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holding the post-Iqbal landscape does not preclude liability where "supervisory personnel affirmed a decision that they knew to have been imposed in violation of Plaintiff s due process rights, thus continuing a deprivation of liberty without due process of law"
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No. 09 Civ. 6899 (LTS)
05-09-2011
FELIX DELGADO, Plaintiff, v. NORMAN R. BEZIO et al., Defendants.
MEMORANDUM ORDER
Plaintiff Felix Delgado ("Delgado" or "Plaintiff"), proceeding pro se, asserts he was deprived of due process of the law when he was tried and adjudged guilty in a prison disciplinary hearing for attempting to acquire a parole officer's home address. He alleges, among other things, that he was given insufficient notice of the critical facts of the accusation against him, was found guilty without sufficient evidentiary support and was not informed of the evidence the hearing officer relied upon in reaching his conclusion. Delgado further alleges that he was held in special housing unit confinement for 125 days in conditions that constituted a deprivation of liberty and cruel and unusual punishment.
Delgado filed these allegations in an Amended Complaint made pursuant to 42 U.S.C. § 1983 against the Director of Special Housing and Inmate Disciplinary Program for the New York State Department of Correctional Services, Norman R. Bezio ("Bezio"); Acting Director of Special Housing and Inmate Disciplinary Program, Albert Prack ("Prack"); Superintendent of Otisville Correctional Facility, Catherine Cook ("Cook"); Deputy Superintendent of Administration of Otisville Correctional Facility, Steven Brandow ("Brandow"); Captain for Otisville Correctional Facility, Charles Weeden ("Weeden"); Sergeant at Otisville Correctional Facility, Charles Howerter ("Howerter"); and Inmate Records Coordinator I at Otisville Correctional Facility, Joan M. Pauley ("Pauley" and, collectively, "Defendants") in their official and individual capacities.
Defendants filed the instant motion to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and the Plaintiff has not opposed the motion. This Court herein reviews the merits of the motion to determine whether the movants have carried their burden. See McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000) ("If a complaint is sufficient to state a claim on which relief can be granted, the plaintiff's failure to respond to a Rule 12(b)(6) motion does not warrant dismissal") The Court has considered carefully the parties' submissions and, for the following reasons, the Defendants' motion is granted in part and denied in part.
B ACKGROUND
The following facts are drawn from the Amended Complaint unless otherwise indicated. On October 24, 2007, Delgado was moved from the general prison population into the Special Housing Unit ("SHU") and given notice that he would be tried in a Tier III disciplinary hearing. The Inmate Misbehavior Report, which constituted Delgado's notice of the charge against him, read in pertinent part, as follows:
Plaintiff's Amended Complaint references exhibits attached to the original Complaint. All exhibits referenced by the Amended Complaint are considered to be incorporated therein.
2) Location of Incident[:] Bld. 17 Hearing Room. Incident Date[:] 10/22/07. Incident Time[:] Approx 6:15 p.m.(Compl. Ex. I.) The date and time written in section 2 as the "Incident Date" and "Incident Time" are the only indications of date and time found in the report. The language in section 4 indicates that the date and time listed refer to the date and time when Howerter interviewed Foley and not, in fact, the date of the alleged misconduct - that is, they do not refer to the date and time when Delgado is alleged to have violated rule 113.26 by attempting to acquire Parole Officer Cassel's home address. The Inmate Misbehavior Report was signed by defendants Howerter and Weeden. (Id.)
3) Rule Violation(s)[:] 113.26 Inmates shall not solicit personal identifying information of department employees.
4) Description of Incident[:] On above date and time I Sgt. Howerter recieved [sic] confidential information that inmate Delgado 93A0549 has been attempting to acquire the home address of SR. Parole Officer Cassel.
Delgado's prison disciplinary hearing was held on October 26 and November 2, 2007. Delgado selected Counselor Candelaria "to assist him with gathering evidence and information for his defense" prior to the hearing. (Am. Compl. ¶ 29.) At the hearing, Delgado denied the charged behavior, arguing that it would not have been in his interests to jeopardize his parole prospects and that he had no reason to seek his parole officer's home address. Parole officer Cassel testified that Delgado had not spoken with him since approximately June of the prior year. Delgado asked that the attorney who had been handling his parole matters, Cheryl Kates ("Kates"), be permitted to testify, but this request was denied on the grounds that Kates "can provide no relevant testimony related to [the] incident in question." (Compl. Ex. M.) The confidential informant who had accused Plaintiff was an inmate named John Foley. Foley did not testify at the hearing, confidentially or otherwise, and Plaintiff was not informed of Foley's identity until after the hearing. Plaintiff was also not informed that Foley had originally told prison officials that a single, unnamed inmate was trying to acquire parole officer Cassel's address and that, when interviewed by Howerter, Foley said that two inmates, Delgado and someone named Peretti, were both seeking Cassel's address.
Delgado was found guilty and sentenced to six months in SHU with 30 days suspended and "loss of package, loss of commissary, [and] loss of phone" privileges. In rendering this disposition, defendant Brandow, the hearing officer, described the evidence he had relied upon as follows:
I find you guilty. The reason why I find you guilty, okay, first[] let's see, confidential information which was established during the investigation, various documents, listen to me now, related to the confidential investigation, corroborated charges with the misbehavior report. That's why I came to my decision.(Id.) Delgado asked Brandow whether he had "conducted a[n] independent assessment of this confidential source or whoever this person was that provided confidential information." (Compl. Ex. L p14.) Brandow responded that he had "reviewed all the documents and came to a conclusion from [Delgado's] testimony, from the confidential informant's testimony, and the confidential informant's to-froms." (Id. p15.) Delgado was given a copy of the hearing disposition on November 2, 2007. Under the heading "Statement of Evidence Relied Upon," it stated in its entirety:
[The] evidence relied upon was confidential information which was established during an investigation. Various documents relating to the confidential investigation corroborate charges within the misbehavior report written by Sgt. Howerter.(Compl. Ex. P-1.) Under the heading "Reasons for Disposition," it stated in its entirety:
This disposition is intended to dissuade this inmate for [sic] acting in this manner in the future and to punish him for this unacceptable behavior. This type of
behavior will not be tolerated and this disposition should serve as a future deterrent to inmate population.(Id.)
For six weeks following the entry of disposition, Kates attempted to get a copy of the record of the disciplinary hearing and to have Delgado's SHU sentence reversed or reduced. After receiving the hearing record, she submitted a 23-page legal memorandum on Delgado's behalf, citing to the hearing transcript and applicable law, dated December 11, 2007. The sentence was summarily affirmed by defendant Cook on November 23, 2007, by defendant Prack on December 14, 2007, and by defendant Bezio on January 28, 2008. Delgado was released from SHU in February 2008.
Conditions of Delgado's Confinement
Delgado served 125 days at the Southport Correctional Facility, a maximum security facility exclusively for SHU inmates. In his Complaint, Delgado alleges he was "stripped of all personal property, including nutritional foods, cosmetics, and clothing, as well as blankets to keep warm." During the "severe winter season," he was deprived of warm clothing and personal blankets; heat in his cell was kept at a minimum, and at night officers would open the windows, which inmates were unable to close. On most days, Delgado was locked in his cell 23 of the 24 hours and was given one hour to exercise in a steel metal cage. He was escorted in metal restraints when moving to and from his cell and the exercise cage. He was allowed only two showers and one visit each week. Once a month, he was allowed to receive cosmetics and stationery from the commissary but was denied any other commissary privileges. He was not permitted to receive packages except books by mail. These allegations are taken as true for the purposes of this motion practice. Upon release from SHU, Delgado was transferred to the Wende Correctional Facility, also a maximum security facility.
D ISCUSSION
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In the case of a pro se litigant, the Court reads pleadings leniently and construes them to raise "the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). While this guidance applies with particular force when a pro se plaintiff's civil rights are at issue, McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), the pleadings still must contain factual allegations that raise a "right to relief above the speculative level." Dawkins v. Gonyea, 646 F. Supp. 2d 594, 603 (S.D.N.Y. 2009) (quoting Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007)).
Claims Against Defendants in their Official Capacities
A state official is entitled to Eleventh Amendment sovereign immunity to the extent that state official is sued in his or her official capacity. See Kentucky v. Graham, 473 U.S. 159, 169 (1985); Spencer v. Doe, 139 F.3d 107, 111 (2d Cir. 1998). "A suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); see also Huminski v. Corsones, 396 F.3d 53, 70 (2d Cir. 2005). "The Eleventh Amendment, through the doctrine of sovereign immunity, bars suits in federal court against a state absent a waiver of immunity or congressional legislation specifically overriding immunity." Robinson v. Fischer, No. 09 Civ. 8882, 2010 WL 5376204 (S.D.N.Y. Dec. 29, 2010) (citing Pennhurst State Sch. & Hospital v. Halderman, 465 U.S. 89, 99 (1984)). New York State has not consented to § 1983 suits in federal court. Mamot v. Board of Regents, 367 F. App'x 191, 192 (2d Cir. 2010). Plaintiff's claims against Defendants in their official capacities will, accordingly, be dismissed on sovereign immunity grounds.
Fourteenth Amendment Due Process Claim
Plaintiff asserts he was denied due process because: (1) he did not receive adequate notice of the critical facts of the accusation against him; (2) he was improperly denied the opportunity to call a certain witness; (3) he was founding guilty without a sufficient evidentiary basis and without the facts supporting the finding being disclosed to him; (4) he was denied effective assistance of counsel; and (5) he was denied a copy of his hearing transcript in adequate time to prepare a meaningful appeal.
Plaintiff's Liberty Interest
To proceed on a due process claim, a plaintiff must plead sufficient facts to show the deprivation of a liberty interest without due process of law. Dawkins v. Gonyea, 646 F. Supp. 2d 594, 605 (S.D.N.Y. 2009). "Prison discipline implicates a liberty interest when it imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. (citation omitted). When assessing whether confinement constitutes an "atypical and significant hardship," courts take into account the duration and the conditions of the confinement. Id. at 606 (citation omitted). There is no bright line rule but, generally, a period of confinement in SHU lasting fewer than 101 days does not by itself amount to atypical and significant hardship, while confinement in SHU for 305 days or more has been found to be "atypical and significant without any further aggravating conditions." Id. at 606 (citation omitted). A confinement lasting 125 to 288 days is "relatively long and thus necessitat[es] specific articulation of factual finding." Sims v. Artuz, 230 F.3d 14, 23 (2d Cir. 2000), cited in Dawkins, 646 F. Supp. 2d at 606. Delgado was confined in SHU for 125 days, and he has alleged additional facts that could support a finding of atypical and significant hardship. He has therefore pleaded sufficiently that he suffered the deprivation of a protected liberty interest.
Inadequate Notice
"Due process requires that, in a prison disciplinary hearing resulting in the imposition of solitary confinement, an inmate must be afforded advance written notice of the charges against him . . . ." Dawkins v. Gonyea, 646 F. Supp. 2d at 608. Notice should provide enough information to enable the inmate to prepare a defense. Id. Further, "notice should include information about the date, place, and manner of the alleged misconduct" where possible. Id. An inmate has "a heightened need for adequate notice" when "the majority of the evidence presented against him [i]s not made available to him." Id.
In Dawkins v. Gonyea, inmate Dawkins was served a misbehavior report identifying him as "one of two inmates responsible for distributing a large amount of heroin throughout the facility." 646 F. Supp. 2d at 602. On the misbehavior report, "the incident date and time recorded [we]re the date and time [a] confidential informant conveyed information to the officers, not the date and time Dawkins actually participated in the alleged violations." Id. at 608. The report did not identify any "sites within the facility where Dawkins allegedly engaged in the charged conduct." Id. at 609. Furthermore, the report failed to specify the particulars of the incident of misbehavior involved and it failed to identify the other inmate involved in the alleged misconduct. Id. The court held that "a report lacking one of the categories of information about the violation . . . the date and time, the place the inmate is alleged to have participated, the manner in which it was perpetrated, the identity of any other persons involved, and the roles the participants played" might still be sufficient to constitute adequate notice; however, a report lacking all of these details does not provide the accused enough information to defend himself. Id.
In the instant case, as in Dawkins, the misbehavior report Delgado received disclosed the date, time and place when and where the investigating officer acquired the confidential accusation but lacked the more critical information of the date, time and place of the alleged misconduct. The report provided no indication of the circumstances or nature of Delgado's alleged attempt to obtain the address information, and the report did not indicate that the "confidential information" on which it relied came from an informant, let alone that there was a single informant. The pleadings indicate that the confidential informant was concerned for his safety; this concern may have justified Defendants' withholding some information from the Plaintiff but it does not, on the current record, excuse the complete denial of meaningful information that Delgado could have used to prepare a defense. Therefore, the motion to dismiss the due process claim of inadequate notice will be denied.
Calling Witnesses
Due process requires that an inmate in a disciplinary hearing be permitted to call witnesses and present evidence in his defense. See Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991) (citations omitted). This right, however, is "subject to the mutual accommodation between institutional needs and objectives and the provisions of the Constitution. . . ." Id. (citation and internal quotation marks omitted). A prisoner's right to call witnesses may be denied if granting the request would be "unduly hazardous to institutional safety or correctional goals" or the proposed testimony would be irrelevant or unnecessary. Id. "The burden is . . . upon the official to prove the rationality of the position." Id. (citation omitted). Here, Delgado sought to call Kates, the lawyer who had been handling his parole application. Hearing officer Brandow denied this request because he concluded that Kates could provide "no relevant testimony related to [the] incident in question." Brandow did not explain the basis for this conclusion. At this stage, the Court need not, and does not, make a finding on whether Kates' testimony would have been relevant, but the facts alleged in the Complaint support a plausible inference that the testimony would have been highly relevant to questions of Delgado's motive and the credibility of his accuser, given that the substance of the confidential informant's accusation was that Delgado requested the address in order to obtain a document relevant to his parole effort and Kates was the attorney who was responsible for communicating with that parole officer on Delgado's behalf. The motion to dismiss Delgado's due process claim that he was improperly prohibited from calling Kates as a witness will be denied accordingly.
The "Some Evidence" Standard and Presentation of Evidence
Due process dictates that a finding of guilt in a prison disciplinary hearing must be supported by "some evidence." Dawkins v. Gonyea, 646 F. Supp. 2d at 610 (citation omitted). Additionally, "an inmate facing disciplinary proceedings is entitled to know the evidence upon which a disciplinary ruling is based" or, if evidence is withheld, to receive a reasonable explanation as to why it was withheld. Id. at 611-12 (citation omitted). "[T]he 'some evidence' standard may be met even if the sole evidence was supplied by a confidential informant, as long as there has been some examination of indicia relevant to the confidential informant's credibility." Id. (citation and some internal punctuation omitted). "When sound discretion forecloses confrontation and cross-examination, the need for the hearing officer to conduct an independent assessment of informant credibility to ensure fairness to the accused inmate is heightened." Id. (citation omitted).
All of the evidence supporting the charge against Delgado was derived from a single, confidential informant, and the documentation before the Court on this motion practice is ambiguous as to whether the informant ever actually testified before Brandow, the hearing officer. When asked whether he had conducted an assessment of the informant's credibility, Brandow said that he had "conducted an investigation of all the relevant documents" and "reviewed all the documents and came to a conclusion from [Delgado's] testimony, from the confidential informant's testimony, and the confidential informant's to-froms." However, nowhere in the copy of the hearing record that is annexed to the original complaint is there any testimony attributable to the informant. Rather, Brandow's knowledge as to the informant's accusation appears to have come entirely from the report and hearsay testimony of officer Howerter. Further, Brandow's response that he "conducted an investigation" is ambiguous as to whether it refers to the overall investigation into Delgado's guilt or to an assessment specifically of the informant's credibility.
When Brandow rendered his decision, he did not reveal to Delgado what evidence was relied on, stating only that:
The evidence relied upon was confidential information which was established during an investigation. Various documents relating to the confidential
investigation corroborate charges within the misbehavior report written by Sgt. Howerter.Accordingly, the Court will deny the motion to dismiss Delgado's claim that his due process rights were violated when a decision was rendered against him without a sufficient evidentiary basis and without disclosure of the evidence relied upon.
Inadequate Assistance of Counsel
Inmates are not entitled to counsel in prison disciplinary proceedings. Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993) (citation omitted). Delgado's constitutional claim will be dismissed insofar as it is based on inadequate assistance of counsel.
Production of Hearing Record in Time for Administrative Appeal
It is well established that an inmate does not have a constitutional due process right to receive a transcript of his disciplinary hearing. See, e.g., Dixon v. Goord, 224 F. Supp. 2d 739, 744 (S.D.N.Y. 2002) (citations omitted). Accordingly, Petitioner's due process claim will be dismissed insofar as it is premised on his lawyer receiving a transcript only after his administrative appeal was filed. Because defendant Pauley's only alleged misconduct is failing to promptly produce the hearing record, she will be dismissed from this suit.
Eighth Amendment Claim
"Restraints on an inmate do not violate the [Eighth] amendment unless they are totally without penological justification, grossly disproportionate, or involve the unnecessary and wanton infliction of pain." Dixon v. Goord, 224 F. Supp. 2d 739, 748 (S.D.N.Y. 2002) (citation and internal punctuation omitted). To establish an Eighth Amendment violation, "an inmate must show (1) a deprivation that is objectively, sufficiently serious that he was denied the minimal civilized measure of life's necessities, and (2) a 'sufficiently culpable state of mind' on the part of the defendant official, such as deliberate indifference to inmate health or safety." Id. at 751.
Delgado alleges he was "stripped of all personal property, including nutritional foods . . . and clothing." To the extent this allegation can be understood to mean that Plaintiff had no nutritional food and no clothing for 125 days, the Court finds it implausible without more detailed allegations demonstrating the factual basis of the claim. The Court construes the allegation, instead, to mean that, although the Plaintiff was given prison-issued clothing, he could not keep any personal clothing, and that although he received prison-provided food, he was not allowed to obtain or possess additional food that he considered to be more nutritious. So construed, this allegation does not state a plausible claim that Plaintiff was denied the "minimal civilized measure of life's necessities" - the basic necessities of food and clothing having been provided by the prison.
Plaintiff also alleges that during the winter months, he was made to sleep with the windows open and the heat at a minimum and that he was without his "personal blankets." Again, the Court construes the word "personal" to mean "owned by the inmate" and in contrast to "prison-issued." As such, the Court does not read the Amended Complaint to allege that Plaintiff was completely deprived of bedding but, rather, that he was deprived of additional blankets that he may have purchased or received from outside the prison. Plaintiff concedes that the heat was kept on, albeit at a minimal level. Sleeping with the windows open and heat low during the winter in New York might constitute an atypical and significant hardship, as in Corselli v. Coughlin, where an inmate alleged that prison officials had subjected him to cruel and unusual punishment when they forced him to sleep in solitary confinement with the windows open in sub-zero temperatures that caused ice to form in the toilet bowl and the inmate to became ill for over a month with a cold, fever and cramps. 842 F.2d 23, 27 (2d Cir. 1988). In light of these allegations, the Second Circuit reversed a district court's grant of summary judgment against the inmate, holding that the inmate had stated a claim sufficiently to be resolved by the trier of fact. Id.
However, incarceration with bedding of some sort, the heat kept on and no allegation of illness or sub-zero temperatures inside the cell does not constitute a denial of the minimal civilized measure of life's necessities. Petitioner's other allegations of hardship are all less severe than his allegations of being denied sufficient food, clothing and heat during the winter, and they do not rise to the level of depicting cruel and unusual treatment either. Therefore, Petitioner's claim that he was subjected to cruel and unusual punishment will be dismissed.
Personal Involvement
As explained above, the Court will dismiss Delgado's Eighth Amendment claim and his due process claims premised upon ineffective assistance of counsel and untimely issuance of the hearing record, and all claims asserted against the Defendants in their official capacities. Delgado's other personal-capacity claims may proceed against only those Defendants who are alleged to have been personally involved. "Imposition of liability under section 1983 requires a defendant's direct involvement in the alleged constitutional violation." Prescott v. Riker Island Med. Staff, No. 09 Civ. 255, 2011 WL 1435218, at *4 (S.D.N.Y. Apr. 12, 2011) (citation omitted). Defendants do not dispute that Howerter, Weeden and Brandow were personally involved in the conduct giving rise to Delgado's claims, so the remaining claims against them will be permitted to go forward.
Defendants Prack, Bezio and Cook are each alleged to have affirmed, or declined to reconsider, the disposition of Delgado's disciplinary hearing. Until recently, it was clear that the personal involvement of a supervisor was to be evaluated in this Circuit by reference to the five-category test articulated in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). See Qasem v. Toro, 737 F. Supp. 2d 147, 151 (S.D.N.Y. 2010). A supervisor's personal involvement could be demonstrated 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 to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Colon, 58 F.3d at 873. The continuing vitality of this test has been called into question in light of the Supreme Court's holding in Ashcroft v. Iqbal that "[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." 129 S. Ct. 1937, 1948 (2009); see also Qasem, 737 F. Supp. 2d at 151.
The Second Circuit has not yet addressed the impact, if any, of Iqbal on the Colon standard. Courts in this district have reached contrary conclusions, holding in some cases that only the first and third Colon categories remain viable bases for liability, see, e.g., Bellamy v. Mt. Vernon Hosp., 07 civ 1801, 2009 WL 1835939, at *4 (S.D.N.Y. June 26, 2009) and, in other cases, that "the personal involvement required to overcome a 12(b)(6) motion varies depending on the constitutional provision alleged to have been violated" such that the applicability of each Colon category will depend on the nature of the violation alleged, see Qasem, 737 F. Supp. 2d at 151-52; see also D'Olimpio v Crisafi, 718 F. Supp. 2d 340, 346-47 (S.D.N.Y. 2010).
This Court agrees with the latter line of reasoning. The Iqbal Court specifically observed that "[t]he factors necessary to establish a Bivens violation will vary with the constitutional provision at issue," Iqbal, 129 S. Ct. at 1948, and that a Bivens action is the "federal analog to suits brought against state officials under . . . 42 U.S.C. § 1983." Id. (citation omitted). "It was with intent-based constitutional claims in mind, specifically racial discrimination, that the Supreme Court rejected [in Iqbal] the argument that a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution." Sash v. United States, 674 F. Supp. 2d 531, 544 (S.D.N.Y. 2009). Thus, where the claim does not require a showing of discriminatory intent, the Colon analysis should still apply, insofar as it is "consistent with the particular constitutional provision alleged to have been violated." Qasem, 737 F. Supp. 2d at 151-52. Here, Plaintiff does not assert an intentional discrimination claim of the sort that was at issue in Iqbal, and intent is not an element of his due process claims.
Plaintiff's due process claims against Prack, Bezio and Cook fall into the second Colon category of personal involvement - namely, that "the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong." Colon, 58 F.3d at 873. The Iqbal decision would clearly preclude liability of a supervisor on the basis of mere knowledge that a subordinate had rendered a decision that was intentionally discriminatory, and would likely preclude as well a claim based on affirmance of such a decision (at least absent a proffer that the affirmance was intentionally discriminatory). However, it cannot be said that the Iqbal holding precludes liability where, as is alleged here, supervisory personnel affirmed a decision that they knew to have been imposed in violation of Plaintiff's due process rights, thus continuing a deprivation of liberty without due process of law. Plaintiff claims that he was denied due process by reason of the withholding of information on confidentiality grounds at his disciplinary hearing. He also alleges that he appealed to, or sought reconsideration from, Defendants Prack, Bezio and Cook. In his appeal and reconsideration-request papers, his attorney identified the withholding of information as grounds for the infirmity of the decision and argued that the reliance on confidential information denied Plaintiff the ability to defend himself at the hearing. (Compl. Ex R, Nov. 15, 2007, appeal letter; Compl. Ex. V, Dec. 11, 2007, appeal letter.) Defendants Prack, Bezio and Cook each denied an appeal or request for reconsideration. Read in the light most favorable to Plaintiff, his Complaint and supporting documents allege sufficiently the personal involvement of Prack, Bezio and Cook, as they are alleged to have had the power, and to have refused, to vacate a penalty they knew had been imposed in violation of Plaintiff's due process rights, thus violating Plaintiff's constitutional rights by knowingly continuing a deprivation of liberty without due process of law. Accordingly, the motion will be denied to the extent it seeks dismissal of Plaintiff's due process claims against Prack, Bezio and Cook.
Qualified Immunity
Government officials performing discretionary functions generally enjoy qualified immunity from civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would know." Dawkins v. Gonyea, 646 F. Supp. 2d 594, 612-13 (S.D.N.Y. 2009) (citation omitted). "A right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant [would] have understood from the existing law that [his] conduct was unlawful." Johnson v. Goord, 487 F. Supp. 2d 377, 398 (S.D.N.Y.2007) (citation omitted). Furthermore, prison officials, including hearing officers, are "charged with knowledge of relevant decisional law, especially the decisions of the circuit in which they perform their official duties." Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989).
The right to adequate notice of a prison disciplinary hearing has been clearly established by both the Supreme Court and the Second Circuit. See Dawkins v. Gonyea, 646 F. Supp. 2d 594, 613 (2009) (citing Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974), and Sira v. Morton, 380 F.3d 57, 70 (2d Cir. 2004)). The right to call witnesses at such a hearing has also been clearly established by both courts, subject to certain safeguards, which are also clearly established. Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991) (citing Ponte v. Real, 471 U.S. 491, 495 (1985)). The Second Circuit has also clearly established that "an independent assessment is necessary to satisfy the 'some evidence' standard when a disciplinary decision is based solely on confidential information" and that an inmate has a "due process right to know the evidence upon which a discipline ruling is based." Id. at 614 (citing Sira, 380 F.3d at 77, 74). Accordingly, there is an insufficient basis for the Court to find at this stage that any Defendants are entitled to qualified immunity. As this matter proceeds, Defendants may, of course, proffer evidence and reassert their qualified immunity defense.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss the Amended Complaint is granted with regard to all claims brought against Defendants in their official capacities, the Eighth Amendment claim and the due process claims premised on ineffective assistance of counsel and the untimely issuance of a hearing record. The motion to dismiss is denied in all other respects. This Memorandum Order resolves docket entry number 15. This case remains referred to Magistrate Judge Katz for general pretrial management.
SO ORDERED. Dated: New York, New York
May 9, 2011
/s/_________
LAURA TAYLOR SWAIN
United States District Judge