Murray v. Prack et al
ORDER adopting 24 Report and Recommendations; granting 22 Motion for Summary Judgment. The complaint is dismissed. Signed by Judge Brenda K. Sannes on 9/26/16 (served on plaintiff via regular mail). (rjb, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SIR JULES MURRAY,
ALBERT PRACK, Director of Special Housing/Inmate
Disciplinary Programs and JOHN MILLER, Acting
Captain; Clinton Correctional Facility,
Sir Jules Murray
Five Points Correctional Facility
Caller Box 119
Romulus, NY 14541
Plaintiff, pro se
Keith J. Starlin, Esq.
Assistant Attorney General
New York State Attorney General’s Office
Albany, NY 12224
Attorney for Defendants
Hon. Brenda K. Sannes, U. S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se Sir Jules Murray brought this action against Defendants Albert Prack and
John Miller under 42 U.S.C. § 1983 alleging that the Defendants violated his right to due process
under the Fourteenth Amendment while Plaintiff was confined at the Clinton Correctional
Facility (“Clinton”). Dkt. No. 1. In the verified complaint Plaintiff alleged that he was found
guilty of violating inmate rule 104.11, proscribing violent conduct, and inmate rule 104.12,
proscribing leading or organizing, based upon his talk at a Nation of Islam religious service,
which was tape recorded, 1 and during which he “did not advocate any violent or disorderly
action which would be detrimental to the order of the prison.” Id., pp. 2-3. Plaintiff alleged that
he filed an Article 78 Proceeding in New York State Supreme Court challenging the disciplinary
determination, and that it was annulled. Id., p. 6. Plaintiff cited to the March 14, 2013 decision
by the New York State Appellate Division, Third Department ruling that the disciplinary
determination was “not supported by substantial evidence.” Id. (citing In the Matter of Sir Jules
Murray, 104 A.D.3d 1007, 960 N.Y.S. 2d 562 (2013)). 2 In this action, Plaintiff seeks damages
“as a result of the wrongful determination . . . and his subsequent confinement to the Special
Housing Unit for five hundred and eighty seven (587) days.” Id., p. 1. Plaintiff alleges that
Defendant John Miller was an Acting Captain at Clinton, and the hearing officer, and that
Defendant Albert Prack denied Plaintiff’s administrative appeal from the disciplinary
determination. Id., p. 2.
On October 30, 2015, the Defendants filed a motion for summary judgment arguing that
the Plaintiff’s complaint should be dismissed because he received all of the process he was due.
Dkt. No. 22. Defendants served Plaintiff with a Notification of the Consequences of Failing to
In a declaration submitted in support of the Defendants’ motion for summary judgment, Defendant John Miller
explained that the Nation of Islam meetings “are openly recorded on audiotape, the inmates know those meetings are
taped, know they are being recorded when they speak at those meetings and know that prison authorities listen to
those tapes after each meeting.” Dkt. No. 22-5, ¶ 45.
The Appellate Court directed that the determination be annulled, and that all references to it be expunged from
Plaintiff’s institutional record. 104 A.D.3d at 1009.
Respond to a Summary Judgment Motion, in accord with N.D.N.Y. Local Rule 56.2, informing
Plaintiff, inter alia, that if he does not file a proper response to the motion, the Court “may grant
the motion and dismiss some or all of your claims,” and “may deem you to have conceded the
defendant’s arguments.” Dkt. No. 22, p. 3. Although the docket indicated that Plaintiff was an
inmate at Upstate Correction Facility, counsel for the Defendants discovered that he had been
transferred to the Five Points Correction Facility, and served the summary judgment paperwork
to him there. 3 Plaintiff never responded to the Defendants’ motion for summary judgment.
This matter was referred to United States Magistrate Judge Christian F. Hummel who, on
August 15, 2016, issued a Report-Recommendation and Order (“R & R”) recommending that
Defendants’ motion for summary judgment be granted. Dkt. No. 24, p. 21.
In a letter dated September 1, 2016, and filed on September 6, 2016, Plaintiff objected to
the Report-Recommendation. Dkt. No. 25. 4 For the reasons set forth below, the ReportRecommendation is adopted in its entirety.
The docket was changed to reflect that Plaintiff is at Five Points Correction Facility after the Court received
Plaintiff’s September 1, 2016 letter from Five Points Correction Facility. Despite having been informed of his
obligation to promptly notify the Court of any change of address, and having previously notified the Court about a
change of address, (Dkt. No. 8; Dkt. No. 9, p. 5), Plaintiff never notified the Court regarding his transfer to Five
Points Correctional Facility.
The Court Clerk also served Plaintiff with a Notification of the Consequences of Failing to Respond to a Summary
Judgment Motion, in accord with N.D.N.Y. Local Rule 56.2. Dkt. No. 23. The Clerk notified Plaintiff that his
response was due by November 30, 2015. Id. That Notice, however, was mailed to Plaintiff at the address on the
Court’s docket, at Upstate Correctional Facility. Id.
Objections to the Report-Recommendation were due by September 1, 2016. See Fed. R. Civ. P. 72(b)(2); Fed. R.
Civ. P. 6(d). The Second Circuit has not ruled on whether the mailbox rule, which deems documents filed when
they are given to prison officials for filing, applies to objections to a report and recommendation. Garcia v.
Graham, No. 15 CV 1606-LTS-HBP, 2016 WL 1718389, at *1 n.1, 2016 U.S. Dist. LEXIS 57422, at *1 n.1
(S.D.N.Y. 2016). Given the Plaintiff’s pro se status, the fact that the Report-Recommendation was sent to the
Plaintiff at a different correctional facility than the one where he was confined, and the fact that it was post-marked
only one day after the due date, the Court deems Plaintiff’s objection to be timely filed.
II. Standards of Review
This court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). Findings and
recommendations as to which there was no properly preserved objection are reviewed for clear
B. Summary Judgment
Summary judgment may be granted only if all the submissions taken together “show that
there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” In re World Trade Center Lower Manhattan Disaster Site Litig., 758 F.3d
202, 210 (2d Cir. 2014). In ruling on a summary judgment motion, the court “must construe the
facts in the light most favorable to the non-moving party and must resolve all ambiguities and
draw all reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp.,
352 F.3d 775, 780 (2d Cir. 2003). The question of whether evidence supporting a prison
disciplinary decision affecting an inmate’s liberty interest was sufficient to satisfy due process is
a question of law for the Court. Sira v. Morton, 380 F.3d 57, 76 (2d Cir. 2004).
A. Review of Plaintiff’s Objections After He Failed to Respond to the Motion for
Plaintiff has raised specific objections to the sufficiency of the evidence underlying the
disciplinary determination and to the fairness and impartiality of the hearing officer. Dkt. No.
25. Plaintiff, however, did not present these arguments to the Magistrate Judge; Plaintiff failed
to file any response to the Defendants’ summary judgment motion. In this situation, it appears to
be within the Court’s discretion whether to even consider Plaintiff’s objections. See, e.g.,
Walker v. Stinson, 205 F.3d 1327 (2d Cir. 2000) (noting that the district court did not abuse its
discretion in refusing to consider qualified immunity defense that the defendants failed to raise
before the magistrate judge); cf. Stephens v. Tolbert, 471 F.3d 1173 (11th Cir. 2006) (finding that
district court had discretion to consider and accept an argument that had not been presented to
the magistrate judge).
In this case, while Plaintiff did not raise these arguments before Magistrate Judge
Hummel, Plaintiff’s assertion that his speech was insufficient to support the disciplinary
determination is at the heart of his due process claim. It was alleged in his verified complaint
and was thoroughly addressed by Magistrate Judge Hummel in the Report-Recommendation.
The Court also notes that the notice providing Plaintiff with the due date for his response to the
motion for summary judgment was mailed to a correctional facility from which Plaintiff had
been transferred. Dkt. No. 23. Although Plaintiff is responsible for his failure to apprise the
Court of his change of address, and Plaintiff had ample time to respond to the October 30, 2015
motion for summary judgment before the issuance of the August 15, 2016 ReportRecommendation, in light of all of the circumstances in this case, the Court will consider
B. There Was Some Reliable Evidence to Support the Disciplinary Determination. 5
The Court has only addressed Plaintiff’s sufficiency argument because Plaintiff’s other objection – that he had a
due process right to a civilian hearing officer – is frivolous. See Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996)
(“An inmate subject to a disciplinary hearing is entitled to an impartial hearing officer. . . [h]owever, the
independent hearing officer need not come from outside the prison.”) (citing Vitek v. Jones, 445 U.S. 480, 496
Plaintiff argues that statements in his speech were taken “out of context;” that he never
“suggest[ed] or impl[ied] any violence towards anyone;” and that he was “peacefully speaking
on and trying to find a solution to the injustices taking place in the facility.” Dkt. No. 25, pp. 12. Plaintiff also cites to the fact that he prevailed in his challenge in state court to have the
determination expunged from his institutional record. Dkt. No. 25, p. 2.
The fact that there was insufficient evidence to support the disciplinary determination
under New York State law does not mean that there was insufficient evidence to afford due
process because the standard required by New York State law “is sterner” than the standard
necessary to afford due process. Sira, 380 F.3d at 76 n.9. “New York law requires prison
disciplinary rulings to be supported by sufficiently relevant and probative information to
constitute substantial evidence.” Id. (quoting Foster v. Coughlin, 76 N.Y.2d 964, 966, 563
N.Y.S.2d 728, 729, 565 N.E.2d 477 (1990) (internal quotation marks omitted)). Due process, on
the other hand, is afforded if the determination is supported by “some reliable evidence.” Sira,
380 F.3d at 76; Luna v. Pico, 356 F.3d 481, 486 (2d Cir. 2004). The Supreme Court established
the “some evidence” standard in Superintendent v. Hill, 472 U.S. 445, 447 (1985), and the
Second Circuit has held that “only ‘reliable’ evidence can constitute ‘some evidence.’” Sira, 380
F.3d at 76.
“Judicial review of the ‘some evidence’ standard is narrowly focused.” Id.. The
Supreme Court has explained:
Ascertaining whether this standard is satisfied does not require examination of the entire
record, independent assessment of the credibility of witnesses, or weighing of the
evidence. Instead, the relevant question is whether there is any evidence in the record
that could support the conclusion reached by the disciplinary board.
Superintendent v. Hill, 472 U.S. at 447. The Supreme Court “declined to adopt a more stringent
evidentiary standard,” noting that “[p]rison disciplinary proceedings take place in a highly
charged atmosphere, and prison administrators must often act swiftly on the basis of evidence
that might be insufficient in less exigent circumstances.” Id., at 456. In Superintendent v. Hill,
two inmates were disciplined for assault based upon evidence that a prison guard found another
inmate “bleeding from the mouth and suffering from a swollen eye” on a walkway and two of
the three inmates disciplined were jogging away together down the walkway. Id., at 447-48.
The two inmates asserted their innocence; the victim provided written statements that they did
not cause his injuries; and there was “no direct evidence identifying any one of the three inmates
as the assailant.” Id., at 457. Although the Supreme Court noted that this evidence “might be
characterized as meager,” the Court held that “the record is not so devoid of evidence that the
findings of the disciplinary board were without support or otherwise arbitrary.” Id., at 457; cf.
Zavaro v. Coughlin, 970 F.2d 1148, 1152-53 (2d Cir. 1992) (holding that statements that “every
inmate” participated in a riot, when at least 100 inmates were present in a large mess hall and the
statements were made by guards assaulted during in the riot, are “so blatantly implausible when
taken literally that they do not constitute even ‘some evidence’ of a particular inmate’s guilt”).
In this case, Plaintiff was convicted under disciplinary rule 104.11, which states that “[a]n
inmate shall not engage in any violent conduct or conduct involving the threat of violence,” and
under disciplinary rule 104.12 which states that “[a]n inmate shall not lead, organize, participate,
or urge other inmates to participate in a work-stoppage, sit-in, lock-in, or other actions which
may be detrimental to the order of facility.” See In the Matter of Sir Jules Murray, 104 A.D.3d at
1008; 7 NYCRR 270.2[B][ii] and [iii]. 6 In making the decision to discipline Plaintiff,
Defendant Miller cited to the written report and to the audio recording as the evidence on which
he relied. Dkt. No. 22-12, p. 2. The written report was prepared by Corrections Officer (“CO”)
Phaneuf after listening to the tape recording; CO Phaneuf detailed some of Plaintiff’s comments
and concluded that Plaintiff’s speech was “a direct threat to safety and security of the facility.”
Dkt. No. 22-6. The tape recording of the speech was played at the hearing, at Plaintiff’s request.
Dkt. No. 22-10, at pp. 3, 12. Based on these violations, Defendant Miller sentenced Plaintiff to
twenty-four months of Special Housing Unit (“SHU”) and twelve months loss of good time.
Dkt. No. 22-12, p. 1. He explained the reason for the disposition as “[t]o deter any behavior by
this and other inmates that would encourage others to participate in activities detrimental to the
safety and security of this facility and its staff.” Id.
After reviewing this issue de novo, the Court concurs with Magistrate Judge Hummel’s
determination that the “some reliable evidence” standard has been met here. As a preliminary
matter, Plaintiff acknowledged making the speech, which was recorded and played at the
hearing. Dkt. No. 22-10, p. 12. With respect to the organizing violation (Rule 104.12), a
certified transcript of the tape recording establishes that Plaintiff was urging inmates to take
some action in response to wrongful beatings by corrections officers. Plaintiff has acknowledged
telling the inmates that “a couple of the Muslim brothers had got assaulted during Ramadan and
I felt that it was just because . . . we were on Ramadan and they see us gathering together.” Dkt.
No. 22-3, p. 21; see Dkt. No. 22-10, p. 12-13. During the speech he critically noted that no one
Defendant Miller found Plaintiff not guilty of the conspiracy charge, under Rule 104.10.
had set up a “watch” beforehand. Dkt. No. 22-10, p. 12. Plaintiff told the inmates “you need to
unite,” and repeatedly asked the inmates what they were going to do. Id., pp. 12-14. 7 While
Plaintiff told them that they had to start “a paper trail,” he also said “that’s not good enough for
our position.” Id., p. 14. Plaintiff told the inmates that they had to do something “now,” and
said that “they,” apparently referring to prison officials, “don’t attack that easy, with being a
large group like this they not going to do nothing to us.” Id. This constitutes some reliable
evidence that Plaintiff was urging the inmates to participate in “actions which may be
detrimental to the order of the facility.” See Nicholas v. Davis, 74 F. App’x 131, 134 (2d Cir.
2003) (finding evidence that inmate was quoted telling newspaper inquiring into a possible
inmate Y2K protest on January 1, 2000 that inmates had “very little avenues open for us to gain
political power,” and that inmate solicited and received information regarding the logistics of
civil disobedience, when prison officials had credible cause to fear a Y2K inmate protest
“sufficed—if barely—as some evidence” of violation of Rule 104.12).
Although the sufficiency of the evidence that Plaintiff engaged in “conduct involving the
threat of violence” in violation of Rule 104.11 presents a closer question, the Court finds that the
standard was met for that violation as well. The transcript indicates that after describing a
wrongful beating of a fellow Muslim, Plaintiff told the inmates that this could happen if they just
“look at [a prison official] wrong.” Dkt. No. 22-10, p. 12. Plaintiff asked them what they would
Defendant John Miller stated that in his experience, having worked for decades inside Clinton, inmates know that
the meetings are recorded and “speak in code works and/or imply things/actions instead of directly saying them
when they are trying to say or do something they know would violate DOCCS Inmate Rules. Asking loaded
rhetorical questions is one method of doing that.” Dkt. No. 22-5, pp. 11-12. Defendant Miller further explained that
“pressing security concerns” require “prison authorities to promptly intervene in potentially dangerous situations
before violence escalates, or even starts (if possible) and to counter potential threats posed by inmates to order
within and/or control of the facility.” Id. at p. 12. The Court notes that judicial restraint in “federal courts’ review
of prison policy and administration” is heightened with respect to the issue of “maintaining prison security and
protecting against increased inmate violence.” Duamutef v. Hollins, 297 F.3d 108, 112 (2d Cir. 2002).
do if officials “come along and kill me,” and asked whether it would “take one of them killing us
for us to do something?” Id., p. 13. Plaintiff said “we not going to be at all if we keep letting
this happen,” and questioned why it is that they would “do something way faster,” if “somebody
slapped” the kufi off of Louis Farrakhan, than if “they beat up my homie.” Dkt. No. 22-10, p.
13. Plaintiff noted that it could be “me next,” and noted that he would be “here for thirteen years
for beating up the C.O.s in county.” Id., p. 14. Plaintiff said “that [apparently referring to his
conviction] can be their excuse,” presumably referring to a justification for beating him up. Id.
The combined effect of Plaintiff’s exhortations to do something “now,” in response to the
beatings of fellow Muslims; that creating a paper trail is “not good enough,” that officers “don’t
attack that easy, with being a large group like this,” but they have “the upper hand,” and are
“going to do something,” when coupled with a reference to his conviction for beating up
corrections officers, is some evidence of “conduct involving the threat of violence.” Thus, the
record is not “so devoid of evidence” that Defendant Miller’s findings were “without support or
otherwise arbitrary.” Superintendent v. Hill, 472 U.S. at 457.
The Court has reviewed for clear error the remaining portions of the ReportRecommendation to which Plaintiff has not objected, and found none.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Hummel’s Report-Recommendation (Dkt. No. 24) is
ADOPTED in all respects; and it is further
ORDERED that Defendants’ Motion for Summary Judgment (Dkt. No. 22) is
GRANTED; and it is further
ORDERED that the complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Dated: September 26, 2016
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