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Bernard G. Davis v. Brian Fischer

January 20, 2012


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 former 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 pending before the Court are two motions: 1) Plaintiff's motion for summary judgment (Docket No. [#32]); and 2) Defendants' cross-motion for summary judgment [#34]. For the reasons that follow, Plaintiff's application is denied, Defendants' application is granted, and this action is dismissed.


Unless otherwise noted, the following are the undisputed facts of this case.*fn1 This action involves incidents at Elmira Correctional Facility ("Elmira") and Five Points Correctional Facility ("Five Points"). On December 24, 2007, at Elmira, Corrections Lieutenant Schonstheimer ("Schonstheimer") requested that Plaintiff be given a urine screen, because he suspected that Plaintiff had used illegal drugs. Such suspicion purportedly arose from information provided by a confidential informant. Lieutenant Shaw ("Shaw") placed Plaintiff in the Special Housing Unit ("SHU") to await drug testing and possible disciplinary action. Later that same day, December 24, 2007, Corrections Officer L. Yost ("Yost") completed a report, indicating that he had taken a urine sample from Plaintiff. Corrections Officer M. Taylor ("Taylor") allegedly tested Plaintiff's urine sample twice, and both times the results were positive for marijuana use. Consequently, Taylor issued a misbehavior report, charging Plaintiff with "use of a controlled substance." However, Plaintiff maintains that he is innocent, and that he never gave a urine sample to Yost.

While in SHU, Plaintiff made an apparent suicide attempt, and was then placed in the Mental Health Unit ("MHU") on suicide watch. Plaintiff was later transferred to the Central New York Psychiatric Center ("CNYPC") for evaluation and treatment. Because of such transfer to CNYPC, Plaintiff's Tier III disciplinary hearing was postponed, until he returned to Elmira on or about February 6, 2008. Subsequently, S. Cronin ("Cronin"), Deputy Superintendent for Programs at Elmira, conducted a disciplinary hearing. The hearing commenced on February 14, 2008 and ended on February 27, 2008. Taylor testified at the hearing by telephone. Yost also testified, and Plaintiff asked him various questions concerning the procedures for collecting urine samples. Plaintiff objected to Yost's testimony, and argued that Yost had not followed the proper procedures. Nevertheless, Cronin found Plaintiff guilty, and imposed a sentence that included twelve months in SHU and loss of privileges. Cronin indicated that he relied on Taylor's written report and Taylor's testimony at the hearing in determining Plaintiff's guilt. Cronin indicated that he was imposing a lengthy SHU sentence because Plaintiff had several prior drug-related misbehavior reports.

Plaintiff appealed the conviction at the facility level, and Superintendent Bradt ("Bradt") affirmed the conviction. See, [#34-7]. On March 6, 2008, Plaintiff filed an appeal with Norman Bezio ("Bezio"), DOCCS Director of Special Housing/Inmate Discipline. See, [#34-7] at pp. 14-18. On or about April 15, 2008, Bezio reversed the conviction, because Cronin had not followed the mental health procedures set forth in 7 NYCRR § 254.6(b).*fn2 See, Docket No. [#15] at p. 15.

On May 5, 2008, a re-hearing was conducted by Deputy Superintendent Hopkins ("Hopkins"). By this time, Taylor had retired and was not available to testify at the hearing. Moreover, certain documentation concerning the calibration of the urinalysis equipment had been lost. Nevertheless, on May 7, 2008, Hopkins found Plaintiff guilty, and imposed a sentence that again included twelve months in the SHU. In that regard, Hopkins relied primarily on Taylor's misbehavior report as proof of Plaintiff's guilt. Hopkins also relied on testimony by Corrections Officer Nowaczyk ("Nowaczyk"), who testified concerning the training that he had personally provided to Taylor in drug testing procedures. Nowaczyk also examined Taylor's written reports concerning Plaintiff's urinalysis, and indicated that they appeared to have been properly completed.


The Court has reviewed the transcript*fn3 of the hearing conducted by Hopkins. The transcript indicates that Hopkins addressed all of Plaintiff's requests for additional documentation, and adjourned the hearing several times to do so. The only documents that Plaintiff was not given were ones that no longer existed. Hopkins reviewed Taylor's misbehavior report and the other documentation supporting the misbehavior report. Hopkins attempted to contact Taylor, who was retired from employment with DOCCS, to testify, but was unable to do so. Hopkins also attempted to obtain documentation concerning calibration of the drug testing equipment, but was likewise unable to do so. However, as noted above, Hopkins took testimony from Nowaczyk. In addition to testifying concerning Taylor's training and paperwork, Nowaczyk indicated that, although there was no documentation concerning the calibration of the drug testing equipment, such equipment was electronically self-calibrated each day, and would not operate if there was any type of malfunction. Hopkins also obtained testimony from the Office of Mental Health concerning Plaintiff's mental status. At the close of the hearing, Plaintiff objected that Hopkins had not called Yost as a witness, but Hopkins reminded Plaintiff that he had never requested to have Yost testify. Hopkins found Plaintiff guilty and imposed a sentence primarily consisting of twelve months in SHU. In regard to the sentence, Hopkins noted that the subject charge was Plaintiff's twelfth drug related charge. Overall, it appears that Hopkins took great care to ensure that Plaintiff's procedural due process rights were protected.

Plaintiff appealed, and on October 2, 2008, Bezio affirmed Hopkins' ruling. Plaintiff requested reconsideration, and also filed an Article 78 proceeding in New York State Supreme Court, Chemung County. On October 30, 2008, Bezio administratively reversed Plaintiff's conviction and expunged Plaintiff's record. In his decision, Bezio stated: "The hearing record fails to indicate that relevant documents (drug testing forms) were provided to the inmate as required." Presumably, Bezio was referring to the calibration records which had been discarded.

Prior to having his second conviction reversed, Plaintiff was transferred to Five Points to serve his SHU sentence. On or about September 24, 2008, Plaintiff covered his cell window and feedup hatch with paper, which prevented staff from seeing into his cell. Staff directed Plaintiff to remove the paper, but he refused. Corrections Sergeant Jastrzab ("Jastrzab") directed a cell extraction team to enter Plaintiff's cell. Corrections Officer Shultz ("Schultz") entered Plaintiff's cell first, with a plexiglass shield, and Plaintiff moved aggressively toward Schultz and punched the shield. As a result, several officers entered the cell, subdued Plaintiff and placed him in handcuffs and leg shackles, and carried him to an observation cell. During the cell extraction, Schultz put handcuffs on Plaintiff. According to Jastrzab, Plaintiff never complained that his handcuffs were too tight. Jastrzab Aff. [#34-7] at ¶ 3. Plaintiff now contends, however, that the handcuffs were too tight, and caused him to lose feeling in his hand and/or thumb. Plaintiff also contends that he experienced pain in his ankle/achilles tendon, where a corrections officer hit him with a baton. On this point, it is undisputed that Corrections Officer McIntyre ("McIntyre"), who is not a party to this action, hit Plaintiff in the ankle with a baton during the cell extraction.

On September 24, 2008, Jastrzab issued Plaintiff a misbehavior report, charging him with violations including refusing a direct order, assault on staff, and creating a disturbance. Jastrzab also placed Plaintiff on suicide watch. Plaintiff contends that Jastrzab improperly kept him in an observation cell for four days without having Plaintiff examined by the Mental Health Unit. On November 12, 2008, Hearing Officer Rasmus ("Rasmus") conducted a disciplinary hearing. The Court has reviewed the transcript of the hearing. See, Docket No. [#41].*fn4 The transcript indicates that Plaintiff pleaded guilty to blocking his cell window, but otherwise refused to enter a plea to the remaining charges. Plaintiff admitted that he placed paper over his cell window because he was upset "about the Law Library." Docket No. [#41], Ex. C at p. 8. Plaintiff indicated that he has "anger issues," and that he was very angry about the Law Library and lost his ability to reason during the incident. Id. at p 29. Plaintiff indicated that he did not remember what happened after his cell door was opened, because he had post-traumatic stress disorder ("PTSD"). Id. ("[W]hen the door opened, I can't remember anything else that happened from that door, from that time."); see also, id. at p. 32 (Plaintiff stated that he "blacked out" and did not know what happened for the next two hours); id. at 58 ("I don't remember anything."). Nevertheless, Plaintiff indicated that officers handcuffed him, and someone hit him on the achilles tendon with a baton. However, Plaintiff stated that he could not remember which officers were in his cell. Id. at 9. Jastrzab testified at the hearing that when officers opened Plaintiff's cell door, Plaintiff struck the plexiglass shield that one of the officers was carrying several times, whereupon the officers restrained Plaintiff. Id. at p. 44. Schultz testified that he entered Plaintiff's cell carrying a plexiglass shield, and that Plaintiff struck the shield, whereupon the officers placed Plaintiff on his bed, and applied handcuffs and leg restraints. Id. at pp. 53-54.

On February 20, 2009, Plaintiff commenced this action against Bezio, Bradt, Shaw, Cronin, Yosh, Taylor, Hopkins, Jastrzab, and Schultz. Plaintiff also sued Brian Fischer ("Fischer"), Commissioner of DOCCS. Following a period of pre-trial discovery, on June 25, 2010, Plaintiff filed the subject motion for summary judgment [#32]. Plaintiff maintains that he is entitled to summary judgment against Cronin and Hopkins for violating his procedural due process rights during the disciplinary hearings which they conducted.*fn5

Plaintiff He further contends that Bradt and Fischer were aware of the due process violations from his appeals, and failed to remedy those violations. Id. at ¶ 31. Plaintiff also indicates that he was subjected to excessive force that was not justified by legitimate penological interests. Id. at ¶ 32.

On August 23, 2010, Defendants filed the subject cross-motion for summary judgment [#34].*fn6 Defendants contend that they are entitled to summary judgment for the following reasons: 1) Shaw, Yost, and Taylor are not liable under § 1983, because issuing a false misbehavior is not a constitutional violation; 2) any claim pertaining to the hearing conducted by Cronin is moot, because Plaintiff's conviction was overturned, and because the failure to follow a state administrative rule, concerning mental health evaluation, does not establish a due process violation; 3) Cronin, Hopkins, Bradt, and Bezio did not violate Plaintiff's due process rights, because his convictions were supported by some evidence;

4) Fischer was not personally involved in the hearings or appeals; and 5) Schultz and Jastrzab used reasonable force in removing Plaintiff from his cell.

On December 7, 2011, the Court issued an Order [#39], directing Plaintiff to show cause on or before January 3, 2012, why this action should not be dismissed for failure to prosecute and for failure to provide the Court with his current address. On January 5, 2012, Plaintiff filed a document indicating that his papers are lost. The Court will decide the fully-briefed summary judgment motions on the merits, pursuant to Styles v. Goord, No. 10-3129-pr, 431 Fed.Appx. 31, 2011 WL 2473508 (2d Cir. Jun. 23, 2011) ("[T]he district court failed to consider ruling on the pending, fully-submitted summary judgment motion as an alternative to dismissing under Rule 41(b). As this Court has emphasized, resolutions on summary judgment ...

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