United States District Court, W.D. New York
DECISION AND ORDER
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.
Standard for Determining Undisputed Facts
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.
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.
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).
of background to the instant matter, Plaintiff alleges that a
"tier 3 superintendent's hearing" 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"),
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. (Id. at 33).
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
(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
(5) Unusual Incident Report and Use of Force paperwork;
(6) List of officers and nurses involved;
(7) Rehearing procedures;
(8) To/from memoranda; and
(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).
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).
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 ¶
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).
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).
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).
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).
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).
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).
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). 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). Esgrow never
stated that "it was not [his] job" to help
Plaintiff. (Id. at ¶ 94).The hearing
concluded on May 3, 2010. (Id. at ¶ 91).
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.
Standard of Review
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).
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).
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).
Plaintiffs Due Process Claims
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).
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,
§ 1. Although prisoners retain some rights under the due
process clause, ...