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Diaz v. Burns

United States District Court, Second Circuit

November 6, 2013

ROBERT BURNS, Correction Officer; JOHN F. MORAN, Correction Officer; FREDERICK W. KINTZEL, Sergeant; T. ZERNIAK, Lieutenant; ROBERT A. KIRKPATRICK, Superintendent; NORMAN R. BEZIO, Director, Special Housing; BRIAN FISCHER, Commissioner, NYSDOCS, Defendants.


MICHAEL A. TELESCA, District Judge.

I. Introduction

Proceeding pro se, plaintiff Frederick Diaz ("Plaintiff" or "Diaz"), an inmate in custody of the New York State Department of Corrections and Community ("DOCCS"), instituted the present action pursuant to 42 U.S.C. § 1983 against defendants, who are employees of DOCCS. Defendants have filed a motion to dismiss (Dkt #10) the complaint, which Plaintiff has opposed (Dkt #14).

On February 8, 2013, Thomas D. Terrizzi, Esq. filed a Notice of Appearance (Dkt #16) in this matter, but he has not filed any pleadings in opposition to Defendants' Motion to Dismiss.

This matter was transferred to the undersigned on October 30, 2013 (Dkt #17).

II. Factual Background

On September 14, 2007, Plaintiff was transferred to Wende Correctional Facility ("Wende"). See Complaint ("Compl."), ¶ 17. While at Wende, Plaintiff experienced numerous problems, about which he complained via letters to Commissioner Fischer and grievances to Superintendent Kirkpatrick. Id., ¶¶ 24-25.

On April 7, 2008, Plaintiff was involved in a use of force ("UOF") incident with Correction Officer ("CO") Burns, CO Moran and Sergeant ("Sgt.") Kintzel. Id., ¶¶ 30-35. As a result of the UOF incident, Plaintiff was charged in a misbehavior report with assaulting staff, engaging in violent conduct, interfering with an employee, and disturbing the order of the facility. A tier III disciplinary hearing was held, after which Plaintiff was found guilty of all charges. Id., ¶ 43. The adverse finding was administratively reversed by Director of Special Housing ("DSH") Bezio, who ordered a new hearing. Id., ¶¶ 45, 58, 59.

The re-hearing was conducted by Lieutenant ("Lt.") Zerniak, who found Plaintiff guilty of all charges. DSH Bezio upheld Lt. Zerniak's finding, and Plaintiff instituted a proceeding pursuant to Article 78 of New York's Civil Practice Law and Rules. Compl., ¶¶ 62, 72, 75.

The Appellate Division, Third Department, of New York State Supreme Court ("the Third Department") found that Plaintiff had been denied both his statutory and constitutional right to call witnesses. In particular, the Third Department noted, Plaintiff attempted to call, among others, an investigator from the Inspector General's office and a psychologist who examined Plaintiff shortly after the incident. Plaintiff's defense at both hearings was that, contrary to the accusation that he assaulted the correction officer without provocation, he actually was attacked by the officer in retaliation for his work with the grievance office. Diaz v. Fischer , 70 A.D.3d 1082, 1082, 894 N.Y.S.2d 218 (3d Dep't 2010). At the hearing, Plaintiff explained that the investigator commenced an investigation of the incident shortly after it occurred and, in addition to questioning those witnesses who testified at the first hearing, was planning to interview inmate witnesses who had refused to testify due to fear of retaliation. Id. at 1083. However, the hearing officer (Lt. Zernkiak) denied the investigator as a witness because he was "not in the area of the alleged incident." Id . As the Third Department noted, "investigators from the Inspector General's office routinely testify in prison disciplinary hearings, as do other witnesses who have gained information through investigation, rather than personal observation[.]" Id . n.1 (internal and other citations omitted).

With regard to the psychologist whom Plaintiff attempted to call as a witness, Lt. Zerniak denied the request, notwithstanding the fact DSH Bezio had administratively reversed the first hearing because "the record failed to indicate how [Plaintiff]'s mental health status was considered." Diaz , 70 A.D.3d at 1083.

The Third Department found that "[i]nasmuch as these witnesses may have provided testimony that was material, their absence substantially prejudiced [Plaintiff]'s ability to present his defense...." Id . (citations omitted). Because the "the deprivation constituted a violation of [Plaintiff]'s constitutional right to call witnesses, rather than merely his statutory right, " the appropriate remedy was expungement. Id . (citations omitted). Accordingly, the Third Department annulled the disciplinary determination and directed DOCCS to expunge all references to the matter from Plaintiff's institutional record. Id.

Plaintiff's first claim in this lawsuit, "Violation of Equal Protection", alleges that Commissioner Fischer and Superintendent Kirkpatrick are liable for all of the problems he has experienced at Wende. Plaintiff asserts a "class of one" theory, alleging that the was subjected to retaliation and discrimination based solely on his hisotry of filing grievances and complaints against DOCCS' staff. Compl., ¶ 26.

In support of his second claim, "Assault" (based on the UOF involving CO Burns, CO Moran, and Sgt. Kintzel), he alleges that Superintendent Kirkpatrick is liable for "negligent supervision and shoddy investigations" into the UOF incident. Id., ¶ 41. Plaintiff also includes allegations that CO Burns, CO Moran, and Sgt. Kintzel attacked him "maliciously and sadistically for the very purpose of causing harm" and "in order to have Plaintiff removed from the Grievance Office...." Id., ¶ 32. Plaintiff asserts that the as a result of being "sucker-punched" by CO Burns in his right eye area and on other parts of his body, he "suffered a large contusion and swelling of his right eye, numerous abrasions throughout his body, and severe neck and head pain[, ]" with resultant vision problems and headaches. Id., ¶ 37.

Plaintiff's third claim, "Filing of False Misbehavior Report and Denial of Due Process", names CO Burns, CO Moran, and Sgt. Kintzel. Plaintiff accuses them of filing a false misbehavior report concerning the UOF incident. Id., ¶ 43. Plaintiff also implicates Lt. Zerniak for finding him guilty at the second administrative hearing and ...

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