Grant v. Fischer et al

Filing 59

ORDER: ORDERED, that on or before February 10, 2017, Defendants shall provide the Court with hard copies of the transcripts and audio recordings of the telephone calls at issue in the October 2011 Misbehavior Report. Permission is granted for such i tems to be traditionally filed with the Clerk of the Court in Albany, New York. ORDERED, that a copy of the transcripts and recordings provided to the Court shall also be provided to the facility where Plaintiff is currently housed and be made avai lable for his inspection. A certificate of such service shall be electronically filed on the Court's Docket. ORDERED, that the briefing associated with Defendants' Motion for Summary Judgment is closed. Signed by Magistrate Judge Daniel J. Stewart on 2/3/17. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
WILLIAM T. GRANT,
Plaintiff,
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Civ. No. 9:14-CV-1382
(MAD/DJS)

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BRIAN FISCHER, Commissioner; New York State Dep’t
of Corrections and Community Supervision; D. VENETTOZI,
(Acting) Director; Special Housing, Inmate Disciplinary Program;
R. BOISSY, Senior Correctional Counselor; Great Meadow
Correctional Facility; WINNEY, f/k/a Atkinson,
Defendants.

DANIEL J. STEWART
United States Magistrate Judge
ORDER
Pro se Plaintiff William Grant brings this civil rights action, pursuant to 42 U.S.C. § 1983,
alleging that the Defendants violated his due process rights guaranteed by the Fourteenth
Amendment. See Dkt. No. 23, Am. Compl. Specifically at issue is the Tier III Disciplinary Hearing
Plaintiff received as a result of a Misbehavior Report he was issued in October 2011 while he was
incarcerated at the Great Meadow Correctional Facility. See generally id. By the Misbehavior
Report, Plaintiff was charged with violating various facility rules, including engaging in a third party
phone call, conspiring with a person to introduce heroin into the facility, and soliciting others to
smuggle items into the facility. Among Plaintiff’s multiple claims is his assertion that Defendant
Boissy, who was the presiding Hearing Officer at the Disciplinary Hearing, was biased, denied him
a fair hearing (in various ways), and rendered a disposition that was not supported by the evidence.
Currently pending before the Court is Defendants’ Motion for Summary Judgment, Dkt. No.

44, which Plaintiff opposes, Dkt. No. 48.1 As part of their Motion, Defendants argue that, to the
extent it can be found that Plaintiff was deprived of a liberty interest, he received all the process that
was due to him. Amongst the supporting documentation attached to the Motion is the transcript of
the Tier III Hearing and the disposition rendered by Defendant Boissy. Dkt. No. 44-5, Robert Boissy
Decl., dated May 3, 2016, Exs. B & C. The Court was not provided, however, with the transcripts
nor audio recordings of the telephone calls at issue in the Misbehavior Report. The telephone
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recordings were played during the Tier III Hearing and were specifically relied upon by Defendant
Boissy in rendering the guilty dispositions. It appears that the other evidence relied upon by
Defendant Boissy was provided to the Court, either by the Defendants or the Plaintiff, but the text
and audio recordings of the telephone calls were not. In his opposition papers, Plaintiff provides the
Court with what appears to be a transcript of one of the telephone calls, but it is not clear on which
date that call was made and whether it is a complete transcript.
In light of the facts that the telephone calls formed the basis for the Misbehavior Report, were
played during the Hearing, and were relied upon in rendering a guilty disposition, the Court directs
the Defendants, on or before February 10, 2017, to provide the Court with hard copies of the
certified transcripts of the two telephone calls at issue as well as the audio recordings of the two calls
played during the Hearing. Although it appears that Plaintiff has already had an opportunity to hear
and view these items, copies of the same shall be sent to Plaintiff’s current facility and be made
available to him for viewing and listening. A certificate of such service shall be filed on the Court’s
Docket.
The parties shall note that the briefing associated with Defendants’ Motion for Summary

1

The parties also provided the Court with a Reply and Sur-Reply. Dkt. Nos. 53 & 57.

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Judgment is closed. The factual and legal issues associated with such Motion have been adequately
briefed by the parties and the Court’s Order for production of further evidence is not an invitation
for further briefing.
WHEREFORE, it is hereby
ORDERED, that on or before February 10, 2017, Defendants shall provide the Court with
hard copies of the transcripts and audio recordings of the telephone calls at issue in the October 2011
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Misbehavior Report. Permission is granted for such items to be traditionally filed with the Clerk of
the Court in Albany, New York; and it is further
ORDERED, that a copy of the transcripts and recordings provided to the Court shall also
be provided to the facility where Plaintiff is currently housed and be made available for his
inspection. A certificate of such service shall be electronically filed on the Court’s Docket; and it
is further
ORDERED, that the briefing associated with Defendants’ Motion for Summary Judgment
is closed; and it is further
ORDERED, that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules
IT IS SO ORDERED.
Date: February 3, 2017
Albany, New York

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