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McKelvey v. Fischer

United States District Court, Second Circuit

June 12, 2013

BRIAN FISCHER, Commissioner; and MR. BARBINI, Hearing Officer, Defendants.

ARNOLD McKELVEY Plaintiff pro se New York, New York,

HON. ERIC T. SCHNEIDERMAN, JAMES J. SEAMAN ESQ., Attorney General for the State of New York, Attorney for Defendants The Capitol Albany, New York,



Pro se Plaintiff Arnold McKelvey, a former New York State prison inmate, has commenced this action pursuant to 42 U.S.C. § 1983, alleging violation of his Fourteenth Amendment due process rights in connection with a Tier III disciplinary hearing that resulted in a subsequently reversed determination of guilt and his being kept in the Special Housing Unit ("SHU") for thirty-one days after the reversal. (Dkt. No. 13 at 3, 8.) Defendant has sued Robert Barbini ("Barbini"), the Hudson Correctional Facility ("Hudson") hearing officer whose determination was reversed, and Brian Fischer ("Fischer"), Commissioner of the New York State Department of Corrections and Community Supervision ("DOCCS"). (Dkt. No. 13; Dkt. No. 24-14 at ¶ 2). Now before the Court is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.[1] (Dkt. No. 24.) Plaintiff has opposed the motion. (Dkt. No. 26.) For the reasons that follow, I recommend that Defendants' motion be granted.


A. Misbehavior Report

In April of 2011, Christian Nunez ("Nunez"), an investigator with the Inspector Generals Office since March of 2005, was assigned to investigate a case involving the discovery of a letter to recent parolee, Devin Walls, found and confiscated by the parole staff at Devin Wall's residence. (Dkt. No. 24-19 at ¶¶ 1-3; Dkt. No. 24-20 at 1-2.) The letter was in an envelope addressed to Kyeisha Walls. (Dkt. No. 24-19 at ¶ 2; Dkt. No. 24-20 at 4.) Plaintiff's name and his return address at Hudson were on the envelope. Id. The letter solicited Devin Walls to smuggle marijuana into Hudson through a package, a visit, or by throwing it over the Hudson fence by the handball court by E-cottage.[2] (Dkt. No. 24-20 at 1-2.)

On June 6, 2011, while Plaintiff was confined at Hudson, he was interviewed by Nunez concerning the letter. (Dkt. No. 24-19 at ¶ 4; Dkt. No. 24-21; Dkt. No. 24-2 at 16-19, 26-27.) According to Nunez, during the interview, Plaintiff admitted having written the letter.[3] (Dkt. No. 24-19 at ¶ 4; Dkt. No. 24-21.) While Plaintiff acknowledged writing to Kyeisha Walls and conceded that the handwriting on the envelope was his in his deposition testimony, Plaintiff has denied writing the marijuana solicitation letter to Devin Walls and has denied admitting to Nunez that he did so.[4] (Dkt. No. 24-2 at 16-18, 26-27, 32-35; Dkt. No. 24-16 at 2; Dkt. 24-20 at 4.)

Twenty or thirty minutes after the interview with Nunez, Plaintiff was told he was going to the "box" and was subsequently taken to Greene Correctional Facility ("Greene") and placed in SHU because Hudson did not have an SHU. (Dkt. No. 24-2 at 20.) On the day he interviewed Plaintiff, Nunez filed a misbehavior report charging Plaintiff with a violation of DOCCS Rule 114.10, soliciting others to smuggle contraband (marijuana) into Hudson. (Dkt. No. 24-5 at 1.) Plaintiff was at Greene when he was given the misbehavior report and was held in the Greene SHU until his hearing. Id. at 21.

B. Disciplinary Hearing

Defendant Barbini began Plaintiff's Tier III disciplinary hearing on June 10, 2011, in the Greene SHU. (Dkt. No. 24-16 at 1.) Prior to the hearing, Plaintiff had requested that assistance in preparing his defense be provided by Sgt. Sullivan, and Plaintiff acknowledged at the hearing that the assistance had been provided to him on June 7, 2011.[5] Id. Barbini advised Plaintiff on the record that he was entitled to have witnesses on his behalf and that all of the testimony given at the hearing would be taped. Id. Plaintiff was also told that nothing he said in his response to the charges would be used against him in any criminal proceeding and was advised that he should present all oral or documentary evidence he wanted Barbini to consider. Id.

The hearing transcript reveals that Plaintiff identified no witnesses he wished to call when asked by Barbini at the commencement of the hearing. Id. Plaintiff pled not guilty to the smuggling charge. Id. at 2. When asked if he had any defense, procedural objections, or statement of explanation regarding the charges, Plaintiff denied writing the letter and denied ever soliciting anything. Id. After Plaintiff's denial, Barbini made a telephone call to see if he could call Nunez as a witness, and after speaking to Nunez, informed Plaintiff that Nunez was going to send Barbini a copy of the letter to Devin Walls. Id. at 3. Barbini then adjourned the hearing pending receipt of the letter. Id.

Plaintiff's disciplinary hearing resumed on June 16, 2011. Id. Barbini showed Plaintiff the letter and envelope and entered them into evidence at the hearing. Id. at 3-4. Plaintiff told Barbini that he knew nothing about the letter - that he was just finding out about it at the hearing. Id. at 4. Barbini then informed Plaintiff that he had asked senior correction counseling to go through Plaintiff's records and find a handwriting sample to compare with the letter and had been given an April 5, 2010 memo that Plaintiff had written to correctional counselor Morgan.[6] Id.; see also Dkt. No. 24-7 at 2-3; Dkt. No. 24-7 at 2. Barbini was of the opinion that the handwriting in the letter to Devin Walls and the memo to Morgan were the same. Id. at 5. When Plaintiff asked Barbini whether a parole officer had found the letter to Devin Walls, Barbini indicated that he only had the misbehavior report and did not know the background of the investigation, which is why he had requested the handwriting sample. Id. at 6. Plaintiff told Barbini that the reason he asked was that Nunez had told him that a parole officer had found the letter at Kyeisha Walls' house. Id. at 5. Nunez did not testify at Plaintiff's hearing. (Dkt. No. 24-16.)

Barbini denied on relevance grounds Plaintiff's request to call two character witnesses from the mess hall where he worked. Id. at 5. When asked by Barbini before the hearing ended whether he had any other witnesses or documentary evidence to present, or had procedural objections to the hearing, Plaintiff responded he did not. Id. at 5-6. Barbini thereafter read into the record his written disposition finding Plaintiff guilty of the smuggling violation. Id. at 6. The evidence considered by Barbini included the misbehavior report, the letter soliciting drugs and the envelope, and Plaintiff's handwriting sample. (Dkt. No. 24-15 at 2.) Barbini imposed a penalty of ninety days in SHU and ninety days loss of packages, commissary, and phone. (Dkt. No. 24-15 at 1.) The official start date of Plaintiff's SHU confinement was June 6, 2011. Id.

C. Conditions in SHU

Plaintiff found the noise level and limitation of recreation time to one hour a day in SHU to be stressful. (Dkt. No. 24-2 at 64.) However, his major complaint about the conditions in SHU was the food. Id. at 64-66. According to Plaintiff, the food was not good and gave him heartburn all the time. Id. at 66. Plaintiff had suffered from heartburn a little bit before going into SHU, but it was much worse in SHU because he was unable to eat the food that he could eat in the general population where he could go to the commissary and special events. Id. Plaintiff's heartburn was a serious enough problem that he was required to seek medical care for it on more than one occasion while in SHU. Id. Plaintiff testified at his deposition that because of the food, his weight went from about two-hundred forty pounds to two-hundred twenty pounds during the time he was in SHU. Id. at 64-65.[7]

D. Retention in SHU Following Reversal

On August 1, 2011, the finding of guilt against Plaintiff was reversed by Albert Prack ("Prack"), DOCCS Director Special Housing/Inmate Disciplinary Program, on the grounds that "The misbehavior report is based on investigation which requires the hearing officer to call in the reporting employee." (Dkt. No. 24-10; Dkt. No. 24-11.) Plaintiff ...

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