Opinion
9:13-CV-01279 (MAD/TWD)
01-19-2016
SKYLER JACKSON, Plaintiff, v. NATHAN YANDO, et al., Defendants.
APPEARANCES: SKYLER JACKSON 08-A-2852 Plaintiff, pro se Southport Correctional Facility P.O. Box 2000 Pine City, NY 14871 HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants The Capitol Albany, NY 12224 OF COUNSEL: C. HARRIS DAGUE, ESQ. Assistant Attorney General
APPEARANCES: SKYLER JACKSON
08-A-2852
Plaintiff, pro se
Southport Correctional Facility
P.O. Box 2000
Pine City, NY 14871 HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Defendants
The Capitol
Albany, NY 12224 OF COUNSEL: C. HARRIS DAGUE, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge REPORT-RECOMMENDATION AND ORDER
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Mae A. D'Agostino, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Skyler Jackson, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), alleges violations of his rights under the Eighth and Fourteenth Amendments while he was confined at the Great Meadow Correctional Facility ("Great Meadow"). (See generally Dkt. No. 39.)
Plaintiff alleges that on October 11, 2010, Defendant Correction Officers Nathan Yando ("Yando"), Daniel Mulligan (Mulligan"), Jeremy Saunders ("Saunders"), Joseph Courtright ("Courtright"), Roger Morgan ("Morgan"), Cory Thayer ("Thayer"), Officer Kelly ("Kelly"), and Sergeant Colin Fraser ("Fraser") subjected Plaintiff to excessive force, and that Kelly, Thayer, and Fraser also failed to intervene and protect Plaintiff. Id. Plaintiff further alleges that Defendant Lieutenant Craig Goodman ("Goodman") denied Plaintiff due process during his subsequent Tier III disciplinary hearing. Id. Plaintiff also alleges supervisory liability claims against Superintendent Norman Bezio ("Bezio"). Id.
By Decision and Order, dated October 7, 2014, this Court dismissed this action as against deceased Correction Officer Roger Morgan. (Dkt. No. 57.)
Currently pending before the Court is Defendants' motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56, dismissing all claims against Thayer, Goodman, and Bezio. (Dkt. No. 69.) For the reasons discussed below, the Court recommends granting Defendants' motion as to the Eighth Amendment claim against Thayer and the Fourteenth Amendment claims against Goodman and Bezio. However, because Defendants did not address Plaintiff's Eight Amendment supervisory liability claim against Bezio, the Court recommends that with respect to that claim, Defendants' motion be denied.
I. BACKGROUND
Plaintiff alleges that on October 11, 2010, while he and other members of the "E-Block" housing unit at Great Meadow were walking to the facility mess hall for their afternoon meal, Plaintiff overheard Mulligan tell Courtright, "That's him right there." (Dkt. No. 39 at ¶¶ 20-21.) Plaintiff was subsequently placed on the wall for a pat frisk. Id. at ¶ 21. According to Plaintiff, while his hands were on the wall, Mulligan punched Plaintiff on the left side of his face. Id. at ¶ 22. Thereafter, Mulligan, Yando, Saunders, Morgan, and Courtright knocked Plaintiff to the floor, where he was kicked, and struck by fists and batons. Id. at ¶ 23. Plaintiff further alleges that Kelly, Thayer, and Frazer failed to intervene and protect Plaintiff from the excessive force. Id. at ¶¶ 24-25. Plaintiff alleges several injuries stemming from the incident, including swollen left eye, swollen bridge of nose, swollen left wrist, and a cut above the nose. Id. at ¶ 27. After the assault, Plaintiff was taken to the prison infirmary and then to Albany Medical Center for treatment for concussion symptoms and dizzy spells. Id. at ¶ 28.
Plaintiff further alleges that Mulligan, Saunders, Courtright, and Yando have repeatedly engaged in the use of excessive force against inmates in the past. Id. at ¶ 26. Plaintiff alleges that Bezio failed to take disciplinary or other action to curb the known pattern of physical abuse of inmates by Mulligan, Saunders, Courtright, and Yando. Id. at ¶ 38.
On October 12, 2010, Plaintiff was issued three misbehavior reports related to his misconduct during the incident. (Dkt. No. 69-6 at 5-7.) Specifically, Courtright charged Plaintiff with violation of Rules 100.11 (assault on staff), 115.10 (complying with frisk procedures), 106.10 (direct order), and 104.11 (violent conduct). Id. at 6. Mulligan charged Plaintiff with violation of Rules 100.11 (assault on staff), and 104.11 (violent conduct). Id. at 7. Saunders charged Plaintiff with violation of Rule 113.10 (weapon). Id. at 5.
Page references to documents identified by docket number are to the page number assigned by the Court's CM/ECF electronic docketing system.
Bezio assigned Goodman to conduct Plaintiff's Tier III disciplinary hearing, which began on October 18, 2010, and ended November 4, 2010. (Dkt. No. 69-7.) On the first day of the hearing, Goodman read the three misbehavior reports into the record and Plaintiff pleaded "not guilty" to all charges. Id. at 4-5.
Plaintiff asserted several objections throughout his hearing. On the first day of the hearing, Plaintiff objected to the fact that he never received the "to and from" memoranda that he had requested from his assistant, J. Parham. Id. at 7. Goodman advised Plaintiff that he was not allowed that information due to a recent change in DOCCS' Policy. Id. Plaintiff also objected to Goodman conducting the hearing, because, in part, he may have "an enemy that's got a special interest." Id. at 11. Goodman noted that objection and continued the hearing. Id.
On October 19, 2010, at Plaintiff's request, Mulligan and Saunders were called as witnesses and Plaintiff was permitted to ask questions through Goodman. Id. at 13, 29. Goodman also read the Unusual Incident Report into the record. Id. at 22. Plaintiff objected that he was not provided a copy of that report. Id. at 22-23. Goodman explained to Plaintiff that pursuant to DOCCS' policy, inmates were no longer entitled to copies of unusual incident reports, but the hearing officer could read the report into the hearing record. Id. at 23.
The hearing resumed on October 26, 2010. Id. at 44. At Plaintiff's request, Courtright was called as a witness and Plaintiff was permitted to ask questions through Goodman. Id. Plaintiff objected once more that he did not have a copy of the Unusual Incident Report and stated that other inmates in the special housing unit ("SHU") had copies of use of force reports and "to and froms." Id. at 53, 60. At Plaintiff's request, Parham was called as a witness. Id. at 62. Parham testified that she believed Plaintiff was not entitled to that information. Id. at 73.
Subsequently, Goodman determined Plaintiff was permitted to have copies of the Use of Force Report and associated "to and from" memoranda. Id. at 62. Goodman adjourned the hearing for twenty-four hours in order to provide Plaintiff the necessary opportunity to consider and review the materials. Id. Thereafter, Plaintiff asked to call Yando, Morgan, and Kelly, and to "recall" Courtright, Mulligan, and Saunders, as witnesses. Id. at 65, 74, 92. Goodman granted Plaintiff's request to call Yando, Morgan, and Kelly, but denied his request to recall Courtright, Mulligan, and Saunders. Id. at 65, 69, 73, 74, 92.
On November 4, 2010, Goodman found Plaintiff guilty of (1) violent conduct (two counts), (2) assault on staff (two counts), (3) refusing search or frisk, and (4) weapon. (Dkt. 69-6 at 2.) Goodman sentenced Plaintiff to thirty-six months in the SHU, with a corresponding loss of privileges and good time credits. Id. Goodman explained the reasons for his decision in a Memorandum entitled "Statement of Evidence Relied Upon," which he read into the hearing record. (Dkt. No. 69-6 at 8-9; Dkt. No. 69-7 at 107.) In part, Goodman relied upon the:
• misbehavior report written by Courtright and his testimony that he observed Plaintiff receive an unknown object from a cell during the noon meal run, Plaintiff failed to comply with an ordered pat risk, assaulted staff during the attempted pat frisk, and resisted efforts of the security staff to subdue him;(Dkt. No. 69-6 at 8-9.)
• misbehavior report written by Mulligan and his testimony that he observed Plaintiff making slashing motions at Yando during the incident, and that Mulligan intervened in the altercation by grabbing Plaintiff's left wrist causing an item, later to be identified as a broken piece of razor wrapped in electrical tape, to fall to the floor, and that Mulligan received an injury to his left knuckle from the weapon Plaintiff was wielding during the struggle;
• misbehavior report written by Saunders and his testimony that he was directed to, and confiscated a razor-type weapon measuring ¾ inches by ½ inch from the floor near the E-Block desk, and that he photographed and catalogued the weapon pursuant to DOCCS' policy, both of which were made part of the hearing record; and
• Yando's testimony that he observed Plaintiff fighting and struggling during the incident and that he further observed Plaintiff attempting to "slash him" with an object in his hand, described as metal and shiny in color.
Plaintiff alleges that Goodman denied Plaintiff due process of law in violation of the Fourteenth Amendment at the disciplinary hearing by (1) failing to conduct the hearing in a fair and impartial matter, (2) failing to conduct a thorough investigation, (3) failing to promptly provide Plaintiff with requested materials, and (4) finding Plaintiff guilty of the charges "with no evidence to support the charges." (Dkt. No. 39 at ¶¶ 32, 39.) Plaintiff further alleges that Bezio's action in "overseeing and sustaining" Goodman's decision violated his Fourteenth Amendment rights. Id. at 6.
II. PROCEDRUAL HISTORY
Plaintiff commenced this action in October, 2013, alleging that on October 11, 2010, Yando, Mulligan, Saunders, Courtright, Morgan, Thayer, Kelly, and Fraser violated his rights under the Eighth Amendment. (Dkt. No. 1.) On November 20, 2013, this Court issued a Decision and Order granting Plaintiff's application for in forma pauperis status and directing service of the Complaint. (Dkt. No. 5.)
Following service of process, Defendants answered the Complaint. (Dkt. No. 25.) Defendants filed a motion for judgment on the pleadings on the ground that the Complaint was not timely filed. (Dkt. No. 27.) Plaintiff opposed the motion (Dkt. No. 41), and filed an Amended Complaint. (Dkt. No. 39.) Plaintiff's Amended Complaint asserted claims for the violation of his rights under the Eighth and Fourteenth Amendments, and named Goodman and Bezio as additional Defendants. Id.
On August 13, 2014, this Court denied Defendants' motion for judgment on the pleadings; construed Plaintiff's Amended Complaint as a motion to amend; granted the motion to amend; directed service on Goodman and Bezio; and directed all Defendants to answer the Amended Complaint. (Dkt. No. 44.) Defendants filed their Answer on September 19, 2014. (Dkt. No. 52.)
On June 29, 2015, after engaging in discovery, Defendants moved for entry of partial summary judgment dismissing all claims against Thayer, Goodman, and Bezio. (Dkt. No. 69.)
In their motion, Defendants argue that (1) Thayer was not physically present at the time of the altercation, (2) Goodman provided Plaintiff with adequate due process at the disciplinary hearing, and (3) Bezio was not personally involved in Plaintiff's disciplinary hearing in any regard. (Dkt. No. 69-3.) Plaintiff has opposed the motion. (Dkt. No. 74.)
III. APPLICABLE LEGAL STANDARD
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 273 (citations omitted). The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit and "therefore will be considered in determining whether material issues of fact exist[.]" Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (citations omitted).
In Jeffreys v. City of New York, the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." 426 F.3d 549, 554 (2d Cir. 2005) (emphasis in original). To defeat summary judgment, "nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation." Id. (citation and internal quotation marks omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). Statements "that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). "[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to formal pleadings drafted by lawyers." Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003) (quoting Haynes v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to "make reasonable allowances to protect pro se litigants" from inadvertently forfeiting rights merely because they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). The court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, this does not mean that a pro se litigant is excused from following the procedural formalities of summary judgment, Govan, 289 F. Supp. 2d at 295, and "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876 at *3, 1999 U.S. Dist. LEXIS 16767 at *8 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)). Moreover, the latitude accorded a pro se litigant "does not relieve him of the obligation to respond to a motion for summary judgment with sufficient admissible evidence." Hamlett v. Srivastava, 496 F. Supp. 2d 325, 328 (S.D.N.Y. 2007) (citing Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)).
The Court will provide Plaintiff with copies of unpublished decisions in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76, 76 (2d Cir. 2009) (per curium).
IV. ANALYSIS
A. Deficiencies in Plaintiff's Opposition
As required under N.D.N.Y. Local Rule ("L.R.") 7.1, Defendants have filed a statement of material facts with citations to the summary judgment record. (Dkt. No. 69-2.) Although Plaintiff has opposed Defendants' motion, Plaintiff failed to respond to the statement of material facts filed by Defendants as required under L.R. 7.1(a)(3). (See Dkt No. 74.) Under the rule, the opposing party's response to the movant's statement of material facts "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises." L.R. 7.1(a)(3).
Where, as in this case, a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 7.1(a)(3), the L.R. provides that facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." But see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted).
Defendants have complied with L.R. 56.2 by providing Plaintiff with the requisite notice of the consequences of his failure to respond to their summary judgment motion. (Dkt. Nos. 69, 69-1.)
The Second Circuit, acknowledging a court's broad discretion to determine whether to overlook a failure to comply with local rules, has held that "while a court is not required to consider what the parties fail to point out in their [local rule statements of material facts], it may in its discretion opt to conduct an assiduous review of the entire record even where one of the parties has failed to file such a statement." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). The Court has opted to review the entire record in this case. Moreover, because Plaintiff's Amended Complaint (Dkt. No. 39) and Opposition (Dkt. No. 72) are both verified, the Court will treat them as affidavits in opposition to Defendants' motion. See Colon, 58 F.3d at 872. However, the Court's review has revealed that Plaintiff's submissions contain very little in the way of admissible evidence.
B. Defendant Thayer
Plaintiff brings an Eighth Amendment claim against Thayer, alleging that Thayer used excessive force and also failed to intervene during the incident. (Dkt. No. 39 at ¶¶ 9, 25.) Defendants move for summary judgment in Thayer's favor, arguing that he was not personally involved in any of the alleged constitutional violations, nor was he even present during the incident. (Dkt. No. 69-3 at 9-12.) For the reasons that follow, the Court recommends granting Thayer summary judgment on Plaintiff's Eighth Amendment claims.
Under Second Circuit precedent, '"personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983."' Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). In order to prevail on a § 1983 cause of action against an individual, a plaintiff must show some "tangible connection" between the unlawful conduct and the defendant. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
To establish a claim of excessive force under the Eighth Amendment, a plaintiff must satisfy two components: "one subjective, focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect." Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009). In consideration of the subjective element, a plaintiff must allege facts which, if true, would establish that the defendant's actions were wanton "in light of the particular circumstances surrounding the challenged conduct." Id. (internal quotations omitted). The objective component asks whether the punishment was sufficiently harmful to establish a violation "in light of contemporary standards of decency." Id. (internal quotation omitted).
Generally, officers have a duty to intervene and prevent such cruel and unusual punishment from occurring or continuing. Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir. 2001); Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). "It is well-settled that a law enforcement official has an affirmative duty to intervene on behalf of an individual whose constitutional rights are being violated in his presence by other officers." Henry v. Dinelle, No. 10-CV-0456 (GTS/DEP), 2011 WL 5975027, at *4, 2011 U.S. Dist. LEXIS 136583, at *13 (N.D.N.Y. Nov. 29, 2011). A correction officer who does not participate in, but is present when an assault on an inmate occurs, may still be liable for any resulting constitutional deprivation. Id.
To prevail on a failure to intervene claim, the plaintiff must adduce evidence establishing that the officer had (1) a realistic opportunity to intervene and prevent the harm, (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being violated, and (3) that officer did not take reasonable steps to intervene. Id. (citing Jean-Laurent v. Wilkinson, 540 F.Supp.2d 501, 512 (S.D.N.Y. 2008)).
In support of Defendants' motion, Thayer declares that he was not personally involved in any application of force administered against Plaintiff on October 11, 2010. (Dkt. No. 69-4 at ¶ 3.) Thayer further declares that he was not present during any alleged application of force. Id. Thayer explains that on October 11, 2010, his "bid" at Great Meadow was Mental Health Unit/Courtroom Escort. Id. at ¶ 4. Thayer's duties included escorting "keeplocked" inmates to mental health appointments or disciplinary hearings. Id. His bid was not stationed on E-block. Id. Thayer declares that he was on the other side of the prison when he received the "level-2" stress call notifying facility security staff of an incident requiring assistance on E-block. Id. at ¶ 5. He responded by running from his location to E-block. Id. He was then stopped near the facility cell hall and was told that the incident had resolved. Id. at ¶ 6. Thayer was given a facility hand held video camera and instructed to report to the incident location on E-block and to videotape the inmate escort to the medical unit for examination. Id.
Thayer declares that when he arrived at the E-Block corridor, Plaintiff was restrained against the wall awaiting escort to medical. Id. at ¶ 7. He did not observe any force applied against Plaintiff at any time. Id. Thayer recorded the escort of Plaintiff to the medical unit for examination. Id. at ¶ 8. Thayer declares that no use of force was necessary during escort. Id.
Here, Thayer's declaration establishes that he was not present during the alleged incident, nor did he have a realistic opportunity to intervene and prevent the harm. Thus, the burden shifts to Plaintiff to raise a triable issue of fact.
Plaintiff has failed to meet his burden. Plaintiff's verified Amended Complaint alleges Thayer failed to protect Plaintiff from the assault and that Plaintiff "believes" Thayer participated in the assault. (Dkt. No. 39 at ¶ 25.) However, Plaintiff also states that he is "unsure" if Thayer was part of the "response team." Id. At his deposition, Plaintiff testified that he included Thayer in this lawsuit because Thayer's name appeared in post-incident documentation identifying him as the video camera escort officer following the incident. (Dkt. No. 69-10 at 12.) Plaintiff admitted that he did not know if Thayer had "any direct involvement in the incident or not." Id. Turning to the only other piece of evidence that Plaintiff proffers on his claims against Thayer, Plaintiff declares in opposition that:
By the instant complaint, the Plaintiff concedes that the defendant Thayer was even present during the incident. While the evidence does establish that the Defendant Thayer operated the video camera, that does not mean that Defendant Thayer was not outside of his assigned area and participated in the attack of the plaintiff.(Dkt. No. 74 at 3.)
"Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998); Smith v. Rosati, No. 9:10-CV-1502 (DNH/DEP), 2013 WL 1500422, at *12, 2013 U.S. Dist. LEXIS 54402, at *39 (N.D.N.Y. Feb. 20, 2013) ("Mere conclusory allegations that are unsupported by any record evidence are insufficient to give rise to a genuine dispute of material fact."). Evidence must be based on personal knowledge. See Patterson v. Cnty. of Oneida, 375 F.3d 206, 219 (2d Cir. 2004); Sellers v. M.C Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988).
In this case, Plaintiff has not raised a triable issue of fact as to Thayer's personal involvement in the incident. Accordingly, the Court recommends that Thayer be granted summary judgment on Plaintiff's Eighth Amendment claims.
C. Defendant Goodman
Plaintiff claims that he was denied due process in his disciplinary hearing because (1) Goodman did not conduct a thorough investigation, (2) Goodman failed to "promptly turn over" requested material, and (3) there was insufficient evidence to find Plaintiff guilty of the charges. (Dkt. No. 39 at ¶¶ 32-35.) Plaintiff further alleges that Goodman was biased and failed to conduct the hearing in a fair and impartial manner. Id. at ¶ 32.
To establish a procedural due process claim under § 1983, a plaintiff must show that he (1) possessed an actual liberty interest, and (2) was deprived of that interest without being afforded sufficient process. See Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998).
The Fourteenth Amendment due process protections afforded a prison inmate do not equate to "the full panoply of rights due to a defendant in a criminal prosecution." Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004). "An inmate is entitled to advance written notice of the charges against him; a hearing affording a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken." Id. (citing Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974)). The due process clause requires that a hearing officer's determination be supported by "some evidence." Superintendent v. Hill, 472 U.S. 445, 455 (1985). "This standard is extremely tolerant and is satisfied if 'there is any evidence in the record that supports' the disciplinary ruling." Sira, 380 F.3d at 69 (quoting Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)). In the Second Circuit, the "some evidence" standard requires some "reliable evidence." Luna v. Pico, 356 F.3d 481, 488 (2d Cir. 2004).
In addition, to establish a procedural due process claim in connection with a prison disciplinary hearing, an inmate must show that he was prejudiced by the alleged procedural deficiencies, in the sense that the errors affected the outcome of the hearing. See, e.g., Clark v. Dannheim, 590 F. Supp. 2d 429, 429 (W.D.N.Y. 2008) (citing, inter alia, Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir. 1991) ("[I]t is entirely inappropriate to overturn the outcome of a prison disciplinary hearing because of a procedural error without making the normal appellate assessment as to whether the error was harmless or prejudicial.")); see also Lewis v. Murphy, No. 9:12-CV-0268 (NAM/CFH), 2014 WL 3729362, at *13, 2014 U.S. Dist. LEXIS 102659, at *36 (N.D.N.Y. July 25, 2014) (the plaintiff alleged that his counselor failed to interview witnesses but did not show how this shortcoming prejudiced the results).
Here, Goodman sentenced Plaintiff to serve thirty-six months in the SHU. (Dkt. No. 69-6 at 2; Dkt. No. 69-7 at 107.) Defendants, apparently conceding that the disciplinary sanctions imposed on Plaintiff implicated a liberty interest, argue that Plaintiff was afforded ample due process during the hearing. (Dkt. No. 69-3 at 12-16.) The Court agrees.
In this case, Plaintiff (1) received advance notice of the charges, (2) appeared at the disciplinary hearing and was afforded a reasonable opportunity to call witnesses and present documentary evidence in his defense, (3) was afforded a fair and impartial hearing officer, and (4) received a written statement of the disposition. Based on the record of the disciplinary hearing, no reasonable factfinder could conclude that Plaintiff's due process rights were violated or that the outcome of the proceeding would have been any different if Goodman had "promptly" turned over the requested material.
1. Thorough Investigation
As an initial matter, Plaintiff's claim that Goodman failed to conduct a thorough investigation is without merit because Plaintiff had no right to an independent investigation by the hearing officer. See Robinson v. Brown, No. 9:11-CV-0758 (TJM/DEP), 2012 WL 6799725, at *5, 2012 U.S. Dist. LEXIS 183782, at *17-18 (N.D.N.Y. Nov. 1, 2012) (there is no requirement that a hearing officer conduct an independent investigation).
2. Opportunity to be Heard and Present Witnesses
An accused prisoner has the right to a hearing where he is given a reasonable opportunity to call witnesses and present documentary evidence. Sira, 380 F.3d at 69. The record establishes that Plaintiff was present and testified at the hearing, and called and questioned seven witnesses. (See generally Dkt. No. 69-7.) Plaintiff does not dispute that he was given an opportunity to be heard. Plaintiff does, however, allege that Goodman failed to provide Plaintiff with any of the requested documents until after the majority of the officers testified at the hearing. (Dkt. No. 39 at ¶ 33.)
Plaintiff raised this objection several times during the course of the hearing. (Dkt. No. 69-7 at 7, 23, 59, 62, 71-74.) In response to this objection, Goodman explained to Plaintiff that a recent change in DOCCS' policy prohibited the provision of the requested materials to inmates, but that the hearing officer could read the information into the hearing record. Id. at 7, 23, 60, 62, 71-74. Parham also testified that she believed that she could not provide copies of the requested documents to Plaintiff. Id. at 109.
Specifically, Goodman explained to Plaintiff that in a July 7, 2010, Memorandum from Deputy Commissioner Lucien Leclair, Jr., DOCCS adopted a policy whereby inmates would not be provided copies of preliminary unusual incident reports, but the materials could be made available during the hearing. (See Dkt. No. 69-6 at 15-16.)
Goodman declares that in line with DOCCS' policy, he read to Plaintiff a copy of the Unusual Incident Report, and provided him copies of the memoranda associated with the Use of Force Report. (Dkt. No. 69-5 at ¶ 13.) Additionally, Goodman declares that upon reading and providing these materials to Plaintiff, he adjourned the hearing for twenty-four hours in order to provide Plaintiff the necessary opportunity to consider and review the materials. Id.
Thereafter, Plaintiff asked to call Morgan, Kelly, and Yando as witnesses, and Plaintiff was permitted to question each officer. (Dkt. No. 69-7 at 65, 74, 92.) However, Goodman denied Plaintiff's request to "recall" Courtright, Mulligan and Saunders. Id. at 73, 74, 92. Goodman determined that recalling the officers was "unnecessary" because they were already questioned and testified that their written misbehavior reports were accurate. Id. at 73.
Prior to denying Plaintiff's request, Goodman provided Plaintiff with an opportunity to explain why he believed that additional testimony from Courtright, Mulligan, and Saunders was necessary. (Dkt. No. 69-7 at 69-72, 100.) Plaintiff explained to Goodman that after reading the Use of Force memoranda, "everything is not making sense" because Mulligan's memorandum to Bezio stated that he observed Plaintiff making "slashing" motions while Courtright, who was present throughout the entire incident, did not. Id. at 102. Plaintiff specified that he wanted to question Courtright and Mulligan about the weapon, "because there wasn't no weapon period." Id. at 103. Plaintiff further stated that "I would like to know how a weapon just magically popped up in my hand . . . Courtright didn't see a weapon in my hand upon putting me up on the wall to do a pat frisk. A weapon doesn't just pop out of nowhere." Id. at 104. Goodman denied this request as irrelevant because neither Courtright nor Mulligan charged Plaintiff with possession of a weapon. Id. at 103-04. --------
Although due process includes a right to call witnesses, this right is not unfettered. Alicea v. Howell, 387 F. Supp. 2d 227, 234 (W.D.N.Y. 2005) (citing Ponte v. Real, 471 U.S. 491, 495 (1985)). This right may be limited for security reasons, to keep a hearing within reasonable limits, or on the basis of irrelevance or lack of necessity. Id. (citing, inter alia, Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991) (a hearing officer does not violate due process by excluding irrelevant or unnecessary testimony or evidence)); see also Eleby v. Selsky, 682 F. Supp. 2d 289, 291-92 (W.D.N.Y. 2010) (hearing officers have discretion to keep the hearing within reasonable limits, and "included within that discretion is the authority to refuse to call witnesses whose testimony the prison official reasonably regards as duplicative or non-probative"). Goodman, having explained his reasoning for denying Plaintiff's request to recall Courtright, Mulligan, and Saunders, was acting within his discretion as a hearing officer to control the hearing.
After an exhaustive review of the hearing transcript, the Court finds that no reasonable factfinder could conclude that the delay in the requested documents, or denial to recall witnesses, resulted in any prejudice to Plaintiff. Plaintiff was given ample opportunity, with several adjournments, to prepare for the hearing. Goodman provided Plaintiff with all requested documentation. See Murray v. Arguitt, No. 9:10-CV-1440 (NAM/CFH), 2014 WL 4676569, at *19, 2014 U.S. Dist. LEXIS 68665, at *48-49 (N.D.N.Y. Sept. 18, 2014) (the record established that the hearing officer took steps to provide the inmate with the requested evidence). Goodman granted Plaintiff's request to call seven witnesses, and provided Plaintiff with sufficient time to question each witness. Thus, the Court finds no triable issue of fact exists as to whether Plaintiff had a reasonable opportunity to call witnesses and present documentary evidence, or that the outcome of the proceeding would have been any different had Plaintiff received the requested documents at the outset of the hearing or been permitted to reexamine Courtright, Mulligan, and Saunders.
3. Impartial Hearing Officer and "Some Evidence"
An accused prisoner has the right to have a fair and impartial hearing officer preside over his disciplinary hearing. Sira, 380 F.3d at 69. "It is well recognized that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts." Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citations omitted); see also Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989) ("We recognize that the degree of impartiality required of prison hearing officials does not rise to the level of that required of judges generally. Because of the special characteristics of the prison environment, it is permissible for the impartiality of such officials to be encumbered by various conflicts of interest that, in other contexts, would be adjudged of sufficient magnitude to violate due process."). Prison officials "enjoy a rebuttable presumption that they are unbiased." See Rodriguez v. Selsky, No. 9:07-CV-0432 (LEK/DEP), 2011 WL 1086001, at *11, 2011 U.S. Dist. LEXIS 21023, at *34 (N.D.N.Y. Jan. 25, 2011) (citation omitted). Due process in this context requires only that the hearing officer's decision not be "arbitrary." Wolff, 418 U.S. at 571. A decision is not "arbitrary" if it is supported by "some evidence." Hill, 472 U.S. at 455.
Here, there is no evidence in the record, aside from Plaintiff's conclusory allegation, that Goodman failed to conduct the hearing in a fair and impartial manner because Goodman is "an officer with rank and works closely with the officers involved." (Dkt. No. 39 at ¶ 34.) Indeed, "[a]n inmate's own subjective belief that the hearing officer was biased is insufficient to create a genuine issue of material fact." Johnson v. Fernandez, No. 9:09 CV-626 (FJS/ATB), 2011 WL 7629513, at *11, 2011 U.S. Dist. LEXIS 154404, at *33 (N.D.N.Y. Mar. 12, 2011) (citing Francis, 891 F.2d at 46); see also Houston v. Goord, No. 9:03-CV-1412 (GTS/DEP), 2009 WL 890658, at *5 n.16, 2009 U.S. Dist. LEXIS 27481, at *21-22, n.16 (N.D.N.Y. Mar. 31, 2009) (rejecting argument that there is a "conflict of interest" resulting from disciplinary hearing officers knowing each other, or knowing the correction officers having charged the plaintiff with disciplinary violations).
The Court has reviewed the entire hearing transcript and finds no evidence that Goodman was biased or predisposed to any conclusion. As reflected in the hearing transcript and Disposition sheet, Goodman relied upon documentary, testimonial, and tangible evidence establishing "some evidence" of Plaintiff's guilt. Plaintiff testified, questioned all witnesses, and voiced his objections throughout the hearing. As such, Plaintiff's conclusory allegations of bias do not present a due process violation.
Plaintiff further contends that he did not receive a fair and impartial hearing because Courtright and Kelly testified that they did not see Plaintiff with a weapon, yet Goodman found Plaintiff guilty of possessing the weapon. (Dkt. No. 74 at 3.) Although Plaintiff's statement of the record is accurate, judicial review of the "some evidence" standard is "narrowly focused." Sira, 380 F.3d at 76. "Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached . . . ." Hill, 472 U.S. at 455-56 (citations omitted).
Here, the record shows that Goodman's determination of guilt was supported by "some evidence" as required in Hill, 472 U.S. at 455, and "reliable evidence" pursuant to Luna, 356 F.3d at 488. The evidence considered in Plaintiff's disciplinary hearing included the three misbehavior reports, the testimony of each officer charging Plaintiff with improper conduct, all of whom were present at the incident and had first-hand knowledge of the events, along with the testimony of three witnesses to the incident, and a photograph of the weapon recovered during the incident. See Hinton v. Prack, No. 9:12-CV-1844 (LEK/RFT), 2014 WL 4627120, at *15, 2014 U.S. Dist. LEXIS 126955, at *39 (N.D.N.Y. Sept. 11, 2014) (citation omitted) ("some evidence" standard satisfied where the misbehavior report was made by the officer personally involved in the incident and was based upon his first hand observation and detailed account of the incident); Creech v. Schoellkoph, 688 F. Supp. 2d 205, 214 (W.D.N.Y. 2010) (same); see also Galan v. Laird, No. 08-cv-267 (NG), 2010 WL 3780175, at *2, 2010 U.S. Dist. LEXIS 98864, at *6 (E.D.N.Y. Sept. 17, 2010) (discovery of contraband weapon in inmate's cell satisfied the "some evidence" standard); Hernandez v. Selsky, 572 F. Supp. 2d 446, 453 (S.D.N.Y. 2008) (same).
Finally, Plaintiff's conclusory argument, raised for the first time in opposition, that Goodman's Disposition was "arbitrary and capricious" because Plaintiff was sentenced to thirty-six months in the SHU and yet, under the "old disciplinary guidelines" the maximum amount of "SHU time" to be imposed was twenty-four months, is misplaced. (See Dkt. No. 74 at 3.) Absent some proof of actual biases, a violation of DOCCS regulations and policies does not give rise to liability under § 1983. See Cusamano v. Sobek, 604 F. Supp. 2d 416, 482 (N.D.N.Y. 2009); see also Russell v. Coughlin, 910 F.2d 75, 78 n.1 (2d Cir. 1990).
Accordingly, the Court finds that no reasonable factfinder could conclude that Plaintiff was deprived of due process during his disciplinary hearing. For this reason, the Court recommends that Goodman be granted summary judgment on Plaintiff's Fourteenth Amendment claim.
4. Qualified Immunity
In the alternative, Defendants seeks dismissal of Plaintiff's Fourteenth Amendment claim against Goodman on qualified immunity grounds. (Dkt. No. 69-3 at 18-19.) Inasmuch as the Court is recommending that Goodman be granted summary judgment on other grounds, it finds it unnecessary to reach the qualified immunity argument.
D. Defendant Bezio
Defendants' motion seeks dismissal of the Amended Complaint against Bezio in its entirety. (Dkt. No. 69-3 at 17.) Defendants state that the "singular allegation" against Bezio is that "he assigned Defendant Goodman to conduct Plaintiff's Tier III Hearing." Id. However, a careful review of Plaintiff's Amended Complaint reveals that Plaintiff alleges Bezio violated Plaintiff's constitutional rights by (1) "overseeing and sustaining" Goodman's decision, and (2) failing "to take disciplinary action or other action to curb the known pattern of physical abuse of inmates" by Mulligan, Yando, Saunders, and Courtright. (Dkt. No. 39 at 6.)
As to Plaintiff's Fourteenth Amendment claims against Bezio, a supervisor cannot be held liable in his individual capacity under §1983 on a theory of supervisory liability given Plaintiff's failure to establish any underlying constitutional violation by Goodman. See Alston v. Bendheim, 672 F. Supp. 2d 378, 388-89 (S.D.N.Y. 2009) (failure to state a claim for an underlying constitutional violation forecloses supervisory liability); see also Elek v. Inc. Vill. of Monroe, 815 F. Supp. 2d 801, 808 (S.D.N .Y. 2011) (collecting cases for the proposition that "because Plaintiff has not established any underlying constitutional violation, she cannot state a claim for § 1983 supervisor liability"); see also Loret v. Selsky, 595 F. Supp. 2d 231, 235-36 (W.D.N.Y. 2010) (designating officer to conduct plaintiff's disciplinary hearing "plainly insufficient" to hold the superintendent personally liable for any constitutional deprivations that may have occurred there); Amaker v. Fischer, No. 10-CV-464A, 2013 WL 6092501, at *4, 2013 U.S. Dist. LEXIS 164392 (W.D.N.Y. Nov. 19, 2013) (same). Therefore, the Court recommends that Bezio be granted summary judgment on Plaintiff's Fourteenth Amendment claim.
As to Plaintiff's Eighth Amendment claim against Bezio, as the movants, Defendants have the burden of showing through admissible evidence that there are no material issues of fact and they are entitled to judgment as a matter of law. See Liberty Lobby, 477 U.S. at 251-52. Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. Here, Defendants failed to address Plaintiff's Eighth Amendment supervisory liability claim against Bezio. (Dkt. No. 69-33 at 17.) Therefore, the Court recommends that Bezio be denied summary judgment on Plaintiff's Eighth Amendment claim.
ACCORDINGLY it is hereby
RECOMMENDED that Defendants' motion for partial summary judgment (Dkt. No. 69) be GRANTED IN PART AND DENIED IN PART. It is recommended that the Court (1) grant Defendants' motion as to the Eighth Amendment claim against Thayer and terminate him as a Defendant in this action; (2) grant Defendants' motion as to the Fourteenth Amendment claim against Goodman and terminate him as a Defendant in this action; (3) grant Defendants' motion as to the Fourteenth Amendment claim against Bezio; and (4) deny Defendants' motion as to the Eighth Amendment claim against Bezio; and it is further
ORDERED that the Clerk provide Plaintiff with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: January 19, 2016
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge