United States District Court, W.D. New York
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Michael Brooks, Plaintiff, Pro se, Alden, NY.
For Albert Preck, Director of Special Housing Unit, Steven J. Piecuch, Corrections Counselor, James Esgrow, Commissioner's Hearing Officer All defendants are being sued in their individual and official capacity, Defendants: Bernard F. Sheehan, LEAD ATTORNEY, N.Y.S. Attorney General's Office, Department of Law, Rochester, NY.
DECISION AND ORDER
HON. ELIZABETH A. WOLFORD, United States District Judge.
Pro se Plaintiff Michael Brooks (" Plaintiff" ), a prisoner housed at Southport Correctional Facility, filed this action seeking relief under 42 U.S.C. § 1983, alleging violations of the Due Process Clause of the Fourteenth Amendment in connection with the 2010 rehearing of a 2008 misbehavior report. (Dkt. 1). Presently before the Court is Defendants' motion to dismiss and motion for summary judgment. (Dkt. 8). For the following reasons, Defendants' motion to dismiss is granted in part and denied in part. Defendants' motion for summary judgment is denied without prejudice.
The statement of facts that follows is based on the allegations contained in Plaintiff's complaint.
On July 28, 2008, Plaintiff was issued a misbehavior report charging him with assault on staff, refusing a direct order, and insolent language. (Dkt. 1 at ¶ 8). The misbehavior report was allegedly the result of an incident in which Plaintiff assaulted Officer Harden following his refusal to move into a new cell. ( Id. at ¶ 9). Plaintiff allegedly " charged" Officer Harden with a cart and struck him, after which a struggle ensued. ( Id.).
A " tier 3 superintendent's hearing"  (the " first disciplinary hearing" ) was held on August 8, 2008, relating to the incident involving Officer Harden. ( Id. at ¶ 10). On August 12, 2008, Plaintiff was found
guilty and issued a penalty of 20 months in solitary confinement (" SHU" ), loss of privileges for 20 months, and " twenty (20) months loss of good time." ( Id. at ¶ 11). Plaintiff and his attorney, Michael Cassidy, Esq., filed timely administrative appeals of the first disciplinary hearing. ( Id. at ¶ 12). Plaintiff's attorney thereafter filed a proceeding under Article 78 of the New York Civil Practice Law and Rules on May 27, 2008. ( Id. at ¶ 14). On January 29, 2009, the Commissioner's designee decided Plaintiff's administrative appeal: Plaintiff's 20-month SHU and 20-month loss of privileges penalties were affirmed, but his " loss of good time" penalty was reduced from 20 months to 12 months. ( Id. at ¶ 13). On January 8, 2010, the Honorable Robert Mueller, J.S.C., who presumably heard Plaintiff's Article 78 petition, ordered that Plaintiff be granted a new hearing. ( Id. at ¶ 15).
Plaintiff was re-served with the misbehavior report relating to the 2008 incident with Officer Harden on March 5, 2010. ( Id. at ¶ 20). Plaintiff was assigned an inmate assistant, defendant Steven Piecuch (" Piecuch" ), to assist him in his hearing. ( Id. at ¶ 21). On March 5, 2010, Plaintiff met with defendant Piecuch and requested various materials in preparation for his hearing, including: (1) interviews of inmates and porters in his cellblock during 2008; (2) log book entries; (3) the watch commander log book; (4) unusual incident (" UI" ) reports and use of force (" UF" ) reports; (5) nurse interview reports; (6) officer interview reports; (7) rehearing procedures; (8) to-and-from memos; (9) photographs of inmates and officers; (10) a videotape of the 2008 incident; and (11) a list of questions to ask potential witnesses. ( Id.). Piecuch gave Plaintiff " an incomplete UI and UF and a handwritten log book entry," and informed Plaintiff that he would not be able to locate the witnesses requested by Plaintiff as the incident occurred over two years prior. ( Id. at ¶ ¶ 22-23). Piecuch allegedly took Plaintiff's request for materials and never returned. ( Id. at ¶ 24). Plaintiff alleges that Piecuch failed to assist him in the following ways:
(1) Plaintiff was never given the answers to the questions he proposed for potential witnesses, which deprived Plaintiff of the opportunity to marshal the evidence in time for his hearing;
(2) Piecuch never provided Plaintiff with witness refusal forms, or otherwise indicated how their interview would represent a safety threat or would have been redundant;
(3) The inmate assistant form did not indicate if anyone was interviewed, or if any witnesses agreed or refused to testify at Plaintiff's hearing;
(4) Piecuch did not finish filling out the inmate assistant form; and,
(5) The inmate assistant form indicated that a majority of the documents requested by Plaintiff were never produced, including the list of inmates in E7 block, list of porters, photographs, interviews of nurses and witnesses, and command logs.
( Id. at ¶ ¶ 26-30).
Plaintiff's rehearing commenced on March 10, 2010, at which time Plaintiff informed the hearing officer, defendant James Esgrow (" Esgrow" ), of the lack of assistance he received from inmate assistant Piecuch. ( Id. at ¶ 31). Plaintiff also objected that his hearing was not timely. ( Id. at ¶ 32). Plaintiff requested a new inmate assistant several times during his
hearing; however, Esgrow denied these requests and refused to assign Plaintiff a new assistant. ( Id. at ¶ ¶ 37-38, 44-45). Plaintiff also alleges that it was discovered during the hearing that Piecuch " secretly was providing [Esgrow] with documents and information." ( Id. at ¶ 53). Plaintiff alleges the following violations occurred during the hearing:
(1) It was never determined which witnesses were interviewed and which refused to testify for Plaintiff;
(2) Esgrow failed to introduce inmate refusal forms into the record;
(3) Esgrow failed to demonstrate that producing the inmate refusal forms would have constituted a threat to institutional safety or would have been redundant;
(4) Esgrow failed to make a part of the record the efforts made to secure the testimony of inmate witnesses that could not be located;
(5) Esgrow refused to help Plaintiff, because it was " not his job" ;
(6) Esgrow refused to allow testimony to show that Plaintiff's rights were violated before the hearing began, and that his rights were violated during the hearing;
(7) Esgrow refused to allow Plaintiff's witnesses to be asked whether they had been interviewed;
(8) Esgrow used the testimony of the author of the misbehavior report to deny Plaintiff video documentary evidence and exonerating verbal testimony;
(9) When Plaintiff objected to Esgrow as being biased, Esgrow refused to hear further evidence, and refused to allow Plaintiff to object;
(10) Esgrow failed to inquire as to what happened to the videotape, such as " was it recycled or was it destroyed intentionally, or who did it." ;
(11) When Plaintiff requested photographs of Officer Harden, Esgrow produced photographs of an unidentified officer;
(12) Plaintiff requested the pictures, but Esgrow denied the request, stating that Plaintiff could only look at the pictures during the hearing;
(13) Plaintiff was denied a pen and paper; and,
(14) When Esgrow called the author of the misbehavior report as a witness, he did not ask the officer if it was ...