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Kalvin Harmon v. James Escrow

August 15, 2012

KALVIN HARMON, PLAINTIFF,
v.
JAMES ESCROW, DEFENDANT.



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

DECISION and ORDER

INTRODUCTION

Siragusa, J.

This is an action brought pursuant to 42 U.S.C. § 1983by pro se Plaintiff Kalvin Harmon ("Harmon"), who claims that his exclusion from a Tier III Disciplinary Hearing violated his right to due process as guaranteed by the Fifth and Fourteenth Amendments. Presently before the Court is Defendant James Escrow's ("Escrow") (named in the complaint incorrectly as "Escrow") motion for summary judgmentpursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, Escrow's motion is granted.

BACKGROUND

The undisputed facts are as follows: On August 12, 2007, Plaintiff was issued an Inmate Misbehavior Report, relating to an incident that occurred that same day, charging him with assault on staff, violent conduct, interference with an employee, refusing a direct order, and refusing a search or frisk.As a result, a Tier III Disciplinary Hearing was conducted on August 17, 2007. Escrow was designated by the Superintendent to conduct the hearing.

According to the hearing transcript, ECF No. 36-3, and the audio recording of the hearing, ECF No. 36-2, Harmon was instructed by Escrow, at the beginning of the hearing, that if he wished to make any objections, he should do so in a timely fashion. Harmon was further instructed to refrain from speaking while others were speaking.

The portion of the hearing at issue consists of the following exchange between Harmon and Escrow with regard to a witness then testifying:

Harmon: Excuse me, I have questions.

Escrow: What questions do you have?

Harmon: I would like you to ask my uh, uh, uh . . . first off I object . . . Escrow: Questions, do you have questions?

Harmon: I didn't receive any assist. . .

Escrow: Do you have questions you want me to ask this man?

Harmon: You're cutting me off, you're cutting ...


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