Sowell v. Chappius et al
Filing
193
-CLERK TO FOLLOW UP- DECISION AND ORDER granting in part and denying in part 169 Motion for Summary Judgment as follows: that Defendants Motion for Summary Judgment is granted to the extent that all claims against CHO Esgrow, Inv. Bigit, and Direc tor Selsky are dismissed with prejudice; that Defendants Motion for Summary Judgment is granted to the extent that the Eighth Amendment claim against CO Harris as a principal is dismissed with prejudice; that Defendants Motion for Summary Judgment is denied to the extent that the Eighth Amendment claim based on the failure of CO Harris and CO Flynn to intervene to prevent an excessive use of force may proceed; that Frank Bigit, Donald Selsky, Michael Sheahan, and James Esgrow are terminated as parties to this action. The Clerk of Court is requested to modify the docket accordingly. Signed by Hon. Michael A. Telesca on 7/1/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
VICTOR SOWELL,
DECISION AND ORDER
No. 07-CV-6355(MAT)
Plaintiff,
-vsPAUL H. WEED, T. HARRIS, D. FLYNN,
DONALD SELSKY, J. ESCROW, M. SHEAHAN, F.
BIGIT,
Defendants.
I.
Introduction
Victor Sowell, an inmate in the custody of New York State
Department of Corrections and Community Supervision (“DOCCS”),
commenced this action pro se pursuant to 42 U.S.C. § 1983, alleging
that Defendants violated his constitutional rights in connection
with (1) a disciplinary hearing finding him guilty on March 8,
2006,
of
impersonation,
departmental
document
possession
without
and
distribution
authorization,
and
of
a
unauthorized
correspondence with a parolee; and (2) a use-of-force (“UOF”)
incident on June 18, 2006, which resulted in Sowell sustaining
significant injuries and being found guilty of assaulting several
correction officers.
II.
Background
A.
The Parties
At all relevant times, Correction Officer Paul H. Weed (“CO
Weed”), Timothy Harris (“CO Harris”), and Daniel Flynn (“CO Flynn”)
were employed at Southport and were involved in the June 18, 2006
UOF incident. Captain M. Sheahan (“Capt. Sheahan”) presided over
the disciplinary hearing dealing with the assault charges filed
against Sowell after the UOF incident.
Civilian Hearing Officer James Esgrow (“CHO Esgrow”) was
assigned to Southport to conduct the disciplinary hearing involving
the fraud charges. Senior Investigator Frank Bigit (“Inv. Bigit”)
of
DOCCS’
Office
of
the
Inspector
General
conducted
the
Inmate
Discipline
and
investigation into the fraud charges.
Donald
Special
Selsky,
Housing
DOCCS’
Units
Director
(“Director
of
Selsky”)
reviewed
both
disciplinary hearings.
B.
Factual Summary
The following facts—viewed in the light most favorable to
Plaintiff—are gleaned from the pleadings and from the parties’
submissions
in
conjunction
with
Defendants’
summary
judgment
motion. See, e.g., Lipton v. Nature Co., 71 F.3d 464, 471 (2d Cir.
1995) (“For the purposes of a summary judgment motion, courts are
required to view the facts in the light most favorable to the
parties
opposing
the
motion
and
credibility.”).
-2-
to
suspend
judgments
on
1.
The 2006 Disciplinary Hearing on Charges of Fraud1
On March 24, 2003, the Inspector General’s Office (“IGO”)
received a complaint stating that a correction officer employed at
Great Meadow Correctional Facility had found an unexplained charge
on one of his credit accounts. Other correction officers also began
having difficulties in refinancing mortgages and obtaining loans.
Inv. Bigit was assigned to the matter on May 1, 2003, and over
the course of two years, he conducted an investigation which
revealed that Sowell had obtained a mistakenly unredacted UOF
report through a March 2000 Freedom of Information Law request. The
report pertained to a UOF incident on May 15, 1999, which Sowell
was challenging, and report contained the Social Security numbers
of
the
correction
officers
who
had
been
involved.
With
the
assistance of a confidential informant, Inv. Bigit determined that
Sowell had sent this information to a parolee, Shammell Ayatollah
(“Ayatollah”),2 with instructions on how to obtain fraudulent
credit
cards
in
the
names
of
the
officers
whose
personal
1
The Court has taken judicial notice of the appellate brief
filed by the State in connection with Plaintiff’s administrative
proceeding challenging the outcome of the fraud disciplinary
hearing. See, e.g., Ford v. Krusen, No. 9:06–CV–0890 (GTS/DEP),
2009 WL 959534, at *3 n.2. (N.D.N.Y. Apr. 6, 2009) (citing Waldman
v. Village of Kiryas Joel, 39 F.Supp.2d 370, 372–73 (S.D.N.Y.
1999), aff’d, 207 F .3d 105 (2d Cir. 2000)).
2
Apparently, Shammell Ayatollah died in 2001, prior to the
commencement of Inv. Bigit’s investigation.
-3-
information was contained in the report. Once Inv. Bigit completed
his investigation, he filed a misbehavior report on October 7,
2005,
charging
(Impersonation),
Sowell
Rule
with
113.26
violations
(Possession
of
of
Rule
Employee
111.10
Personal
Information); Rule 116.12 (Distribution of a Facility Document);
and Rule 180.11 (Corresponding with a Parolee).
A disciplinary hearing was held which resulted in a finding of
guilty on all charges. However, this hearing was reversed by CHO
Esgrow because CO Hibbard, the employee legal assistant assigned to
Sowell, failed to provide adequate assistance. CHO Esgrow assigned
Sergeant
McKehan
(“Sgt.
McKehan”),
from
whom
Sowell
refused
assistance. Nevertheless, Sgt. McKehan provided Sowell with the
non-confidential information he had requested from his first legal
assistant but not received. Throughout the hearing there were
multiple adjournments to allow for Sowell to receive additional
legal assistance.
In a disposition dated March 8, 2006, CHO Esgrow found Sowell
guilty of all the charges set forth in the misbehavior report and
imposed a penalty of 18 months in SHU. The violation of Rule 113.26
did not result in any additional SHU time or loss of privileges. On
administrative appeal, Director Selsky modified the disposition by
dismissing the conviction for Rule 113.26, because Sowell had not
had adequate notice of it. The SHU sentence was undisturbed.
-4-
Sowell filed a petition pursuant to Article 78 of New York’s
Civil Practice Law and Rules, which was denied on the merits by the
Appellate Division, Third Department, of New York State Supreme
Court. Matter of Sowell v. Selsky, 43 A.D.3d 1226, 1226, 2007 N.Y.
Slip. Op. 06606 (3d Dep’t 2007) (citations omitted).
2.
The June 18, 2006 Use-Of-Force Incident
On the morning of Sunday, June 18, 2006, Sowell headed out of
his cell to go to recreation. As per the usual procedure, his hands
were cuffed in the front of his body. When he stopped for a
security wanding and pat-frisk, Sowell placed his hands on the wall
to be frisked. CO Weed conducted the pat-frisk and, according to
Sowell,
“ran
his
hand
over
[Sowell’s]
private
part
and
he
squeezed[.]” See VS1.38:9-14; 40:1-8.3 Although he knew he was not
supposed to turn away from the wall or take his hands off the wall
during the wanding or pat-frisk, Sowell turned to right, bringing
his head and shoulder away from the wall. Sowell said, “[W]hat are
you doing, man, what are you doing[?]” Id.
CO Weed “jumped back” and Sowell tried to put his hands back
on the wall. However, CO Weed “rushed [him] and grabbed [him]
around the waist[.]” Sowell stated that he “didn’t resist at all”
3
Numbers preceded by “VS1.” refer to pages from the first
transcript of Sowell’s deposition (Defendants’ Exhibit (“Defs’
Ex.”) A, attached to the Declaration of Gary Levine Esq. (“Levine
Decl.”), Dkt #173). Numbers preceded by “VS2.” refer to pages from
the second transcript of Sowell’s deposition (Defs’ Ex. B).
-5-
and “fell to the ground.” Sowell related that one of the officers
activated an alarm, bringing numerous other officers to the scene.
Sowell testified that they were “was allover [him]” while he was
face-down on the floor handcuffed. The officers “smashed [his] face
to the ground” and were “doing all kinds of stuff to [him].”
Sowell testified that CO Weed was “sitting on his butt” with “his
legs out” and he “had [Sowell’s] hand. VS1.40:16-25; 41:1-5. Sowell
was “able to see [Weed] sitting there holding [his] hands,” and
“breaking [his] fingers, dislocating [his] fingers[.]” CO Weed
tried to stop Sowell from yelling by “smash[ing] [his] face to the
ground,” almost “choking [him][.]” VS1.42:21-25; 43:1-3. Sowell
explained that CO Weed was “[s]napping [his finger] one by one,
pulling them, trying to close [his] hand, pulling it back and
snapping.” Specifically, CO Weed was “[p]ulling them backwards,
almost like in an upwards and backwards direction[.]”. CO Weed
started with Sowell’s pointer (index) finger. Throughout the whole
incident, Sowell was screaming, “He is breaking my fingers.”
VS1.58:11-23.
Sowell stated that “[s]omebody had their knee on [his] face or
elbow or arm on [his] face[.]” With regard to CO Harris, Sowell
testified, “Harris hit me in the back of the head, because I seen
him behind me, right, and I see he was like punching me, like this,
like trying to hide himself from punching me in my face.” VS1.51:49; 55:1-8 (testifying that CO Harris hit him in the back of the
-6-
head with a baton); VS1.53:24-25; 54:1-4 (“I was hit in the back of
my head. Hit in the side of my face, my ear, everywhere, kicked in
the back, everywhere, ribs.”). To keep Sowell from yelling and
screaming, the officers “smashed [his] face down and he continued
doing it while they had [his] face smashed down.”
Two of Sowell’s fellow inmates on the gallery, Michael Ramirez
(“Ramirez”) and Alexander Screahben (“Screahben”), were in cells
near the location of the incident. Because he was a porter, Ramirez
had a mirror, which he stuck outside his cell once he heard Sowell
screaming.
Ramirez
testified
that
he
only
saw
“glimpses
of
[Sowell’s] body parts, because there was so many C.O.s on him.”
MR.32.4
Ramirez testified
that
he
saw
the
correction officer
searching Sowell in the genital area and he said, “[H]ey, what are
you doing?” MR.13. At that point, “the other officers just brang
[sic] him down.” MR.14. Ramirez could see “Sowell on the floor, and
he was screaming . . . that his fingers was broke.” MR.18.
According to Ramirez, Sowell said this “quite a few times”. Sowell
was “[v]ery loud” and “[e]verybody heard him.” MR.18, 23-24. Upon
hearing Sowell crying out that his fingers were being broken, all
the other inmates started screaming, “[L]eave him alone[!]” MR.19.
Ramirez estimated that the incident lasted about five minutes.
4
Numbers preceded by “MR.” refer to pages from the deposition
transcript of Michael Ramirez, a/k/a Michael Delgado. Numbers
preceded by “AS.” refer to pages from the deposition transcript of
Alexander Screahben.
-7-
Screahben did not see the incident, but was able to hear it.
AS.11. He heard someone say, “‘What are you doing?’” This was
followed by “a lot rumbling” and the person started “screaming[,]”
“‘Yo, you breaking my finger.’” AS.11, 13-15. Screahben said that
the person was “real loud, especially because he was crying[,]. .
. . saying, ‘They broke my fingers. They broke my fingers.’ And he
was bawling.” AS.14-15, 22, 23. Screahben estimated that the
incident lasted about four minutes. AS.18.
After the incident, the correction officers hauled Sowell into
the shower area.
CO Weed issued misbehavior report with regard to
the events from the pat-frisk to placing Sowell in the shower,
charging
him
with
106.10
(refusing
a
direct
order);
115.10
(refusing frisk or search procedures); 102.10 (threats); 107.10
(interference with employee); 104.13 (conduct which disturbs order
of facility); and 100.11 (assault on staff).
Sowell stated that when he “got in the shower, all of my
fingers were pointed back this way and pointing to the side[,]”
VS1.56:14-25, so he started trying to pop them back into place. CO
Robinson, who was watching Sowell, observed him doing this and gave
him a direct order to stop, which Sowell ignored. Sgt. McKeon then
came and talked to Sowell for a few minutes. Then, according to CO
Robinson’s misbehavior report, threw himself to the floor, hitting
the back of his head and rolling around “violently rolling back and
forth banging his hands, head and feet on and against the shower
-8-
floor and shower ledge.” Both CO Robinson and Sgt. McKean ordered
him to stop, and after about 30 seconds, Sowell complied. CO
Robinson
wrote
up
a
misbehavior
report
charging
Sowell
with
violating Rule 106.10 (Refusing a Direct Order) and 123.10 (An
Inmate Shall Not Inflict or Attempt to Inflict Bodily Harm Upon
Himself).
Facility nurse Karen Weaver (“Nurse Weaver”) examined Sowell
in the shower and saw that his second through fifth fingers (index
through pinkie) were “grossly deformed” and he had a quarter-sized
hematoma (black and blue mark) on the back of his head, which grew
to three and one-half inches in size. KW.23-24. His left pupil was
sluggish, and the right pupil was within normal limits. KW.25.
Plaintiff was transported to the Arnot-Ogden Medical Center
(“AOMC”) where he was treated by orthopedic surgeon, Mark Gibson,
M.D. (“Dr. Gibson”). Sowell had “pretty significant swelling”
around the fingers of his left hand, consistent with dislocations
of those digits. X-rays confirmed that he had a small avulsion
fracture on his fourth (ring) finger along with a dislocation of
that finger. The main injury appeared to have been sustained by the
third and fourth digits. Because of the difficult nature of the
reduction, Dr. Gibson injected an anesthetic before moving the
joint back into place. Following the reduction, Dr. Gibson “buddytaped”
the
third
and
fourth
fingers
together
and
instructed
Plaintiff on the importance of beginning a passive and active range
-9-
of motion program so that he would not lose motion at the proximal
interphalangeal joints of the affected fingers. Plaintiff was
discharged from AOMC and was seen in follow-up by Dr. Gibson on
several occasions.5
Captain Michael Sheahan (“Capt. Sheahan”) presided over a Tier
III hearing on July 4-5, 2006, based on CO Weed’s misbehavior
report. Sowell was found guilty of all charges, although on the
disposition sheet, Capt. Sheahan indicated that he found Sowell
guilty of violating Rule 104.11 (Violent Conduct) instead of Rule
104.13, which had been charged in the misbehavior report. Sowell
was sentenced to 12 months (6 months suspended and 6 months
deferred) in the Special Housing Unit, to begin on April 27, 2007.
On August 25, 2006, Director Selsky modified the hearing
disposition to the extent that the conviction of Rule 104.11 was
dismissed
because
that
charge
had
not
been
listed
on
the
misbehavior report. There was no change in penalties. See Defs’
Ex. W.
A Tier II hearing was held on July 17, 2006, based upon CO
Robinson’s misbehavior report charging Sowell with refusing a
direct order while he was waiting in the shower area after the UOF
5
Photographs submitted by Sowell show that his fingers remain
permanently bent. He asserts that he has what is known as a
“Boutonnière Deformity,” where an injury to the tendons in the
fingers prevents the fingers from fully straightening. He asserts
that he now suffers from stiffness and a severe case of arthritis
in the fingers that were dislocated.
-10-
incident, and with inflicting bodily harm upon himself. Lieutenant
Donahue, the hearing officer, found Sowell guilty of refusing a
direct order and not guilty of self-inflicted bodily harm, and
sentenced him to 25 days of keeplock. On administrative appeal,
Captain Sullivan reversed the decision in a memorandum dated
July 20, 2006. This disciplinary hearing is not at issue in the
present lawsuit.
Sowell commenced an Article 78 proceeding in New York Supreme
Court, Albany County on October 3, 2006, challenging both hearings
stemming from the UOF incident. In a Decision and Order dated
April 21, 2008, Associate Justice Judith A. Hard denied Sowell’s
petition on the merits.
This timely § 1983 action followed. Pro bono counsel was
appointed to assist Sowell, and extensive discovery was conducted.
Presently
before the
Court
is
a
Motion
for
Summary
Judgment
(Dkt #169) pursuant to Federal Rule of Civil Procedure (“F.R.C.P.”)
56(c) by defendants Timothy Harris, Daniel Flynn, James Esgrow,
Donald Selsky, Michael Sheahan, and Frank Bigit seeking to dismiss
a
number
of
claims
in
Plaintiff’s
Second
Amended
Complaint
(Dkt #167). Defendant Paul Weed has not joined in the Motion for
Summary Judgment. Plaintiff’s pro bono counsel has opposed the
motion (Dkt #192).
-11-
III. General Legal Principles
A.
Section 1983
Section 1983 authorizes an individual who has been deprived
of a federal right under the color of state law to seek relief
through
“an
action
at
law,
suit
in
equity,
or
other
proper
proceeding for redress.” City of Monterey v. Del Monte Dunes at
Monterey, Ltd., 526 U.S. 687, 707 (1999). Two essential elements
comprise a Section 1983 claim: (1) the defendant acted under color
of state law; and (2) as a result of the defendant’s actions, the
plaintiff suffered a denial of his federal statutory rights, or his
constitutional
rights
or
privileges.
Annis
v.
County
of
Westchester, 136 F.3d 239, 245 (2d Cir. 1998) (citation omitted).
To bring a § 1983 claim against a prison official, a plaintiff
must allege that individual’s personal involvement; it is not
enough to simply assert that the defendant is a “link in the prison
chain of command.” McKenna v. Wright, 386 F.3d 432, 437 (2d Cir.
2004) (quotation omitted). “[S]upervisor liability in a § 1983
action depends on a showing of some personal responsibility, and
cannot rest on respondeat superior.” Hernandez v. Keane, 341 F.3d
137, 144 (2d Cir. 2003) (citation omitted); accord Richardson v.
Goord, 347 F.3d 431, 435 (2d Cir. 2003).
B.
Summary Judgment Standard
Summary
judgment
is
appropriate
“if
the
pleadings,
depositions, answers to interrogatories, and admissions on file,
-12-
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(c). Initially,
the moving party must show that there is “an absence of evidence to
support the non-moving party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). Once the moving party has carried its burden,
the opposing party must set forth “specific facts showing that
there is a genuine issue for trial[,]” FED. R. CIV. P. 56(e), and
must introduce evidence beyond the mere pleadings to show that
there is an issue of material fact concerning “an element essential
to that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex, 477 U.S. at 322.
A material fact is genuinely in dispute “if the evidence is
such
that
a
reasonable
jury
could
return
a
verdict
for
the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The reviewing court resolves “all ambiguities and
draw[s] all inferences in favor of the nonmoving party in order to
determine how a reasonable jury would decide.” Aldrich v. Randolph
Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (citation
omitted). Thus, “[o]nly when reasonable minds could not differ as
to the import of the evidence is summary judgment proper.” Bryant
v. Maffucci, 923 F.2d 979, 982 (2d Cir.) (citing Anderson, 477 U.S.
at 250–51), cert. denied, 502 U.S. 849 (1991). If, “as to the issue
on which summary judgment is sought, there is any evidence in the
-13-
record from which a reasonable inference could be drawn in favor of
the opposing party, summary judgment is improper.” Security Ins.
Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83
(2d Cir. 2004) (quotation omitted).
IV.
Discussion
A.
Official Capacity Claims
Defendants argue that to the extent that Sowell seeks monetary
damages against them in their official capacities, such claims are
barred by the Eleventh Amendment. See Farid v. Smith, 850 F.2d 917,
921 (2d Cir. 1988). Sowell agrees that money damages are not
recoverable against Defendants in their official capacities. He
maintains, however, that he also seeks prospective injunctive or
equitable relief, and that such claims are not barred by the
Eleventh Amendment.
In Paragraph 4 of the Second Amended Complaint, Plaintiff
seeks “[a]n order expunging Department of Corrections findings of
guilt in regard to the Misbehavior Reports.” Second Amend. Compl.,
at 34, ¶ 4 (Dkt #167). Plaintiff is correct that the relief sought
in this paragraph is not barred by the Eleventh Amendment. See
Nevarez v. Hunt, 770 F. Supp.2d 565, 568 (W.D.N.Y. 2011) (holding
that official-capacity claim for equitable relief in form of
expungement of various disciplinary is not barred by Eleventh
Amendment) (citation omitted). However, as discussed further below,
the
Court
is
dismissing
the
claims
-14-
stemming
from
the
two
disciplinary hearings, and thus Sowell’s requests for equitable
relief in the form of expungement are denied.
In Paragraph 5 of the Second Amended Complaint, Sowell
requests “[a] declaratory judgment or injunction preventing any
retaliation for prosecuting this action[.]” Second Amend. Compl.,
at 34, ¶ 5 (Dkt #167). Injunctive relief is an equitable remedy,
appropriate in cases where the plaintiff can show he will suffer a
“likelihood of substantial and immediate irreparable injury” if an
injunction is not granted. City of Los Angeles v. Lyons, 461 U.S.
95,
111
(1983)
(quotation
omitted).
Sowell’s
request
for
prospective injunctive relief thus is not barred, per se, by the
Eleventh Amendment. At this juncture, the Court will not dismiss
Sowell’s claim against Defendants in their official capacities for
prospective injunctive relief. However, Sowell is advised that
under the Prison Litigation Reform Act, “[p]rospective relief in
any civil action with respect to prison conditions shall extend no
further than necessary to correct the violation of the Federal
right
of
a
particular
plaintiff
or
plaintiffs.”
18
U.S.C.
§ 3626(a).
B.
Excessive Force Claims Arising from the June 18, 2006
Incident
1.
Overview
In his first cause of action, Sowell asserts that CO Weed
utilized excessive force during the June 18, 2006 incident, in
violation of the Eighth Amendment, and that CO Harris and CO Flynn
-15-
failed to intervene in the assault or otherwise prevent CO Weed
from harming him. Defendants CO Harris and CO Flynn move for
summary judgment dismissing this cause of action, arguing that
Sowell has not raised a triable issue of fact as to their personal
involvement in the allegedly excessive use of force. Notably, CO
Weed has not moved to dismiss the excessive force claim. Defendants
CO Harris and CO Flynn urge that their actions in restraining
Plaintiff
after
he
came
off
the
wall
“were
a
rational
and
calculated response to a perceived threat of inmate resistance.”
Defendants’ Memorandum of Law (“Defs’ Mem.”) at 13 (citation
omitted)).
2.
The Law on Excessive Force
The Supreme Court has held that “the use of excessive physical
force
against
a
prisoner
may
constitute
cruel
and
unusual
punishment [even] when the inmate does not suffer serious injury.”
Hudson v. McMillian, 503 U.S. 1, 4 (1992); accord Wilkins v. Gaddy,
130 S. Ct. 1175, 1177, 1178 (2010) (per curiam) (“In requiring what
amounts to a showing of significant injury in order to state an
excessive force claim, the Fourth Circuit has strayed from the
clear holding of this Court in Hudson.”). The “core judicial
inquiry” is “not whether a certain quantum of injury was sustained,
but rather ‘whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to
cause harm.’” Wilkins, 130 S. Ct. at (quoting Hudson, 503 U.S. at
-16-
7; citing Whitley v. Albers, 475 U.S. 312, 319–21 (1986)). Thus,
while relevant to the question of maliciousness, the absence of
serious injury does not end the inquiry. Hudson, 503 U.S. at 7. In
addition to the extent of injury suffered by an inmate, other
proper factors for consideration are the need for the use of force,
the relationship between that need and the amount of force used,
the threat “reasonably perceived” by the officers, and any efforts
the officers made to moderate the severity of the force used. Id.
(citing Whitley, 475 U.S. at 321).
3.
Failure to Intercede to Prevent an Eighth Amendment
Violation
When a correction officer observes another officer using
excessive force, or has reason to know that excessive force will be
or is being used, he can be liable under the Eighth Amendment if he
fails to intercede. Curley v. Village of Suffern, 268 F.3d 65, 72
(2d Cir. 2001) (citing Anderson v. Branen, 17 F.3d 552, 557
(2d Cir. 1994) (“It is widely recognized that all law enforcement
officials have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other law
enforcement officers in their presence.”) (collecting cases)). For
liability
to attach,
the
correction
officer
must have
had
a
“realistic opportunity” to prevent the harm from occurring. O’Neill
v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988); see also Curley, 268
F.3d at 72. In general, the question of whether
a correction
officer had adequate time to intervene or was capable of preventing
-17-
the assault is an issue of fact for the jury “unless, considering
all the evidence, a reasonable jury could not possibly conclude
otherwise.” O’Neill, 839 F.2d at 12; accord Anderson, 17 F.3d at
557.
With this legal backdrop, the Court turns to the question of
whether CO Harris and CO Flynn may be liable for failing to
intercede to prevent CO Weed from harming Plaintiff. As noted
above, CO Weed has not moved for summary judgment on the Eighth
Amendment claim against him, tacitly conceding that there are
genuine issues of material fact as to whether he used excessive
force
against
Sowell.
Indeed,
the
Court
has
no
difficulty
concluding that Plaintiff has raised a genuine issue of material
fact
as
to
whether
CO
Weed
applied
force
maliciously
and
sadistically to cause harm rather than in a good-faith effort to
maintain
or
restore
discipline
in
light
of
(1)
Plaintiff’s
testimony that CO Weed broke his second through fifth fingers, one
by one; (2) Dr. Gibson’s assessment of the severity of Plaintiff’s
injuries; (3) the relatively lengthy duration (approximately six
minutes)6 of the incident; and (4) the fact that Plaintiff was
handcuffed in the front of his body and was lying face down on the
6
The transcript of the disciplinary hearing indicates that the
videotape recorded by the surveillance system monitor of the
incident covers the time-period from 9:47 a.m. to 9:53 a.m. on
June 18, 2006. See Defs’ Ex. CCC (Dkt #173-3).
-18-
floor restrained by several other officers while CO Weed was
breaking his fingers. See VS1.38, 40-42, 46, 49, 51, 59, 60-64.
With the excessive force element of a failure-to-intercede
claim adequately established for purposes of defeating summary
judgment, the Court must examine whether there are genuine issues
of material fact regarding whether CO Harris and CO Flynn had a
“realistic opportunity” to prevent the harm from occurring. Sowell
testified that during the incident, which lasted about six minutes,
he was screaming that his fingers were being broken. VS1.42, 58.
Both of the inmates who gave depositions in this matter confirmed
that Sowell was crying out and loudly yelling, “They are breaking
my fingers!” E.g., MR.18, AS.14-15. These inmates also testified
they heard Sowell say repeatedly, “I’m not resisting!” Given the
duration
of
the
incident,
and
the
testimony
from
non-party
witnesses Ramirez and Screahben, the Court find that Sowell has
raised a genuine issue of material fact as to whether CO Harris and
CO Flynn could be liable for failing to intercede. Viewing the
evidence in the light most favorable to Sowell, two individuals who
were not directly involved in the incident testified they heard
Sowell screaming that his fingers were being broken and that he was
not resisting. This, coupled with the duration of the incident (six
minutes), the fact that Sowell was on his stomach and handcuffed,
and the number of other officers who participated in the incident,
raises an issue of fact as to whether CO Harris and CO Flynn, who
-19-
were actually involved, had reason to know excessive force was
being used by CO Weed and had a realistic opportunity to intervene
to prevent its use. Cf. O’Neill, 839 F.2d at 11-12 (“Even when the
evidence is viewed in the light most favorable to the plaintiff,
there is insufficient evidence to permit a jury reasonably to
conclude that [the officers’] failure to intercede was a proximate
cause of the beating. The three blows were struck in such rapid
succession that [the officer] had no realistic opportunity to
attempt to prevent them. This was not an episode of sufficient
duration to support a conclusion that an officer who stood by
without trying to assist the victim became a tacit collaborator.”).
4.
CO Harris’
Amendment
Direct
Liability
Under
the
Eighth
Sowell argues that CO Harris should be held liable as a
principal under the Eighth Amendment because CO Harris allegedly
struck
him
in
the
back
of
the
head
while
Sowell
was
being
restrained. See VS1.54-55. Sowell’s medical records indicate that
he sustained a round hematoma approximately 3½ inches in diameter
on the back of his skull. See Defs’ Ex. S. Defendants argue that
this assertion is not supported by the videotape evidence, and
therefore the Court should deem it incredible as a matter of law.
At his deposition, Sowell testified as follows:
Harris hit me in the back of the head, because I seen him
behind me, right, and I see he was like punching me, like
this, like trying to hide himself from punching me in my
face.
-20-
VS1.51. Later in his deposition, however, Sowell testified that CO
Harris hit him with a baton. CO Harris has denied striking Sowell
with a baton or with his fists. TS.66.7
Inmate Ramirez testified that he did not observe any person
hitting another person during this incident because “[t]he only
thing [he] could observe” was “a whole bunch of [officers] on top
of him. . . .” MR.21. Later in his deposition, Ramirez clarified
that he could observe Plaintiff from the knee up to his head, and
although he could not see him completely, he “could make out
[Plaintiff’s] body[.]” MR.23. When asked if Plaintiff was being
struck in any way, Ramirez replied, “No, not that I seen.” MR.23.
Defendants also note that although the videotape is not
perfectly clear, it is clear enough to determine that there was not
a baton being used at any time. Defs’ Mem. at 13. Defendants also
argue that it is implausible for Plaintiff to simultaneously claim
that he was struck with a baton on the back of his head and that he
was turned so that he could see who was hitting him. See Defs’ Mem.
at 13.
Plaintiff
did
not
address
Defendants’
arguments
in
his
memorandum of law and indeed, does not mention the Eighth Amendment
claim against CO Harris as a principal beyond stating that he
“punched Sowell in the back of the head. . . .”
Pl’s Mem. at 2.
7
Numbers preceded by “TS.” refer to pages from the deposition
transcript of Timothy Harris.
-21-
“When no rational jury could find in favor of the nonmoving party
because the evidence to support its case is so slight, there is no
genuine issue of material fact and a grant of summary judgment is
proper.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22
F.3d 1219, 1224 (2d Cir. 1994) (citation omitted). The Court finds
that Defendants have adequately demonstrated, by reference to
pertinent portions of the record, that no genuine issue of material
fact exists with regard to this claim. Summary judgment therefore
is granted in favor of CO Harris with regard to the claim that he
personally
used
excessive
force
in
violation
of
the
Eighth
Amendment against Plaintiff.
C.
The Due Process
Hearings
Claims
Related
to
the
Disciplinary
Sowell raises a number of claims concerning alleged violations
of his procedural due process rights in connection with the fraud
disciplinary
hearing
and
the
assault
disciplinary
hearing.
Defendants have asserted that some of these claims are barred by
collateral
estoppel
(issue
preclusion)
and
the Rooker-Feldman
doctrine8 because Plaintiff raised them in the Article 78 petitions
in state court challenging each disciplinary hearing. Based upon
its review of the record and relevant caselaw, the Court agrees
that Defendants’ argument is persuasive. However, Plaintiff has
8
The Rooker–Feldman doctrine is named for Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983).
-22-
asserted that Director Selsky should be held liable for failing to
correct the constitutional errors at the disciplinary hearings,
which requires the Court to consider the merits of those same
claims that are barred by collateral estoppel and/or RookerFeldman. Accordingly, in the interest of judicial economy, the
Court will consider the substance of Plaintiff’s underlying due
process claims, which are easily resolved on the merits.
To award damages under 42 U.S.C. § 1983 for an alleged
violation of procedural due process, the reviewing court must find
that, as the result of conduct performed under color of state law,
the inmate was deprived of life, liberty, or property without due
process of law. Bedoya v. Coughlin, 91 F.3d 349, 351 (2d Cir.
1996). It is undisputed that CHO Esgrow and Capt. Sheahan acted
under color of state law. The remaining inquiry comprises two
prongs: (1) whether Sowell had a protected liberty interest in not
being confined pursuant to the respective SHU sentences he served;
and, if so, (2) whether the deprivations of those liberty interests
occurred without due process of law. Id. at 351-52 (citing Kentucky
Dep’t of Corr. v. Thompson, 490 U.S. 454, 460-61 (1989)). Defendant
has
assumed
arguendo
that
Plaintiff
had
protectible
liberty
interests in being free from the SHU sentences he served as a
result of the disciplinary hearings. The Court has done the same.
The alleged due process violations are addressed in turn below.
-23-
1.
The Disciplinary Hearing on Fraud Charges
a.
Delay in Filing the Misbehavior Report
Plaintiff asserts that the time that elapsed between the
conduct underlying the disciplinary charges and the filing of the
misbehavior report violated the DOCCS’ regulation requiring that
all misbehavior reports must be “reported in writing as soon as
practicable.” N.Y. COMP. CODE R. & REGS. tit. 7, § 253-3.1(a). “State
procedural requirements do not establish federal constitutional
rights.” Bolden v. Alston, 810 F.2d 353, 358 (2d Cir.), cert.
denied, 108 S. Ct. 229 (1987). It is unnecessary for the Court to
determine if CHO Esgrow violated any applicable state law because
such a violation is not cognizable under § 1983. Pollnow v.
Glennon, 757 F.2d 496, 501 (2d Cir. 1985). See, e.g., Davidson v.
Capuano, No. 78 CIV. 5724 (RLC), 1988 WL 68189, at *18
n.5
(S.D.N.Y. June 16, 1988) (dismissing as not cognizable plaintiff’s
claim that defendants violated specific state regulations governing
prison disciplinary proceedings) (citations omitted).
b.
Denial of Access to Evidence
Sowell contends that CHO Esgrow violated his right to due
process
by
denying
his
requests
to
view
certain
evidence and to submit witnesses to cross-examination.
documentary
As a matter
of federal constitutional law, an inmate does not have a right to
cross-examine adverse witnesses at a disciplinary hearing, and the
hearing officer
may
rely
upon
evidence
-24-
not presented
at
the
hearing.
E.g.,
Bolden,
810
F.2d
at
358
(citing
Baxter
v.
Palmigiano, 425 U.S. 308, 322–23 & n. 5 (1976)). Consistent with
this underlying principle, courts have held that confidential
information may be considered even through the inmate has not been
permitted access to it. Matter of Abdur-Raheem v. Mann, 85 N.Y.2d
113,
119
(N.Y.
1995)
(citation
omitted).
Such
decisions
are
reviewable only for abuse of discretion. See Wolff, 418 U.S. at
566-67 (prison officials, having “responsibility for the safety of
inmates and staff . . . must have the necessary discretion without
being subject to unduly crippling constitutional impediments”).
On the present record, the Court finds as a matter of law that
CHO Esgrow did not abuse his discretion in finding that release of
the evidence and testimony requested by Sowell would divulge
identifying information that, given the nature of the charges
involved,
could
security.
The
jeopardize
disclosure,
individuals’
especially
privacy
of
the
rights
and
confidential
informant’s testimony, also could adversely affect institutional
safety and security. See Matter of Abdur-Raheem, 85 N.Y.2d at 123
(rejecting
contention
that
hearing
officer
erred
in
denying
inmate’s request for redacted copy of confidential material on
which determination was based because source’s identity was evident
from substance of information conveyed and meaningful redaction was
not possible) (citation omitted). The Court discerns no due process
violation in this regard.
-25-
c.
Sowell
argues
Failure to Meet the “Some Evidence” Standard,
Failure to Assess the Informant’s Reliability,
and Lack of Corroborating Evidence
that
CHO
Esgrow
was
not able
to
properly
ascertain the confidential informant’s reliability and, relatedly,
that the confidential evidence was not sufficiently corroborated.
Sowell also contends that there was insufficient evidence to
support CHO Esgrow’s finding of guilty.
Where a prisoner claims he was denied due process in a prison
disciplinary
hearing
because
he
was
found
guilty
based
on
insufficient evidence, the claim must be rejected if there was
“some evidence” to support the decision. Superintendent, Mass.
Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985). The Supreme Court in
Hill stated that
[a]scertaining whether this standard is satisfied does
not require examination of the entire record, independent
assessment of the credibility of witnesses, or weighing
of the evidence. Instead, the relevant question is
whether there is any evidence in the record that could
support the conclusion reached by the disciplinary board.
Id. at 455-56 (emphasis supplied). Where the disciplinary finding
is based in part on evidence from confidential informants, the
Second Circuit has held that the hearing officer must independently
assess the credibility of the informants, considering the totality
of the circumstances. Sira v. Morton, 380 F.3d 57, 78 (2d Cir.
2004); see also Luna v. Pico, 356 F.3d 481, 488 (2d Cir. 2004).
Even if the sole evidence was supplied by a confidential informant,
-26-
the “some evidence” standard may be satisfied, “as long as there
has been some examination of indicia relevant to [the confidential
informant’s] credibility.” Giakoumelos v. Coughlin, 88 F.3d 56, 61
(2d Cir. 1996) (internal quotation marks omitted).
An
independent
assessment
of the
informant’s credibility
“would not entail more than some examination of indicia relevant to
credibility . . . .” Russell v. Scully, 15 F.3d 219, 223 (2d Cir.
1993)
(emphasis
supplied).
Plaintiff
asserts
that
CHO
Esgrow
“offered no indication on the record that he ascertained where or
how the confidential witness obtained the information, and the
evidence was not independently assessed for reliability.” Pl’s Mem.
at 20. Contrary to Plaintiff’s contention, at the disciplinary
hearing, CHO Esgrow did make state on the record that he received
“[c]ertain confidential document and confidential testimony” into
evidence and that he had “made an independent assessment” of the
confidential evidence, finding that it “provide[d] details and
specifics and d[id] not appear to be motivated by a desire to harm
[Sowell].” Defs’ Ex. I. This satisfies the not-very-demanding
standard
of
Russell
that
the
hearing
officer
provide
“some
examination” of indicia relevant to the informant’s credibility.
Plaintiff has provided no authority for the proposition that the
hearing
officer
was
required
to
explicitly
state
that
he
“ascertained where or how the confidential witness obtained the
information[,]” Pl’s Mem. at 20.
-27-
It bears emphasizing that as a matter of Federal law and New
York State law, the hearing officer is not required to personally
interview or question the confidential informant, and may rely
solely on the informants’ hearsay statements. See Abdur-Raheem, 85
N.Y.2d at 117 (“[A] personal meeting between the Hearing Officer
and the confidential informants is not required and that the
informants’
evidence’
hearsay
as
statements
constitute
as
long
can
are
objective
there
‘substantial
circumstances
demonstrating the informants’ reliability and, based on those
circumstances, the Hearing Officer makes an independent finding
that the informants’ evidence is, in fact, reliable.”); Russell v.
Scully, 15 F.3d 219, 223 (2d Cir. 1993) (as modified on reh’g)
(“Neither due process nor applicable precedent compels that a
hearing officer . . . conduct personal interviews of confidential
informants.”). Here, however, CHO Esgrow took testimony from the
confidential informant and was able to observe that individual’s
demeanor first-hand. CHO Esgrow thus exceeded the applicable due
process requirements. Cf. Campo v. Keane, 913 F. Supp. 814, 825
(S.D.N.Y. 1996) (“[B]y questioning both Lt. Finn and Sgt. Leghorn
about
the
reliability
of
the
informants,
defendant
[hearing
officer] Pico satisfied the Russell requirement that he in some
manner assess the credibility of the confidential informants.”).
Plaintiff
also
argues
that
the
Court
should
reject
CHO
Esgrow’s Declaration, submitted in support of Defendants’ summary
-28-
judgment motion, as an impermissible post hoc justification of his
decision to credit the confidential informant’s testimony. In his
Declaration, CHO Esgrow elaborated on his statement at the hearing
that the confidential informant’s information provided sufficient
details and specifics to establish its reliability. For instance,
two investigators were present when the informant provided the
statements, and each investigator testified in detail, consistently
with each other, about what the informant had stated. The informant
underwent two interviews and provided the same story on both
occasions. In addition, the informant made two written statements
after being provided with Miranda warnings, and the statements were
sworn
to
under
the
penalty
of
perjury.
After
hearing
the
informant’s testimony, CHO Esgrow determined that the informant was
not motivated by an intent to harm Sowell.
Again,
Plaintiff
has
cited
no
legal
authority
for
his
proposition that CHO Esgrow’s Declaration is improper or may not be
considered. The Supreme Court has held that a hearing officer need
not explain his decision to refuse to call at witness at the
hearing, but may do so any time, including in defense of a lawsuit.
Ponte v. Real, 471 U.S. 491, 497-98 (1985). This Court sees no
reason why Ponte would not apply to a hearing officer’s explanation
with
regard
to
his
credibility
informant.
-29-
assessment
of
a
confidential
Finally, with regard to the quantum of evidence presented, the
Court
notes
that
the
Appellate
Division
determined
that
the
disciplinary finding was supported by “substantial evidence” and
thus met the New York State standard for evidentiary sufficiency at
a disciplinary hearing. See Foster v. Coughlin, 76 N.Y.2d 964, 565
N.E.2d
477,
478
(1990)
(New
York
State
law
requires
prison
disciplinary rulings to be supported by “sufficiently relevant and
probative” information “to constitute substantial evidence”). This
standard is considerably stricter than the Federal “some evidence”
standard. See Friedl v. City of N.Y., 210 F.3d 79, 85 (2d Cir.
2000). As the Appellate Division noted, CHO Esgrow had before him
Inv. Bigit’s detailed misbehavior report, along with the testimony
of Inv. Bigit, Inv. Mercada, and Deputy Superintendent of Security
Chappius, all of which corroborated the misbehavior report. In
addition, CHO Esgrow relied on confidential documents and the
confidential
informant’s
testimony
explaining
how
Sowell
communicated Social Security numbers to his now-deceased accomplice
with instructions on how to use the victims’ personal information
to fraudulently obtain credit cards. The Assistant Attorney General
who inadvertently provided the unredacted UOF report to Sowell
testified confidentially, as did the correction officers who were
victimized by the fraudulent scheme. The evidence submitted at the
disciplinary
hearing
certainly
was
undemanding “some evidence” standard.
-30-
sufficient
to
meet
Hill’s
d.
Inadequate Legal Assistance
New York’s regulations entitle a prisoner to an employee
assistant to help him prepare for a disciplinary hearing. See N.Y.
COMP. CODES R. & REGS. tit. 7, §§ 251-4.1, 251-4.2. The United States
Supreme Court has held that institutional concerns implicated in
prison administration would not be furthered by entitling inmates
to legal counsel in the form of a retained or assigned attorney,
and therefore a prisoner’s right to assistance as a matter of
federal constitutional law is more limited. Wolff, 418 U.S. at 570.
“It is well settled in this Circuit that ‘personal 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). Sowell’s claim founders on
this basis because he has failed to sue either of his legal
assistants, CO Hibbard and Sgt. McKehan. To the extent that he
claims that CHO Esgrow failed to ensure that he received adequate
legal assistance, this claim is belied by the record. CHO Esgrow
exhaustively reviewed all the requests Plaintiff made of his
previous legal assistant, and overturned the first hearing because
CO
Hibbard
had
failed
to
provide
adequate
assistance.
After
assigning Sgt. McKehan, CHO Esgrow and remained involved in the
process
so
as
to
facilitate
Plaintiff
obtaining
all
of
the
materials to which he was entitled. Plaintiff clearly received all
of the legal assistance to which he constitutionally entitled.
-31-
e.
Partiality of the Hearing Officer
Sowell asserts in a conclusory fashion that CHO Esgrow was not
impartial. It is “improper for prison officials to decide the
disposition of a case before it [i]s heard,” although given the
“special
characteristics
of
the
prison
environment,
it
is
permissible for the impartiality of such officials to be encumbered
by various conflicts of interest that, in other contexts, would be
adjudged of sufficient magnitude to violate due process.” Francis
v. Coughlin, 891 F.2d 43, 47 (2d Cir. 1989) (citation omitted). The
Court has reviewed the transcripts of the hearing, which reveal
that CHO Esgrow presided over the hearing in a fair manner,
demonstrated commendable patience, and afforded Plaintiff ample
opportunity to be heard. There is no indication that CHO Esgrow was
anything but an neutral and impartial arbiter, even measured
against the heightened standard applicable to judges generally.
f.
Erroneous Conviction of Rule 113.26
Sowell asserts that he was wrongfully convicted of violating
a rule that was not in effect at the time he was charged, namely,
Rule 113.26. Sowell is correct that he cannot be disciplined for
violating an unpublished rule that was never served upon him.
However, Sowell suffered no prejudice as a result because he
ultimately served no SHU time on the Rule 113.26 conviction, which
was dismissed on administrative appeal by Director Selsky. See
Ayers v. Selsky, No. 07-CV-466, 2010 WL 408442, at *7 (N.D.N.Y.
-32-
Jan. 27, 2010) (“Any alleged constitutional violation as to that
charge was vitiated by the dismissal. Moreover, as the appeal did
not affect the sentence of 140 days in SHU, Ayers suffered no
cognizable deprivation with regard to the first charge.”).
g.
Retaliation by Inv. Bigit
Plaintiff asserts that Inv. Bigit filed the misbehavior report
charging him with fraud solely in retaliation for declining to
become an informant and assist him in his investigation. Inv. Bigit
is entitled to qualified immunity with regard to this claim, which
is, in any event, purely speculative.
In general, public officials are shielded from suit by the
doctrine of qualified immunity if their conduct does not violate
the plaintiff’s clearly established constitutional rights, or it
was objectively reasonable for the officials to believe their acts
or omissions did not violate those rights. Holcome v. Lykens, 337
F.3d 217, 220 (2d Cir. 2003) (citations omitted). Even assuming
that
an
inmate
has
a
constitutional
right
not
to
become
an
informant, it was not “clearly established” at the time when the
challenged conduct occurred in 2003. Allah v. Juchenwioz, 176 F.
App’x 187, 189 (2d Cir. 2006) (“Neither the Supreme Court nor this
Court has ever held that a prisoner enjoys a constitutional right
not to become an informant.”). Because Inv. Bigit’s conduct did not
violate
any
clearly
established
entitled to qualified immunity. Id.
-33-
constitutional
right,
he
is
In any event, Sowell’s allegations concerning Inv. Bigit’s
allegedly retaliatory motive are wholly conclusory and speculative.
See Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001).
They are
plainly insufficient to state a colorable constitutional claim.
E.g., Mitchell v. Senkowski, 158 F. App’x 346, 349-50 (2d Cir.
2005) (inmate’s conclusory allegations and speculation that various
corrections officers and prison officials acted with retaliatory
animus in disciplinary proceedings against him were insufficient to
defeat summary judgment in favor of officers and officials, in
inmate’s action alleging violation of his due process rights during
disciplinary proceedings).
h.
Failure to Correct Errors on Appeal
According to Sowell, Director Selsky, in reviewing his appeal,
failed to correct the errors CHO Esgrow made at the hearing level.
Since, as discussed above, Sowell has failed to show that his
rights were violated during the disciplinary proceeding conducted
by CHO Esgrow, there is no legal basis for his claim against
Director Selsky. Clyde v. Schoellkopf, 714 F. Supp.2d 432, 439
(W.D.N.Y. 2010) (citing, inter alia, Black v. Selsky, 15 F. Supp.2d
311, 318 (W.D.N.Y. 1998)).
Plaintiff also accuses Director Selsky of vacating the first
hearing to cover up the fact that the first hearing officer
allegedly erased documents from the record. Plaintiff has not
alleged that CHO Esgrow committed such misdeeds at the second
-34-
hearing. An inmate is not deprived of due process where, as here,
an administrative appeal has cured a hearing’s procedural defects.
Russell v. Scully, 15 F.3d 219, 222 (2d Cir. 1993) (citing Young v.
Hoffman, 970 F.2d 1154, 1156 (2d Cir. 1992) (per curiam)).
2.
The Due Process Claims Related to the Disciplinary
Hearing on the Assault Charges
a.
Insufficiency of the Evidence and Falseness of
the Allegations
“Ground I” in the Second Amended Complaint asserts that “[t]he
Misbehavior Report (MR) and staff testimony Lacked Substantial or
Some Evidence to support the guilty determination” and “[t]he
charges of assault were brought . . . to cover up the assault upon
[him][.]”
Dkt
#167.
Defendants
argue
that
these
claims
are
unexhausted.
A prisoner seeking relief pursuant to § 1983 must, at a
minimum, exhaust “such administrative remedies as are available.”
42 U.S.C. § 1997e(a). Under New York law, in order to preserve an
issue stemming from a disciplinary hearing, the inmate must raise
the particular objections regarding the disciplinary hearing either
during the hearing itself or on administrative appeal. E.g.,
Tavarez v. Goord, 237 A.D.2d 837, 838, 655 N.Y.S.2d 189 (3d Dept.
1997) (citation omitted). Here, the claims regarding evidentiary
insufficiency of the guilty finding and falsity of the misbehavior
report were not raised on Plaintiff’s administrative appeal or in
his Article 78 proceeding. See Plaintiff’s Article 78 Brief dated
-35-
10/03/06, ¶ 14 (indicating that the claims set forth in the brief
were raised on administrative appeal) (Dkt #173-3). Accordingly,
Sowell has not exhausted “such administrative remedies as are
available” within the meaning of 42 U.S.C. § 1997e(a). See, e.g.,
Khalid v. Reda, No. 00 Civ. 7691(LAK)(GWG), 2003 WL 421145, at *5
(S.D.N.Y. Jan. 23, 2003) (finding that prisoner had not fulfilled
§ 1997e’s exhaustion requirement where “administrative appeal did
not raise or even allude to his current claim” and he had not
brought a collateral proceeding in state court).
The Second Circuit has held that a rule of total exhaustion is
not required by the PLRA, and that exhausted claims may be allowed
to proceed while unexhausted claims are dismissed. Johnson v.
Testman, 380 F.3d 691, 695 n.4 (2d Cir. 2004); Ortiz v. McBride,380
F.3d 649, 663 (2d Cir. 2004). The Court accordingly dismisses
without prejudice Plaintiff’s unexhausted claims that his finding
of guilt at the disciplinary hearing are unsupported by “some
evidence” or “substantial evidence” and that CO Weed’s misbehavior
report was false.
b.
Inadequate Misbehavior Report
As Ground II of the Second Amended Complaint, Plaintiff
asserts that pursuant to 7 N.Y.C.R.R. § 251-3.1(C)(1), (C)(2), the
allegations in the Misbehavior Report “do not match the rule-book
violations or provide adequate notice for the alleged violations”
of the rules charged. A misbehavior report that includes the date,
-36-
time, and location of his alleged violation; the rule allegedly
violated along with a brief description of that rule; and a summary
of the incident meets the standards set forth in 7 N.Y.C.R.R.
§ 251–3.1(c)(1), (2) and provides an inmate with sufficient notice.
Omaro
v.
Goord,
No.
06–CV–6141–CJS,
2009
WL
2163102,
at
*4
(W.D.N.Y. July 17, 2009) (citing Johnson v. Goord, 305 F. App’x
815, 817 (2d Cir. 2009)). CO Weed’s misbehavior report included all
of
these
details,
and
it
therefore
provided
Plaintiff
with
sufficient notice of the charges.
With
regard
to
whether
there
was
adequate
notice
of
Rule 104.10, it is well settled that under the Due Process Clause
an inmate facing disciplinary proceedings must be accorded advance
notice of the charges made against him. Wolff, 418 U.S. at 566.
Here, CO
Weed
indicated
that
he
was
charging
Plaintiff
with
Rule 104.13. Capt. Sheahan, the hearing officer, found Sowell
guilty violating Rule 104.10, and did not consider the violation of
Rule 104.13.
On administrative appeal, Director Selsky reversed the finding
of guilt under Rule 104.10 because Sowell had not been charged with
violation that rule and thus did not have proper notice of it.
Director Selsky’s reversal thus remedied the due process violation
that occurred when Capt. Sheahan found Sowell guilty of a charge of
which
he
did
not
have
advance
notice.
Ayers
v.
Selsky,
No. 07-CV-466, 2010 WL 408442, at *7 (N.D.N.Y. Jan. 27, 2010)
-37-
(“[T]he
first
charge
administrative
appeal
violation
as
to
that
in
the
by
misbehavior
Selsky.
charge
was
Any
report
alleged
vitiated
by
dismissed
on
constitutional
the
dismissal.
Moreover, as the appeal did not affect the sentence of 140 days in
SHU, Ayers suffered no cognizable deprivation with regard to the
first charge.”).
c.
Plaintiff
Spillover Prejudice
asserts
that
the
inclusion
of
an
uncharged
violation, i.e., Rule 104.10, “tainted the entire proceeding”. This
claim is based on pure speculation and does not merit relief.
d.
Inadequate Legal Assistance
Plaintiff contends that his assigned employee legal assistant,
Sgt. Morse, failed to provide adequate assistance when he failed to
interview witnesses as requested pursuant to 7 N.Y.C.R.R. § 251-4.1
and failed to secure relevant documentary evidence pursuant to
7.N.Y.C.R.R. § 254.6(a)(3). The Second Circuit has held that prison
authorities
have
a
constitutional
obligation
to
provide
“substantive assistance” to an inmate in marshaling evidence and
presenting a defense. Eng v. Coughlin, 858 F.2d 889, 897 (2d Cir.
1988).
At a minimum, an employee legal assistant “should perform
the investigatory tasks which the inmate were he able, could
perform for himself.” Id. at 897–98.
Contrary to Plaintiff’s contentions, Sgt. Morse did contact
the requested inmate witnesses, who agreed to testify but declined
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to give written or oral statements in advance of the disciplinary
hearing. Even if Sgt. Morse failed to obtain certain documentary
evidence before the hearing, Plaintiff was afforded the opportunity
during the hearing to review the requested logs and redacted
reports.
In
sum,
Plaintiff
cannot
demonstrate
that
he
was
prejudiced by Sgt. Morse’s alleged shortcomings.
e.
Plaintiff
Untimeliness of the Disciplinary Hearing
alleges
that
Capt.
Sheahan
inappropriately
re-started the hearing after Plaintiff had already made various
objections, the hearing was untimely pursuant to 7 N.Y.C.R.R.
§ 251-5.1(b), which provides that a disciplinary hearing must be
completed within 14 days following the writing of the misbehavior
report unless otherwise authorized. This claim raises a question of
state procedural law only. As such, it is not cognizable in this
§ 1983 proceeding. Cusamano v. Sobek, 604 F. Supp.2d 416, 482
(N.D.N.Y. 2009) (collecting cases). Any claim of undue delay is
subject to Federal constitutional standards, which require only
that the disciplinary hearing be held within a “reasonable time”
and not within any prescribed number of days. Russell v. Coughlin,
910 F.2d at 78 n. 1 (“Federal constitutional standards rather than
state law define the requirements of procedural due process.”). The
“reasonable time” standard clearly was met in Sowell’s case.
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f.
Denial of the Right to Call Witnesses
Plaintiff asserts that he was denied his fundamental due
process right to call witness because Capt. Sheahan failed to allow
the inmate in cell A-10-16 to testify.9 According to Sowell, the
inmate in cell A-10-16 would have testified concerning what he
overheard Sowell say after the UOF incident, when he was placed by
the officers in the shower. Sowell opined that perhaps the inmate
heard
things
that
Sowell
himself
did
not
remember
saying.
Capt. Sheahan denied the request as redundant.
All four of the inmates who appeared testified concerning
what they heard during and after the UOF incident, including the
time
during
which
Sowell
was
in
the
shower
area.
Thus,
Capt. Sheahan did not abuse his discretion in determining that the
inmate
in
A-10-16
would
have
offered
redundant
testimony.
Furthermore, as Capt. Sheahan observed, the period covered by the
disciplinary hearing concerned the time up until Sowell’s being
placed
in
the
shower.
Arguably,
then,
the
uncalled
inmate’s
testimony was not relevant to the hearing.
9
Four inmates appeared and testified at the hearing. Alexander
Screahben and Michael Ramirez testified in sum and substance as
they did in their deposition testimony, which has been summarized
above in this Decision and Order. William Jacobs and Albert Lawson
also testified, and their testimony was consistent with that
offered by Ramirez and Screahben. See generally Transcript of
Disciplinary Hearing, Defs’ Ex. CCC (Dkt #173-3).
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g.
Failure to Correct Errors on Appeal
Sowell has failed to show that his rights were violated during
the
disciplinary
proceeding
conducted
by
Capt.
Sheahan.
Consequently, his claim against Director Selsky for failing to
correct the alleged errors at the disciplinary proceeding lacks a
basis in law. Clyde v. Schoellkopf, 714 F. Supp.2d at 439 (citing,
inter alia, Black v. Selsky, 15 F. Supp.2d at 318).
V.
Conclusion
For the foregoing reasons, Defendants’ Motion for Summary
Judgment (Dkt #169) is granted in part and denied in part. All
claims against CHO Esgrow, Inv. Bigit, Capt. Sheahan, and Director
Selsky are dismissed with prejudice. The Eighth Amendment claim
against CO Harris as a principal is dismissed with prejudice. The
claims against CO Harris and CO Flynn for failure to intervene to
prevent an Eighth Amendment violation by CO Weed may proceed. The
Eighth Amendment claim
against CO Weed as a principal was not a
subject of Defendants’ summary judgment motion and may proceed.
VI.
Orders
It is hereby
ORDERED
that
Defendants’
Motion
for
Summary
Judgment
is
granted to the extent that all claims against CHO Esgrow, Inv.
Bigit, and Director Selsky are dismissed with prejudice. It is
further
-41-
ORDERED
that
Defendants’
Motion
for
Summary
Judgment
is
granted to the extent that the Eighth Amendment claim against CO
Harris as a principal is dismissed with prejudice. It is further
ORDERED that Defendants’ Motion for Summary Judgment is denied
to the extent that the Eighth Amendment claim based on the failure
of CO Harris and CO Flynn to intervene to prevent an excessive use
of force may proceed. It is further
ORDERED that Frank Bigit, Donald Selsky, Michael Sheahan, and
James Esgrow are terminated as parties to this action. The Clerk of
Court is requested to modify the docket accordingly.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
July 1, 2013
Rochester, New York
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