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Gregory Wright v. James Esgrow

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


April 30, 2013

GREGORY WRIGHT, PLAINTIFF
v.
JAMES ESGROW, DEFENDANT

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

DECISION AND ORDER

This is an action pursuant to 42 U.S.C. § 1983, in which Plaintiff, a prison inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), alleges that Defendant, who is a hearing officer employed by DOCCS, violated his federal constitutional due process rights during a disciplinary hearing. Now pending before the Court is Defendant's motion (Docket No. [#8]) to dismiss and/or for summary judgment. The application for summary judgment is granted.

BACKGROUND

Unless otherw ise noted, the follow ing are the undisputed facts of this case. At all relevant times Plaintiff w as confined at Elmira Correctional Facility. On or about July 3, 2008, Corrections Sergeant Krause (" Krause" ) issued Plaintiff a misbehavior report, accusing him, along w ith tw o other inmates, of assaulting another inmate and " forc[ing] [him] to engage in [a] sexual act." The misbehavior report alleged that the attack had taken place approximately*fn1 one month earlier, " in early June at approximately 2:30 pm in the Mess Hall #2 inmate bathroom." Plaintiff and the other tw o accused inmates w orked in the facility kitchen that w as near the aforementioned bathroom. The kitchen w as supervised by Corrections Officer Knuth (" Knuth" ). How ever, the kitchen w as separated from the bathroom area by a door that w as usually, if not alw ays, locked and controlled by Corrections Officer Otto (" Otto" ). The misbehavior report did not specifically describe the nature of the alleged sexual assault. The misbehavior report also did not state that a w eapon w as used during the attack, though the alleged victim later claimed that his attackers used a w eapon to subdue him.

Upon being accused of the infraction, Plaintiff w as immediately placed in the Special Housing Unit (" SHU" ) pending a hearing. Plaintiff w as assigned a hearing assistant, w ho gathered w hatever evidence Plaintiff requested to the extent that it w as available. In that regard, Plaintiff asked to have the videotape of the area w here the attack allegedly took place, but prison officials indicated that the tape w as not preserved.

The disciplinary hearing w as held betw een July 8, 2008 and August 14, 2008.*fn2

Defendant James Esgrow w as the hearing officer. The Court w ill refer to the victim as " X." X w as an inmate w ho w orked in Mess Hall 2, near the kitchen. Plaintiff's theory of defense w as that the attack never happened, and that X had fabricated the entire event, because he w anted a transfer to another facility. Plaintiff claimed that X had made similar false allegations at Attica Correctional Facility (" Attica" ). Plaintiff further maintained that the attack could not have occurred as X claimed for the follow ing reasons: 1) Plaintiff w ould have been busy w orking in the kitchen under Knuth's supervision at 2:30 p.m.; 2) kitchen w orkers w ere not allow ed in Mess Hall 2, and if the event had occurred as X claimed, Otto w ould have seen it; and 3) X w as " keeplocked" in his cell for a disciplinary infraction at the time of the alleged attack.

At the start of the hearing, Plaintiff provided Defendant w ith a list of w itnesses that he w anted to testify. Plaintiff asked to call Krause, Knuth and Otto. Defendant indicated that he w ould question Knuth and Otto outside of Plaintiff's presence, but that Plaintiff could provide him w ith certain questions to ask Knuth and Otto, w hich Plaintiff did. Plaintiff also requested testimony from his tw o " co-defendants," Michael Bethea (" Bethea" ) and Anthony Green (" Green" ), as w ell as tw o other inmates, Keith Edw ards (" Edw ards" ) and Brandon Holmes (" Holmes" ). Plaintiff also asked Defendant to explore X's mental health history and possible motivation for fabricating the allegation, since X had a history of mental illness and of fabricating such allegations to obtain transfers. Defendant told Plaintiff that he w ould confidentially review X's records. Plaintiff told Defendant that he understood that certain parts of the testimony from w itnesses w ould be confidential, and that he w ould not be allow ed to hear such testimony. Plaintiff's w itness list did not include tw o civilian w itnesses w ho w orked in the kitchen.

At the hearing, in Plaintiff's presence Krause testified that he had attempted to review videotape from the security cameras, but it w as not preserved. Plaintiff attempted to ask Krause questions about the nature and extent of his investigation, but Defendant did not allow the questions, since he intended to question w itnesses w ith firsthand know ledge about those matters.

Defendant took additional testimony from numerous w itnesses outside of Plaintiff's presence. The first confidential w itness w as a corrections officer w ho interview ed X. The officer stated that X told him that the three inmates had anally raped him and then made him perform oral sex on all three of them. Subsequently, though, X testified that he w as anally raped by only tw o, and only forced to perform oral sex on one of them. The corrections officer further testified that it w as his understanding that the accused inmates, w ho w orked in the kitchen, had " free access" to the mess hall w here the assault allegedly occurred. The officer further indicated that the door betw een the kitchen and mess hall w as usually unlocked, and that it w ould be " very easy" for kitchen w orkers to have committed the attack. The officer also stated that he had heard from inmates that the three accused inmates w ere " high ranking gang members." The officer further stated that he had talked w ith unidentified inmates w ho w orked in the kitchen, and they said that they had heard that someone had recently been raped in the mess hall bathroom.

Defendant also took confidential testimony from a Corrections Captain w ho had interview ed X about the alleged attack. The Captain indicated that X w as unsure of the exact date of the attack. The Captain stated that X seemed genuinely fearful w hen being interview ed, and that facility medical records indicated that X had experienced some type of anal penetration. On that point, though, there is no indication that any objective exam w as performed. Instead, it appears that X merely made a subjective complaint of having anal problems. Nevertheless, the Captain stated that he found X to be credible. Curiously, though, the Captain described X as being a " very small vulnerable w hite inmate," w ith a " slight" build,*fn3 w hile the aforementioned corrections officer described X as follow s:

[X] is about 5' 8" , stocky build, he's not somebody that's ripped and in shape but he looks like a typical farmboy type. . . . He doesn't look like your typical guy that is taken advantage of sexually. He's not a 135 lb scar[ed] looking kid, he's just a normal, average guy.

The Captain admitted that he w as not aw are of any evidence to either support or deny X' s accusation, and that it w as a matter of X's w ord against the w ord of the three accused inmates.

Defendant also took confidential testimony from a psychologist at Elmira, w ho interview ed X follow ing the alleged assault. The psychologist stated that X seemed more nervous than usual follow ing the date of the alleged assault, and claimed to be suicidal, w hich resulted in him being transferred to a mental health unit.

Defendant next took confidential testimony from a corrections officer w ho w as w orking in the kitchen on June 4, 2008. The officer testified that he w as right in the kitchen and could see all of the inmates w orking there. The officer further stated that the kitchen inmates had their ow n bathroom and w ould not use the mess hall bathroom. The officer opined that the three accused inmates could not have committed the attack in the mess hall bathroom:

Q. Based on you recollection, can you tell me that these guys could not have left their post and gotten into that bathroom?

A. I can't say 100% on that, but I w ould say no they didn't.

In that regard, the officer stated, for example, that Plaintiff w orked on the ovens, and that he generally never left his w ork area for any reason, and that if he had done so, it w ould have appeared strange, and he w ould have remembered it. The officer stated that it w ould have been even more unusual and remarkable if all three of the accused inmates had been missing from the kitchen at the same time, and he did not recall that happening. The officer also stated that 2:30 p.m. w ould have been a very busy time in the kitchen, preparing for the evening meal.

Defendant also took confidential testimony from X. X stated that the three inmates had " jumped" him at the mop sink in Mess Hall 3 and dragged him to the bathroom in Mess Hall 2, and that there had been no corrections officer w atching the area. As noted earlier, X further stated that he w as anally raped by tw o of the three inmates and forced to perform oral sex on the third, contrary to w hat a corrections officer indicated X had previously told him. X also stated that follow ing the alleged attack, he attempted to tell Corrections Officer Knuth about it, but Knuth seemed not to care. X stated that he then got into an argument w ith Knuth, w hich resulted in him being keeplocked after Knuth issued him a misbehavior report. X stated that the inmates w ho attacked him indicated that they w ere doing so because X has the same surname as one of the corrections officers at Elmira.

Defendant next took confidential testimony from a social w orker at Great Meadow Correctional Facility (" Great Meadow " ), w here X w as transferred after leaving the mental health unit. The social w orker stated that w hile testifying about the alleged incident, X seemed nervous and agitated. The social w orker stated that X had only arrived at Great Meadow the previous day, but that his initial behavior could be consistent w ith post traumatic stress disorder. The social w orker stated that X claimed to have a history of suicidal ideation and cutting himself. After observing X for a few days, though, the social w orker gave additional testimony, in w hich she opined that X's behavior w as " not congruent to somebody w ho has been brutally raped." The social w orker stated that X told her that in addition to being held w ith a w eapon to his throat, he w as punched, w hich he had not previously claimed. The social w orker further noted, after review ing X's chart, that he had a history of " making dramatic complaints that eventually w ere found not to be true." The social w orker stated that X w as manipulative, and she questioned w hether he actually w as suffering from post traumatic stress disorder.

Defendant next took confidential testimony from a corrections officer w ho w as w orking in Mess Hall 2 on June 4, 2008 at 2:30 p.m. The officer stated that kitchen w orkers " w ouldn't be allow ed in [the] mess hall," because they did not w ork there. The officer stated that typically there w ere only four or five inmates w orking in the mess hall, including X. The officer stated that it w as " very unlikely" that the attack happened as X claimed, since the doors betw een the kitchen and mess hall w ere alw ays locked, except for w hen they w ere unlocked by a corrections officer. The officer stated that on June 4, 2008, he issued a misbehavior report to X, at w hich time he did not notice anything unusual about X's behavior. The officer stated that X probably fabricated the accusation against the three inmates in order to " get back at [him] for w riting [the] misbehavior report" against X. On that point, the officer testified:

Q. Well w hy do you say that?

A. Well cause he's mad cause I locked him up.

Q. Ok alright, uhm anything else you have for me?

A. I just can't see these three guys you know there's no w ay you are gonna get four guys in that bathroom, w ithout one of [us] know ing something's going on and that many people in there, you'd definitely see it.

Consequently, the officer concluded that X w as lying.

In addition to the preceding confidential testimony, Defendant took testimony from inmate w itnesses outside of Plaintiff's presence, and then played the tape back for Plaintiff to listen to. Green testified that he and Plaintiff did not commit the attack, and that they could not have done so because they are alw ays w orking in the kitchen at 2:30 p.m. Inmate Brandon Holmes (" Holmes" ) testified that his cell w as near X's, and that w hile X w as keeplocked in his cell, supposedly after the alleged attack occurred, X w as laughing and joking w ith other inmates, and show ing no signs of having been through a traumatic event. Inmate Keith Edw ards (" Edw ards" ) testified that he w orked in the kitchen w ith Plaintiff, and that Plaintiff w ould have been w orking at 2:30 p.m. in the kitchen. Edw ards stated that Plaintiff ordinarily w ould not finish preparing meal trays until 3:00 p.m. or 3:30 p.m. on any given day. Inmate Michael Bethea (" Bethea" ), though, testified that the kitchen w orkers usually finished assembling food trays betw een 2:15 p.m. and 3:00 p.m.

Defendant also took testimony from Plaintiff, w ho adamantly denied doing anything to X. Plaintiff further stated that he could not have attacked X at 2:30 p.m., since he w as alw ays busy assembling food trays in the kitchen, in view of Officer Otto, until at least 3:10 p.m. each day. Plaintiff further stated that inmates could not enter Mess Hall 2 from the kitchen unless Knuth allow ed them in.

On August 14, 2008, Defendant completed the hearing and found Plaintiff guilty, and sentenced him to tw o years in SHU. Defendant stated that some of the evidence w as exculpatory, but that some of the confidential evidence w as credible and explained a possible motive for the alleged attack:

I find that some of the credible confidential testimony is exculpatory in nature; how ever, other confidential testimony contains details and specifics, does not appear to be motivated by a desire to harm you, and does appear to provide a motive for you actions. I find the incriminating evidence to be credible.

With regard to evidence of motive, Defendant apparently w as referring to X's claim that he w as attacked because he had the same last name as a corrections officer. In denying Plaintiff's request to know the substance of the confidential testimony, Defendant stated, in pertinent part: " It's something that I don't think can be disclosed to you w ithout endangering security at this facility, and that's w hy I did it confidential." In explaining the reason for his tw o-year SHU sentence, Defendant explained that the sentence w as based in part on the fact that a w eapon w as allegedly used in the assault. How ever, prior to sentencing, Plaintiff had no notice that a w eapon w as allegedly used. Plaintiff subsequently spent almost tw o years in SHU before his conviction w as administratively reversed.

On September 2, 2010, Plaintiff commenced this action, proceeding pro se. Liberally construed, the Complaint [#1] purports to state a Fourteenth Amendment Procedural Due Process claim, based on the follow ing: 1) Defendant denied Plaintiff the opportunity to call tw o civilian kitchen employees as w itnesses; and 2) Defendant improperly failed to allow Plaintiff to know the substance of that portion of Knuth's and Otto's confidential testimony that did not implicate security concerns.

Shortly after Plaintiff commenced this action, the Court granted Plaintiff's request proceed in forma pauperis, and directed the U.S. Marshal to serve Defendant. How ever, service on Defendant w as delayed for over a year, apparently because Plaintiff mistakenly indicated that Defendant w as located in Albany, New York. On November 23, 2011, Defendant appeared in the action.

On December 14, 2011, Defendant filed the subject motion [#8] to dismiss and/or for summary judgment. The Notice of Motion [#8] indicates that Plaintiff is moving to dismiss the Complaint pursuant to FRCP 12(b)(6). Defendant's Memo of Law [#9], though, does not discuss Rule 12(b)(6), but instead, argues that Defendant is entitled to summary judgment under FRCP 56. Defendant's motion includes various documents related to the disciplinary proceeding, including the non-confidential portions of the hearing transcript. Defendant also submitted the transcript of the confidential testimony in camera. Defendant raises tw o arguments in support of his motion: First, that Plaintiff's contention that he w as not permitted to call the civilian cooks as w itnesses lacks merit, since he never made such a request; and second, Plaintiff's claim that he should have been told the substance of Knuth's and Otto's testimony lacks merit, since there w ere valid security reasons for not doing so. Plaintiff opposes the motion, and has also submitted matters outside of the pleadings, including an affidavit w ith exhibits.

DISCUSSION

At the outset, since both parties have submitted matters outside the pleadings, it is appropriate to " convert" Defendant's nominal motion to dismiss into a motion for summary judgment pursuant to FRCP 12(d). See, Mathie v. Dennison, No. 06 Civ. 3184(GEL), 2007 WL 2351072 at * 10 (S.D.N.Y. Aug. 16, 2007) (" Plaintiff submitted over 1300 pages of exhibits w ith his response, ranging from the minutes of his parole hearings to various statistical reports regarding New York' s allegedly unconstitutional parole policy. In addition, defendants submitted several exhibits in support of their motion. Thus, both parties have been afforded the opportunity to present supporting material, and therefore defendants' motion to dismiss may be properly treated as one for summary judgment." ) (citation and internal quotation marks omitted).

Defendant, though, did not serve an Irby notice on the pro se Plaintiff. See, Irby v. N.Y. City Transit Auth., 262 F.3d 412, 414 (2d Cir. 2001) (Warning that the Circuit Court w ill " vacate summary judgment dismissals against a pro se litigant w hen the pro se is unaw are of the consequences of failing to adequately respond to the motion for summary judgment" ). Since the docket sheet indicated that the motion w as pursuant to Rule 12(b)(6), the Court did not become aw are of this discrepancy until it began preparing this Decision and Order, long after the briefing schedule w as completed. Consequently, it did not independently provide Plaintiff w ith an Irby notice. See, id. at 414 (" In the absence of such [Irby notice by the moving party], the district court should promptly provide the pro se w ith such required notice." ). How ever, the absence of an Irby notice need not necessarily result in the vacatur of a grant of summary judgment w here the pro se litigant had a " clear understanding" of the consequences of failing to comply w ith Rule 56. See, Id. (" [A] district court need not advise a pro se litigant as to the nature of summary judgment w here an opposing party has already provided the litigant w ith the requisite notice ... or w here the record otherw ise makes clear that the litigant understood the nature and consequences of summary judgment." ) (emphasis added, citation omitted). Here, it appears from Plaintiff's responsive papers, including a detailed affidavit [#13-1] w ith exhibits, that he understood that Defendant's motion w as for summary judgment. See, Pl. Memo of Law [#1] at pp. 3-4 (acknow ledging that Defendant is seeking summary judgment). Moreover, the instant motion involves legal issues, not factual ones, and it does not appear that Plaintiff is in any w ay prejudiced by the lack of a formal Irby notice. That is, Plaintiff's legal arguments are w ell-presented and must be liberally construed, and it does not appear that he w ould have done anything differently if he had been served w ith an Irby notice.

Summary judgment may not be granted unless "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FRCP 56(a). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.).

The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993). Moreover, since Plaintiff is proceeding pro se, the Court is required to construe his submissions liberally, "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).

Plaintiff is suing pursuant to 42 U.S.C. § 1983, alleging that Defendant violated his federal constitutional rights while acting under color of state law. In that regard, it is clear that where prison inmates have a liberty interest in avoiding disciplinary confinement*fn4 , they are entitled to procedural due process protections:

Inmates are entitled to advance written notice of the charges; a fair and impartial hearing officer; a reasonable opportunity to call witnesses and present documentary evidence; and a written statement of the disposition, including supporting facts and reasons for the action taken.

Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004) (citation omitted). To comport with due process, a disciplinary ruling must be supported by "some evidence." Id. at 487-488 (citation omitted). "Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. at 488 (emphasis added, citation omitted). The Second Circuit interprets this statement to require "'reliable evidence' of the inmate's guilt." Id.

Denial of Request to Call Two Civilian Cooks To Testify Plaintiff alleges that he "testified that he would like to call both civilian cooks as witnesses," but Defendant denied his request. Complaint [#1] ¶ 18. In the Complaint, Plaintiff specifically identified the tw o civilian w itnesses as " Mr.Roy" and " Mr. Scott." Id. Due process requires that an inmate " has a restricted right to call w itnesses" at a disciplinary hearing, though a hearing officer may " refuse to call w itnesses w hose testimony may be reasonably regarded as duplicative or non probative." Feliciano v. Selsky, 199 F.3d 1322 (table), 1999 WL 1012652 at * 1 (2d Cir. Oct. 20, 1999) (citations and internal quotation marks omitted). Plaintiff's claim on this point lacks merit, since he never asked to have the tw o civilian w itnesses testify. The Court has carefully review ed the hearing transcript, and Plaintiff never made such a request. At most, Plaintiff alluded to the fact that civilian w itnesses w orked in the kitchen. How ever, it is clear that Plaintiff w as counting on the testimony of corrections staff to establish that he w as in the kitchen at the time of the alleged assault, and such testimony supported that contention. Accordingly, Defendant is entitled to summary judgment on that aspect of Plaintiff's claim.

Testimony Outside of Plaintiff's Presence

Plaintiff does not object generally to the fact that certain evidence against him w as kept confidential. Instead, he contends that the testimony of Knuth and Otto, concerning security in the kitchen and mess hall and Plaintiff's access to the mess hall bathroom, as w ell as the Knuth's testimony concerning X's demeanor, should have been disclosed to him. Or more accurately, he contends that at least the substance of such testimony should have been shared w ith him. In that regard, he contends that Defendant failed to offer " valid security reasons" for keeping such testimony confidential.

At the outset, to the extent that Plaintiff may believe that Defendant did not actually take testimony from Knuth and Otto, that is incorrect. Moreover, as discussed above, some corrections staff testified favorably to Plaintiff. More specifically, some corrections staff doubted that the attack could have occurred as X claimed, and one officer opined that X w as lying in order to get him into trouble. Defendant therefore accurately stated that some of the confidential evidence w as " exculpatory in nature."

With regard to Plaintiff's claim that he w as entitled to know the substance of the corrections officers' confidential testimony, it is clear that [a]n inmate does not possess a constitutional right to confront or cross-examine w itnesses in prison disciplinary hearings. Wolff, 418 U.S. at 567-68; Kalw asinski v. Morse, 201 F.3d 103, 109 (2d Cir.1999); Silva v. Casey, 992 F.2d 20, 22 (2d Cir.1993). Thus, " [p]rison inmates do not possess a constitutional right to be present during the testimony of w itnesses during a disciplinary proceeding." Francis v. Coughlin, 891 F.2d 43, 48 (2d Cir.1989); Bogle v. Murphy, No. 98-CV-6473 CJS, 2003 WL 22384792 (W.D.N.Y. Sep.9, 2003) (plaintiff' s ejection from his disciplinary hearing w as not a due process violation).

Hidalgo v. Hopin, No. 01-CV-0057(Sr), 2009 WL 4803689 at * 12-13 (W.D.N.Y. Dec. 9, 2009) (footnote omitted). Moreover, " institutional safety concerns may provide a sufficient reason for prison officials to decline to inform an inmate of . . . evidence." Francis v. Coughlin, 891 F.2d at 47. Additionally, " [a] hearing officer is not required to disclose a confidential informant' s testimony to an accused inmate in a disciplinary hearing." Edmonson v. Coughlin, 21 F.Supp.2d 242, 252 (W.D.N.Y. 1998) (citing Giakoumelos v. Coughlin, 88 F.3d 56, 61 (2d Cir.1996)).

Here, the confidential testimony by corrections staff w orking in the kitchen and mess hall concerned security matters, insofar as it primarily involved w hat they could see from their posts, w hen they took breaks, and how they kept track of the inmates w orking in their individual w ork areas. Defendant probably could have informed Plaintiff of the gist of such testimony in a manner that w ould not have revealed any security information, w hich is all that Plaintiff w anted. Nevertheless, his failure to do so did not violate Plaintiff's federal due process rights.

Notice of the Charges Against Him

Plaintiff's Complaint is primarily concerned w ith Defendant's alleged w rongful failure to notify Plaintiff of the substance of confidential testimony, and his alleged failure to allow Plaintiff to call the tw o civilian cooks to testify. See, Complaint [#1] (" By failing to disclose the substance of the alleged confidential information, characterizing non-confidential information as confidential, and by failing to call the tw o civilian w itnesses, Hearing Officer James Esgrow deprived me of my constitutional right to call w itnesses, [and] my constitutional right to due process of the law [.]" ). How ever, the Complaint can also be liberally construed as raising an additional claim of insufficient notice of the charges against Plaintiff. On this point, Plaintiff contends that the misbehavior report failed to mention that a w eapon w as allegedly used. Defendant accepted X's testimony that a w eapon w as used, and found such use of a w eapon to be an " aggravating circumstance" w hen formulating a sentence, though he did not indicate specifically how such aggravating factor affected the sentence. Defendant apparently did not read the Complaint [#1] in that light, since his motion does not address this " notice" claim. Nevertheless, to the extent that Plaintiff is claiming that the failure to notify him about the alleged w eapon resulted in a violation of his federal due process rights, the Court disagrees.

With regard to the type of notice that is required prior to a prison disciplinary hearing, it is w ell settled that, " [d]ue process requires that prison officials give an accused inmate w ritten notice of the charges against him tw enty-four hours prior to conducting a disciplinary hearing." Sira [v. Morton], 380 F.3d [57,] 70 [(2d Cir. 2004)] (citing Wolff v. McDonnell, 418 U.S. 539, 564 (1974)). Such notice is not an " empty formality," particularly w hen, as in this case, " large parts of the disciplinary hearing are conducted outside the inmate' s presence." Id.; see also Taylor [v. Rodriguez], 238 F.3d [188,] 192-93 [(2d Cir. 2001)]. To satisfy due process, the notice must contain " sufficient factual specificity to permit a reasonable person to understand w hat conduct is at issue so that he may identify relevant evidence and present a defense." Id. at 72 (citing Wolff, 418 U.S. at 564). Where possible, the notice should include information about the date, place, and manner of the alleged misconduct. When that information is unavailable, the notice should explain that that information is unknow n. Id.

Johnson v. Greiner, No. 03 Civ. 5276(DLC), 2007 WL 2844905 at * 13 (S.D.N.Y. Sep. 28, 2007). How ever, " the Constitution does not demand notice that painstakingly details all facts relevant to the date, place, and manner of charged inmate misconduct; [rather,] there must be sufficient factual specificity to permit a reasonable person to understand w hat conduct is at issue so that he may identify relevant evidence and present a defense." Johnson v. Goord, 487 F.Supp.2d 377, 394 (S.D.N.Y. 2007) (citation and internal quotation marks omitted), aff'd, 305 Fed.Appx. 815 (2d Cir. Jan. 9, 2009).

In this case, Plaintiff does not dispute that he w as notified of the alleged date, time and location of the alleged infraction, as w ell as the name of the victim and his alleged " co-defendants." He w as also generally notified that the infraction involved a sexual assault against the male inmate. Plaintiff w as not notified beforehand that the alleged assault involved the use of a w eapon. How ever, it does not appear that fact affected Plaintiff' s defense, since his defense w as that the attack never occurred because he and his co-defendants did not have access to the bathroom w here the attack allegedly occurred, and that X fabricated the incident. Consequently, Plaintiff denied every single aspect of the alleged attack. In effect, Plaintiff's defense w as that, regardless of w hat X may have said about the attack, none of it w as true, because it couldn't have occurred as he claimed. Accordingly, the failure to notify Plaintiff of one aspect of the alleged assault, i.e, the use of a w eapon, did not affect his defense, therefore it did not violate his due process rights. See, Johnson v. Goord, 305 Fed.Appx. 815, 2009 WL 57030 at * 1 (" Although the version of the misbehavior report introduced at the disciplinary hearing included a sentence missing from the version previously served on Johnson, the absent sentence did not affect Johnson' s defense. The discrepancy betw een the tw o misbehavior reports therefore did not infringe Johnson' s due process rights." ).

CONCLUSION

In opposing the misbehavior report, Plaintiff raised substantial questions as to X's veracity. As Defendant admits, there w as significant exculpatory evidence that supported Plaintiff's claim of innocence. Nevertheless, Defendant found X's claim to credible, and it is not this Court's role to re-w eigh the evidence. See, Johnson v. Goord, 305 Fed.Appx. 815, 2009 WL 57030 at * 1 (" Judicial review of the w ritten findings required by due process is limited to determining w hether the disposition is supported by 'some evidence.' This standard is extremely tolerant and is satisfied if there is any evidence in the record that supports the disciplinary ruling." ) (citations and internal quotation marks omitted). Defendant has established as a matter of law that he did not violate Plaintiff's procedural due process rights, and his motion for summary judgment [#8] is therefore granted. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order w ould not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance w ith Rule 24 of the Federal Rules of Appellate Procedure. The Clerk of the Court is directed to terminate this action.

SO ORDERED.

ENTER:

Charles J. Siragusa


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