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Ortiz v. Prack

United States District Court, N.D. New York

March 20, 2017

ENRIQUE ORTIZ also known as Enrequie Ortiz, Plaintiff,
v.
ALBERT PRACK, Director of Special Housing/Inmate Discipline, Defendant.

          ENRIQUE ORTIZ PLAINTIFF, PRO SE

          OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL ATTORNEYS FOR DEFENDANTS

          MARK G. MITCHELL, AAG OF COUNSEL

          MEMORANDUM-DECISION AND ORDER

          Mae A. D'Agostino, U.S. District Judge

         I. INTRODUCTION

         Plaintiff 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.

         Currently 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.

         II. BACKGROUND

         Plaintiff, 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.

         According 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."[1] 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 27.

         Hearing 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.

         Defendant 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.

         On 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.[2] 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)).

         Plaintiff 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."[3] Id.

         A. Plaintiff's Motion to Compel Discovery

         In the 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).

         On 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.

         B. Magistrate Judge Baxter's September 22, 2016 Report-Recommendation

         In his 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.

         C. Plaintiff's Objections

         Plaintiff 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 individually below.

         1. Defendant Waived the "Some Evidence" ...


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