United States District Court, S.D. New York
MEMORANDUM AND ORDER
P. KEVIN CASTEL, District Judge.
Plaintiff Wilfredo Gonzalez, an inmate at the Wende Correctional Facility ("WCF") in Alden, New York, brings this action pursuant to 42 U.S.C. 1983 against defendant Nicholas F. Chalk, a hearing officer of the New York State Department of Corrections and Community Supervision ("DOCCS") who conducted Gonzalez's August 10, 2010 disciplinary hearing. At that hearing, Chalk found Gonzalez guilty of a lewd conduct offense based on an August 4, 2010 incident during an inmate count. Alleging that the conduct of the hearing violated of his right to due process of law under the Fourteenth Amendment, Gonzalez, who proceeds pro. se, seeks injunctive relief, declaratory relief, and nominal damages. For the reasons set forth below, defendant's motion to dismiss the complaint is granted.
According to Gonzalez, he has spent 28 years in the custody of DOCCS. ((Am. Compl., No. 26, at 12)) Gonzalez has been incarcerated at WCF from before the time of the incident at issue here to the present.
On August 4, 2010, Correction Officer Jennifer Fay conducted an inmate count for Gonzalez's cell block at approximately 5:50 p.m. ( Id. at 14) According to the "inmate misbehavior report" filed by Fay on the same day, she announced the inmate count and proceeded down the cell block; when she reached Gonzalez's cell she "observed inmate Gonzalez... standing, facing the cell door in plain view with his penis in hand stroking it." (Id.) Fay further reported that Gonzalez did not "make any attempt to conceal himself' and that "this exposure appeared to me to be intentional." (Id.)
Gonzalez states that he did not hear Fay's announcement of the inmate count because he suffers from a hearing impairment; he is usually notified of the count by his personal alarm, but on this occasion the count was conducted approximately ten minutes before the regularly scheduled time of 6:00 p.m. ( Id. at 11) He states that at the time the inmate count was conducted he was urinating in his cell, and that what Fay perceived to be his "lewd conduct" was actually him "shaking [his] private part of the last remaining urine." (Id.) In his statement of facts, he explains that the toilet in his cell faces the cell door at an angle visible to a viewer from the outside of the cell, and that his exposure to the corrections officers was inadvertent or unintentional. ( Id. at 12) According to Gonzalez, moments after the incident he was removed from his cell by several corrections officers and brought to the prison infirmary, where a "swabtest" was performed on his penis. (Pl. Aff. at 3(2)) From there, he was brought to the "Special Housing Unit" ("SHU"), a part of the WCF outside of the general prison population. (Id.)
The following morning, Gonzalez received a copy of Fay's misbehavior report, which cited him for violating rule 101.20 of the DOCCS Institutional Rules of Conduct. (Am. Compl. at 14) Rule 101.20 provides, "An inmate shall not engage in lewd conduct by intentionally masturbating in the presence of an employee, or intentionally exposing the private parts of his or her body, unless as part of a strip frisk, strip search, medical examination or other authorized purpose." 7 N.Y.C.R.R. 270.2.
A disciplinary hearing on the matter was scheduled for August 10, 2010. (Pl. Aff. at 3(12)) Gonzalez requested assistance in preparation for his hearing, and a prison employee identified in the record only as Sergeant Bowers was assigned to Gonzalez's case. ( Id. at 3(5)) Bowers met with Gonzalez on August 6, 2010. (Id.) At the meeting, Gonzalez requested three pieces of evidence for his hearing: the log book entry concerning the incident, the results of the alleged swab-test conducted after the incident, and two photographs showing the layout of his cell from the inside and from outside the window on his cell door through which Officer Fay observed him. ( Id. at 3(6)) At 10:30 that evening, Bowers provided the log book entry but not the other items; he denied having ever heard of a swab test being conducted during his many years of employment at the prison, and deemed the photographs irrelevant to the charge. ( Id. at 3(8)-3(11))
Gonzalez's hearing was conducted by defendant chalk, a hearing officer, and was attended by Gonzalez, corrections officers including Officer Fay, and a correction counselor who served as an interpreter for Gonzalez, who speaks some English but whose primary language is Spanish. (Hearing Tr., Dkt. No. 26, Ex. B, at 1-2) The proceeding lasted approximately thirty-five minutes. (Tr. at 1, 11)
Early on in the hearing, Chalk asked Gonzalez whether his assistance in preparing for the hearing had been completed, and Gonzalez responded that he had not received two of the three pieces of evidence that he had requested. (Tr. at 3) Chalk questioned him as to the relevance of these items and ultimately changed the subject, stating, "Okay let me ah let me read the ah misbehavior report into the record and then you can bring this point up again. Ok?" (Id.) The point did not come up again; at the close of the hearing, Chalk asked Gonzalez whether he had "any additional testimony to give or any procedural objections to make, " and Gonzalez replied that he did not. (Tr. at 8)
Gonzalez also requested that a prison medical employee be called as a witness to prove his hearing impairment. (Tr. at 5) Chalk deemed such testimony unnecessary because Gonzalez's institutional record indicated his hearing impairment. (Tr. at 6) Fay's report was read into the record, and Gonzalez had his interpreter read a statement in his defense. (Tr. at 3-4) Next, Fay was called as a witness. (Tr. at 7) Her brief testimony was consistent with her report. (Id.) Gonzalez was given the opportunity to present three prepared questions to Fay, with Chalk posing the questions on his behalf. (Tr. at 8) Asked whether the situation could have been a misunderstanding, Fay responded, "No, definitely not." (Id.) After questioning Fay, Chalk asked Gonzalez whether he had any additional testimony or wished to raise any procedural objections. (Id.) Gonzalez stated that he did not, and Chalk closed the hearing. (Tr. at 8-9)
Ten minutes later, Chalk read his written disposition into the record, finding Gonzalez guilty of the charged offense and sentencing him to ninety days in the SHU. (Tr. at 9) Chalk stated that his conclusion was based on Fay's written report, and further stated that "[t]he reason for this disposition is this type of conduct will not be tolerated." (Id.) When Gonzalez objected that Chalk had ignored his statement, Chalk replied, "No, everything was taken into consideration." (Id.) When Gonzalez continued to object, Chalk explained his right to appeal and provided Gonzalez with a notice of appeal form. (Tr. at 10)
In his amended complaint, Gonzalez seeks a declaratory judgment stating that Chalk's actions violated Gonzalez's rights under the Due Process Clause of the Fourteenth Amendment, an injunction ordering DOCCS to expunge the misconduct determination from his institutional record, nominal damages, and the cost of filing the suit. (Am. Compl. at 8-9)
II. STANDARD OF REVIEW
To survive a motion to dismiss for failure to state a claim upon which relief can be granted, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). In assessing a complaint, courts must draw all reasonable inferences in favor of the non-movant. See In re Elevator Antitrust Litig. , 502 F.3d 47, 50 (2d Cir. 2007) (per curiam). Although a court deciding a motion under rule 12(b)(6) is generally limited to considering the facts stated in the complaint, it may consider exhibits or documents ...