United States District Court, W.D. New York
CARL E. MOLANO, Plaintiff,
NORMAN BEZIO, JOSE PICO, Defendants
For Carl E. Molano, Plaintiff: Thomas D. Terrizz, LEAD ATTORNEY, Law Office of Tom Terrizzi, Buffalo, NY.
For Norman Bezio, Jose Pico, Defendants: Gary M. Levine, LEAD ATTORNEY, New York State Office of the Attorney General, Rochester, NY.
DECISION AND ORDER
DAVID G. LARIMER, United States District Judge.
Plaintiff Carl Molano (" Molano" ) brings this action against Norman Bezio (" Bezio" ), Director of Special Housing and the Inmate Discipline Program and Jose Pico (" Pico" ), a hearing officer for the New York State Department of Correctional Services (" DOCS" ). Molano alleges that during his incarceration at Five Points Correctional Facility (" Five Points" ), Pico denied him due process of law with regard to a disciplinary hearing, and that defendant Bezio improperly declined to reverse the outcome of the hearing, in violation of his Fourteenth Amendment rights and 42 U.S.C. § 1983. U.S. CONST. Amend. XIV.
The defendants have moved (Dkt. #12), and plaintiff has cross moved (Dkt. #18) for summary judgment to Fed. R. Civ. Proc. 56. For the reasons set forth below, defendants' motion for summary judgment is denied, and plaintiff's cross motion is granted.
I. Motion for Summary Judgment
Pursuant to Fed. R. Civ. Proc. 56(c), summary judgment is appropriate where the moving papers and affidavits submitted
by the parties " show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
To survive a motion for summary judgment, the non-moving party must produce evidence in admissible form " sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All evidence will be viewed in the light most favorable to the non-moving party, and the Court will draw all reasonable inferences in its favor. See e.g., American Casualty Company of Reading, P.A. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994).
II. Factual Background
On January 16, 2008, plaintiff was in the recreation yard at Five Points when another inmate, Travis Lang (" Lang" ), was attacked from behind and cut across the face with a sharp object. Although several dozen inmates were in the yard at the time, no witnesses to the incident were identified and the attacker was not identified at that time.
On January 18, 2008, however, plaintiff was served with a misbehavior report completed by Sergeant R. Bevier, which charged him with attacking Lang, and stated that Lang had identified plaintiff as his assailant from a photo array.
On January 23, a Tier III disciplinary hearing was conducted before Hearing Officer Pico. Plaintiff pled " not guilty," and testified that although he had been in the recreation yard at the time of the attack on Lang, he had not interacted with Lang, and had no idea who he was. Another inmate, Barion Blake (" Blake" ), corroborated plaintiff's version of events, and testified that he had been in the yard speaking with plaintiff at the time of the attack, and that plaintiff had not assaulted anyone. Corrections Officer J. Wright testified that he had been working in the yard and saw Lang immediately after the attack, at which time Lang stated that he did not know who had attacked him. Sergeant Bevier described how he had prepared a photo array for Lang made up of sixty-nine (69) inmate photographs, representing all of the inmates believed to have been present in the yard at the time of the attack. Sergeant Levac (variously identified in the record as Sergeant " Lebeck" or " Labeck" ) testified that he had observed Lang's identification of plaintiff from that photo array.
At the conclusion of the hearing, Pico found plaintiff guilty and sentenced him to thirty-six months' incarceration in the special housing unit (" SHU" ). Plaintiff appealed to Bezio, on the grounds that there was insufficient evidence for Pico to have found him guilty. In support of his appeal, plaintiff submitted a sworn affidavit from Lang, in which Lang testified that he was positive that plaintiff was not the person who had attacked him. Bezio denied the appeal, but modified plaintiffs' sentence to twenty-four months in the SHU, on the basis that the original ...