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Elde v. McCarthy

United States District Court, W.D. New York

June 23, 2017

JARVIS ELDER, Plaintiff,
J. McCARTHY, Sergeant, T. MacINTYRE, Corrections Officer, KEN KLING, Hearing Officer/ Voc. Supr., ALBERT PRACK, Dir. of Special Housing, and MARK L. BRADT, Superintendent, Defendants.


          CHARLES J. SIRAGUSA United States District Judge.


         This is an action under 42 U.S.C. § 1983 brought by Jarvis Elder (“Plaintiff”), a prison inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”). Now before the Court are Plaintiff's motion for summary judgment (Docket No. [#80]) and Defendants' cross-motion for summary judgment [#82]. Plaintiff's application is denied, Defendants' application is granted in part, and this action is dismissed.


         Unless otherwise noted, the following are the undisputed facts of this case. In September 2012, Plaintiff was housed at Attica Correctional Facility (“Attica”), where Defendant J. McCarthy (“McCarthy”) was a Corrections Sergeant, Defendant T. MacIntyre (“MacIntyre”) was a Corrections Officer, Defendant Ken Kling (“Kling”) was a Vocational Supervisor and Hearing Officer, and Defendant Mark Bradt (“Bradt”) was Superintendent.

         On September 11, 2012, McCarthy issued Plaintiff a misbehavior report, charging him with two infractions: “forgery” and “stealing.” The misbehavior report indicated that a week earlier, on September 4, 2012, an inmate named Reginald Lawrence (“Lawrence”) had complained to McCarthy that someone had, on multiple occasions, stolen funds from his inmate account by forging his signature on disbursement request forms. While investigating that claim, McCarthy obtained copies of seven forged disbursement forms, which had been used to debit a total of $630 from Lawrence's account, as well as other documents relating to payments that were made after the disbursement forms were processed.[1] Although some portions of the disbursement forms are not legible, it appears that Lawrence's name is misspelled as “Lawerance” on all of them, though Lawrence's inmate identification number is correctly set forth.

         Pursuant to facility rules, the disbursement forms bore not only Lawrence's purported signature, but were also purportedly countersigned or initialed by corrections officers who had verified that Lawrence was the person submitting the disbursement form.

         All seven of the forged disbursement forms directed that payment be made to the same person: “Chris Brinson.” Plaintiff admits that he knows “a few Chris Brinsons, ” but contends that they do not spell their last names exactly as set forth on the disbursement forms.[2] McCarthy also obtained a copy of a cleared check that had been issued by Attica, pursuant to one of the forged disbursement forms, directing funds from Lawrence's account to be paid to “Chris Brinson.” The back of the check was endorsed by two people: “Chris Brinson” and “Winifred Pike.” Winifred Pike happens to be the name of Plaintiff's mother.[3]

         The same day that Lawrence complained to McCarthy about the forgeries, a fire destroyed the contents of Plaintiff's cell, which was located near Lawrence's cell. Later that day, McCarthy received confidential information that Lawrence was “involved in possible drug activity, ” and that he had set the fire in Plaintiff's cell. McCarthy searched Lawrence's cell and discovered items of property belonging to Plaintiff, including an address list, a phone list, and three disbursement forms bearing Plaintiff's name. Two of the disbursement forms directed payment to “W. Pike, ” and the reader will recall that “Winifred Pike” is both the name of Plaintiff's mother and one of the names endorsed on the check drawn on Lawrence's inmate account.

         The following day, September 5, 2012, McCarthy showed Plaintiff the documents that he had found in Lawrence's cell. Plaintiff indicated that the documents were his, and that it was his handwriting on the disbursement forms. Plaintiff told McCarthy that he did not know how his papers had ended up in Lawrence's possession.

         McCarthy then noticed that the handwriting on Plaintiff's disbursement forms was similar to the writing on the forged disbursement forms that had been used to debit Lawrence's account. Based upon the similarity of the handwriting, McCarthy charged Plaintiff with forgery and stealing.

         Upon being charged with these disciplinary infractions, Plaintiff was placed in keeplock (confined to a cell) in a different cell block while awaiting a Tier 3 disciplinary hearing. Consequently, defendant MacIntyre was assigned to act as Plaintiff's assistant to help him prepare for the hearing, pursuant to 7 N.Y.C.R.R. § § 251-4 & 253.4. Plaintiff maintains that he asked MacIntyre to do the following things to prepare for the hearing: 1) arrange to have the officers who verified the signatures on the allegedly-forged disbursement forms present at the hearing; 2) arrange to have a handwriting specialist compare Plaintiff's handwriting to the handwriting on the allegedly-forged disbursement forms; 3) provide a copy of “Chapter V, ” apparently referring to 7 N.Y.C.R.R., Chapter V, which concerns, inter alia, procedures for disciplinary hearings;[4] 4) arrange to have Sergeant McCarthy present at the hearing; 5) arrange to have inmate Lawrence testify at the hearing; 6) provide a copy of the “forgery directive”; and 7) provide copies of the allegedly-forged disbursement forms. Plaintiff contends that MacIntyre returned after about twenty minutes and told him that he was unable to identify the officers who had verified the disbursement form signatures; that Lawrence was unwilling to testify; that Plaintiff had to wait until the hearing to see copies of the allegedly-forged documents; that there was no directive concerning forgery; and that Plaintiff would need to arrange with the hearing officer to have McCarthy testify. MacIntyre also apparently did not give Plaintiff a copy of “Chapter V, ” though the Amended Complaint suggests that MacIntyre understood Plaintiff to be requesting a “directive” concerning Chapter V, which does not exist.[5]

         On September 14, 2012, Plaintiff appeared for his disciplinary hearing before Kling. Kling reviewed with Plaintiff the charges against him and the documentary evidence supporting the misbehavior report.[6] In that regard, Plaintiff contends that Kling displayed the allegedly-forged disbursement forms to him, but did not allow him to personally handle them.[7] Plaintiff acknowledged that he had been served with a copy of the misbehavior report, and pleaded not guilty to both charges. Kling also reviewed with Plaintiff some of the requests that he had made to MacIntyre, which had been written on an “assistant form” that MacIntyre had filled out, and which Plaintiff had signed. Kling reiterated that inmate Lawrence was unwilling to testify. Plaintiff asked Kling if Lawrence had given a reason for his unwillingness to testify, and Kling responded, “[A]ll he wrote [is that he] does not want to testify.”[8] Kling stated that he could not force Lawrence to testify. Kling further told Plaintiff that he would need to be “more specific” about the corrections officers that he wanted to have testify, since he could not identify the officers who had signed the forged disbursement forms by their handwriting, which was illegible.[9] Plaintiff agreed that the signatures were illegible.[10] Plaintiff complained that MacIntyre had not given him copies of the “evidence against him, ” apparently referring to copies of the forged disbursement forms. Kling did not specifically respond to that statement, although, as already noted, he had already displayed the forms to Plaintiff. Kling then adjourned the hearing because McCarthy was unable to testify that day.

         On September 21, 2012, Kling resumed the hearing. Kling began by reviewing what had already occurred during the hearing, and then asked Plaintiff if he wanted to testify. Plaintiff testified, in pertinent part, that he “did not steal” anything from Lawrence and did not forge the disbursement forms.[11] Plaintiff also stated that he did not know how his personal papers had ended up in Lawrence's cell, and he speculated that Lawrence might have “t[aken] some of [his] stuff out of [his] cell and made it look like [his] handwriting.” Plaintiff further indicated that he could not have forged the forms because corrections officers were required to verify the signatures of the persons submitting the forms. Plaintiff also suggested that Lawrence was “trying to pull a scam to get money.”

         Plaintiff acknowledged that he had some type of relationship with Lawrence involving money, but he was extremely vague about the details. Plaintiff repeatedly referred to Lawrence as “the kid, ” which seems odd, since, according to DOCCS records, Lawrence is almost nine years older than Plaintiff.[12] In any event, Plaintiff stated that he had become acquainted with Lawrence and had “helped him out.” Plaintiff stated that Lawrence “had some money coming in, ” and that Plaintiff had done “some art work, ” and had obtained “art supplies” and “crafts” for Lawrence, and that Lawrence “knew these moneys was going to his address [sic].”[13] Plaintiff further stated that Lawrence had “a little stand - trying to get money but based on conversation that [k]new this money was going to this address [sic].”). Plaintiff did not explain these cryptic statements, even though Kling gave him the opportunity to do so.[14]

         Kling then took testimony from McCarthy, who described his investigation, and explained how he had concluded that Plaintiff was responsible for the forgeries, based upon the similarity of the handwriting. McCarthy indicated that he could not identify the officers who had apparently verified the signatures on the forged disbursement forms, and Kling interjected that he had also unsuccessfully attempted to identify the signatures by showing them to “different officers” “in the block.”[15] McCarthy acknowledged that it was facility policy for officers to verify inmates' identities when handing out mail and when taking disbursement forms, and stated that he “wouldn't be able to tell” how or why officers might have signed the forged forms. Lastly, McCarthy acknowledged that he was not a specialist in handwriting analysis.

         Kling then reviewed with Plaintiff the additional items that Plaintiff had requested. Kling told Plaintiff that he did not have access to a handwriting expert, and therefore could not provide one. Kling further indicated that there was no DOCCS “directive” concerning forgery.[16] Kling reiterated that it was impossible to identify or take testimony from the officers who had signed the disbursement forms, since their signatures were illegible, and Plaintiff responded that even though they could not identify the officers, the fact that the officers had signed the forms indicated that no forgery had occurred.[17] Kling asked Plaintiff if he wanted to submit any further evidence, and Plaintiff essentially made a closing argument, indicating that he had a good disciplinary record, but had “got[ten] involved with the wrong guy [Lawrence] who got [him] in trouble.”[18] Again, Plaintiff did not explain what he meant by having “gotten involved” with Lawrence. Kling asked Plaintiff if he had “any procedural objections [to] the way [he had conducted the hearing], ” and Plaintiff responded, “Um, I can say that you [were] pretty much fair you can only do so much you know so - I already object to it that is basically it [sic].”[19]

         After a brief adjournment, Kling announced that he had found Plaintiff guilty of both forgery and stealing, noting the “compelling similarity” between Plaintiff's handwriting and the writing on the forged disbursement forms.[20] Kling indicated that he credited McCarthy's testimony, and noted that Plaintiff had not offered a “credible defense.” Kling indicated that the officers' signatures on the forms did not disprove forgery, stating, “some officers may have been lax in verifying IDs.” Kling sentenced Plaintiff principally to six months in the Special Housing Unit (“SHU”). In that regard, Kling indicated that he considered the infraction to be severe from a security standpoint, particularly since the forgery and theft seemed to have precipitated dangerous retaliation, in the form of the arson to Plaintiff's cell.

         Plaintiff appealed his conviction to Bradt, the facility superintendent.[21] Bradt issued a form denial of the appeal, which gave no explanation other than a boilerplate statement that, “After review, I find no reason to modify the disposition rendered.”

         Plaintiff next filed an appeal with defendant Albert Prack (“Prack”), Director of DOCCS's SHU/Inmate Disciplinary Program.[22] On December 6, 2012, Prack issued a form decision, denying the appeal, and explaining only that the hearing “ha[d] been reviewed and affirmed.”

         Plaintiff next filed an Article 78 Proceeding in New York State Supreme Court, Wyoming County, which was transferred to the New York State Supreme Court, Appellate Division Fourth Department. On March 21, 2014, the court issued a Memorandum and Order, reversing the disciplinary conviction. However, by that time, Plaintiff had already served his SHU sentence.

         On May 1, 2014, Plaintiff commenced this action. In pertinent part the Amended Complaint contends that Plaintiff was innocent of the misbehavior charge, and that Defendants violated his due process rights under the Fourteenth Amendment to the U.S. Constitution, by falsely charging and convicting him of the infractions. On October 5, 2015, Plaintiff filed the subject motion for summary judgment [#80], and on November 16, 2015, Defendants filed the subject cross-motion for summary judgment [#82]. On December 16, 2015, Plaintiff filed a response [#84], [23] and on January 29, 2016, Defendants filed a reply [#85].


         Plaintiff's Pro Se Status

         Since Plaintiff is proceeding pro se, the Court has construed his submissions liberally, “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).

         Rule 56

         The parties have moved for summary judgment pursuant to Fed.R.Civ.P. 56. Summary judgment may not be granted unless "the movant shows 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). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). “[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied.” 11 Moore's Federal Practice, § 56.11[1][a] (Matthew Bender 3d ed.). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim.” Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert denied, 517 U.S. 1190 (1996).

         The burden then shifts to the non-moving party to demonstrate “specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Summary judgment is appropriate only where, “after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party.” Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993).

         Section 1983

         Plaintiff is suing pursuant to 42 U.S.C. § 1983, and the legal principles generally applicable to such claims are well settled:

In order to establish individual liability under § 1983, a plaintiff must show (a) that the defendant is a “person” acting “under the color of state law, ” and (b) that the defendant caused the plaintiff to be deprived of a federal right. See, e.g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Additionally, “[i]n this Circuit personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977).
An individual cannot be held liable for damages under § 1983 “merely because he held a high position of authority, ” but can be held liable if he was personally involved in the alleged deprivation. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996). Personal involvement can be shown by: evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference ... by failing to act on information indicating that unconstitutional acts were occurring. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995).

Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122, 127 (2d Cir. 2004).

         14th Amendment Procedural Due Process in Prison Disciplinary Hearings

         Plaintiff contends that Defendants violated his 14th Amendment procedural due process rights. In general, “[t]o prevail on a section 1983 due process claim arising out of a disciplinary hearing, a plaintiff must show that he both (1) possessed an actual liberty interest and (2) was deprived of that interest without being afforded sufficient process.” Liao v. Malik, No. 913CV1497GTSDEP, 2016 WL 1128245, at *4 (N.D.N.Y. Feb. 26, 2016) (citations omitted), report and recommendation adopted, No. 913CV1497GTSDEP, 2016 WL 1122069 (N.D.N.Y. Mar. 22, 2016). Here, Defendants do not dispute that Plaintiff possessed a liberty interest in avoiding confinement in the SHU for six months.

         Instead, Defendants contend that Plaintiff received due process. The legal principles on this point are clear:

The procedural safeguards to which a prison inmate is entitled before being deprived of a constitutionally cognizable liberty interest are well established under Wolff v. McDonnell, 418 U.S. 539 (1974). In its decision in Wolff, the Court held that the constitutionally mandated due process requirements include (1) written notice of the charges to the inmate; (2) the opportunity to appear at a disciplinary hearing and a reasonable opportunity to present witnesses and evidence in support of his defense, subject to a prison facility's legitimate safety and penological concerns; (3) a written statement by the hearing officer explaining his decision and the reasons for the action being taken; and (4) in some circumstances, the right to assistance in preparing a defense. Wolff, 418 U.S. at 564-69; see also Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004). To pass muster under the Fourteenth Amendment, it is also ...

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