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Dawes v. Racette

United States District Court, N.D. New York

October 22, 2014

IAN DAWES, Petitioner,
S.E. RACETTE, Superintendent, Great Meadow Correctional Facility, Respondent.

IAN DAWES, Pro Se, Green Haven Correctional Facility Stormville, NY, for Petitioner.

THOMAS B. LITSKY, ESQ., Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, The Capitol, Albany, NY, for Respondent.


DAVID E. PEEBLES, Magistrate Judge.

Pro se petitioner Ian Dawes, a New York State prison inmate, has commenced this proceeding seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Dawes raises constitutional challenges to a disciplinary hearing conducted at the prison facility in which he was confined at the relevant times, leading to a partial finding of guilt and the imposition of a penalty that included the recommended loss of good time credits. Because the hearing officer's determination was vacated, in part, as a result of a state-court challenge filed by Dawes, and the portion of the sanction recommending the loss of good time credits was subsequently annulled, the hearing officer's determination that is the subject of the petition in this matter no longer has an impact upon the fact and duration of petitioner's incarceration. Accordingly, I recommend that the petition be dismissed as moot.


Petitioner is a prison inmate currently being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Dkt. No. 1. On May 9, 2010, apparently as a result of information received from an unidentified source, corrections officers at the Sing Sing Correctional Facility, where plaintiff was being held at the time, initiated a search of the petitioner, believing that he was concealing a razor in his mouth. Dkt. No. 1 at 2-3; Dkt. No. 10-2 at 10, 102, 138. Corrections Officer M.J. Panzarella directed petitioner to open his mouth, and, when petitioner complied, Corrections Officer Panzarella observed a "razor type weapon partially covered in black electrical tape[.]" Dkt. No. 10-2 at 10, 140. According to the misbehavior report authored by Corrections Officer Panzarella following this incident, when petitioner was instructed to release the weapon from his mouth, he broke free of the officer's grasp and attempted to flee. Dkt. No. 10-2 at 10. He was thereafter subdued and informed the officers that he had swallowed the object. Id. Petitioner denies this account, alleging that, after protesting that he did not have a weapon inside his mouth, "Panzarella interjected and grabbed [him] by the throat and began choking [him]." Dkt. No. 1 at 3.

Dawes was subsequently escorted to the facility's medical unit for medical assessment and a strip search. Dkt. No. 1 at 3. Corrections Officer E. Collymore claims that, during the search, she noticed a white object protruding from petitioner's rectal area. Id. at 4; Dkt. No. 10-2 at 12, 172-73. When petitioner was ordered to retrieve the object and provide it to corrections officers, he instead pushed the object further into his rectum. Dkt. No. 1 at 3-4; Dkt. No. 10-2 at 12, 174.

As a result of the events of May 9, 2010, Dawes was issued two misbehavior reports. Dkt. No. 1 at 4; see Dkt. No. 10-2 at 234-35. The first, authored by Corrections Officer Panzarella, charged him with engaging in violent conduct (Rule 104.11), creating a disturbance (Rule 104.13), possessing a weapon (Rule 113.10), smuggling (Rule 114.10), interference with an employee (Rule 107.10), failure to obey a direct order (Rule 106.10), and refusal to submit to a search and frisk (Rule 115.10). Dkt. No. 10-2 at 10. The second misbehavior report, issued by Corrections Officer E. Collymore, accused petitioner of refusing to obey a direct order (Rule 106.10), interfering with an employee (Rule 107.10), and refusing to submit to a search or a frisk (Rule 115.10). Id. at 12.

Beginning on May 21, 2010, a Tier III disciplinary hearing was conducted by Corrections Captain N. Ingenito to address the charges set forth in those two misbehavior reports.[1] Dkt. No. 10-2 at 83-126. Following the close of the hearing, Captain Ingenito issued a written determination, dated June 8, 2010. Id. at 217-19. With respect to the charges asserted in Corrections Officer Panzarella's misbehavior report, Corrections Officer Ingenito found petitioner guilty only of creating a disturbance and not guilty of the remaining charges. Id. at 217. Turning to the misbehavior report authored by Corrections Officer Collymore, the hearing officer found petitioner guilty on all three counts of interfering with an employee, refusing to obey a direct order, and refusing to submit to a search or frisk. Id. at 217-18. As a result of those findings, Captain Ingenito imposed a penalty that included four months of disciplinary special housing unit ("SHU") confinement, with a corresponding loss of commissary and telephone privileges, and a further recommendation that petitioner forfeit one month of good-time credits. Id. That determination was upheld on appeal. Id. at 232.

On or about August 30, 2010, petitioner commenced a proceeding in Albany County Supreme Court, pursuant to Article 78 of the New York Civil Practice Law and Rules ("CPLR"), challenging the results of his Tier III hearing. Dkt. No. 10-1. The proceeding was subsequently transferred to the New York Supreme Court, Appellate Division, Third Department, which issued a decision, dated September 22, 2011, affirming the determinations that found petitioner guilty of refusing a direct order and failing to comply with a search, but annulling the portion of the disciplinary hearing determination that found petitioner guilty of creating a disturbance and interfering with an employee. Dkt. No. 10-7 at 3; Dawes v. Venettozzi, 87 A.D.3d 1219, 1220 (3d Dep't 2011). The Appellate Division also directed that all references to the annulled charges be expunged from petitioner's institutional records. Dkt. No. 10-7 at 4; Venettozzi, 87 A.D.3d at 1220. The New York Court of Appeals denied the petitioner's subsequent application for leave to appeal the Appellate Division's decision. Dawes v. Venettozzi, 18 N.Y.3d 803 (N.Y. 2012).

Following the issuance of the Appellate Division's decision, the matter was reviewed by the DOCCS central office, which modified the penalty imposed upon the petitioner to only three months of SHU confinement, with a corresponding loss of package, commissary, and telephone privileges. Dkt. No. 10-8 at 2. Significantly, the modified disciplinary sanction did not include any recommended loss of good time credits. Id.


Dawes commenced this proceeding by the filing of a petition dated April 24, 2012, and thereafter filed a memorandum of law in support on May 22, 2012. Dkt. Nos. 1, 5. Issue was joined by the filing of a response on behalf of the named respondent on August 24, 2012, accompanied by the relevant state court records, conveniently assembled and indexed for ease of reference, and a memorandum of law in opposition to the petition. Dkt. Nos. 9-11. Petitioner has since filed a reply memorandum in further support of his petition. Dkt. No. 12. Dawes' petition, which is now fully briefed, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed.R.Civ.P. 72(b).


A. Mootness

This court's subject matter jurisdiction is limited by Article III, Section 2 of the United States Constitution to matters that present a "case or controversy." Spencer v. Kemna, 523 U.S. 1, 7 (1998); Baur v. Veneman, 352 F.3d 625, 631-32 (2d Cir. 2003). A case ceases to meet the case or controversy requirement and instead becomes moot "when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 481 (1982).

A habeas petition, including one brought pursuant to 28 U.S.C. § 2254(a), is a vehicle by which a prison inmate may challenge the "fact or duration" of his confinement.[2] Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Peralta v. Vasquez, 467 F.3d 98, 102 (2d Cir. 2006). In this case, because the portion of the hearing officer's penalty that recommended the loss of good time credits was rescinded when the DOCCS modified petitioner's sanction following the Appellate Division's decision, the disciplinary determination now challenged has no apparent direct effect on the duration of Dawes' confinement. Dkt. No. 10-8 at 2. Accordingly, petitioner's due process claim arising from the hearing is not cognizable in a habeas proceeding pursuant to section 2254, and must be brought in a civil rights action pursuant to 42 U.S.C. § 1983.[3] See Stallone v. Fischer, No. 10-CV-0615, 2011 WL 5040669, at *6 (W.D.N.Y. Oct. 21, 2011) (finding that, because the petitioner challenged only the fact of his disciplinary SHU confinement, rather than the duration of his confinement, his claim was not cognizable under federal habeas review);[4] Adams v. McGinnis, 317 F.Supp.2d 243, 244 (W.D.N.Y. 2004) (directing petitioner to show cause why the petition was appropriately commenced pursuant to section 2254, rather than section 1983, where the allegations in the petition did not challenge the overall length of his confinement but rather asserted a due process claim based on allegations that, inter alia, he was denied inmate assistance in connection with the disciplinary hearing). Dawes' habeas petition, which is limited to challenging the conditions of his confinement, including the disciplinary SHU portion of the sanction imposed, should therefore be denied.

B. Certificate of Appealability

In order for a petitioner to appeal a final order denying habeas relief by a state prisoner, he must receive a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b) ("In a habeas corpus proceeding in which the detention complained of arises from process issued by a state court, ... the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of apealability under 28 U.S.C. § 2253(c)."). A COA may only issue "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this instance, I conclude that the petitioner has not made a substantial showing of the denial of a constitutional right for purposes of a request for habeas relief. Accordingly, I recommend against the issuance of a COA in this case.


Petitioner's claims in this matter center upon the disciplinary proceedings relating to two separate but related misbehavior reports. Since the determination resulting from those proceedings, as modified, did not result in the loss of any good time credits, and thus did not affect the fact or duration of petitioner's confinement, the claims now asserted are not properly raised in a petition pursuant to 28 U.S.C. § 2254. Accordingly, it is hereby respectfully

RECOMMENDED that the petition in this matter be DENIED in all respects; and it further hereby

RECOMMENDED, based upon my finding that Dawes has not made a substantial showing of the denial of a constitutional right, that a certificate of appealability not be issued with respect to any of the claims set forth in his petition.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in ...

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