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Harding v. Venettozzi

United States District Court, N.D. New York

January 26, 2015

ERIC HARDING, Plaintiff,
v.
DONLAD VENETTOZZI, Acting Director of SHU; RANDY LAMORA, Hearing Officer Defendants.

ERIC HARDING, Auburn Correctional Facility, Auburn, New York, Plaintiff pro se.

JOSHUA L. FARRELL, AAG, OFFICE OF THE NEW YORK, STATE ATTORNEY GENERAL, The Capitol Albany, New York Attorneys for Defendants.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

Plaintiff pro se Eric Harding (hereinafter "Plaintiff"), an inmate currently in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that Defendants Donald Venettozzi and Lieutenant Randy LaMora violated his rights under the Fourteenth Amendment. See generally Dkt. No. 1. Presently pending is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Dkt. No. 23-3. On November 20, 2014, Magistrate Judge Hummel submitted a Report-Recommendation and Order recommending that the Court grant Defendants' motion for summary judgment. See Dkt. No. 35.

Currently before the Court are Plaintiff's objections to Magistrate Judge Hummel's Report-Recommendation and Order. See Dkt. No. 38.

II. BACKGROUND

A. Factual Background

For a complete recitation of the factual background, refer to Magistrate Judge Hummel's Report-Recommendation and Order. See Dkt. No. 35 at 2-6.

B. Magistrate Judge Hummel's November 20, 2014 Report-Recommendation and Order

In his November 20, 2014 Report-Recommendation and Order, Magistrate Judge Hummel recommended that the Court grant Defendants' motion for summary judgment. See id. Magistrate Judge Hummel determined that, as to Plaintiff's procedural due process claim, Plaintiff had established a protected liberty interest, because the 365 day sentence in Special Housing Unit ("SHU") was far higher than a sentence of intermediate duration. Id. at 10. Magistrate Judge Hummel then found that Plaintiff received proper written notice in advance of the Tier III disciplinary hearing. Id. at 11. Next, Magistrate Judge Hummel recommended that the Court grant Defendants' motion in regard to the denial of witnesses, because Defendant LaMora "detailed his reasons for rejecting the nurse to testify at the hearing itself, and explained why the five inmates did not testify in Lamora's affidavit supplied in response to the instant suit." Id. at 13. Magistrate Judge Hummel then found that Defendant LaMora acted as a fair and impartial hearing officer despite Plaintiff's claims to the contrary. Id. at 17. Plaintiff relied on a single statement made by Defendant LaMora during the hearing, where he "articulated his point of view[, ]" to prove that Defendant LaMora was not fair and impartial. Id. at 15. Further, the Report-Recommendation and Order found that Defendant LaMora had reliable evidence of Plaintiff's guilt, and that Plaintiff had given inconsistent testimony of his version of the facts in the past. Id. at 15-16. Finally, Magistrate Judge Hummel found that Plaintiff received a written statement of the hearing disposition, the final procedural due process requirement in this situation. Id. at 17.

Magistrate Judge Hummel also recommended that the Court grant Defendants' motion for summary judgment based on qualified immunity, because Plaintiff failed to established that Defendants violated his Fourteenth Amendment rights. Id. at 18.

C. Plaintiff's objections

Plaintiff raises three objections to the Report-Recommendation and Order. See Dkt. No. 38.

First, Plaintiff argues that denial of his requested witnesses was a violation of procedural due process, because 7 N.Y.C.R.R. § 254.5 (2015) allows witnesses to have their testimony recorded outside the presence of the inmate. Dkt. No. 38 at 10. He then cites an opinion from the Tenth Circuit, Ramer v. Kirby, 936 F.2d 1102 (10th Cir. 1991), that held a refusal to call witnesses is a denial of due process, and is an especially important right when it is an inmate's word against the word of a prison guard. Id. at 11. Finally, Plaintiff cites an Eighth Circuit case, Graham v. Baughman, 772 F.2d 441 (8th Cir. 1985), for the proposition that a prisoner is denied due process when a hearing officer refuses to hear testimony that corroborates the witness' own story. Id. at 9.

Second, Plaintiff again objects to the recommended dismissal of Defendant LaMora, who Plaintiff claims was not an impartial and fair hearing officer due to statements made by Defendant LaMora during the hearing. Id. at 12. Plaintiff cites Patterson v. Coughlin, 905 F.2d 564 (2d Cir. 1990), as an example of how a hearing officer may violate procedural due process rights by acting in a manner that is not fair and impartial. Id. at 13.

Third, Plaintiff objects to the recommendation finding that Defendants are entitled to qualified immunity. Id. at 16. Plaintiff claims that Defendant Venettozzi reversed and expunged Plaintiff's disciplinary hearing decision due to failure to submit an opposition brief in his Article 78 proceeding, after he had already served his SHU sentence. Id. at 16. Plaintiff also claims that Defendant Venetozzi's failure to reverse the ...


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