaintiff requested. Id. at 48. Plaintiff had then asked Amato to get additional information, including surveillance videos, but Amato was not able to obtain a video of the incident for which Plaintiff was issued the misbehavior report. Id. Amato further testified that he personally interviewed all seven of the inmates whom Plaintiff requested as witnesses, and that all of them declined to testify. Id. at 49-50. Plaintiff complained, though, that he did not believe Amato. Id. at 60. Plaintiff also complained that Amato had not obtained certain records, such as documentation showing whether batons were issued to the corrections officers who responded to the incident. Id. at 53. Plaintiff agreed, however, that Amato had provided him with a copy of his injury report, names and identification numbers of potential inmate witnesses, and a use of force report. Id. at 54. Plaintiff nevertheless complained that Amato had not obtained copies of inmate grievances that Plaintiff had filed prior to the incident, but Schoellkopf ruled that they were not relevant in any event. Id. at 55. Plaintiff also requested copies of DOCCS "use of force" directives, but Schoellkopf denied the request. Id. at 58. Schoellkopf then excused Amato from the hearing.*fn3

As Plaintiff explained it to Schoellkopf, his defense was that he did not assault anyone, and that he was set up by the corrections officers. In that regard, Plaintiff essentially testified that prior to his release from SHU to B Block, he had told several people that he was worried that he would be attacked by the officers involved with Figueroa's cell extraction. Plaintiff asked Schoellkopf to obtain grievances that he had filed against staff, in order to show that they had a motive to frame him, and documentation showing that Plaintiff had requested not to be housed in B Block. Plaintiff also asked Schoellkopf to allow certain inmates from B Block to testify about whether they had seen or heard anything, because he believed that it was possible they might have heard staff conspiring against him.*fn4 Schoellkopf indicated that the inmates could testify, but they would testify out of Plaintiff's presence, since he was confined to SHU and the other inmates were in general population. Id. at 72. Schoellkopf told Plaintiff, however, that he would tape the testimony and play it back for him. Id.

Subsequently, Schoellkopf took testimony from inmates who Plaintiff had identified as possible witnesses. See, e.g., id. at 77. However, the inmates either gave answers that were irrelevant and or unresponsive to Schoellkopf's questions, or they indicated that they witnessed nothing or did not want to be involved. See, id. at 77-85. Several inmates declined to testify altogether. See, [#16-3] at pp. 9-14.

Officer Kyle then testified that Plaintiff attacked Attea by striking him in the head. [#16-3] at 88-89. Kyle further testified that he and other officers ordered Plaintiff to stop fighting, but he refused. Id. at 89. Plaintiff retorted that Kyle was ...

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