The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
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.
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
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
vulnerable w hite inmate," w ith a " slight" build,*fn3
w hile the aforementioned corrections officer described X as
[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 ...