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Brooks v. Piecuch

United States District Court, W.D. New York

March 27, 2017

MICHAEL BROOKS, Plaintiff,
v.
STEVEN J. PIECUCH, Corrections Counselor, and JAMES ESGROW, Commissioner's Hearing Officer, Defendants.

          DECISION AND ORDER

         INTRODUCTION

         Pro se Plaintiff Michael Brooks ("Plaintiff), a prisoner housed at Sing Sing Correctional Facility, filed this action seeking relief under 42 U.S.C. § 1983. (Dkt. 1). Presently before the Court is Defendant Piecuch's and Defendant Esgrow's (collectively, "Defendants") motion for summary judgment. (Dkt. 30). For the following reasons, Defendants' motion is granted.

         FACTUAL BACKGROUND

         I. Standard for Determining Undisputed Facts

         Defendants served Plaintiff with the present motion for summary judgment, which included a "Local Rule 56 Notice to Pro Se Litigant" to alert Plaintiff to the procedural requirements of summary judgment and the repercussions of not responding to the motion. (Dkt. 30-2). The Court clearly and specifically reiterated the warning to Plaintiff of the consequences of not responding in its motion scheduling order. (Dkt. 31). Pursuant to the Local Rules of Civil Procedure, Defendants appended a Rule 56 statement of undisputed facts to their motion for summary judgment. (Dkt. 30-1).

         Despite the warnings afforded Plaintiff, he has failed to file an opposing statement contesting the facts presented by Defendants or otherwise respond to Defendants' motion. Thus, the Court may accept as undisputed Defendants' Rule 56 statement as long as the Court is satisfied that the statement's citations to the evidence in the record support the assertions made. See Vt. Teddy Bear Co., Inc v. 1-800 Beargram Co., 373 F.3d 241, 244, 246 (2d Cir. 2004) ("[T]he failure to respond may allow the district court to accept the movant's factual assertions as true."); Gubitosi v. Kapica, 154 F.3d 30, 31 n.l (2d Cir. 1998) ("We accept as true the material facts contained in [the] defendants' [Rule 56 material facts] statement because [the] plaintiff failed to file a response."); see also L.R. Civ. P. 56(a)(2) ("Each numbered paragraph in the moving party's statement of material facts may be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement."). Accordingly, the Court deems admitted those facts in Defendants' Rule 56 statement to the extent that they are supported by admissible evidence and are not controverted by the record.

         II. Undisputed Facts

         While Plaintiff was located at Clinton Correctional Facility, he was issued a misbehavior report on July 28, 2008, charging him with assault on staff, refusing a direct order, lock-in directions, and insolent language. (Dkt. 1 at ¶ 8; Dkt. 30-5 at 147). The report was written by Officer R. Harnden, who reported that Plaintiff "grabbed the feed- up cart and began charging [him] with [the] cart, " "slammed the feed-up cart into [him], striking [his] arms, then . . . [striking him] with what [he] believe[s] was [Plaintiffs] right fist to [Officer Harnden's] right forehead." (Dkt. 30-5 at 147; see also Dkt. 1 at ¶ 9). A struggle reportedly ensued during which other officers arrived and assisted in bringing Plaintiff into compliance with direct orders to stop resisting and struggling. (See Dkt. 30-5 at 147-48). The report indicates that Plaintiff was then escorted to a hospital exam room. (See Id. at 148).

         By way of background to the instant matter, Plaintiff alleges that a "tier 3 superintendent's hearing"[1] was held on August 8, 2008, at which he was found guilty and punished with 20 months in solitary confinement, loss of privileges for 20 months, and loss of 20 months' good time. (See Dkt. 1 at ¶¶ 10-11). Plaintiff and his attorney, Michael Cassidy, Esq., filed an administrative appeal in which the original disposition was affirmed, except that the recommended loss of good time was reduced from 20 months to 12 months. (Id. at ¶¶ 12-13). Plaintiff and his attorney filed a proceeding under Article 78 of the New York Civil Practice Law and Rules on May 27, 2008, pursuant to which it was adjudicated, on January 8, 2010, that Plaintiff should receive a new hearing. (Id. at ¶¶ 14-15). Plaintiff alleges numerous Fourteenth Amendment due process deprivations pursuant to 42 U.S.C. § 1983 relating to the ensuing rehearing. (See generally Dkt. 1). The claims remaining after this Court's previous decision on the motion to dismiss (Dkt. 15) include allegations of deprivation due to insufficient inmate assistance by his assistant, Defendant Steven Piechuch ("Piecuch"), [2] denial by Defendant Hearing Officer Esgrow ("Esgrow") of Plaintiffs right to submit evidence at his rehearing, and the recommencement of the hearing outside of Plaintiff s presence.[3] (Id. at 33).

         The undisputed facts in this case establish that on March 5, 2010, Plaintiff was reserved the misbehavior report relating to the July 28, 2008, incident described above that took place at Clinton Correctional Facility. (Dkt. 30-1 at ¶ 5). At the time of the reserving, Plaintiff was housed at Southport Correctional Facility. (Id. at ¶ 6). Prior to the Tier III re-hearing, Plaintiff selected three potential assistants to help him prepare for the hearing. (Id. at 7). His first choice was Piecuch. (Id.). Piecuch met with Plaintiff on March 5, 2010, in order to act as Plaintiffs assistant. (Id. at ¶ 8). During the meeting, as noted on the Assistant Form, Plaintiff requested:

(1) All inmates and all porters on E-7 be interviewed as potential witnesses;
(2) A list of all E-7 inmates and a list of E-7 porters;
(3) Chapter 5 (DOCCS Directive No. 4932) and Chapter 7;
(4) Log book entries for E-7 and watch commander log book entries;
(5) Unusual Incident Report and Use of Force paperwork;
(6) List of officers and nurses involved;
(7) Rehearing procedures;
(8) To/from memoranda; and
(9) Photographs.

(Id. at ¶ 9; Dkt. 30-3 at 9). On March 9, 2010, Piecuch returned to complete Plaintiffs assistance. (Dkt. 30-1 at ¶ 10; Dkt. 30-3 at 9).[4]

         When Piecuch returned, he informed Plaintiff that he requested witnesses be asked to testify at the hearing and that Plaintiff could request a complete list of former E-7 inmates and their current locations from the hearing officer, who would determine if the request was appropriate. (Dkt. 30-1 at ¶¶ 11-12). Piecuch provided Plaintiff with Chapter 5 and told Plaintiff that he could request Chapter 7 from the library. (Id. at ¶ 13). Similarly, Piecuch informed Plaintiff that he could request the complete hearing officer's manual from the law library through the Freedom of Information Law ("FOIL"). (Id. at ¶ 19). Piecuch requested the log book entries for the E-7 Gallery and the watch commander log book entries; however, the watch commander log book entries were unavailable. (Id. at ¶ 14). The log book entry was obtained over telephone from Clinton Correctional Facility's discipline office and provided to Plaintiff. (Id. at ¶¶ 15- 16). Plaintiff was provided the Unusual Incident Report and Use of Force Report, which were complete to the best of Piecuch's knowledge, and all the To/From memoranda that accompanied the Unusual Incident Report. (Id. at ¶¶ 17, 20). He also told Plaintiff that all of the nurses and officers involved in the incident were identified in the Unusual Incident Report. (Id. at ¶ 18). Finally, Piecuch informed Plaintiff that he could view photographs of the officers at the hearing and that the hearing officer would determine if such a request was appropriate. (Id. at ¶ 21). Piecuch noted all of the information that he provided to Plaintiff on the Assistant Form, but Plaintiff refused to sign the Assistant Form. (Id. at ¶¶ 23-24; Dkt. 30-3 at 9).

         While Plaintiff denies receiving some of this information from Piecuch, he admits that he received or was allowed to view these documents at some point, and that he received at least some documents from Piecuch. (Id. at ¶ 22).[5] Though Plaintiff alleges to the contrary in his complaint, the undisputed facts show that Plaintiff did not request from Piecuch a videotape of the incident, nor did he request that Piecuch ask the requested witnesses any specific questions, and never provided Piecuch with a list of questions to ask prospective witnesses. (Id. at ¶¶ 25-27). Additionally, there is no evidence on the Assistant Form that Plaintiff provided Piecuch with such a list. (Id. at ¶ 29). Further, Plaintiff never requested for Piecuch to obtain written statements from any prospective witnesses. (Id. at ¶ 31). Additionally, Plaintiff was provided an opportunity to question witnesses at his hearing, but chose not to do so. (Id. at ¶ 30).

         Piecuch never told Plaintiff that witnesses could not be located or probably went home, or told Plaintiff that witnesses agreed or refused to testify because Piecuch did not know whether witnesses had agreed or refused to testify. (Id. at ¶¶ 32-33). Nor did Piecuch fail to provide Plaintiff with witness refusal forms because the status of Plaintiffs requests for witnesses were unknown at the time of the conclusion of the tier assistance on March 9, 2010. (Id. at ¶ 34). Piecuch never represented to Plaintiff that Plaintiff would not receive witness refusal forms because it would represent a threat to institutional safety or that interviewing prospective witnesses would have represented a threat to institutional safety and correctional goals, or that any interviews would be redundant. (Id. at ¶¶ 38-39).

         On the contrary, Piecuch ascertained the locations of all inmates in the E-7 Gallery and contacted the facilities that housed those inmates. (Id. at ¶¶ 35-36; Dkt. 30-3 at 11, 13). Some of the located inmates had been released, some refused to testify, and two inmates agreed to testify. (Dkt. 30-1 at ¶ 37; Dkt. 30-3 at 11). Ultimately, Plaintiff was provided with many of the materials that he requested, after consultation with Esgrow. (Id. at ¶ 41). Documents that Plaintiff did not receive during the tier assistance meetings were either unavailable or Plaintiff was not permitted to receive the documents, but could request to view them at the hearing. (Id. at ¶ 42). Piecuch never secretly provided the hearing officer with any documents. (Id. at ¶ 43).

         As to the hearing itself, Esgrow was the designated hearing officer. (Id. at ¶ 46). The hearing occurred over multiple days between March 10, 2010, and May 3, 2010. (Dkt. 30-4 at 48, 99). Various extensions were requested and granted to allow time to receive documents and video, call witnesses, and consider the evidence and render a decision. (Dkt. 30-1 at ¶ 48). Plaintiff was allowed to call witnesses and present documentary evidence. (Id. at ¶ 50). He was also allowed to present objections, which were acknowledged at the hearing. (Id. at ¶ 51; see generally Dkt. 30-4 at 47-101). Plaintiff was unable to recall names or DIN numbers of any inmate witnesses he wished to testify on his behalf, so Esgrow requested and was provided a list of all inmates in E-7 Gallery at Clinton Correctional Facility at the time of the original incident, but was unable to identify inmate porters from other galleries who served as porters on E-7 at the time of the incident. (Id. at ¶¶ 52-53, 71). Of the 19 inmates located, nine refused to testify, five had been released already, three did not respond, and two agreed to testify. (Id. at ¶¶ 54, 72-73). At the hearing, Esgrow asked Plaintiff what questions he would like to ask the inmates who agreed to testify, asking whether Plaintiff wanted to "know what they saw and what they heard." (Dkt. 30-4 at 60). Plaintiff indicated yes, but review of the transcript makes it evident that Plaintiff was expressing his wish that the witnesses be interviewed before they testified as to anything. (Id. at 61-62). Plaintiff indicated that he did not have questions for staff witnesses. (Dkt. 30-1 at ¶ 76). The two inmate witnesses who could be located and who agreed to participate testified at the hearing. (Id. at ¶¶ 77-81). Plaintiff declined to ask any questions of the first witness, Mr. Fox, and objected to his testimony. (Dkt. 30-4 at 69). Plaintiff attempted to ask the second witness, Mr. Morrison, whether he had been interviewed by anyone prior to testifying, but Esgrow disallowed this question and Plaintiff declined to ask further questions. (Id. at 75). Plaintiff objected to both witnesses. (Id. at 76; Dkt. 30-1 at ¶¶ 77-82). Plaintiff also declined to ask questions of Officer Harnden when he testified as to what happened on the date of the incident. (Dkt. 30-4 at 83-84). Plaintiff repeatedly refused to testify as to his version of what happened on July 28, 2008. (Dkt. 30-1 at ¶ 84).

         Esgrow allowed Plaintiff to review requested photographs during the hearing, but did not allow Plaintiff to retain the photographs. (Id. at ¶ 62). At the hearing, Plaintiff indicated that he had already received copies of the Unusual Incident Report, part of the Use of Force Report, and the log book entry for the E-7 Gallery, as he had requested. (Id. at ¶ 63). Because Plaintiff indicated that he had not received copies of the To/From memoranda, Esgrow provided Plaintiff with copies of the Unusual Incident Report, Use of Force Report, To/From memoranda, inmate injury report, memorandum concerning a video, memorandum concerning urinalysis, memorandum concerning photos, a copy of the E-Block log entry from July 28, 2008, and a copy of a handwritten entry from log page 3 of 3. (Id. at ¶ 64). Plaintiff was also able to view a copy of the employee accident/injury report for Officer Harnden. (Id. at ¶ 65).

         Plaintiff, at the hearing, requested a copy of a video that he believed captured the incident. (Id. at ¶ 66). Plaintiff was shown a video of his escort from medical to x-ray and of Plaintiff having x-rays taken; however, he indicated that this was not the video he wanted. (Id. at ¶¶ 67-68). Officer Harnden testified that there was no video of the incident itself because Clinton Correctional Facility does not have video in the location of the incident and that there was no handheld camera present during the incident. (Id. at ¶ 69). Regardless, Esgrow made further inquiry of Clinton Correctional Facility and determined that there was no other video available. (Id. at ¶ 70).

         Based on the misbehavior report authored by Office Harnden, the testimony of Officer Harnden, the Unusual Incident Report, the Use of Force Report, and accompanying memoranda, Esgrow found Plaintiff guilty on all counts of assault on staff, harassment, refusing a direct order, and movement regulation violation. (Id. at ¶ 86; Dkt. 30-4 at 100). Based on the misbehavior report, assistance selection form, Assistant Form, and Plaintiffs statements concerning what he requested and what he received, Esgrow found that Plaintiff had received adequate opportunity for meaningful assistance. (Dkt. 30-4 at 100). At no time did anyone provide Esgrow with documents or other information in secret, nor did Esgrow re-open the hearing or modify the tape to include secret testimony. (Dkt. 30-1 at ¶¶ 87-88). Further, the hearing transcript is an accurate representation of what occurred at Plaintiffs hearing, contrary to Plaintiffs claims. (Id. at ¶¶ 89-90).[6] At the conclusion of the hearing, Plaintiff was given a copy of the disposition, a blank appeal form, and Form 2176 (Witness Interview Notice). (Id. at ¶ 92).[7] Esgrow never stated that "it was not [his] job" to help Plaintiff. (Id. at ¶ 94).[8]The hearing concluded on May 3, 2010. (Id. at ¶ 91).

         PROCEDURAL BACKGROUND

         Plaintiff filed the instant action on July 2, 2013, pursuant to 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). Defendants filed a motion to dismiss and motion for summary judgment on October 25, 2013. (Dkt. 8). On December 31, 2014, this Court dismissed the motion for summary judgment without prejudice as premature and granted the motion to dismiss in part as to Plaintiffs claims against former-Defendant Prack, the supervisory liability claim against Esgrow, and the claims of hearing officer bias and hearing timelines. (Dkt. 15). Now that discovery has concluded, Defendants have moved again for summary judgment. (Dkt. 30). Plaintiff was twice granted an extension of time to respond to Defendants' motion for summary judgment. (Dkt. 33; Dkt. 35). Plaintiff sent a letter to the Court, dated May 10, 2016, and received May 16, 2016, in which he advised the Court that he had prepared a response to Defendants' motion, but was not in control of the date it would be mailed. (Dkt. 36). Ten weeks later, on July 25, 2016, the undersigned's Chambers responded to Plaintiffs letter, requesting an update as to whether Plaintiff intended to pursue the case further and whether he intended to send to the Court his response. The Court received another letter from Plaintiff on August 22, 2016, dated July 29, 2016, in which he explained that he was waiting for an answer from the Facility Correspondence Department as to the mailing of his response and requested more time to inquire into the matter. (Dkt. 37). Approximately 11 weeks later, the undersigned's Chambers sent a second letter to Plaintiff on December 7, 2016, advising him that as of December 31, 2016, the Court would deem the matter fully submitted and would take the motion under advisement. The Court has received no further correspondence from Plaintiff.

         DISCUSSION

         I. Standard of Review

         Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)) (emphasis in original). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

         In addition, "[i]t is well settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read to 'raise the strongest arguments that they suggest.'" Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citation omitted). Moreover, "a pro se litigant should be afforded every reasonable opportunity to demonstrate that he has a valid claim." Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984).

         Where there has been no response to the motion, as here, "the fact that there has been no response to a summary judgment motion does not. . . mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). "[T]he district court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law." Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).

         II. Plaintiffs Due Process Claims

         Plaintiff claims that Defendants violated his procedural due process rights in connection with his disciplinary rehearing in 2010. (Dkt. 1). Defendants argue that Plaintiffs claims against them should be dismissed because there is no genuine issue of material fact for trial. (Dkt. 30-6).

         Section 1983 requires a plaintiff to "show that the conduct in question deprived him of a right, privilege, or immunity secured by the Constitution or the laws of the United States, and that the acts were attributable at least in part to a person acting under color of state law." Reed v. Medford Fire Dep't, Inc.,806 F.Supp.2d 594, 609 (E.D.N.Y.2011) (citing Washington v. Cty. of Rockland,373 F.3d 310, 315 (2d Cir. 2004)). The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const, amend. XIV, ยง 1. Although prisoners retain some rights under the due process clause, ...


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