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Oliver v. Gilmore

United States District Court, W.D. New York

October 16, 2014

JAMES OLIVER, Plaintiff,
v.
CAPTAIN GILMORE, Defendant.

REPORT AND RECOMMENDATION

HUGH B. SCOTT, Magistrate Judge.

This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C) (Docket No. 24). The instant matter before the Court is the motion of defendant (Docket No. 20[1]) for summary judgment. Responses to this motion were due July 31, 2014, with replies due by August 7, 2014 (Docket No. 25), but this was extended, with responses due by August 15, 2014, and replies by August 25, 2014, and the motion was deemed submitted, without oral argument on August 25, 2014 (Docket No. 27).

BACKGROUND

This is a pro se civil rights action commenced by an inmate contending that he was deprived of liberty when he was placed in special housing unit while at the Wyoming Correctional Facility ("Wyoming C.F.") (Docket No. 1, Compl.). On or about January 20, 2012, plaintiff was placed in special housing for drug possession, smuggling, violation of the prison phone program, exchanging pins, and for violation of visitation rules (id. ¶ 7; Docket No. 22, Def. Statement ¶ 4; Docket No. 21, Def. Decl. ¶ 7, Ex. A). A hearing was conducted on January 31, 2012, through February 3, 2012, and he was convicted and penalized one year in special housing (Docket No. 1, Compl. ¶ 8; Docket No. 22, Def. Statement ¶ 11), among other penalties (see Docket No. 28, Pl. Memo. at 10; Docket No. 21, Def. Decl., Ex. A, Bates No. 0045 (transcript of defendant's sentence of plaintiff)). Plaintiff denies that there was any contraband found or proof to charge plaintiff with these charges (Docket No. 1, Compl. ¶ 9). Plaintiff filed a grievance while at Wyoming C.F. and later at the Clinton Correctional Facility (id. ¶ 10). He claims that he was told that his Clinton grievance was untimely, hence he argues that he was deprived of the grievance process (id.). Plaintiff claims that placement in special housing by defendant caused him pain and suffering as well as pain to plaintiff's wife and immediate family (id. ¶ 11), although his wife and family members are not parties in this action.

Count One alleges that defendant violated plaintiff's rights against cruel and unusual punishment (under the Eighth and Fourteenth Amendments) when he allowed false charges that plaintiff possessed contraband to remain after no contraband was found (id. ¶ 12). Count Two alleges that he was deprived of due process by defendant not allowing plaintiff to have a fair hearing (id. ¶ 13). Count Three alleges that defendant displayed deliberate indifference in giving plaintiff a year in special housing (id. ¶ 14). Plaintiff seeks judgment against defendant for plaintiff's pain and suffering for $150, 000 (id. at fourth unnumbered page).

Defendant answered on October 7, 2013 (Docket No. 10).

Defendant's Motion

Defendant was a Captain employed by the New York State Department of Corrections and Community Supervision ("DOCCS") (Docket No. 21, Def. Decl. ¶ 1) and he conducted the Tier III hearing for the disciplinary charges lodged against plaintiff (id. ¶ 6, Ex. A, Bates No. 0040). He contends that defendant did not deprive plaintiff of due process in the conduct of that disciplinary hearing (id. ¶ 5). Defendant denies authoring the Misbehavior Report against plaintiff (Docket No. 22, Def. Statement ¶ 6).

The specific charges against plaintiff were that, on January 2012, plaintiff used the prison phone system to conspire to bring contraband into the facility by having a visitor purchase drugs and to bring them into the facility during a visit (Docket No. 22, Def. Statement ¶ 9). Plaintiff was subject to a Misbehavior Report and a Tier III hearing for the charges of drug possession, smuggling, and visitation and telephone privilege violations (Docket No. 22, Def. Statement ¶ 5). Defendant details the proceedings in the Tier III hearing (Docket No. 22, Def. Statement ¶¶ 10-48; Docket No. 21, Def. Decl. ¶¶ 9-47, Ex. A). During one day of the hearing, defendant heard outside plaintiff's presence from the Inspector General investigators who filed the Misbehavior Report against plaintiff as well as confidential informant, whose testimony remained confidential due to security concerns (Docket No. 21, Def. Decl. ¶ 32; Docket No. 22, Def. Statement ¶ 33). Plaintiff appealed the decision of the Tier III hearing and that was denied (Docket No. 22, Def. Statement ¶ 54; Docket No. 21, Def. Decl., Ex. A, Bates No. 0047). Plaintiff served in special housing from January 14 to December 14, 2012 (Docket No. 22, Def. Statement ¶ 56; Docket No. Compl. ¶ 8), less than twelve months sentenced.

Defendant argues that he provided plaintiff with the requisites of due process in the Tier III proceeding (Docket No. 22, Def. Memo. at fourth-seventh unnumbered substantive pages). Specifically, he argues that plaintiff did not have a constitutional right to be present during the testimony of witnesses at the disciplinary hearing (id. at fourth unnumbered substantive page; see also Docket No. 30, Def. Reply Memo. at third unnumbered substantive page), see Francis v. Coughlin, 891 F.2d 43, 48 (2d Cir. 1989) (qualified immunity recognized for not allowing inmate to be present for testimony of confidential source); Dawes v. Leonardo, 885 F.Supp. 375, 377-78 (N.D.N.Y. 1995). Defendant contends that he was a neutral hearing officer and provided a fair and impartial disciplinary hearing (Docket No. 22, Def. Memo. at seventh-ninth unnumbered substantive pages). Next, defendant argues that plaintiff does not enjoy the right to be free from false accusation in a misbehavior proceeding, hence his claim that false testimony was relied upon to punish him should be rejected (id. at ninth-tenth unnumbered substantive pages). Defendant denies that he violated plaintiff's Eighth (and Fourteenth) Amendment rights by imposing a twelve month sentence in special housing, since confinement for that duration is not a dramatic departure from basic prison confinement to constitute cruel and unusual punishment (id. at eleventh-fourteenth unnumbered substantive pages).

Finally, defendant argues that he should enjoy qualified immunity because there is no established case law that actions taken by defendant violated clearly established law (id. at fourteenth-fifteenth unnumbered pages).

Plaintiff responds that the evidence relied upon by defendant as hearing officer did not provide substantial evidence of guilt (Docket No. 28, Pl. Memo. at 2), relying upon the confidential verbal testimony of two investigators, confidential documents and tapes from the investigation, the Misbehavior Report, and plaintiff's testimony (id. at 3). Plaintiff complains that he was not allowed to review the confidential materials and defendant failed to explain why he could not see these items (id.). Plaintiff argues that defendant could not rely upon the confidential materials since there was no assessment of the credibility or reliability of the sources (id. at 5-6). After contending that plaintiff's own testimony could not support evidence of guilt and that the Misbehavior Report did not fulfill regulatory requirements to be substantial evidence on its own (id. at 6-7, 7-8). He complains that the Misbehavior Report did not provide sufficient factual specificity to permit plaintiff to present a defense (id. at 8-10). Finally, he contends that the total punishment imposed (twelve months in special housing, fourteen months of loss of privileges, and twelve months of loss of good time credit) was excessive (id. at 10-11).

Defendant replies that, as for plaintiff's first argument that there was not substantial evidence of his guilt, defendant needed only support his finding by "some evidence in the record, " Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985) ("Hill"), and not substantial evidence as plaintiff argues (Docket No. 30, Def. Reply Memo. at second unnumbered substantive page). He responds that there was more than sufficient evidence to support the disciplinary finding (id.). Defendant points out that plaintiff did not have the right to be present during the testimony of witnesses at the disciplinary hearing, Francis v. Coughlin, 891 F.2d 43, 48 (2d Cir. 1989), hence defendant could rely upon confidential information presented only to him (id. at third unnumbered substantial page). Although defendant did not author the Misbehavior Report, he contends that it adequately afforded plaintiff notice of the ...


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