Tolliver v. Skinner et al

Filing 218

MEMORANDUM & ORDER: for 211 Report and Recommendations, 160 Motion for Summary Judgment filed by Eric Tolliver, 170 Motion for Summary Judgment filed by Patrick Griffin, D. Vennettozzi, Prack Albert, Coveny, Tad Levac, L. Malin, Lyn n Lilley, Albert Prack. Having conducted the appropriate levels of review of the Report and Recommendation of United States Magistrate Judge Fox dated September 19, 2016, this Court REJECTS the Reports conclusion that Defendant Levac is not entitle d to qualified immunity on the claim that he conducted the hearing outside of Plaintiffs presence. The Court APPROVES, ADOPTS, and RATIFIES the Reports remaining recommendations and conclusions, but MODIFIES the Reports legal reasoning with respect to the qualified immunity claims raised by Defendants Malin, Levac, Venettozzi, and Prack in their Objections. Accordingly, Plaintiffs Motion for Summary Judgment is DENIED in part and GRANTED in part, and Defendants Motion for Summary Judgment is DENIED in part and GRANTED in part. The Court will notify the Parties of the next step in this action shortly. (Signed by Judge Deborah A. Batts on 03/13/2017) (ap)

UNITED STATES DISTICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------X
Eric Tolliver,
Plaintiff,

12 Civ. 971 (DAB)
MEMORANDUM & ORDER

v.
Skinner et al.,
Defendants.
----------------------------------------X
DEBORAH A. BATTS, United States District Judge.

On September 19, 2016, United States Magistrate Judge Kevin
Nathaniel Fox filed a Report and Recommendation (“Report”)
recommending that Eric Tolliver's (“Tolliver” or “Plaintiff”)
Motion for Summary Judgment be granted in part and denied in
part, and Defendants’ cross-Motion for Summary Judgment be
granted in part and denied in part. The Court assumes general
familiarity with the events that gave rise to this litigation.
The facts relevant to the present Motion, which are detailed
meticulously in Judge Fox's Report, will not be restated here.
For the reasons set forth below, the Court having conducted the
appropriate level of review, Judge Fox's Report is ADOPTED in
part, MODIFIED in part, and REJECTED in part, and the crossMotions for Summary Judgment are GRANTED in part and DENIED in
part.

I.

Objections to the Report

A. Standard of Review
When the magistrate judge makes a recommendation for a
dispositive matter, a party may make timely objections by
“serv[ing] and fil[ing] specific written objections to the
proposed findings and recommendations” within “14 days after
being served with a copy [of the Report].” Fed. R. Civ. P.
72(b)(2). After conducting the appropriate level of review, the
Court may accept, reject, or modify, in whole or in part, the
findings and recommendations made by the magistrate. 28 U.S.C. §
636(b)(1)(c); see also Local Civil Rule 72.1.
The Court must “determine de novo any part of the
magistrate judge's disposition that has been properly objected
to.” Fed. R. Civ. P. 72(b)(3). However, “objections that are
merely perfunctory responses argued in an attempt to engage the
district court in a rehashing of the same arguments set forth in
the original [papers] will not suffice to invoke de novo review
... [such objections] would reduce the magistrate's work to
something akin to a meaningless dress rehearsal.” Vega v. Artuz,
No. 97 Civ. 3775 (LTS)(JCF), 2002 WL 31174466, at *1 (S.D.N.Y.
Sept. 30, 2002) (citations and internal quotation marks
omitted); see also Kozlow v. Horn, No. 09 Civ. 6597(LTS)(RLE),
2012 WL 2914338, at *1 (S.D.N.Y. July 17, 2012) (“When a party .

2

. . simply reiterates his original arguments, the Court reviews
the Report only for clear error.”); Ortiz v. Barkley, 558 F.
Supp. 2d 444, 451 (S.D.N.Y. 2008) (“Reviewing courts should
review a report and recommendation for clear error where
objections are . . . argued in an attempt to ‘engage the
district court in a rehashing of the same arguments.’”). Where
no timely objection has been made, “a district court need only
satisfy itself that there is no clear error on the face of the
record.” Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y.
1985).
On a motion for summary judgment, “the district court
should draw all factual inferences in favor of the non-moving
party.” Wright v. Coughlin, 132 F.3d 133, 138 (2d Cir. 1998). “A
district court may grant summary judgment . . . only if, viewing
the facts in the light most favorable to the non-movant, there
exists no genuine issue of material fact for adjudication.” Id.
at 137.
Defendants and Plaintiff both filed timely Objections, and
the Court has reviewed the Report and the submissions of the
Parties. The Court addresses each Objection below.

3

B. Defendants’ Objections
i. Defendants’ Due Process Objections
Defendants object to the Report’s denial of summary
judgment to Defendants with respect to: (1) Plaintiff’s claims
of bias based on Defendant Malin’s and Defendant Levac’s
intentional tampering with the record or failure to fully record
the 2011 and 2013 hearings; (2) Plaintiff’s claims against
Defendants Levac and Prack stemming from the 2013 rehearing; and
(3) Plaintiff’s claims against Defendants Venettozzi and Prack
based on their roles in reviewing and affirming the 2011 and
2013 hearings.

(1) Bias Claims against Defendants Malin and Levac
Defendants object to the Report’s denial of summary
judgment to Defendants Levac and Malin with respect to
Plaintiff’s claim that these Defendants were biased in
intentionally tampering with the hearing record. (See Defs.’
Objections to the Report (“Obj.”) at 20-21.) Defendants contend
that the allegations of bias are purely conclusory and
insufficient to create a disputed issue of material fact. (Id.
at 21.) Defendants also argue that the claim fails because there
is no due process requirement that a hearing be fully recorded.
(Id. at 5-6.)
4

Defendants’ arguments were already raised in their initial
motion papers,1 and so will not be reviewed by this Court de
novo. See Ortiz, 558 F. Supp. 2d at 451. Nonetheless,
Plaintiff’s bias claims are neither conclusory nor unsupported
by triable facts. Plaintiff swears, under penalty of perjury,
that Defendant Malin made comments to him demonstrating
prejudice at the 2011 hearing2; Plaintiff also swears that
Defendant Levac threatened him at the 2013 hearing. And as the
Report points out, even standing alone, Defendant Levac’s
Declaration contains internal inconsistencies. (See Report at
36-37.) Combined with the fact that portions of the hearing
tapes were, in fact, inaudible or recorded over in both cases,
the record contains sufficient facts from which a reasonable
juror could infer bias. See Francis v. Coughlin, 891 F.2d 43, 47

1

See Defs.’ Mem. in Supp. of their Mot. for Summ. J. (“MSJ”) at
10-11, 21-22; Defs.’ Mem. in Opp’n to Pl.’s Mot. for Summ. J.
(“Opp’n”) at 10-11.
2

Defendants claim that Plaintiff never raised Defendant Malin’s
bias in opposition to their Motion for Summary Judgment.
However, Plaintiff, in his Response, attests to statements he
claims that Defendant Malin made that would tend to demonstrate
bias, and specifically asserts his claim of bias in his own
Motion. Given that the Court must “read the pleadings and
opposition papers submitted by pro se litigants liberally and
interpret them to raise the strongest arguments that they
suggest,” Blake v. Israel Sexton, Sergeant, N.Y.C. Police Dep’t,
12 Civ. 7245(ER), 2016 WL 1241525, at *2 (S.D.N.Y. Mar. 24,
2016) (internal quotation marks omitted), the Court sees no
clear error in Magistrate Judge Fox’s conclusion that the
submissions present a triable bias claim on this issue.
5

(2d Cir. 1989); Palmer v. Goss, No. 02 Civ. 5804(HB), 2003 WL
22327110, at *6 (S.D.N.Y. Oct. 10, 2003) (“Defendants also
contend that [Plaintiff] has no constitutional right to a tape
so ‘the fact that it was apparently defective does not rise to
the level of constitutional deprivation.’ Defendants' argument
here rests on an inappropriate supposition at this stage of the
litigation—namely that the tape was defective and not
intentionally erased by corrections department employee.”),
aff’d sub nom. Palmer v. Richards, 364 F.3d 60 (2d Cir. 2004).
Although Defendants Malin and Levac deny making threatening
statements to Plaintiff, deny tampering with the tapes, and deny
any bias, this is precisely what makes the facts disputed and
precludes Defendants’ motion for summary judgment on this claim.
Cf. McCormack v. Cheers, 818 F. Supp. 584, 598 (S.D.N.Y. 1993)
(“Drawing all reasonable inferences in favor of the nonmoving
party and recognizing that defendants may have ‘suppressed
evidence’ . . .

this Court finds a genuine issue of material

fact concerning whether Cheers was an unbiased and impartial
hearing officer.”).
Thus, the Court ADOPTS the Report’s conclusion with respect
to this claim.

6

(2) Claims against Defendants Levac and Prack
Defendants object to the Report’s refusal to dismiss the
due process claims against Defendants Levac and Prack. (Defs.’
Obj. at 21-22.) Defendants contend that Plaintiff had no liberty
interest implicated in the 2013 rehearing, and so had no due
process rights with respect to that hearing. (Id.)
Defendants’ argument on this issue was both addressed in
the Court’s September 25, 2015 Memorandum and Order and
reiterated in Defendants’ briefs on the current Motion; thus,
this issue is not subject to de novo review and will not be
addressed at length here.3 However, the Court affirms its

3

Defendants do not appear to be contesting that the initial
hearing implicated a protected liberty interest. To the extent
that they are, however, because this period of confinement in
SHU is “relatively long,” Palmer, 364 F.3d at 65 (quotation
marks omitted), the Court would allow the Parties to develop the
factual record regarding the conditions of Plaintiff’s
punishment more extensively. See Tellier v. Scott, 49 F. Supp.
2d 607, 612-13 (S.D.N.Y. 1998) (where material questions of fact
exist regarding whether the deprivation was atypical and
significant, summary judgment is precluded), aff’d sub nom.
Tellier v. Fields, 280 F.3d 69 (2d Cir. 2000); Bishop v. Keane,
92 CIV. 6061 (JFK), 1995 WL 384443 (S.D.N.Y. June 28, 1995).
Defendants do not set forth any argument that the conditions of
Plaintiff’s confinement were not atypical, choosing instead to
contest the framework of Magistrate Judge Fox’s due process
analysis. Certainly, the long period of confinement combined
with the loss of visitation privileges could constitute
conditions atypical and significant enough to form a cognizable
liberty interest.
7

unwillingness to adopt a rule that court-ordered rehearings4 are
somehow divorced from the liberty interests protected by the
initial hearings. Defendants cite no binding precedent for this
proposition, and such a rule would create obvious disincentives
to follow the procedural requirements in both the initial and
subsequent hearings. Although Plaintiff ultimately may be unable
to prove injury arising from the 2013 hearing, “it is for the
jury to decide what would have happened had different procedures
been followed.” Cruz v. Edwards, No. 81 Civ. 7930 (GLG), 1985 WL
467, at *5 (S.D.N.Y. Mar. 25, 1985).
Thus, the Court ADOPTS the Report’s conclusion with respect
to this issue.

(3) Claims against Defendants Venettozzi and Prack
Defendants object to the Report’s finding that disputed
issues of material fact regarding the personal involvement of
Defendants Venettozzi and Prack preclude granting summary
judgment to these Defendants. (Defs.’ Obj. at 22-24.)

4

The 2013 rehearing was held after the New York State Supreme
Court, Appellate Division reversed the 2011 decision due to
procedural deficiencies and ordered a new hearing. (See Pl.’s
Aff. in Support of Mot. for Summ. J., ECF No. 160, ¶ 4-5.)
8

Here, too, the objections constitute a rehashing of the
arguments set forth in Defendants’ motion papers, see Defs.’ MSJ
at 17-18; Defs.’ Opp’n at 22, and thus do not merit de novo
review. See Vega, 2002 WL 31174466, at *1. Nevertheless, as the
Report discusses, the Second Circuit recently reaffirmed that
“[a] plaintiff may establish such personal involvement by making
any one of five showings (the ‘Colon factors’),” including by
showing that “the defendant, after being informed of the
violation through a report or appeal, failed to remedy the
wrong.” Warren v. Pataki, 823 F.3d 125, 136 (2d Cir. 2016). This
remains the law in this Circuit, absent a Circuit decision
otherwise. Therefore, when Plaintiff swore that Defendant Prack
was informed of the constitutional deficiency but failed to
correct it,5 this was sufficient to create a triable issue as to
Prack’s personal involvement. See Williams v. Smith, 781 F.2d
319, 324 (2d Cir. 1986) (Plaintiff “expressly claim[ing] that
[Defendant] affirmed his conviction on administrative appeal”
sufficient to allege personal involvement);

5

Johnson v. Coombe,

As discussed in the Court’s 2015 Order, Defendant Prack was “on
notice that the tape had been altered and ignored it.” Tolliver
v. Skinner, No. 12 Civ. 971(DAB), 2015 WL 5660440, at *4
(S.D.N.Y. Sept. 25, 2015). Especially in light of the fact that
this claim had been raised already with respect to the 2011
hearing—resulting in a reversal of the hearing by the state
court—the Court finds no clear error in Magistrate Judge Fox’s
finding that issues of fact as to Defendant Prack’s personal
involvement preclude summary judgment.
9

156 F. Supp. 2d 273, 278 (S.D.N.Y. 2001) (sufficient personal
involvement alleged where Defendant “presided over an appeal
that confirmed th[e] deprivation . . . [and] allege[d] a formal
appeals process through which both defendants were on notice.”);
Gilbert v. Selsky, 867 F. Supp. 159, 166 (S.D.N.Y. 1994) (“If a
supervisory official learns of a violation through a report or
an appeal, but fails to remedy the wrong, that may constitute a
sufficient basis for liability.”); McCormack, 818 F. Supp. at
598 (“The circuit has determined that a supervisory official,
such as Selsky, may be held to have been personally involved in
a constitutional deprivation within the meaning of 42 U.S.C. §
1983 when after learning of the violation through a report or
appeal, [he] may have failed to remedy the wrong.” (internal
quotation marks omitted)).
The Court agrees with the Report with respect to Defendant
Venettozzi’s involvement, as well: unlike Defendant Prack,
Venettozzi fails to state affirmatively that he did not
personally review any part of the record. See Wright v. Miller,
973 F. Supp. 390, 396 (S.D.N.Y. 1997) (“[W]ith respect to
defendant Miller, there is an issue of fact as to his personal
involvement, as he has admitted that in his capacity as Acting
Superintendent he likely reviewed the first hearing
determination and had the power to correct any problems.”
(emphasis added)).
10

Thus, the Court ADOPTS the Report’s conclusion with respect
to this issue.

ii. Defendants’ Qualified Immunity Objections
Defendants object to the Report’s denial of qualified
immunity to Defendants with respect to: (1) Plaintiff’s bias
claims against Defendants Malin and Levac based on their
intentional tampering with or failure to fully record the
disciplinary hearing; (2) Plaintiff’s claims against Defendants
Venettozzi and Prack for supervisory liability; (3) Plaintiff’s
bias claim against Defendant Malin based on her failure to admit
certain evidence at the 2011 hearing; (4) Plaintiff’s claim
against Defendant Levac for holding the 2013 re-hearing in his
absence; and (5) Plaintiff’s claims against Defendants Levac and
Prack for failing to give him the written disposition after the
hearing.

(1) Bias Claims Against Defendants Malin and Levac for
Interference with the Record
Defendants claim that there is no clearly established right
for an inmate to have his disciplinary hearing recorded, and

11

that the Magistrate Judge’s reliance on state regulations to
create such a right was in error. (Defs.’ Obj. at 3-8.)
Defendants are correct that a state procedural regulation,
standing alone, does not create a constitutionally protected
liberty interest. See Blouin ex rel. Estate of Pouliot v.
Spitzer, 356 F.3d 348, 363 (2d Cir. 2004). However, courts “may
examine statutory or administrative provisions in conjunction
with prevailing circuit or Supreme Court law to determine
whether an individual had fair warning that his or her behavior
would violate the victim's constitutional rights.” Okin v. Vill.
of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 433-34 (2d
Cir. 2009); see also Wright v. Smith, 21 F.3d 496, 500 (2d Cir.
1994) (“With regard to the officials' claim to qualified
immunity . . . we note that the New York regulation itself gave
the officials clear notice that confinement could not be
continued beyond 14 days without a hearing.”); Russell v.
Coughlin, 910 F.2d 75, 79 (2d Cir. 1990) (“Given the unequivocal
directives of the[] regulations, it would have been unreasonable
for defendants to believe that the state's keeplock regulations
were not sufficiently mandatory to create a protected liberty
interest.”). Indeed, in the context of a qualified immunity
analysis, this Circuit has found that it is clearly
“establish[ed] that the use of terms such as ‘must’ and ‘shall’
in prison regulations give rise to a federally protected liberty
12

interest,” and as such, has denied claims for immunity even
where factual issues remained about whether the plaintiff had
suffered an “atypical and significant” confinement as a result
of the regulatory violation. Tellier v. Fields, 280 F.3d 69, 84
(2d Cir. 2000). This “general constitutional rule” may “apply
with obvious clarity to the specific conduct” challenged in a
case, even though “the very action in question has not
previously been held unlawful.” Id. at 85 (internal brackets and
quotation marks omitted) (quoting United States v. Lanier, 520
U.S. 259, 271 (1997)).
More significantly, Defendants misconstrue the nature of
Plaintiff’s claims: the claims asserted against Malin and Levac
are claims of bias, demonstrated by the Defendants’ alleged
tampering with the records of the hearings. (See Report at 44.)
Whether the destruction of the hearing tapes was in fact
intentional is, as described above, a triable issue of fact. See
Palmer, 364 F.3d at 64 n.1 (“[T]he intentional destruction of
evidence does not comport with clearly established standards of
procedural due process.”). Because a disputed factual issue
remains regarding whether Defendants in fact acted with bias,
Defendants are not entitled to qualified immunity. See Poventud
v. City of New York, No. 07 Civ. 3998(DAB), 2015 WL 1062186, at
* (S.D.N.Y. Mar. 9, 2015) (“[C]ourts . . . must take care not to
define a case's ‘context’” for qualified immunity purposes “in a
13

manner that imports genuinely disputed factual propositions.”
(quoting Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014))).
Thus, the Court MODIFIES the Report’s reasoning with
respect to this issue, but ADOPTS its conclusion.

(2) Defendant Venettozzi’s and Prack’s Supervisory Liability
Defendants object to the Report’s denial of qualified
immunity to Defendants Venettozzi and Prack for their role in
reviewing and affirming the allegedly deficient hearings.
(Defs.’ Obj. at 8.)
As stated above, the Court agrees with Defendants that the
New York state regulation alone creates no constitutional
liberty interest in its procedural requisites. The Court also
agrees that the right to an administrative review of a
disciplinary hearing has, at the very least, not been clearly
established in the Circuit. See, e.g., Austin v. Fischer, No. 09
Civ. 4812, 2010 WL 3187642, at *2 (S.D.N.Y. Aug. 11, 2010).
However, Plaintiff’s claim, construed liberally, is based
on Defendants’ supervisory liability, not liability for failure
to review. Defendants Venettozzi and Prack will not be shielded
by qualified immunity on this claim if the rights violated in
the underlying hearing were clearly established and if
14

Defendants were sufficiently personally involved in the
violations.6 As described above, there are triable issues
regarding both the first and second inquiry. Therefore,
Defendants Venettozzi and Prack are not entitled to qualified
immunity with respect to these claims. See McCormack, 818 F.
Supp. at 599 (Defendant “cannot be shielded from liability
[based on qualified immunity] as his ‘actual or constructive
notice of [the] unconstitutional practices’ imposes supervisory
liability upon him for failing to remedy the violations on
appeal.”).
Thus, the Court MODIFIES the Report’s reasoning with
respect to this issue, but ADOPTS its conclusion.

6

Defendants argue that there is a “split” among district courts
about whether the second Colon factor remains a viable method
for alleging personal involvement. However, “we do not agree
that this split . . . suggests that defendants are entitled to
qualified immunity.” Anderson v. Recore, 317 F.3d 194, 200 (2d
Cir. 2003) (defendants not entitled to qualified immunity where
the right has been clearly established by the Second Circuit or
Supreme Court and there is no binding precedent overturning
these decisions); cf. Tellier, 280 F.3d at 87 (“[D]efendants
have failed to point to either a decision of this Court or the
Supreme Court, or even another circuit court, that would support
a reasonable conclusion that their actions were not in
contravention of Tellier's constitutional rights.”). The Court
also notes that the majority of the cases cited by Defendants in
support of this argument arose after the conduct in question,
making them irrelevant to the qualified immunity analysis. See
Anderson, 317 F.3d at 201; Tellier, 280 F.3d at 85.
15

(3) Bias Claim Against Defendant Malin for Failure to Admit
Evidence
Defendants contend that the Report erred in refusing to
grant Defendant Malin qualified immunity with respect to
Plaintiff’s claim that she acted with bias in refusing to admit
certain evidence at the 2011 hearing. Defendants argue that
Plaintiff had no clearly established right to submit redundant
evidence. (Defs.’ Obj. at 11.)
The right at issue here was not Plaintiff’s right to submit
redundant evidence, but Plaintiff’s right to a hearing officer
that will apply the standards of evidence impartially. See Black
v. Coughlin, 76 F.3d 72, 76 (2d Cir. 1996) (“[I]t has long been
clearly established that an inmate subject to a disciplinary
proceeding is entitled to an impartial hearing officer.”).
Plaintiff claims that Defendant Malin told him that she would
disregard any testimony from an inmate7; although this claim is
disputed, if credited by a jury, it could certainly raise an
inference that Defendant Malin acted with bias—particularly
considering Defendant Malin’s undisputed refusal to admit

7

Defendants claim that Plaintiff cannot rely on his pleadings to
provide the facts in support of this motion. (See Defs.’ Obj. at
13 n.5.) However, the Plaintiff verified his complaint “by
attesting under penalty of perjury that the statements in the
complaint were true to the best of his knowledge. A verified
complaint is to be treated as an affidavit for summary judgment
purposes.” Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
16

certain testimony and documentary evidence at the hearing.
Moreover, as the Report points out, if Defendant Malin indeed
intended to disregard inmates’ testimony, much of the evidence
she chose to exclude would not have been truly redundant.
Compare Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014)
(hearing officer’s exclusion of witness not unconstitutional
where inmate had already testified to the same facts and hearing
officer “did not discredit his statement.”).
Plaintiff’s right to an impartial hearing officer and to
submit evidence—subject to limited exceptions, such as where the
evidence is irrelevant, unnecessary, or presents a hazard to
safety8—was clearly established at the time of the hearing. See
Francis, 891 F.2d at 46 (prisoner’s allegations of bias based
on, inter alia, hearing officer’s alleged suppression of
evidence and distortion of testimony defeated officer’s motion
for summary judgment based on qualified immunity). Whether the
evidence Defendant Malin refused to admit fell into one of these
exceptions is disputed, and thus, summary judgment on qualified
immunity grounds is inappropriate. See Hemphill v. Schott, 141
F.3d 412, 418 (2d Cir. 1998) (“[S]ummary judgment based either
8

It is Defendant Malin “who has the burden of proving that h[er]
refusal to call requested witnesses was for irrelevance,
redundancy, or special hazards present in this case.” McCormack,
818 F. Supp. at 594 (S.D.N.Y. 1993) (citing Ponte v. Real, 471
U.S. 491, 497 (1985)); see also Kingsley v. Bureau of Prisons,
937 F.2d 26, 30-31 (2d Cir. 1991).
17

on the merits or on qualified immunity requires that no dispute
about material factual issues remain.”).
Thus, the Court ADOPTS the Report’s conclusion with respect
to this claim.

(4) Defendant Levac’s Holding of the Hearing in Plaintiff’s
Absence
Defendants object to the Report’s denial of qualified
immunity to Defendant Levac with respect to Plaintiff’s claim
that he conducted the 2013 hearing in Plaintiff’s absence, even
though the Report granted Defendant Levac summary judgment on
the merits of this claim. (Defs.’ Obj. at 15.)
It is undisputed that the hearing was conducted in
Plaintiff’s absence only after Plaintiff signed a Refusal to
Attend form. Thus, the question is not whether Plaintiff had a
clearly established right to choose to attend the hearing—he of
course did—but whether Defendant Levac could have, in this
instance, reasonably and in good faith believed that he was
acting lawfully in excluding Plaintiff from the hearing. The
Court agrees that because the facts do not establish a
constitutional violation, Defendant Levac is entitled to
qualified immunity. Sira v. Morton, 380 F.3d 57, 68-69 (2d Cir.
2004).
18

Thus, the Court REJECTS the Report’s conclusion with
respect to this issue, and finds that Defendant Levac is
entitled to qualified immunity on this claim.

(5) Defendant Levac’s and Defendant Prack’s Failure to Deliver
the Disposition
Defendants object to the Report’s denial of qualified
immunity to Defendants Levac and Prack with respect to
Plaintiff’s claim that they failed to deliver the written
disposition to Plaintiff after the 2013 hearing. (Defs.’ Obj. at
16.)
A prisoner’s right to receive a written statement of the
hearing disposition has been clearly established by both Supreme
Court and Second Circuit precedent. See Wolff v. McDonnell, 418
U.S. 539, 564 (1974); Sira, 380 F.3d at 69. This right is also
codified in the state regulations, see 7 NYCRR § 254.7, and
Defendants cannot dispose of the issue by claiming that, in
failing to follow the regulations, it was objectively reasonable
for Defendant Levac to believe that he was acting lawfully. (See
Defs.’ Obj. at 17.)
The Court additionally agrees with Magistrate Judge Fox’s
conclusion that Defendant Levac cannot shift responsibility for
this violation to DOCCS, where the regulation clearly sets forth
19

a hearing officer’s duties, and where DOCCS is not a person who
can be sued under § 1983. Cf. Walker v. Bates, 23 F.3d 652, 655
(2d Cir. 1994) (“Section 254.7 provides a range of penalties
that may be imposed by a hearing officer.” (emphasis added));
Thompson v. Keane, No. 92 CIV. 7722 (JFK), 1994 WL 144390, at *3
(S.D.N.Y. Apr. 18, 1994) (“Section 254.7(a)(4) of Title 7 of the
New York Compilation of Codes, Rules and Regulations . . .
requires a hearing officer to give an inmate a written decision
on the charges setting forth the evidence that he relied upon in
making his determination.” (emphasis added)). An official
charged with conducting a hearing can assume that he is also
charged with doing so in a way that comports with constitutional
due process.
Further, qualified immunity does not examine what a
defendant “could have” believed, see Defs.’ Obj. at 17, but
whether any such belief was objectively reasonable. See Anderson
v. Creighton, 483 U.S. 635, 639 (1987). Defendants “are entitled
to summary judgment on qualified immunity grounds only if,
viewing the evidence in the light most favorable to and drawing
all reasonable inferences in favor of the plaintiff, no rational
jury could conclude that it was objectively unreasonable for
defendants to believe that their actions did not violate a
clearly established right.” Espinal v. Goord, No. 00 Civ.
2242(AJP), 2001 WL 476070, at *11 (S.D.N.Y. May 7, 2001) (citing
20

Williams v. Greifinger, 97 F.3d 699, 706 (2d Cir. 1996)); see
also Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (“[I]f
any reasonable trier of fact could find that the defendants'
actions were objectively unreasonable, then the defendants are
not entitled to summary judgment.”). Because the law was
particularly clear with respect to this issue,9 a reasonable jury
certainly could find that it was objectively unreasonable for
Defendant Levac to believe that, in failing to deliver the
written statement as required by the regulations, he was not
violating Plaintiff’s rights. See Tellier, 280 F.3d at 86 (“This
Court will not confer immunity on any official who glaringly
disregards the very regulations that he or she is entrusted to
discharge dutifully and in good faith.”).
Thus, the Court ADOPTS the Report’s conclusion with respect
to this issue.

9

“The ultimate question of whether it was objectively reasonable
for the officer to believe that his conduct did not violate a
clearly established right, i.e., whether officers of reasonable
competence could disagree as to the lawfulness of such conduct,
is to be decided by the court.” Zellner v. Summerlin, 494 F.3d
344, 367 (2d Cir. 2007).
21

iii. Defendants’ Remaining Contentions
Defendants finally contend that because “some evidence”
supported the disciplinary determinations, due process was
satisfied. (See Defs.’ Obj. at 24-25.)
Defendants’ claim that there can be no due process
violation because the dispositions were based on “some evidence”
is meritless. Failure to base a decision on sufficient evidence
is an independent due process violation, see Sira, 380 F.3d at
76, but adherence to this standard does not cure other, separate
due process violations.
Thus, the Court ADOPTS the Report’s conclusion with respect
to this issue.

C. Plaintiff’s Objections
Plaintiff objects to the Report’s failure to grant summary
judgment to him with respect to his claims against Defendants
Malin and Venettozzi for bias.10 (Pl.’s Obj. ¶ 3.)
Plaintiff’s Objection is based on new allegations not
raised in his earlier papers—specifically, that Defendant Malin

10

Although Plaintiff mentions the Report’s dismissal of his
retaliation claim against Malin, he does not appear to object to
it. (See Pl.’s Obj. ¶ 3.)
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failed to call a witness, Sergeant Maliga, at the hearing and
then lied to Plaintiff about the availability of a certain
memorandum, and that Defendant Venettozzi rubber-stamped these
decisions. (See id.) These allegations are belated and cannot be
considered. See Rivera v. Federlin, No. 08-cv-7293 (PAC), 2011
WL 6014012, at *3 (S.D.N.Y. Dec. 2, 2011) (“This is not an
objection but a new factual allegation that was not raised
before Magistrate Judge Fox, and will not be considered by the
Court now.”). Nonetheless, the Court notes that none of these
allegations cure the disputed issues of fact regarding Defendant
Malin’s alleged partiality.
Thus, the Court ADOPTS the Report’s conclusion with respect
to this issue.

D. The Remaining Portions of the Report
The Court may apply a clear error standard of review to
those portions of each Report to which neither Party has timely
objected. DiPilato v. 7-Eleven Inc., 662 F. Supp. 2d 333, 339
(S.D.N.Y. 2009). Having found no clear error, the Court adopts
those parts of the Report to which no timely Objections have
been made.

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II. Conclusion
Having conducted the appropriate levels of review of the
Report and Recommendation of United States Magistrate Judge Fox
dated September 19, 2016, this Court REJECTS the Report’s
conclusion that Defendant Levac is not entitled to qualified
immunity on the claim that he conducted the hearing outside of
Plaintiff’s presence. The Court APPROVES, ADOPTS, and RATIFIES
the Report’s remaining recommendations and conclusions, but
MODIFIES the Report’s legal reasoning with respect to the
qualified immunity claims raised by Defendants Malin, Levac,
Venettozzi, and Prack in their Objections. Accordingly,
Plaintiff’s Motion for Summary Judgment is DENIED in part and
GRANTED in part, and Defendants’ Motion for Summary Judgment is
DENIED in part and GRANTED in part.
The Court will notify the Parties of the next step in this
action shortly.
SO ORDERED.
Dated:

New York, New York
March 13, 2017

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