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Randy Paul v. Donald Selsky

June 29, 2012

RANDY PAUL, PLAINTIFF,
v.
DONALD SELSKY, MARK SIMMONS, JOHN DOE, A FICTITIOUS NAME, THE TRUE NAME BEING UNKNOWN, THE PARTY INTENDED BEING THE PARTY OR PARTIES WHO DENIED PLAINTIFF MEDICAL TREATMENT WHILE HE WAS INCARCERATED AT GOWANDA CORRECTIONAL FACILITY, AND [SIC] DEFENDANTS.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Proceeding pro se, plaintiff Randy E. Paul ("Paul" or "Plaintiff"), an inmate in the custody of the New York Department of Corrections and Community Supervision, filed the instant action pursuant to 42 U.S.C. § 1983 seeking compensatory and punitive damages. He alleges that defendant Commissioners' Hearing Officer Mark Simmons ("Simmons") who presided over his Tier III disciplinary hearing held on March 27, 2001, violated his procedural due process rights by relying solely on the misbehavior report and Plaintiff's testimony to issue a finding of guilt. Plaintiff alleges that defendant Donald Selsky ("Selsky"), Director of Special Housing/Inmate Discipline, violated his procedural due process rights by initially affirming the Tier III disciplinary hearing and failing to properly train and supervise Simmons.

Plaintiff also claims that unnamed NYSDOCCS personnel were deliberately indifferent to his dental needs, namely, his request for a mouth guard to alleviate teeth-grinding during his sleep.

II. Background

Unless otherwise noted, the following are the undisputed facts viewed in the light most favorable to Plaintiff.

On March 24, 2001, Paul was housed at Gowanda Correctional Facility. Corrections Officer ("CO") P. Burke, completed a misbehavior report that evening, at approximately 9:40 p.m. charging Paul with violating NYSDOCCS Prison Regulation 113.10, which provides that inmates shall not make or possess any item of contraband that may be classified as a weapon by description, use, or appearance. The basis of the charge was an anonymous tip received by CO Burke that Paul had a razor taped under his bed.

When CO Burke escorted Paul from the rec room to his cube, he asked Paul if there was anything taped under his bed. Paul replied that there was not. CO Burke searched and found, taped underneath the bunk, a razor which had been altered to be used as weapon. At CO Burke's request, Paul was able to produce his original razor from his locker. CO Burke notified his sergeant and had Paul escorted to the Special Housing Unit ("SHU").

Paul was charged with Weapons Possession, specifically, Weapon/In area of responsibility, for which the recommended confinement time was three to six months, and the recommended loss of good time was three to six months. Paul waived his right to select an inmate legal assistant and requested that five inmates testify on his behalf. However, all five inmates refused to do so: Richard Richardson said that he was in the yard; Brian Alnutt said he was in the back rec room, Jamie Smith was "down the hall"; Timothy Lawless "was not around when it happened"; and William Ridgeway stated, "I've only heard rumors that have been around the Dorm. There's no proof that can be used to support inmate Paul's Innocents [sic]." Exhibit ("Ex.") H to Declaration of J. Richard Benitez, Esq. ("Benitez Decl.") (Dkt. #69).

Hearings Officer ("HO") Simmons presided over the Tier III disciplinary hearing held on March 27, 2001. Paul was informed that he should present any oral or documentary evidence that he wanted to be considered, as well as raise any procedural claims or objections during the hearing so that HO Simmons could respond to them.

According to Paul, he was framed by inmates who were bothered by his teeth-grinding during his sleep.*fn1 (Paul has never contended that CO Burke was involved.) Paul explained at the Tier III hearing that because of his teeth-grinding, he had been threatened, beaten up in the middle of the night, pulled out of bed, and kicked and knocked around. Some inmates would kick his bed and throw his and their own boots at him during the night. Other inmates had threatened to choke him in his sleep and knock his teeth out.*fn2

When asked by HO Simmons if he had been to the Medical Unit for help with his teeth, Paul replied that it was "a joke." According to Paul, they told him that he needed to have his fillings re-done so that they could make him a dental plate to help with the teeth grinding. Paul replied that he had $400 and he would "buy [his] own goddamned plate", H.3, but the dentist informed him that they could not do anything until his fillings were treated.

Paul stated that showed the letter he received from the dentist to the two inmates, Doc and Smith, who were hassling him, and explained that there was nothing he could do to stop grinding his teeth. The inmates told him to "back [sic] up and move." H.4. That weekend, CO Burke was "doing moves", but Paul refused, saying, "why should I have to move because you two are nothing but inmates . . . [who] snore . . . and fart." Paul stated that Richardson and another inmate named Smith who slept near him had no problems with his teeth-grinding. Paul commented, "they better go to the anonymous tip because the anonymous tip is the one that put that under my bed." H.7; see also H.8.

Simmons surmised, from Paul's rather diffuse narrative, that his defense was that someone else (Doc and the first Smith) placed the razor under his bed. When asked if he had anything else to offer, the following colloquy ensued:

Inmate Paul: I suggest that these two inmates that are in the Housing unit that they should be questioned for putting that under there and .

Simmons: I don't question people.

Inmate Paul: Somebody put it there and I did not put it there and whoever made an anonymous tip to Mr. Burke had to have known who put it there, or he put it there himself. Simmons: Mr. Burke, now?

Inmate Paul: No, the person who anonymously tipped Mr.

Burke and told him that there was a razor taped under my bed, put that razor under my bed.

H.9-10. Just prior to the close of the hearing, but before HO Simmons issued his findings and disposition, Paul brought up the "anonymous tip" again:

Inmate Paul: When they had an informant tip, Mr. Burke is liable to bring his informant tip to his hearing, right, if I request it?

Simmons: You should have requested that.

Inmate Paul: I request it now.

Simmons: It's too late now. The whole hearing is over.

H.17. Relying upon CO Burke's misbehavior report and his examination of the altered razor, HO Simmons found Paul guilty of the charged infraction. H.14. According to HO Simmons, Paul's defense that he did not place the razor under his bed was "irrelevant" because Rule 113.10 "clearly states" that inmates possess any weapons. H.14. HO Simmons imposed a punishment of 90 days in SHU and 90 days loss of recreation, packages, commissary, phones, and earphones. Paul ultimately served 81 days of the SHU sentence.

Paul pursued an administrative appeal of HO Simmons' decision. On May 22, 2001, Selsky issued a Review of Superintendent's Hearing which summarily declared that Paul's Superintendent's Hearing had been "reviewed and affirmed[.]" Ex. L to Benitez Decl. (Dkt. #69).

Represented by pro bono counsel, Paul then filed a proceeding pursuant to Article 78 of New York Civil Practice Law and Rules ("C.P.L.R.") in Wyoming County Supreme Court challenging the results of his Superintendent's Hearing. Paul's attorney argued that although a hearing officer could reject as not credible Paul's testimony that he did not know how the razor came to be taped under his bed, it was error for the hearing officer to categorically state that such testimony was irrelevant to considering whether he was guilty of the rule violation for possessing a weapon in his area of responsibility. The Wyoming County Supreme Court affirmed the Tier III hearing, and Paul sought leave to appeal to the Appellate Division, Fourth Department.

While the appeal was pending, Selsky sent a memorandum dated March 8, 2002, to K.S. Perlman, Superintendent of Mohawk Correctional Facility, stating that Paul's Superintendent's Hearing had been "reversed . . . for the following reasons(s): reversed after discussion with Attorney General's Office due to failure to address inmates [sic] defense[.]" Ex. A to Benitez Decl. (Dkt. #69). ...


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