United States District Court, N.D. New York
ENRIQUE ORTIZ PLAINTIFF, PRO SE
OF THE NEW YORK STATE ATTORNEY GENERAL ATTORNEYS FOR
G. MITCHELL, AAG OF COUNSEL
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge
pro se Enrique Ortiz (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 violation of his due
process rights with respect to a disciplinary hearing and
subsequent appeal. Plaintiff's complaint is against the
Director of Special Housing and Inmate Disciplinary Program,
Defendant Albert Prack. Defense counsel filed a motion for
summary judgment pursuant to Fed.R.Civ.P. 56. Magistrate
Judge Baxter issued a Report-Recommendation on September 22,
2016, recommending that the Court grant Defendant's
motion for summary judgment.
before the Court are Plaintiff's objections to Magistrate
Judge Baxter's Report-Recommendation, and Plaintiff's
appeal from Magistrate Judge Baxter's denial of his
motion to compel discovery.
an inmate at Coxsackie Correctional Facility ("Coxsackie
C.F."), filed this action after being housed in the
Special Housing Unit ("SHU") as the result of a
disciplinary hearing disposition in August 2011. See
Dkt. No. 1 at 5-6. Plaintiff became the subject of a
disciplinary hearing after receiving a letter in the mail
that said "Thank you for the cigarettes, Russ, "
accompanied by a money order in the amount of seventy
dollars. Dkt. Nos. 27-4, 27-5. The return address was listed
as "J.T. Russell, " another inmate at Coxsackie
C.F. at the time. Dkt. No. 27-5. Plaintiff was questioned by
Sergeant Yung regarding the letter, because the
correspondence presented a potential violation of certain
inmate rules. Dkt. No. 27-6 at 1.
to Plaintiff, Sergeant Yung asked Plaintiff if he knew an
inmate named "Jeffery T. Russell, " to which
Plaintiff responded that he was not familiar with that name,
but perhaps knew the inmate by another name. Dkt. No. 1 at 5.
Sergeant Yung then showed Plaintiff the letter and money
order addressed to Plaintiff. Id. Plaintiff then
proceeded to tell Sergeant Yung that Plaintiff purchased nine
packages of cigarettes from the commissary store.
Id. Following this meeting, Plaintiff was placed in
"keeplock." Id. The next day, August 25,
2011, Plaintiff was issued a misbehavior report charging him
with unauthorized exchange, smuggling, and facility
correspondence. Dkt. No. 27-6 at 1. As part of the
disciplinary process, Plaintiff was given an assistant to
help him with the upcoming hearing. Dkt. No. 27-3 at 31.
Plaintiff's assistant for the disciplinary process met
with Plaintiff later that day, whereby Plaintiff requested
"all of the documentary evidence that was generated with
the misbehavior report, " to prepare for the hearing.
Dkt. No. 1 at 6. Plaintiff states in his complaint that the
disciplinary assistant responded that "all of the
documentary evidence would be given to plaintiff at the
hearing and not one day before." Id. Prior to
the hearing, Plaintiff requested two witnesses, inmate
Russell, and inmate Russell's father, Franklin Russell.
Dkt. No. 27-3 at 19. Plaintiff wanted to call Franklin
Russell to testify in order to show that Franklin Russell,
not inmate Jeffrey Russell, sent the money order.
See Dkt. No. 27-2 at 24. Although inmate Russell
provided testimony at the disciplinary hearing,
Plaintiff's request for Franklin Russell was denied.
Id. at 27. Officer Gutwein denied this request
because "J.T. Russell" was listed as the return
address, not Franklin Russell. See Dkt. No. 27-3 at
Officer Eric Gutwein (hereinafter "HO Gutwein")
conducted the hearing, which took place from August 29 to
September 8, 2011. Id. at 19. HO Gutwein found
Plaintiff guilty of all three violations and imposed a
penalty taking away commissary, phone, and package
privileges. Dkt. No. 27-6 at 1. The money order was
confiscated, and six months of recorded good time was taken
away from Plaintiff. Id. In addition to these
penalties, Plaintiff was sentenced to confinement in the SHU
for six months. Id.
Prack reviewed the disciplinary hearing on November 16, 2011,
and reduced Plaintiff's penalty from six to four months
of confinement in the SHU, finding that "THE NATURE OF
THE OFFENSE, HOWEVER SERIOUS, DOES NOT WARRANT THE PENALTY
IMPOSED." Dkt. No. 27-3 at 4-5.
March 9, 2012, Plaintiff filed suit in the Albany County
Supreme Court seeking review of his disciplinary hearing
pursuant to Article 78 of the New York Civil Practice Law and
Rules. Dkt. No. 27-8 at 2; Dkt. No. 27-9 at 12. Plaintiff
sought to reverse and vacate the final disciplinary
determination of November 16, 2011. Dkt. No. 27-9 at 12. In the
Article 78 proceeding, Defendant Prack was not listed as a
defendant. See Dkt. No 27-8 at 1. Plaintiff's
hearing was reversed and expunged on May 23, 2012, for
failure to maintain a complete electronic recording of the
hearing. Id. at 6. Thereafter, on July 30, 2012 the
Albany County Supreme Court issued a decision dismissing
Plaintiff's petition as moot, stating that Plaintiff
"received all of the relief to which he is
entitled." Id. at 3 (quoting Matter of
Scott v. Prack, 97 A.D.3d 861, 861 (N.Y.App.Div. 2012)).
subsequently brought this federal action pursuant to 42
U.S.C. § 1983 alleging violations of his due process
rights with respect to the disciplinary hearing and
subsequent appeal. See Dkt. No. 1 at 6-7. Plaintiff
asserts that Defendant Prack was "wholly aware"
that the electronic recording was incomplete when Defendant
Prack modified Plaintiff's penalties on November 16,
2011. Dkt. No. 1 at 7. As such, Plaintiff contends that the
reversal and expungement on May 23, 2012 should have occurred
when Defendant Prack first reviewed the disciplinary hearing
and issued the November 16, 2011 decision. See Id.
Plaintiff argues that Defendant Prack's "fail[ure]
to remedy the situation" during the initial review
"thereby caus[ed] [P]laintiff to be confined and without
privileges for another 125 days." Id.
Plaintiff's Motion to Compel Discovery
Mandatory Pretrial Discovery and Scheduling Order
("Scheduling Order"), Magistrate Judge Baxter
established a discovery deadline of March 19, 2016. Dkt. No.
16 at 5. The Scheduling Order articulated that the discovery
deadline serves as the "latest date upon which discovery
responses may be due, " and that any written requests
must be "served sufficiently in advance of [March 19,
2016] to ensure compliance with this requirement."
Id. at n.5 (citing Local Rules N.D.N.Y. 16.2).
November 6, 2015, Plaintiff wrote to Magistrate Judge Baxter
requesting leave to serve interrogatories in lieu of a
deposition. Dkt. No. 18 at 1. On November 25, 2015,
Magistrate Judge Baxter responded by text order informing
Plaintiff that he did not need permission of the court to
serve interrogatories and reminded Plaintiff of the March 19,
2016 deadline. Dkt. No. 21. This text order again advised
Plaintiff that he "must serve discovery requests on
defendant sufficiently in advance of the discovery completion
date (set for March 19, 2016) so as to afford defendant at
least thirty days to respond." Id. Nearly three
months later, on February 23, 2016, Plaintiff served
interrogatories on Defendant Prack. Dkt. No. 23 at 4. In
response, Defendant Prack objected to the interrogatory
demands as untimely because they were not served thirty days
prior to the discovery deadline. Id. at 17-18.
Plaintiff filed a motion to compel responses to
interrogatories and document demands directed to Defendant
Prack. Id. at 3. Magistrate Judge Baxter denied
Plaintiff's motion on the grounds of untimeliness,
further noting that "[P]laintiff has received the
discovery he reasonably requires to prosecute his
action." Dkt. No. 24 at 3. Plaintiff wrote this Court
seeking "an order granting reconsideration and objection
to Magistrate Judge Baxter's denial of"
Plaintiff's motion to compel. Dkt. No. 25 at 1.
Magistrate Judge Baxter's September 22, 2016
motion for summary judgment, Defendant Prack presented the
following arguments: (i) Defendant Prack lacked the requisite
personal involvement to sustain a claim; (ii) the failure to
maintain an electronic record of the hearings did not violate
Plaintiff's constitutional rights and the disciplinary
findings are supported by "some evidence;" (iii)
the failure to have Franklin Russell testify did not violate
Plaintiff's due process rights; (iv) Defendant Prack is
entitled to qualified immunity; (v) Plaintiff was not
deprived of a cognizable liberty interest; and (vi) Eleventh
Amendment immunity precludes Plaintiff's claims for
damages against Defendant Prack in his official capacity.
Dkt. No. 27-12 at 2. In a September 22, 2016
Report-Recommendation, Magistrate Judge Baxter recommended
that the Court grant Defendant's motion for summary
judgment and dismiss Plaintiff's complaint. Magistrate
Judge Baxter thoroughly addressed the issues of
Defendant's personal involvement, and Plaintiff's
alleged due process violations. Magistrate Judge Baxter
concluded that, while Defendant may have been personally
involved, Plaintiff's due process rights were not
violated with respect to the disciplinary hearing process.
See Dkt. No. 37 at 10, 37.
timely filed objections to the Report-Recommendation on
November 30, 2016, alleging that Defendant Prack waived the
"some evidence" defense by failing to raise it in
the Article 78 proceeding, and that the disciplinary hearing
was constitutionally flawed for failing to meet the
"some evidence" standard. See Dkt. No. 30
at 5, 10. While Plaintiff only raises two objections, these
objections include multiple issues raised in the
Report-Recommendation that the Court will address
Defendant Waived the "Some Evidence"