Grant v. Annucci et al
Filing
83
DECISION AND ORDER granting in part and denying in part 71 Motion for Summary Judgment. Signed by Hon. Elizabeth A. Wolford on 09/30/2019. (CDH) (A copy of this Decision and Order was mailed to Plaintiff)-CLERK TO FOLLOW UP-
ctAkTES DISTWrJ:
—Uled
UNITED STATES DISTRICT COURT
tOEWFNGVJlg
DISTRlS
WESTERN DISTRICT OF NEW YORK
WILLIAM T. GRANT,
Plaintiff,
DECISION AND ORDER
I:I6-CV-0036I EAW
V.
ANTHONY J. ANNUCCI,et al,
Defendants.
INTRODUCTION
Plaintiff William T. Grant ("Plaintiff), a prisoner previously eonfined at Five
Points Correctional Facility ("Five Points"), filed a pro se complaint asserting claims under
42 U.S.C. § 1983 against a variety of Five Points staff members based upon alleged events
occurring at that facility in 2013. (Dkt. 1). Currently pending before the Court is a motion
for summary judgment filed by defendants Anthony J. Annueci("Annucei"), Lt. Tad Levac
("Levae"), C.O. J. Lalone ("Lalone"), C.O. P. Flora ("Flora"), C.O. R. Maloy ("Maloy"),
and Corr. Counselor D. Funke ("Funke")(collectively "Defendants"). (Dkt. 71). For the
reasons that follow, the Court grants Defendants' motion in part and denies Defendants'
motion in part.
FACTUAL BACKGROUND
The following facts are taken from Defendants' Statement of Undisputed Facts
(Dkt. 71-2), Plaintiffs response thereto (Dkt. 75), and the evidence submitted by the
parties. Unless otherwise noted, these facts are undisputed.
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At all times relevant to the instant lawsuit, Plaintiff was an inmate in the care and
custody of the New York Department of Corrections and Community Supervision
("DOCCS"). (Dkt. 71-2 at ^ 1; Dkt. 75 at ^ 1). At all times relevant to the instant lawsuit,
Defendants Levac, Laione. Flora, Maloy, and Funke were employees ofDOCCS assigned
as staff at Five Points. (Dkt. 71-2 at
2-3; Dkt. 75 at
2-3). Annucci was the Acting
Commissioner ofDOCCS at the relevant time period. {See Dkt. 71-9 at 99).
Plaintiff arrived at Five Points on May 13, 2013, and, while in intake, refused to
"double bunk." (Dkt. 71-2 at ^ 6; Dkt. 75 at ^ 6). As a result of his refusal. Plaintiff was
sent to the special housing unit("SHU"). (Dkt. 71-2 at Tf 6; Dkt. 75 at ^ 6).
Maloy, in the presence of other officers, conducted a strip frisk of Plaintiff for
admission to the SHU. (Dkt. 71-2 at f 7; Dkt. 75 at ^ 7). Flora, in the presence of other
officers, then escorted Plaintiff to his newly assigned cell. (Dkt. 71-2 at ^ 8; Dkt. 75 at
f 8). Plaintiff has submitted a sworn declaration in which he claims that on the way to his
cell in the SHU,"one of the officers made a statement about setting [him] up to fight."
(Dkt. 77 at 1).
Prior to Plaintiff being placed in his cell in the SHU,the other inmate housed in the
cell, inmate Buel ("Buel"), was temporarily relocated. (Dkt. 71-2 at 9; Dkt. 75 at ^ 9).
Plaintiff claims that when his handcuffs were removed. Flora "pulled, twisted, and yanked
[his] arm through the feeding hatch." (Dkt. 77 at 1-2). A retention strap was applied and
Plaintiffs handcuffs were removed. (Dkt. 71-2 at ^ 12; Dkt. 75 at ][ 12).
Buel was returned to the cell. (Dkt. 71-2 at ^ 13; Dkt. 75 at ^ 13). Plaintiff testified
at his deposition that the corrections officers were standing outside the cell and there was
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a "weird energy" from Buel. (Dkt. 71-9 at 118). Plaintiff claims that he asked Buel ifthe
officers were setting them up to fight. (Dkt. 77 at ^ 10). Plaintiff admitted at his deposition
that he was the one who "swung on" Buel, hitting him in the chest with a fist and causing
Buel to fall onto the bed. (Dkt. 71-9 at 120-21). Plaintiff continued to hit Buel with closed
fist punches, which Buel tried to block. {Id. at 122).
Plaintiff and Buel were ordered to stop fighting, though Plaintiff disputes having
heard the order. (Dkt. 71-2 at ^ 16; Dkt. 75 at ^ 16). Lalone, Maloy, Flora, and non-
defendant Officer Dybdhal ("Dybdhal") were ordered to enter the cell and contain the
situation. (Dkt. 71-2 at ^ 17; Dkt. 75 at ^ 17). An officer entered the cell and pushed
Plaintiff off Buel. (Dkt. 77 at ^ 13). Buel became compliant and Lalone and Dybdhal
escorted him from the cell. (Dkt. 71-2 at Tf 19; Dkt. 75 at ]| 19).
The parties sharply dispute what happened next. Defendants claim that Plaintiff
became combative, and began to swing closed fist punches at Maloy, striking him in the
face. (Dkt. 71-2 at ^ 20). According to Defendants,Flora then shoved Plaintiffin his upper
chest towards the bed frame, causing Plaintiffto charge at Flora, who pushed Plaintiff with
both hands towards the rear ofthe cell. {Id. at
21-22). Defendants assert that Flora then
placed Plaintiff in a "bear hug hold" and forced him to the ground on his back, with Maloy
assisting. {Id. at ^ 23). Defendants further assert that Plaintiff continued to be combative
and began to spit at the officers, so Flora and Maloy forced Plaintiff onto his stomach and
applied restraints, and Lalone applied a spit guard. {Id. at
24-30).
Plaintiff denies ever having become combative with the officers. (Dkt. 75 at T| 24).
He claims that he was knocked to the ground and immediately assaulted by the officers,
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and that they beat him and then picked him up and "threw [him] into the wall head first."
{Id. at TlTf 20-21, 23-25). At his deposition, Plaintiff testified that he was flat on the ground
after having been pushed off Buel when the officers began to kick him and hit him with
batons. (Dkt. 77 at 19-20). Plaintiff further testified that after he was handcuffed, he was
placed in a chokehold and repeatedly punched in the face,"maybe 10 to 15 times." {Id. at
25, 28). Plaintiff denies having spit at anyone and states that he was punched in the face
before the spit guard was applied. (Dkt. 75 at
28-29). Plaintiff testified that after the
alleged beating. Flora and Lalone taunted him, and Lalone specifically said that he was the
one who punched Plaintiff in the face. (Dkt. 77 at 22-23). Plaintiff further testified that
Flora hit Plaintiff with his hands and that Maloy was "there" during the assault but that
Plaintiff couldn't say "specifically" what his role had been. (Dkt. 71-9 at 138).
On May 15, 2013, Plaintiff was served with a misbehavior report for, among other
things, fighting with another inmate, assaulting an officer, unhygienic acts, creating a
disturbance, and disobeying a direct order. (Dkt. 71-2 at ^ 36; Dkt. 75 at ^ 36). Funke was
chosen as Plaintiffs hearing assistant. (Dkt. 71-2 at ^ 37; Dkt. 75 at ^ 37). Plaintiff met
with Funke on May 16, 2013, to determine what documents he wanted obtained or which
potential witnesses he wanted interviewed. (Dkt. 71-2 at ^ 38; Dkt. 75 at ^ 38). Plaintiff
requested a copy of the video of the incident, and a request for the video was submitted.
(Dkt. 71-2 at^40;Dkt. 75 at^40). Plaintiffalso requested additional documents,including
DOCCS Directive 4933, the Unusual Incident ("UI") Report, the Use of Force Report,
interdepartmental memos ("To/Froms"), medical records for the individuals involved in
the incident, photographs of the individuals involved in the incident, the DOCCS Rule
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Book, and Title 7 of the New York Code of Rules and Regulations ("NYCRR"). (Dkt.
71-2 at ^ 41; Dkt. 75 at ^ 41). Funke has sworn under penalty of perjury that he made a
request for all these documents(Dkt. 71-2 at ^ 43), and Plaintiff has admitted that he does
not have any personal knowledge as to whether Funke made such a request (Dkt. 75 at
1143).
Non-defendant Cindy Medina("Medina")has submitted a swom declaration stating
that assistant duties were thereafter transferred to her. (Dkt. 71-8 at T| 17). Defendants
have submitted an assistance form that appears to have been signed by Medina on May 20,
2013, stating that she met with Plaintiff and informed him that the UI and Use of Force
reports, which would in turn contain any relevant To/Froms and photos and medical
reports, would be provided to him at his hearing, at the discretion of the hearing officer.
(Dkt. 71-9 at 64). The assistance form further reflects that Plaintiff was given a copy of
DOCCS Directive 4933 and the DOCCS Rule Book, and informed that the could obtain a
copy ofTitle 7 NYCRR from the law library. {Id.). However,the assistance form identifies
Funke as Plaintiffs assistant and is unsigned by Plaintiff. {Id.). Plaintiff denies having
met with Medina and further claims that assistant duties were never transferred to her.
(Dkt. 75 at 145).
Plaintiffs hearing was conducted on May 23,2013,June 8,2013,and June 13,2013,
with Levac serving as hearing officer. (Dkt. 71-2 at ^ 50; Dkt. 75 at 50). On the first day
of the hearing. Plaintiff informed Levac that he had not received all the documents he
requested, and so Levac adjourned the hearing until the documents could be obtained.
(Dkt. 71-2 at ^ 52; Dkt. 75 at ]| 52). Prior to adjournment of the hearing. Plaintiff was
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permitted to review a copy of the video footage of the incident.' (Dkt. 71-2 at T| 53; Dkt.
75 atTf53).
Prior to the start ofthe second hearing date, Defendants claim Plaintiffwas provided
with copies of the Rule Book, DOCCS Directive 4933 (which contains Title 7 NYCRR),
the UI Report, and the Use of Force Report (which contains relevant To/Froms, photos,
and medical reports). (Dkt. 71-2 at ^ 54). Plaintiff claims that he was given a stack of
documents mere minutes before the hearing was recommenced and that he was not
permitted time to review them or to marshal a defense before they were taken back. (Dkt.
77 at T| 23). Plaintiff further claims that prior to the recommencement of the hearing, he
and Levac had a conflict wherein Levac called him an "asshole" and told him he was going
to give him between three to five years in the SHU, where he hoped Plaintiff would be
raped. {Id. at ]| 26). On the record at the second day of the hearing. Plaintiff stated that
Levac had told him he was "going to stick [him] in SHU for 3-5 years and all this other
stuff and that Plaintiff had requested someone else be appointed to conduct his hearing;
Levac denied making such a statement. (Dkt. 71-9 at 13-14).
Plaintiff requested four witnesses: Buel, corrections officer Feliciano ("Feliciano"),
corrections officer Steward ("Steward"), and the Inspector General. (Dkt. 71-2 at
66; Dkt. 75 at
62,
62, 66). Levac permitted Plaintiff to call Buel but denied his request to
call Feliciano, Steward, and the Inspector General. (Dkt. 71-2 at
62, 66; Dkt. 75 at
62,66).
'
A copy of this video has not been provided to the Court in support of the instant
motion. Defendants have filed a copy of an audio recording ofthe incident.
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At the end of the disciplinary hearing, Levac read into the record a disposition, in
which he found Plaintiff guilty of all charges and imposed a penalty of 24 months in the
SHU, as well as loss of recreation, telephone, commissary, phone, and good time for 24
months. (Dkt. 71-9 at 59). The transcript reflects that Plaintiff was present when Levac
made the disposition. {Id.). Plaintiff claims not to have been present but has failed to
produce any evidence to corroborate that claim.
Upon review by Five Points
Superintendent Michael Sheahan ("Sheahan"),Plaintiffs SHU sentence was reduced to 15
months, with six months suspended, on June 9, 2013. {Id. at 80). The disposition was
administratively affirmed on September 4, 2013. {Id. at 82).
Plaintiff commenced a proceeding pursuant to Article 78 of the New York Civil
Practice Law and Rules challenging the outcome of the disciplinary hearing. On October
10, 2014, the New York State Supreme Court, Albany County (the "state court"), issued a
decision favorable to Plaintiff. (Dkt. 77 at 181-87). In particular, the state court found that
Plaintiff had been denied adequate employee assistance in preparing for his hearing, had
been provided "at most,20 minutes to review ... documents before they were taken away,
and he was forced to proceed with the hearing," and had been denied the right to call
witnesses (specifically, the Inspector General). {Id.).
On December 3,2014,Donald Venettozzi("Venettozzi"),DOCCS'Acting Director
of Special Housing/Inmate Discipline, issued a memorandum reversing the outcome of
Plaintiffs disciplinary hearing and expunging all references thereto. (Dkt. 71-9 at 83-84).
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PROCEDURAL BACKGROUND
Plaintiff commenced this action on May 6, 2016. (Dkt. 1). Defendants filed their
Answer to the Complaint on October 17, 2016. (Dkt. 9).
Discovery in this matter closed on February 19, 2018. (Dkt. 62). Defendants filed
the instant motion for summary judgment on April 30, 2018. (Dkt. 71). Plaintiff filed his
response on July 9, 2018 (Dkt. 75; Dkt. 76; Dkt. 77), and Defendants filed their reply on
July 30, 2018(Dkt. 81). Plaintiff filed a sur-reply on August 24, 2019. (Dkt. 82).^
DISCUSSION
I.
Legal Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
should be granted if the moving party establishes "that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). The Court should grant summary judgment if, after considering the evidence in
the light most favorable to the nonmoving party, the court finds that no rational jury could
find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007)(citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586-87(1986)).
"The moving party bears the burden ofshowing the absence ofa genuine dispute as
to any material fact. .. ." Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486
^
Plaintiff did not seek the Court's leave to file his sur-reply. Whether to permit filing
of a sur-reply is "subject to the sound discretion of the court." Navarrete De Pedrero v.
Schweizer Aircraft Corp.,635 F. Supp.2d 251,258(W.D.N.Y.2009). In light ofPlaintiffs
pro se status, the Court has considered his sur-reply notwithstanding his failure to obtain
leave to file.
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(2d Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by showing the evidentiary
materials of record, if reduced to admissible evidence, would be insufficient to carry the
non-movant's burden of proof at trial." Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103
(W.D.N.Y.2011)(citing Celotex Corp. v. Catrett, All U.S. 317,322-23(1986)). Once the
moving party has met its burden, the opposing party "must do more than simply show that
there is some metaphysical doubt as to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc.,
781 F.3d 42, 44(2d Cir. 2015)(quoting Brown v. Eli Lilly cS: Co., 654 F.3d 347, 358(2d
Cir. 2011)).
Specifically, the non-moving party "must come forward with specific
evidence demonstrating the existence of a genuine dispute of material fact." Brown, 654
F.3d at 358. Indeed, "the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby,
Inc., All U.S. 242, 247-48 (1986).
II.
Plaintiffs Claims
Plaintiff asserts the following claims:(1) excessive use of force by Flora, Maloy,
and Lalone; and(2)denial of the right to due process by Funke, Levac, and Annucci. {See
Dkt. 1). The Court considers each of these claims below.
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A.
Excessive Use of Force
"A claim of cruel and unusual punishment in violation of the Eighth Amendment
has two components—one subjective, focusing on the defendant's motive for his conduct,
and the other objective, focusing on the conduct's effect." Wright v. Goord, 554 F.3d 255,
268 (2d Cir. 2009). In order to prove an Eighth Amendment violation based on an
excessive use of force, a plaintiff must demonstrate each ofthe following two elements by
a preponderance of the evidence: (1) the defendant used force against the plaintiff
maliciously and sadistically, for the very purpose of causing the plaintiff harm; and(2)the
plaintiff suffered some harm as a result of the defendant's use of force. Hudson v.
McMillian, 503 U.S. 1, 7-8(1992).
The first element is considered a subjective analysis ofthe defendant's state of mind
at the time of the incident. This requires a showing that the defendant had "the necessary
level of culpability, shown by actions characterized by 'wantonness' in light of the
particular circumstances surrounding the challenged conduct." Goord, 554 F.3d at 268
(quoting Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)). Whether use of force
against a prison inmate is unnecessary or wanton depends on "whether force was applied
in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm." Id. (quoting Hudson, 503 U.S. at 7).
The objective component considers the "seriousness ofthe injury." Id. "In the case
of excessive use of force by prison guards, the objective component does not require any
particular 'quantity of injury,' for '[wjhen prison officials maliciously and sadistically use
force to cause harm, contemporary standards of decency are always violated.'" Warren v.
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Purcell, No. 03 Civ. 8736(GEL), 2004 WL 1970642, at *7 (S.D.N.Y. Sept. 3, 2004)
(quoting Hudson, 503 U.S. at 9). However, the Eighth Amendment "excludes from
constitutional recognition de minimis uses of physical force, provided that the use of force
is not of a sort repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10
(quotation omitted).
Here, the Court easily concludes that there are genuine issues of material fact as to
whether Flora, Lalone, and Maloy used excessive force against Plaintiff. Plaintiff has
consistently maintained that he immediately became compliant after being pushed offBuel,
and that he was nonetheless assaulted. Plaintiff has particularly testified that while he was
restrained and compliant, Lalone punched his face repeatedly and Flora hit him. While
Lalone and Flora have testified to the contrary, "[a]ssessments of credibility and choices
between conflicting versions of the events are matters for the jury, not for the court on
summaryjudgment." Jeffreys v. City ofN.Y., 426 F.3d 549,553-54(2d Cir. 2005)(quoting
Rule V. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)).
With respect to Maloy,it is true that Plaintiff was not able to articulate his particular
role in the claimed assault. However, Plaintiff was clear that Maloy was present while
Lalone put him in a chokehold and repeatedly punched him in the face, notwithstanding
the fact that he had been subdued and was in restraints. An individual "is personally
involved in the use of excessive force if he either(1) directly participates in an assault; or
(2)was present during the assault, but did not intervene on behalfofthe victim even though
he had a reasonable opportunity to do so," and "[a] plaintiff need not establish who among
a group of officers, directly participated in the attack and who failed to intervene." Corley
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V. Shahid, 89 F. Supp. 3d 518, 523 (E.D.N.Y. 2015). Applying this standard, the Court
cannot conclude as a matter of law that Maloy was not personally involved in the claimed
excessive use of force.
The Court is further not persuaded by Defendants' argument that the officers'
actions were a justified attempt to restore prison order, as opposed to a malicious and
wanton exercise offorce. While it is clear that some initial use offorce to separate Plaintiff
and Buel was appropriate and warranted, a jury could conclude that after the situation was
contained and Plaintiff was restrained, the officers nonetheless continued to hit him. See
Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999)("[Djismissal of the excessive force
claim was inappropriate because there are genuine issues of material fact conceming what
transpired after appellant was handcuffed and whether the guards maliciously used force
against him. . . ."); Jeanty v. Cty. of Orange, 379 F. Supp. 2d 533, 544 (S.D.N.Y. 2005)
("[T]he issue of whether the individual defendants were justified in using force against[the
plaintiff] to restrain him after he assaulted [a corrections officer] is analytically distinct
from whether they used the appropriate amount offorce in doing so, particularly where the
plaintiff alleges that the individual defendants continued to beat him after he was subdued,
face down on his bed, and even after he was handcuffed and shackled"(quotation omitted)
(denying motion for summary judgment on excessive use of force claim)).
For all these reasons, the Court denies Defendants' motion for summary judgment
as to Plaintiffs excessive use of force claim against Flora, Maloy, and Lalone.
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B.
Due Process Claims
The Fourteenth Amendment provides that no State shall "deprive any person oflife,
liberty, or property, without due process oflaw." U.S. Const, amend. XIV,§ 1. Although
prisoners retain some rights under the due process clause, "those rights are somewhat
muted by the institutional concerns inherent in a correctional system." Zavaro v. Coughlin,
970 F.2d 1148, 1152(2d Cir. 1992).
In raising a due process claim, a plaintiff must first establish that the challenged
action infringed a constitutionally protected property or liberty interest.
A prison
disciplinary hearing implicates a protected liberty interest if it "imposes an atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life."
Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004)(quoting Sandin v. Conner, 515 U.S.
472, 484 (1995)). Here, Defendants have not disputed that Plaintiffs 15-month SHU
sentence satisfies this standard.
Second, a plaintiff must show that he was deprived of the protected liberty interest
without due process. Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998). It is wellestablished that inmates have the right not to be deprived of a liberty interest without due
process, and that inmates have due process rights in prison disciplinary hearings. Sira v.
Morton, 380 F.3d 57, 69 (2d Cir. 2004). However, "[pjrison inmates charged with
disciplinary violations do not have 'the full panoply of rights' afforded to a defendant in a
criminal prosecution." Galan v. Laird, No. 08-cv-267 (NG), 2010 WL 3780175, at *1
(E.D.N.Y. Sept. 21, 2010)(quoting Wolff v. McDonnell, 418 U.S. 539, 556 (1974)). To
comply with procedural due process, prison authorities must provide an inmate charged
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with a violation in a disciplinary hearing with: "advance written notice of the charges
against him; a hearing affording him a reasonable opportunity to call witnesses and present
documentary evidence; a fair and impartial hearing officer; and a written statement of the
disposition, including the evidence relied upon and the reasons for the disciplinary actions
taken." Id. (quoting Sira, 380 F.3d at 69). The requirements of due process are satisfied
if"some evidence" supports the conclusion of the disciplinary hearing. Superintendent,
Mass. Corr. Inst., Walpole v. Hill, All U.S. 445,455 (1985).
1.
Claims as to Inmate Assistance
Plaintiff claims Funke did not provide him with adequate inmate assistance in
connection with his disciplinary rehearing. Although inmates are not entitled to retained
or appointed counsel in prison disciplinary hearings, "[pjrison authorities have a
constitutional obligation to provide assistance to an inmate in marshaling evidence and
presenting a defense when he is faced with disciplinary charges." Eng v. Coughlin, 858
F.2d 889, 897(2d Cir. 1998). New York's regulations allow for an employee assistant to
help a prisoner in preparing for a disciplinary hearing. See 1 N.Y.C.R.R. §§ 251-4.1, 2514.2. The Second Circuit has also "provide[d] for an inmate to receive employee assistance
when that inmate is charged with an offense warranting SHU confinement." Sloane v.
Borawski, 64 F. Supp. 3d 473, 485 (W.D.N.Y. 2014)(citing Silva v. Casey, 992 F.2d 20,
22(2d Cir. 1993)). The assistant "must be assigned to the inmate to act as his surrogate—
to do what the inmate would have done were he able." Silva,992 F.ld at 22. "The assistant
is not obliged to go beyond the specific instructions of the inmate because if he did so he
would then be acting as counsel in a prison disciplinary proceeding, assistance to which a
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prisoner is not entitled." Id. The inmate assistant's role is to interview witnesses and report
the results of his efforts to the inmate, and to assist the inmate in obtaining documentary
evidence or written statements which may be necessary. See 7 N.Y.C.R.R. § 251-4.2.
"[A]n assigned assistant who does nothing to assist an inmate 'has failed to accord the
prisoner his limited constitutional due process right of assistance.'" Gates v. Selsky, No.
02 CV 496, 2005 WL 2136914, at *6 (W.D.N.Y. Sept. 2, 2005)(citing Eng, 858 F.2d at
898).
Here, the Court finds there are genuine issues of material fact as to whether Funke
provided Plaintiff with adequate assistance. Of particular importance in the Court's
assessment of this claim is the state court's determination, in Plaintiffs Article 78
proceeding, that Plaintiff was denied adequate employee assistance. (See Dkt. 77 at
184-85). A state court's determination in this regard is "persuasive evidence ofdefendants'
failure to provide plaintiff with meaningful assistance to prepare his defense to the charges
against him." Lee v. Coughlin, 902 F. Supp. 424,433(S.D.N.Y. 1995). Moreover, as the
state court noted, there is no evidence in the record of any meaningful effort to obtain the
documents requested by Plaintiff prior to the hearing, and it is not clear from the record
whether in fact all the requested documents were provided at the hearing, which precludes
any finding that the hearing officer cured the defect in assistance. (See Dkt. 77 at 184-85).
The Court further finds that there are genuine issues of material fact as to whether
and when Medina took over assistant duties fi*om Funke.
The assistance form that
Defendants rely on in this regard is thoroughly inconclusive, inasmuch as it states that
Funke is the assigned assistant, but appears to be signed by Medina. (Dkt. 71-9 at 64).
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Moreover, at the hearing, Levac stated that Plaintiff was assisted by Funke, with no
mention of Medina. {Id. at 5). Medina and Funke have both acknowledged that they have
no personal recollection ofPlaintiff or his claims. (Dkt. 71-4 at ^ 6; Dkt. 71-8 at ^ 6). On
this record, the Court cannot resolve the veracity of Plaintiffs claim that Funke served as
his assistant throughout the process. Accordingly, Defendants' request for summary
judgment on Plaintiffs due process claim against Funke is denied.
2.
Claims as to Disciplinary Hearing
Plaintiff also claims that his due process rights were violated during his disciplinary
hearing because Levac was biased against him, failed to afford him sufficient time to
review the provided documents, failed to call his requested witnesses, and issued a
determination outside Plaintiffs presence. The Court considers each of these claims
below.
a.
Bias
An inmate has a due process right to "a fair and impartial hearing officer." Sira,
380 F.3d at 69. "Although a hearing officer's impartiality does not have to mirror that of
judges generally, the result of a disciplinary hearing cannot be arbitrarily and adversely
predetermined." Smith v. United States, No.9:09-CV-729(TJM/DRH),2011 WL 777969,
at *9(N.D.N.Y. Feb. 3, 2011)(quotation omitted), adopted, 2011 WL 776150(N.D.N.Y.
Mar. 1,2011).
Here, Plaintiff claims that Levac stated before any evidence was heard that he was
going to send Plaintiff to the SHU for three to five years. On a motion for summary
judgment,the Court must assume that Plaintiffs testimony in this regard is true, and there
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is accordingly a "triable issue of fact" as to whether Levac was fair and impartial. See id.
(denying summary judgment motion where the plaintiff claimed that hearing officer had
stated that he had to find Plaintiff guilty ofsomething, despite hearing officer "vehemently
den[ying] ever making such a statement").
b.
Denial of Adequate Time to Review Documents
"An inmate who was . .. denied access to documentary evidence at a disciplinary
hearing may ... be entitled to relief." Watson v. Annucci, No. 9:14-cv-00638-JKS, 2015
WL 5971077, at *6 (N.D.N.Y. Oct. 14, 2015). In particular, "[ajlthough the right to
documentary evidence can give way to legitimate concerns over institutional safety, an
inmate is still entitled to some explanation ofthe basis for a hearing officer's denial of the
inmate's request for items of evidence." Id.(quotation and original alterations omitted).
Here, there are genuine issues of material fact as to whether Levac improperly
denied Plaintiffaccess to documentary evidence. As the state court noted,the record amply
supports the conclusion that Plaintiff was given a stack of papers prior to recommencement
of his hearing and provided at most only 20 minutes to review them before they were taken
away again. {See Dkt. 77 at 185). Moreover, it is not even clear from the record what
precisely was included in that stack of papers, nor did Levac explain why Plaintiff was
given only 20 minutes to review it. On this record, a reasonablejuror could find that Levac
unreasonably denied Plaintiffthe opportunity to review the documents.
c.
Failure to Call Witnesses
As already noted, an inmate has a right to call witnesses on his own behalf as part
of a disciplinary hearing. However,"a prisoner's request for a witness can be denied on
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the basis of irrelevance or lack of necessity." Kingsley v. Bureau ofPrisons, 937 F.2d 26,
30(2d Cir. 1991). "The burden is on the prison official to show the rationality of declining
to call a witness." Gonzalez v. Chalk, No. 13 C. 5486 (PKC), 2014 WL 1316557, at *5
(S.D.N.Y. Apr. 1, 2014)(quotation omitted).
Here, Defendants acknowledge that Levac refused to call three ofthe four witnesses
requested by Plaintiff. {See Dkt. 71-2 at
66-69). The state court specifically found that
Levac violated Plaintiffs rights by refusing to call the Inspector General, because the
Inspector General was investigating the matter and could have provided relevant testimony,
and Levac "failed to state a good faith basis for the denial of[Plaintiffs] request" for the
Inspector General's testimony. (Dkt. 77 at 186). The Court is similarly persuaded that, on
the instant record, a rational juror could conclude that Levac failed to provide a rational,
good faith basis for refusing to call the Inspector General, and accordingly denies
Defendants' request for summary judgment as to this aspect of Plaintiffs due process
claim.
d.
Rendering Decision Outside Plaintiffs Presence
The Court grants Defendants' motion for summary judgment to the extent Plaintiff
asserts a due process violation based on Levac having rendered a decision outside his
presence. The transcript of the hearing indicates that Plaintiff was present when the
disposition was rendered (Dkt. 71-9 at 59), Levac has stated under penalty of perjury that
Plaintiff was present when Levac read the disposition(Dkt. 71-6 at ^ 33), and,importantly.
Plaintiffs own exhibits confirm that he received a written copy ofthe disposition (Dkt. 77
at 149). Plaintiff has failed to produce any evidence corroborating his claim that he was
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not present for the disposition of his disciplinary proceeding. See Jeffreys v. City ofN.Y.,
426 F.3d 549, 554 (2d Cir. 2005)("At the summary judgment stage, a nonmoving party
must offer some hard evidence showing that its version of the events is not wholly
fanciful." (quotation omitted)). Thus, assuming Plaintiff had a right to be present when
the disposition was announced, see Vogelfang v. Capra, 889 F. Supp. 2d 489, 513
(S.D.N.Y. 2012) ("District courts in this circuit have expressed differing views as to
whether an inmate has a due process right to be present at a disciplinary proceeding
separate and apart from the well-established rights ofinmates to call witnesses and present
documentary evidence."), that right was satisfied.
C.
Claims Against Annucci
Defendants seek summary judgment on Plaintiffs claims against Annucci, arguing
that there is no evidence Annucci was personally involved in any claimed deprivation of
Plaintiffs rights.
"To recover damages against supervisory officials for the acts oftheir subordinates,
a plaintiff must show that the defendant's personal involvement caused the constitutional
deprivation." Beatty v. Davidson, 713 F. Supp. 2d 167, 176 (W.D.N.Y. 2010). Here, the
Court agrees with Defendants that there is no evidence that Annucci was personally
involved in the alleged denial of due process.
Plaintiff makes two arguments with respect to Annucci's alleged involvement.
First, he claims that Annucci was informed of the violations but refused to remedy the
wrong. (Dkt. 76 at 11). However, the record does not support this conclusion. While
Plaintiff did send a letter of appeal addressed to "Commissioner, N.Y.S. D.O.C.C.S."
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detailing his claims {see Dkt. 77 at 151), his letter of appeal was considered and decided
by Albert Prack, DOCCS' Director of Special Housing/Inmate Disciplinary Program (id.
at 163). "A supervisory official is not deemed to have been personally involved solely by
virtue of having received a letter or complaint from a prisoner and having referred it to the
appropriate department for investigation[.]" Phillip v. Schriro, No. 12-cv-8349-RA, 2014
WL 4184816, at *5(S.D.N.Y. Aug. 22, 2014).
Second, Plaintiff claims that Annucci failed to follow the state court's order to
reverse the disposition, expunge all references from Plaintiffs record, and remove all
associated sanctions. (Dkt. 76 at 11). Again,the record does not demonstrate that Annucci
had any personal involvement in the follow up from the state court's order. Instead, it was
Venettozzi who was apparently responsible for implementing the state court's order. (Dkt.
71-9 at 83-84). On these facts, no rational juror could conclude that Annucci was
personally involved in depriving Plaintiff of his right to due process.
D.
Qualified Immunity
Finally, Defendants argue that they are entitled to qualified immunity. "Qualified
immunity insulates public officials from claims for damages where their conduct does not
violate 'clearly established statutory or constitutional rights of which a reasonable person
would have known.'" Defore v. Premore, 86 F.3d 48, 50(2d Cir. 1996)(quoting Harlow
V. Fitzgerald, 457 U.S. 800, 818(1982)). "'Clearly established' means that, at the time of
the officer's conduct, the law was 'sufficiently clear' that every 'reasonable official would
understand that what he is doing' is unlawful." District ofColumbia v. Wesby, 138 S. Ct.
577,589(2018).
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Here, Defendants' qualified immunity argument must fail, because it relies upon
accepting Defendants' version of the disputed facts. In particular. Defendants' qualified
immunity argument is premised on their contention that Flora, Lalone, and Maloy were
responding to Plaintiffs "continued volatile and combative behavior," that Funke was no
longer serving as inmate assistant, and that the Inspector General lacked relevant
information. (See Dkt. 71-1 at 24). However, as the Court has discussed at length above,
those facts are in dispute, and must be resolved by a jury. See Tolan v. Cotton, 572 U.S.
650,656(2014)("In resolving questions of qualified immunity at summaryjudgment," the
Court "may not resolve genuine disputes of fact in favor of the party seeking summary
judgment."). Accordingly, the Court denies Defendants' request for summary judgment
based on qualified immunity.
CONCLUSION
For the foregoing reasons, the Court grants Defendants' motion for summary
judgment(Dkt. 71)in part and denies it in part. In particular, the Court grants Defendants'
motion for summary judgment with respect to Plaintiffs due process claim against Levac
solely to the extent it is based on having allegedly announced the disposition of the
disciplinary hearing outside Plaintiffs presence, and with respect to Plaintiffs claims
against Annucci. The Court denies the motion in all other respects. The Clerk of Court is
directed to enter judgment in favor of Anthony J. Annucci and to terminate him as a
defendant.
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so ORDERED.
ELIZAMTH AT WOLFORD
United States District Judge
Dated: September 30, 2019
Rochester, New York
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