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Howard Ayers v. Donald Selsky

March 16, 2012


Appeal from the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge).


Ayers v. Selsky


Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the 3 City of New York, on the 16th day of March, two thousand twelve.


8 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND 9 DECREED that the decision of the district court granting summary judgment to the 10 Defendants be AFFIRMED.

11 Plaintiff-Appellant Howard Ayers brought this suit under 42 U.S.C. § 1983 12 against Defendants-Appellants Donald Selsky and C. Drown, both employees of the New 13 York State Department of Correctional Services ("DOCS"), for alleged violations of his 14 due process rights in connection with a prison disciplinary hearing resulting in Ayers' 15 confinement in the Special Housing Unit for 140 days. We assume the parties' 16 familiarity with the underlying facts, the procedural history of the case, and the issues on 17 appeal.

18 We review a district court's grant of summary judgment de novo, with "[a]ll 19 evidence submitted on the motion . . . construed in the manner most favorable to the 20 nonmoving party." Horvath v. Westport Library Ass'n, 362 F.3d 147, 151 (2d Cir. 21 2004). Summary judgment is appropriate only if "there is no genuine dispute as to any 22 material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 23 56(a). Due process requires that an inmate charged with a disciplinary offense receive 24 written notice of the charges against him prior to the hearing "to inform the inmate of 25 what he is accused of doing so that he can prepare a defense to those charges." Taylor v. 26 Rodriguez, 238 F.3d 188, 192 (2d Cir. 2001); see also Wolff v. McDonnell, 418 U.S. 539, 1 564 (1974). The notice must provide, inter alia, "at least some 'specific facts' 2 underlying the accusation." Sira v. Morton, 380 F.3d 57, 70 (2d Cir. 2004) (quoting 3 Taylor, 238 F.3d at 193).

4 Ayers argues that the Misbehavior Report which served as his notice stated only 5 that he submitted a "callout list" of inmates to be allowed to attend Nation of Islam 6 ("N.O.I.") religious classes, replacing the previously approved list of attendees, and that 7 he was not a DOCS-approved N.O.I. facilitator when he did so. Ayers contends that the 8 Misbehavior Report did not give him notice that at the hearing prison officials intended 9 to introduce evidence that Ayers intended to use N.O.I. meetings for gang or other 10 unauthorized purposes.

11 We hold that the notice was constitutionally sufficient. Ayers was charged with 12 violating DOCS Rule 104.12, providing that "[a]n inmate shall not lead, organize, 13 participate, or urge other inmates to participate, in . . . actions which may be detrimental 14 to the order of [the] facility." See N.Y. Comp. Codes R. & Regs. tit. 7, § 270.2(5)(iii). 15 The hearing officer concluded that Ayers had violated Rule 104.12 because he was 16 "attempting to improperly affect [sic] change in . . . an authorized religious group," 17 which "would have had the effect of preventing others from practicing their professed 18 religion," and because Ayers had admitted that he was not the approved N.O.I. facilitator.

19 Additional evidence presented at the hearing that Ayers was attempting to use N.O.I. 20 gatherings as gang meetings or that he was introducing a "radical edge" into the N.O.I. 21 went to Ayers' motive or state of mind, but was not specific offense conduct. The 22 additional evidence may have also been relevant to the charge against Ayers under a 23 different DOCS rule prohibiting gang activity, but the charge under that rule was 1 dismissed through the administrative process and is not relevant to this appeal. Ayers 2 was not deprived of due process of law because he was given both (1) notice of the fact 3 that his submission of the callout list formed the basis for the charge, and ultimately for 4 the penalty imposed, under DOCS Rule 104.12, and (2) some specific facts underlying 5 that accusation, namely that he was not an approved N.O.I. facilitator and submitted a 6 callout list which removed the names of twenty-two inmates previously permitted to 7 attend meetings "in an attempt to subvert" N.O.I. meetings.

8 Finally, we note that it was error for the Misbehavior Report to give the "date of 9 incident" as the date the Report was filed, instead of the date of the events giving rise to 10 the charge (i.e., the date Ayers submitted the callout list). However, that error was 11 harmless because Ayers' written submissions demonstrated that he suffered from no 12 actual confusion that the incident in question was the submission of the callout list, or as 13 to the date that incident took place. Cf. Sira, 380 F.3d at 71-72 (holding that error in date ...

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