Ortiz v. Prack

Filing 41

MEMORANDUM-DECISION AND ORDER: ORDERS that 37 Magistrate Judge Baxter's September 22, 2016 Report- Recommendation is ADOPTED in its entirety for the reasons set forth therein. ORDERS that Defendant's motion for summary judgment (D kt. No. 27 ) is GRANTED. ORDERS that Plaintiff's appeal of Magistrate Judge Baxter's April 5, 2016 Decision and Order (Dkt. No. 25 ) is DENIED. ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 3/20/17. {order served via regular mail on plaintiff}(nas )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ENRIQUE ORTIZ
also known as Enrequie Ortiz,
Plaintiff,
vs.

9:15-cv-00291
(MAD/ATB)

ALBERT PRACK, Director of
Special Housing/Inmate Discipline,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

ENRIQUE ORTIZ
94-A-2838
Fishkill Correctional Facility
P.O. Box 1245
Beacon, New York 12508
Plaintiff, pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

MARK G. MITCHELL, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff pro se Enrique Ortiz (hereinafter "Plaintiff"), an inmate currently in the custody
of the New York State Department of Corrections and Community Supervision ("DOCCS"),
brings this action pursuant to 42 U.S.C. § 1983 alleging violation of his due process rights with
respect to a disciplinary hearing and subsequent appeal. Plaintiff's complaint is against the
Director of Special Housing and Inmate Disciplinary Program, Defendant Albert Prack. Defense

counsel filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56. Magistrate Judge
Baxter issued a Report-Recommendation on September 22, 2016, recommending that the Court
grant Defendant's motion for summary judgment.
Currently before the Court are Plaintiff's objections to Magistrate Judge Baxter's ReportRecommendation, and Plaintiff's appeal from Magistrate Judge Baxter's denial of his motion to
compel discovery.
II. BACKGROUND
Plaintiff, an inmate at Coxsackie Correctional Facility ("Coxsackie C.F."), filed this action
after being housed in the Special Housing Unit ("SHU") as the result of a disciplinary hearing
disposition in August 2011. See Dkt. No. 1 at 5-6. Plaintiff became the subject of a disciplinary
hearing after receiving a letter in the mail that said "Thank you for the cigarettes, Russ,"
accompanied by a money order in the amount of seventy dollars. Dkt. Nos. 27-4, 27-5. The
return address was listed as "J.T. Russell," another inmate at Coxsackie C.F. at the time. Dkt. No.
27-5. Plaintiff was questioned by Sergeant Yung regarding the letter, because the correspondence
presented a potential violation of certain inmate rules. Dkt. No. 27-6 at 1.
According to Plaintiff, Sergeant Yung asked Plaintiff if he knew an inmate named "Jeffery
T. Russell," to which Plaintiff responded that he was not familiar with that name, but perhaps
knew the inmate by another name. Dkt. No. 1 at 5. Sergeant Yung then showed Plaintiff the
letter and money order addressed to Plaintiff. Id. Plaintiff then proceeded to tell Sergeant Yung
that Plaintiff purchased nine packages of cigarettes from the commissary store. Id. Following
this meeting, Plaintiff was placed in "keeplock."1 Id. The next day, August 25, 2011, Plaintiff

1

"During keep lock a prisoner is 'confined to his own cell and is deprived of almost all
contact with the rest of the prison population and participation in the normal routine of the
(continued...)
2

was issued a misbehavior report charging him with unauthorized exchange, smuggling, and
facility correspondence. Dkt. No. 27-6 at 1. As part of the disciplinary process, Plaintiff was
given an assistant to help him with the upcoming hearing. Dkt. No. 27-3 at 31. Plaintiff's
assistant for the disciplinary process met with Plaintiff later that day, whereby Plaintiff requested
"all of the documentary evidence that was generated with the misbehavior report," to prepare for
the hearing. Dkt. No. 1 at 6. Plaintiff states in his complaint that the disciplinary assistant
responded that "all of the documentary evidence would be given to plaintiff at the hearing and not
one day before." Id. Prior to the hearing, Plaintiff requested two witnesses, inmate Russell, and
inmate Russell's father, Franklin Russell. Dkt. No. 27-3 at 19. Plaintiff wanted to call Franklin
Russell to testify in order to show that Franklin Russell, not inmate Jeffrey Russell, sent the
money order. See Dkt. No. 27-2 at 24. Although inmate Russell provided testimony at the
disciplinary hearing, Plaintiff's request for Franklin Russell was denied. Id. at 27. Officer
Gutwein denied this request because "J.T. Russell" was listed as the return address, not Franklin
Russell. See Dkt. No. 27-3 at 27.
Hearing Officer Eric Gutwein (hereinafter "HO Gutwein") conducted the hearing, which
took place from August 29 to September 8, 2011. Id. at 19. HO Gutwein found Plaintiff guilty of
all three violations and imposed a penalty taking away commissary, phone, and package
privileges. Dkt. No. 27-6 at 1. The money order was confiscated, and six months of recorded
good time was taken away from Plaintiff. Id. In addition to these penalties, Plaintiff was
sentenced to confinement in the SHU for six months. Id.

1

(...continued)
institution . . ." Williams v. Smith, 781 F.2d 319, 321 (2d Cir. 1986) (quoting McKinnon v.
Patterson, 568 F.2d 930, 936 (2d Cir. 1977)).
3

Defendant Prack reviewed the disciplinary hearing on November 16, 2011, and reduced
Plaintiff's penalty from six to four months of confinement in the SHU, finding that "THE
NATURE OF THE OFFENSE, HOWEVER SERIOUS, DOES NOT WARRANT THE
PENALTY IMPOSED." Dkt. No. 27-3 at 4-5.
On March 9, 2012, Plaintiff filed suit in the Albany County Supreme Court seeking
review of his disciplinary hearing pursuant to Article 78 of the New York Civil Practice Law and
Rules. Dkt. No. 27-8 at 2; Dkt. No. 27-9 at 12. Plaintiff sought to reverse and vacate the final
disciplinary determination of November 16, 2011.2 Dkt. No. 27-9 at 12. In the Article 78
proceeding, Defendant Prack was not listed as a defendant. See Dkt. No 27-8 at 1. Plaintiff's
hearing was reversed and expunged on May 23, 2012, for failure to maintain a complete
electronic recording of the hearing. Id. at 6. Thereafter, on July 30, 2012 the Albany County
Supreme Court issued a decision dismissing Plaintiff's petition as moot, stating that Plaintiff
"received all of the relief to which he is entitled." Id. at 3 (quoting Matter of Scott v. Prack, 97
A.D.3d 861, 861 (N.Y. App. Div. 2012)).
Plaintiff subsequently brought this federal action pursuant to 42 U.S.C. § 1983 alleging
violations of his due process rights with respect to the disciplinary hearing and subsequent appeal.
See Dkt. No. 1 at 6-7. Plaintiff asserts that Defendant Prack was "wholly aware" that the
electronic recording was incomplete when Defendant Prack modified Plaintiff's penalties on
November 16, 2011. Dkt. No. 1 at 7. As such, Plaintiff contends that the reversal and
expungement on May 23, 2012 should have occurred when Defendant Prack first reviewed the
disciplinary hearing and issued the November 16, 2011 decision. See id. Plaintiff argues that

2

Although Plaintiff refers to November 26, 2011 in the conclusion to his petition to the
Albany County Supreme Court, it is clear from the rest of Plaintiff's petition and the documents
submitted that the date of the final decision was November 16, 2011.
4

Defendant Prack's "fail[ure] to remedy the situation" during the initial review "thereby caus[ed]
[P]laintiff to be confined and without privileges for another 125 days."3 Id.
A.

Plaintiff's Motion to Compel Discovery
In the Mandatory Pretrial Discovery and Scheduling Order ("Scheduling Order"),

Magistrate Judge Baxter established a discovery deadline of March 19, 2016. Dkt. No. 16 at 5.
The Scheduling Order articulated that the discovery deadline serves as the "latest date upon which
discovery responses may be due," and that any written requests must be "served sufficiently in
advance of [March 19, 2016] to ensure compliance with this requirement." Id. at n.5 (citing Local
Rules N.D.N.Y. 16.2).
On November 6, 2015, Plaintiff wrote to Magistrate Judge Baxter requesting leave to
serve interrogatories in lieu of a deposition. Dkt. No. 18 at 1. On November 25, 2015, Magistrate
Judge Baxter responded by text order informing Plaintiff that he did not need permission of the
court to serve interrogatories and reminded Plaintiff of the March 19, 2016 deadline. Dkt. No. 21.
This text order again advised Plaintiff that he "must serve discovery requests on defendant
sufficiently in advance of the discovery completion date (set for March 19, 2016) so as to afford

3

Plaintiff's calculation of 125 days is inconsistent with his confinement in the SHU at
Coxsackie C.F. As Magistrate Judge Baxter points out in his Report-Recommendation,
[P]laintiff was confined either in keeplock or SHU beginning on
August 24, 2011. Plaintiff's SHU sanction was initially six
months, and on November 16, 2011, [D]efendant Prack reduced
the SHU penalty to four months, which would have ended in
December of 2011. When [D]efendant Prack reduced the penalty
to four months, [P]laintiff had already served three months, leaving
only an 'extra' thirty days for him to serve as the result of
[D]efendant Prack's allegedly improper affirmance.
Dkt. No. 37 at 12 n.7. Nevertheless, it appears that Plaintiff served the full four months, and the
Court will assume for purposes of this decision that Plaintiff's confinement created a liberty
interest. See Sandin v. Conner, 515 U.S. 472, 483-84 (1995).
5

defendant at least thirty days to respond." Id. Nearly three months later, on February 23, 2016,
Plaintiff served interrogatories on Defendant Prack. Dkt. No. 23 at 4. In response, Defendant
Prack objected to the interrogatory demands as untimely because they were not served thirty days
prior to the discovery deadline. Id. at 17-18. Plaintiff filed a motion to compel responses to
interrogatories and document demands directed to Defendant Prack. Id. at 3. Magistrate Judge
Baxter denied Plaintiff's motion on the grounds of untimeliness, further noting that "[P]laintiff has
received the discovery he reasonably requires to prosecute his action." Dkt. No. 24 at 3. Plaintiff
wrote this Court seeking "an order granting reconsideration and objection to Magistrate Judge
Baxter's denial of" Plaintiff's motion to compel. Dkt. No. 25 at 1.
B.

Magistrate Judge Baxter's September 22, 2016 Report-Recommendation
In his motion for summary judgment, Defendant Prack presented the following arguments:

(i) Defendant Prack lacked the requisite personal involvement to sustain a claim; (ii) the failure to
maintain an electronic record of the hearings did not violate Plaintiff's constitutional rights and
the disciplinary findings are supported by "some evidence;" (iii) the failure to have Franklin
Russell testify did not violate Plaintiff's due process rights; (iv) Defendant Prack is entitled to
qualified immunity; (v) Plaintiff was not deprived of a cognizable liberty interest; and (vi)
Eleventh Amendment immunity precludes Plaintiff's claims for damages against Defendant Prack
in his official capacity. Dkt. No. 27-12 at 2. In a September 22, 2016 Report-Recommendation,
Magistrate Judge Baxter recommended that the Court grant Defendant's motion for summary
judgment and dismiss Plaintiff's complaint. Magistrate Judge Baxter thoroughly addressed the
issues of Defendant's personal involvement, and Plaintiff's alleged due process violations.
Magistrate Judge Baxter concluded that, while Defendant may have been personally involved,

6

Plaintiff's due process rights were not violated with respect to the disciplinary hearing process.
See Dkt. No. 37 at 10, 37.
C.

Plaintiff's Objections
Plaintiff timely filed objections to the Report-Recommendation on November 30, 2016,

alleging that Defendant Prack waived the "some evidence" defense by failing to raise it in the
Article 78 proceeding, and that the disciplinary hearing was constitutionally flawed for failing to
meet the "some evidence" standard. See Dkt. No. 30 at 5, 10. While Plaintiff only raises two
objections, these objections include multiple issues raised in the Report-Recommendation that the
Court will address individually below.
1.

Defendant Waived the "Some Evidence" Argument

In his first objection to the Report-Recommendation, Plaintiff argues that Defendant Prack
waived the "some evidence" defense. Dkt. No. 40 at 5. Plaintiff argues that his failure to
specifically name Defendant Prack in the Article 78 proceeding is immaterial. See id. at 8-9.
Plaintiff asserts that Defendant Prack was necessarily a party to the proceeding based on
Defendant Prack's "involvement by extension in the administrative appeal process and the
ultimate decision maker." See id. at 8. Plaintiff claims that Defendant Prack was a party to the
proceeding as a "body or officer" or "other interested person[]," and, therefore, should have had
notice of the claim. Id. at 9 (citing N.Y. C.P.L.R. § 7802(a), (d)). Plaintiff appears to be alleging
that Defendant Prack should have known about the Article 78 proceeding and, therefore, should
have had the incentive to defend himself on the merits of Plaintiff's allegations. See id. at 9. In
failing to do so, Plaintiff claims that Defendant Prack waived his "some evidence" argument. See
id. at 7-9.
2.

The Hearing Disposition was Not Supported by "Some evidence"
7

Plaintiff's second objection is that the disciplinary disposition was not supported by
sufficient evidence, and that the hearing itself did not comply with Plaintiff's due process rights.
Dkt. No. 40 at 10. Plaintiff claims that the administrative appeal was "constitutionally flawed"
for failure to maintain a complete electronic record of the disciplinary hearing. See id. at 11.
According to Plaintiff, "it is impossible to discern what objections were made" without a
complete record of the hearing. Id. Furthermore, Plaintiff maintains that the evidence submitted
in the hearing was insufficient to uphold the result of the hearing. See id. In addition, Plaintiff
objects that his due process rights were violated during the hearing for the denial to call a material
witness. See id. Plaintiff argues that Defendant Prack's failure to reverse the hearing in
November 2011 violated his due process rights. See id. at 10-11. Plaintiff contends that
Defendant Prack erred in the appeal process by making a decision on the merits of the hearing
without a full electronic record.4 See id. Plaintiff maintains that "one cannot declare with any
certainty that there was 'sufficient evidence' to find [Plaintiff] guilty of the charges" without the
entire record. Id. at 12. Plaintiff appears to be objecting to the sufficiency of evidence at the
disciplinary hearing, as well as sufficiency of evidence to support Defendant Prack's affirmation
of the hearing on appeal. See id. at 10, 12-13.
III. DISCUSSION
A.

Standard of Review

4

Plaintiff assumes that Defendant Prack "knew" that the electronic recording was not
maintained when he modified the disciplinary hearing in November 2011. However, as
Magistrate Judge Baxter points out, "it is very possible that the electronic recording of the
hearing was available in 2011, but was not maintained, was damaged, or was lost by the time
that [P]laintiff filed his Article 78 proceeding in March of 2012 . . . ." Dkt. No. 37 at 19 n.14.
Nevertheless, Plaintiff maintains in his objection to the Report-Recommendation that this belief
was not an "assumption." Dkt. No. 40 at 10-11.
8

When a party files specific objections to a magistrate judge's report and recommendation,
the district court makes a "de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1).
However, when a party files "[g]eneral or conclusory objections, or objections which merely
recite the same arguments [that he presented] to the magistrate judge," the court reviews those
recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1
(N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After the appropriate review, "the
court may accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1).
A court shall grant summary judgment if the movant shows there is no genuine dispute as
to any material fact, and the facts as to which there is no such dispute warrant judgment for the
movant as a matter of law. See Fed. R. Civ. P. 56(a); see also Chambers v. TRM Copy Ctrs.
Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment
motion, the court "cannot try issues of fact; it can only determine whether there are issues to be
tried." Chambers, 43 F.3d at 36-37 (quotation and other citation omitted). "[T]he plain language
of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
Moreover, it is well-settled that a party opposing a motion for summary judgment must do
more than simply "rest upon the mere allegations or denials of his 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, 586 n.11 (1986). "Conclusory allegations, conjecture and
9

speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d
369, 400 (2d Cir. 1998). Instead, a party opposing summary judgment is required to submit
admissible evidence showing that there is a genuine factual dispute. See Spiegel v. Schulmann,
604 F.3d 72, 81 (2d Cir. 2010); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Liberty Lobby, Inc., 477 U.S. at 255)
(other citations omitted). Where the non-movant fails either to respond to the motion or
otherwise dispute the movant's statement of material facts, the court may not rely solely on the
moving party's statement of material facts pursuant to N.D.N.Y. Local Rule 7.1(a)(3); rather, the
court must be satisfied that the citations to evidence in the record support the movant's assertions.
See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that factual
assertions contained in a statement of facts that are otherwise unsupported by record citations are
insufficient to meet a movant's burden on summary judgment).
Further, "in 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 Haines 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 legal rights merely because
they lack a legal education. See Campbell, 289 F. Supp. 2d at 295 (quoting Traguth v. Zuck, 710
F.2d 90, 95 (2d Cir. 1983)). However, this does not mean that a pro se litigant is excused from
following the procedural requirements of summary judgment. See Campbell, 289 F. Supp. 2d at
10

295 (citing Showers v. Eastmond, No. 00 CIV. 3725(SAS), 2001 WL 527484, *2 (S.D.N.Y. May
16, 2001)). Specifically, "a pro se party's bald assertions, unsupported by evidence, are
insufficient to overcome a motion for summary judgment." Showers, 2001 WL 527484, at *2
(citing Cary v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
B.

Personal Involvement
"'[P]ersonal 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) (quotation and other citations omitted). "'[W]hen monetary damages are sought under §
1983, the general doctrine of respondeat superior does not suffice and a showing of some
personal responsibility of the defendant is required.'" Id. (quoting Johnson v. Glick, 481 F.2d
1028, 1034 (2d Cir.)). There is a sufficient showing of personal involvement of a defendant if (1)
the defendant directly participated in the alleged constitutional deprivation; (2) the defendant is a
supervisory official who failed to correct the wrong after learning about it through a report or
appeal; (3) the defendant is a supervisory official who created a policy or custom under which the
constitutional deprivation occurred, or allowed such a policy or custom to continue; or (4) the
defendant is a supervisory official that was grossly negligent in managing subordinates who
caused the constitutional deprivation. See id. (quoting Williams v. Smith, 781 F.2d 319, 323-24
(2d Cir. 1986)).
While courts within the Second Circuit are split as to whether affirmation of a disciplinary
determination is sufficient to establish a supervisor's personal involvement, see Burton v. Lynch,
664 F. Supp. 2d 349, 360 (S.D.N.Y. 2009) (collecting cases), Defendant Prack's actions reveal a
more proactive role in the appeal process than mere rubber-stamping. See Hamilton v. Smith, No.
06-CV-805, 2009 WL 3199531, *22 (N.D.N.Y. Jan. 13, 2009) ("[W]here a supervisory official
11

receives, reviews, and responds to a prisoner's complaint, personal involvement may be found")
(citing Boddie v. Morgenthau, 342 F. Supp. 2d 193, 203 (S.D.N.Y. 2004)) (other citations
omitted). Defendant Prack reviewed and affirmed Plaintiff's disciplinary hearing, while reducing
Plaintiff's SHU confinement from six to four months. Dkt. No. 27-3 at 4-5. In his decision,
Defendant Prack stated that, while Plaintiff's offense may have been serious, it was not enough to
justify the six-month penalty imposed by HO Gutwein. See id. at 5. By modifying the imposed
penalties, Defendant Prack was not a passive participant; rather, he was personally involved with
Plaintiff's disciplinary action. See Hamilton, 2009 WL 3199531, at *22.
Based on the foregoing, the Court finds that Magistrate Judge Baxter correctly determined
that Plaintiff has sufficiently alleged Defendant Prack's personal involvement.
C.

Objections to the Report-Recommendation
Plaintiff's first objection, that Defendant Prack waived his "some evidence" argument,

presents a general recitation of the arguments made in opposition to summary judgment. See Dkt.
No. 33 at 11-12; Dkt. No. 40 at 5-9. Similarly, Plaintiff's second objection, that the "some
evidence" standard was not met in this case, restates Plaintiff's argument raised in opposition to
summary judgment. See Dkt. No. 33 at 9-10; Dkt. No. 40 at 10-11.
1. Waiver
"An issue is not considered waived [] if a party did not, at the time of the purported
waiver, have both an opportunity and an incentive to raise it before the [] court or on appeal."
United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 2002).
Plaintiff asserts that Defendant Prack waived the "some evidence" argument by not
addressing the issue in the Article 78 proceeding, thereby failing to preserve the defense in this
proceeding. Dkt. No. 33 at 12; Dkt. No. 40 at 5. First, the Court notes that Defendant Prack was
12

not named in the proceeding; rather, the suit was filed against Brian Fischer, Commissioner of
DOCCS. Dkt. No. 27-8 at 1. Plaintiff maintains that Defendant Prack's "involvement by
extension in the administrative appeal process and the ultimate decision maker . . . made him a
party to the proceeding" and, therefore, he should have had the incentive to raise any applicable
defenses. Dkt. No. 33 at 12. However, Defendant Prack did not have the opportunity or incentive
to raise the issue during the Article 78 proceeding because the case was dismissed as moot in the
early stages of the proceeding. See Dkt. No. 27-8 at 2; see also Quintieri, 306 F.3d at 1229.
Moreover, the hearing and punishment at issue in the state proceeding was administratively
reversed, and consequently, Plaintiff was already granted all of the relief to which he was entitled.
See Dkt. No. 27-8 at 2-3; Dkt. No. 27-9 at 12; see also Horne v. Coughlin, 949 F. Supp. 112, 114
(N.D.N.Y. 1996). Magistrate Judge Baxter correctly found that Defendant Prack did not fail to
preserve, nor did he waive this defense.
Similarly, the Court agrees with Magistrate Judge Baxter that Defendant Prack is not
precluded from raising the "some evidence" defense under the concept of res judicata. See Dkt.
No. 37 at 15-17. The Article 78 proceeding was dismissed as moot. Therefore, the dismissal was
not a judgment on the merits and, as such, res judicata does not apply. See Monahan v. New York
City Dep't of Corrections, 214 F.3d 275, 284 (2d Cir. 2000) (citing Allen v. McCurry, 449 U.S.
90, 94 (1980)).
2. "Some Evidence"
The 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) (quotation omitted). "Nevertheless, an inmate is entitled to advance written notice of the
charges against him; a hearing affording him a reasonable opportunity to call witnesses and
13

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. 556, 563-67 (1974)). "Since Wolff, the Supreme Court
has clarified that judicial review of the written findings required by due process is limited to
determining whether the disposition is supported by 'some evidence.'" Id. (quoting
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." Id. (quoting
Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)). Nevertheless, as the Second Circuit
has explained, "the 'some evidence' standard requires some 'reliable evidence.'" Id. (quotation and
other citation omitted).
In the present matter, Defendant Prack correctly asserts that the hearing, along with his
review and affirmation of Plaintiff's disciplinary disposition, was supported by "some evidence."
In reaching his conclusion following the disciplinary hearing, HO Gutwein stated that he relied on
the misbehavior report of Sergeant Yung, a money order and letter addressed to Plaintiff, along
with the testimony of Plaintiff, Sergeant Yung, and inmate Russell, who testified that his father
sent the money order to Plaintiff for him. Dkt. No. 27-3 at 18. Defendant Prack reviewed the
hearing record in modifying the penalties. See id. at 4-5. As such, the evidence relied on by
Defendant Prack meets the "some evidence" standard required in the prison disciplinary setting.
See Sira v. Morton, 380 F.3d 57, 76 (2d Cir. 2004); see also Moore v. Griffin, No. 9:13-CV00616, 2015 U.S. Dist. LEXIS 122004, *30-32 (N.D.N.Y. Aug. 4, 2015) (holding that a
disciplinary determination based on a misbehavior report, letter to another inmate, and testimony
from the officer who wrote the misbehavior report, was supported by "some evidence").

14

Plaintiff states that "[w]ithout the entire record of [Plaintiff's] disciplinary proceeding, it is
impossible to determine whether or not there was 'some evidence' to sustain the original charges."
Dkt. No. 40 at 11. This assertion is incorrect. Judicial review of a disciplinary hearing "'does not
require examination of the entire record . . . Instead, the relevant question is whether there is any
evidence in the record that could support the conclusion reached by the disciplinary board.'" Sira,
380 F.3d at 76 (quoting Superintendent v. Hill, 472 U.S. at 455-56). Here, the misbehavior
report, among other evidence, supports the conclusion reached by HO Gutwein. As such, the
disposition of the disciplinary hearing and subsequent review by Defendant Prack meets the
"some evidence" requirement. Moreover, the totality of the circumstances, including the
testimony of Sergeant Yung, corroborated by the testimony of inmate Russell, reasonably meets
the reliable evidence standard. See Sira, 380 F.3d at 82 ("[R]eliability of evidence is always
properly assessed by reference to the totality of the circumstances"); see also Hinton v. Prack,
No. 9:12-CV-1844, 2014 WL 4627120, *9 (N.D.N.Y. Sept. 11, 2014) (holding that testimony
provided by the officer who issued the misbehavior report, along with the corroborating
statements from unidentified witnesses, met the some reliable evidence standard).
Further, contrary to Plaintiff's assertions, although New York regulations require the
electronic recording of disciplinary hearings, these requirements do not create federal
constitutional protection. See, e.g., Ramsey v. Goord, 661 F. Supp. 2d 370, 393 (W.D.N.Y.
2009). Rather, the failure to maintain the electronic recording resulted in a simple violation of
state procedural requirements, not a deprivation of any due process right. See Vogelfang v.
Capra, 889 F. Supp. 2d 489, 502-03 (S.D.N.Y. 2012) (citing cases).
Having carefully reviewed the parties' submissions, the record, and applicable law, the
Court finds that the challenged disciplinary hearing dispositions were supported by some reliable
15

evidence. As such, the Court agrees with Magistrate Judge Baxter's recommendation to grant
Defendant's motion for summary judgment as to this claim.
3. Denial of Witness
A prisoner's right to call witnesses at a disciplinary hearing may be denied "on the basis of
irrelevance or lack of necessity." Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991)
(citations omitted). Additionally, while the Supreme Court does "not prescribe it, it would be
useful for the [disciplinary] Committee to state its reason for refusing to call a witness, whether it
be for irrelevance, lack of necessity, or the hazards presented in individual cases." Wolff, 418
U.S. at 566.
In the present matter, HO Gutwein denied Plaintiff's request to call Franklin Russell as a
witness because it was not the name listed in the return address for the money order. See Dkt. No.
27-3 at 27. In his objection to the Report-Recommendation, Plaintiff stated that "if we are to
believe . . . that inmate Russell testified truthfully that his father sent the letter and money for him,
then Mr. Russell was a material witness." Dkt. No. 40 at 13. Plaintiff's speculative assertion is
insufficient. The evidence showed that Plaintiff admitted purchasing cigarettes for inmate Russell
and, although inmate Russell testified that his father sent the money order, it was unclear from the
envelope who actually "sent" the letter, and it appeared that it was sent from inmate Russell.
Franklin Russell's name did not appear on the envelope, and HO Gutwein had admissions from
both inmates. Therefore, it was within the hearing officer's discretion to deny Plaintiff's request
to call Franklin Russell as a witness. See Wolff, 418 U.S. at 566 (finding that a witness may be
denied as unnecessary or irrelevant). As such, Magistrate Judge Baxter correctly found that
calling Franklin Russell as a witness would have been unnecessary and, therefore, Plaintiff's due
process rights were not violated as a result of the denial. See Feliciano v. Selsky, 205 F.3d 568,
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570 (2d Cir. 2000) ("[P]rison hearing officers have the discretion to keep disciplinary hearings
within reasonable limits and . . . this discretion includes the power to refuse to call witnesses
whose testimony may reasonably be regarded as non-probative or duplicative").
Based on the foregoing, Magistrate Judge Baxter properly determined that no reasonable
fact-finder could conclude that Plaintiff was denied due process during his disciplinary hearing
through the denial to call Franklin Russell as a witness.
C.

Plaintiff's Appeal from Order Denying Motion to Compel
On April 14, 2016, the Court received a letter from Plaintiff appealing Magistrate Judge

Baxter's denial of Plaintiff's motion to compel certain discovery. Dkt. No. 25 at 1.
The district court reviews non-dispositive orders issued by a magistrate judge under the
"clearly erroneous" standard. Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.
1990) (citing 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a)). "Pretrial matters involving
discovery are generally considered non-dispositive since they do not resolve the substantive
claims for relief alleged in the pleadings." Sadowski v. Technical Career Insts., No. 93-CV-0455,
1994 WL 603201, *13 (S.D.N.Y. Nov. 2, 1994) (citing Thomas E. Hoar, Inc., 900 F.2d 522, 525
(2d Cir. 1990)). In general, "[a] finding is 'clearly erroneous' when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573
(1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). As such,
the court will review Magistrate Judge Baxter's order denying Plaintiff's motion to compel
discovery for clear error.
Pursuant to the Federal Rules of Civil Procedure, a party has thirty days to respond to a
demand for interrogatories. Fed. R. Civ. P. 33(b)(2). In the present matter, Plaintiff advised the
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Court that he received the Scheduling Order and "underst[ood] the deadline dates and what is
required" of him. Dkt. No. 18 at 1. Moreover, Magistrate Judge Baxter advised Plaintiff by text
order that he "must serve discovery requests on defendant sufficiently in advance of the discovery
completion date (set for March 19, 2016)."5 Dkt. No. 21. Despite this, Plaintiff failed to serve his
request for interrogatories at least thirty days before the discovery deadline. Dkt. No. 23 at 10.
Accordingly, Plaintiff's demands were not timely served because they did not allow sufficient
time for a response in advance of the discovery deadline. Fed. R. Civ. P. 33(b)(2); see also
Pacheco v. Deacevedo, No. 9:05-CV-0998, 2007 U.S. Dist. LEXIS 26140, *4 (N.D.N.Y. Apr. 9,
2007) (holding that the pro se plaintiff's service of interrogatory demands twenty-four to twentysix days before the discovery deadline were not timely served). Moreover, Magistrate Judge
Baxter correctly determined that most of Plaintiff's demands were objectionable and that Plaintiff
had already been provided with the discovery necessary to prosecute his case.
Having carefully reviewed Magistrate Judge Baxter's Order, the record, and applicable
law, the Court finds that Magistrate Judge Baxter correctly denied Plaintiff's motion to compel
discovery.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions,
Magistrate Judge Baxter's September 22, 2016 Report-Recommendation, Magistrate Judge
Baxter's April 5, 2016 Order, the applicable law, and for the above-stated reasons, the Court
hereby

5

This text order was issued on November 25, 2015, and served on Plaintiff by regular
mail along with a pro se handbook and the Local Rules. Dkt. No. 21.
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ORDERS that Magistrate Judge Baxter's September 22, 2016 Report- Recommendation is
ADOPTED in its entirety for the reasons set forth therein; and the Court further
ORDERS that Defendant's motion for summary judgment (Dkt. No. 27) is GRANTED;
and the Court further
ORDERS that Plaintiff's appeal of Magistrate Judge Baxter's April 5, 2016 Decision and
Order (Dkt. No. 25) is DENIED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 20, 2017
Albany, New York

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