Diaz v. Burns et al

Filing 31

DECISION AND ORDER granting in part and denying in part 26 Plaintiff's Motion for Summary Judgment against Lt. Zerniak and Director Bezio; denying 21 Defendants Lt. Zerniak's and Director Bezio's Motion for Summary Judgment in its entirety. See Decision and Order for complete details regarding the relief granted. (Copy of Decision and Order sent by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 9/3/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

FREDERICK DIAZ,
Plaintiff,
-vs-

No. 6:10-CV-6595(MAT)
DECISION AND ORDER

ROBERT BURNS, Correction Officer;
JOHN F. MORAN, Correction Officer;
FREDERICK W. KINTZEL, Sergeant; T.
ZERNIAK, Lieutenant; ROBERT A.
KIRKPATRICK, Superintendent; NORMAN
R. BEZIO, Director, Special
Housing; BRIAN FISCHER,
Commissioner, NYSDOCS,
Defendants.

I.

Introduction
Plaintiff Frederick Diaz (“Plaintiff” or “Diaz”), proceeding

pro se, instituted this action
against defendants,

who

are

pursuant to 42 U.S.C. § 1983

employees

of the

New

York

State

Department of Corrections and Community Supervision (“DOCCS”).
Plaintiff is now represented by Thomas D. Terrizzi, Esq. Presently
before the

Court

is the

partial

motion

for

summary

judgment

(Dkt #21) pursuant to Rule 56 of the Federal Rules of Civil
Procedure (“F.R.C.P.”) filed by defendants Lieutenant T. Zerniak
(“Lt. Zerniak”) and DOCCS’ Director of Special Housing/Inmate
Discipline Programs Norman Bezio (“Director Bezio”). Plaintiff has
filed a partial cross-motion for summary judgment (Dkt #26) against
Lt. Zerniak and Director Bezio. For the reasons discussed below,
Plaintiff’s motion for summary judgment is granted in part and

denied in part. The summary judgment motion filed by Lt. Zerniak
and Director Bezio is denied in its entirety.
II. Factual Background
The following factual summary is taken from the parties’
pleadings, attached exhibits, and discovery responses. Except where
indicated, the facts recited below are not in dispute.
A.

Plaintiff’s Transfer and the Inmate Election

Plaintiff

was transferred

to Wende

Correctional

Facility

(“Wende”) on September 14, 2007. His first program assignment was
to be an office clerk for the Inmate Grievance Response Committee
(“IGRC”), a position he had held at other facilities. However, on
November 20, 2007, the Deputy Superintendent of Programs at Wende
sent Plaintiff a memo stating, without explanation, that it “would
not be conducive to the safety, security and good order of the
facility” for him to hold the position of office clerk with the
IGRC, and he would not be permitted to work in that position.
See

Memorandum

of

K.

Crowley,

dated

11/20/07,

Diaz

Ex.1

A

(Dkt #23-1).
Plaintiff
representative

then
in

ran

March

for

election

2008.

Plaintiff

as
won

an
a

IGRC

inmate

position

as

1

The Court will refer to the exhibits attached to the Declaration of Thomas
Terrizzi, Esq. (“Terrizzi Decl.”) (Dkt #28) as “Terrizzi Ex.” The exhibits
attached to the Affidavit of Frederick Diaz (“Diaz Aff.”) (Dkt #23) will be
referred to “Diaz Ex.” The exhibits attached to the Declaration of Hillel
Deutsch, Esq. (“Deutsch Decl.”) (Dkt #21-4) will be cited as “Deutsch Ex.” The
exhibits attached to the Deutsch Decl. are unpaginated, even on CM/ECF, and the
Court therefore is unable to provide pinpoint page citations.

-2-

representative, as did his fellow inmate Luis Rosales (“Rosales”).
See Diaz Aff., ¶ 1. On the day Plaintiff and Rosales received the
election results, Plaintiff alleges that an inmate worker in the
IGRC office told Rosales that he had “overheard the grievance Staff
Sgt. [Sindoni] and the staff Supervisor [Northrup] talking about
the election results. They said that if both Luis [Rosales] and
[Diaz] did not resign before [they] started, [they] would get a
ticket out of Wende by way of SHU.” Diaz Aff., ¶ 1, p. 2 (citing
Testimony of Luis Rosales from 4/17/08 Disciplinary Hearing (“the
First Hearing”), Diaz Ex. C (Dkt #23-3)). Rosales relinquished his
position before their term commenced, but Plaintiff did not resign.
See Letter from Luis Rosales to Brian Fischer, Commissioner of
DOCCS (“Commissioner Fischer”) dated 3/28/08, Diaz Ex. B (Dkt #232).
B.

The April 7, 2008 Use of Force Incident

On April 7, 2008, the first day of his new term as an IGRC
representative, Plaintiff avers that he was walking out of his
housing gallery to go to the law library when Corrections Officer
Robert Burns (“CO Burns”) punched him in his right eye as he
stepped past the exit gate on the gallery. Plaintiff, who had never
met CO Burns, states that he yelled, “What did you do that for?”
Diaz Aff., ¶ 1, p. 2.
According to the Misbehavior Report issued by CO Burns, when
he (CO Burns) opened Diaz’s cell so he could go to his library

-3-

call-out, Diaz walked past him and, “without provocation, punched
[him] in the left eye with his right fist[,]” after which CO Burns
“punched Diaz in the face with [his] right fist.” Misbehavior
Report, Terrizzi Ex. G1a (Dkt #28-1). CO Burns indicated that
fellow officers Sgt. Kintzel and CO Moran responded to the area,
and CO Moran helped CO Burns apply “body holds to gain control of
Plaintiff and take him to the floor.” Id. Plaintiff then was taken
to the medical unit. At some point after the incident, Plaintiff
was interviewed by a psychologist from the Office of Mental Health
(“OMH”), Dr. Bush.
As a result of the Misbehavior Report filed by CO Burns,
Plaintiff was charged with Violent Conduct (104.11), Creating a
Disturbance (104.13), Assault on Staff (100.11), and Interference
with Employee (107.10). See, e.g., Hearing Record Sheet, Terrizzi
Ex. B (Dkt #28-2).
C.

The April 2008 Tier III Disciplinary Hearing

A Tier III disciplinary hearing (“the First Hearing”) was held
on April 17 and April 24, 2008, regarding the April 7, 2008
Misbehavior Report. Civilian hearing officer James Kennedy (“CHO
Kennedy”) presided, and allowed Plaintiff to call inmate Rosales,
inmate James Bumpus (“Bumpus”), inmate Ricardo Squires (“Squires”),
and CO Burns.2
2

Plaintiff provided his attorney with two audiotapes which he received in
response to a Freedom of Information Law (“FOIL”) request from Wende, and from
these, his attorney transcribed the testimony given by CO Burns, Rosales, and

-4-

CO Burns testified as follows:
Basically I cracked [Plaintiff] out for his law library
call out. When he came to the front of the company, he
struck me. I struck him back. Grabbed him by the
shoulder, like the top of his body area. Brought him to
the floor. Officer Moran came and some other officers
came. And he was cuffed and brought to the RMU.
Transcript of CO Burns’ Testimony on 4/17/08, Diaz Ex. D (Dkt #234,

p.

2

of

9).

When

CO

Burns

was

asked

by

CHO

Esgrow,

on

Plaintiff’s behalf, if he had “a recollection exactly how” he was
struck, CO Burns responded, “I, um, he struck me with his right
hand in my left eye.” Id. When asked if he remembered what part of
Plaintiff’s face he (CO Burns) hit, CO Burns testified, “I just hit
him in the face, I mean, I’m pretty sure it’s the right eye, his
left eye, his left eye.”3 Id., p. 4 of 9.
Bumpus, an inmate porter, testified on Plaintiff’s behalf that
he was in the “slop sink room” when he heard a “ruckus”. Testimony
of James Bumpus on 4/17/08, Terrizzi Ex. K (Dkt #28-10). Bumpus
related that, looking through the gallery gate, he saw CO Burns
behind Diaz holding Diaz’s arms. Bumpus testified that CO Moran
then “jumped on the front part of [Plaintiff’s] body and punched
Bumpus at the First Hearing. Copies of the transcripts are attached as Diaz Ex. C
(Dkt #23-3) (Rosales’ Testimony) and Diaz Ex. D (Dkt #23-4) (CO Burns’
Testimony). The relevant portion of Bumpus’ testimony from the First Hearing is
attached as Terrizzi Ex. K (Dkt #28-10).
3

However, Plaintiff’s medical records and the photos of his injury show an
abrasion near his right eye and a discoloration resulting from bleeding
underneath the skin, but no injuries or marks on the left side of his face. See
Medical Records, Terrizzi Ex. G1 (Dkt #28-1, pp. 9-11 (“R[ight] lateral eye,
slight abrasion, ecchymosis developing. . . [s]uperficial abrasion (small) L[eft]
flank. . . [l]eft shoulder slight redness”)); Post-Incident Photos of Plaintiff,
Terrizzi Ex. G2 (Dkt #28-3).

-5-

him

in

the

face,

and

said,

‘You

should

have

took

[sic]

Sgt. Sidoni’s advice and resigned.’” Id., Dkt #28-10, p. 2 of 4.
Bumpus said a “bunch of officers ran up the steps” and “were
telling him to shut his pie hole” while Diaz “kept saying[,] ‘What
is this about[?]’” Id., p. 3 of 4. Bumpus stated that there was an
inmate in “two cell” who was “also on the gate . . . saying ‘Yo,
why you doin’ that to him. He ain’t doin’ nothin’. Why you doin’
that to him. He ain’t doin’ nothing.’” Id., p. 4 of 4.
Squires’ testimony from the First Hearing was not provided to
the Court.

Based on the records available to the Court, and

Plaintiff’s statements at the subsequent hearing, it appears that
when Squires was called, he testified that “he didn’t know anything
about it and he didn’t want to testify.” RH.54 (Dkt #28-4, p. 6 of
91).
Inmate Rosales testified that on the night he and Diaz won the
IGRC election, he was told by an inmate worker in the IGRC Office
that the staff supervisors in that office said that if Rosales and
Diaz

went

to

work

as

IGRC

representatives,

the

IGRC

staff

supervisors were going to set them up and put them “in the box[,]”
meaning, have them confined in the Special Housing Unit (“SHU”).
See Testimony of Luis Rosales on 4/17/08, Diaz Ex. C (#23-3,
pp. 2-3 of 3). Rosales said that he “also received information from

4

Citations to “RH.__” refer to pages from the transcript of the Rehearing,
attached as Terrizzi Ex. D (Dkt #28-4) and as part of Deutsch Ex. A (Dkt #21-4).

-6-

[his] [sic] staff that told [him] not to go out there because they
were setting [him] up like they did in 2006, which conducted [sic]
the hearing at that time and [he] beat the ticket but in the
courts.” Id., p. 3 of 3.
Plaintiff

requested

OMH

psychologist

Dr.

Bush

who

had

interviewed him after the incident on April 7, 2008. According to
Plaintiff, Dr. Bush was asked to “get a psychological profile” of
him. Diaz Aff., ¶ 29. Diaz states that CHO Kennedy did not call
Dr. Bush as a witness. Id.
Inmate Kenneth Jones (“Jones”) was interviewed by Plaintiff’s
employee assistant, J. McGregor (“CO McGregor”), on April 9, 2008,
at which time Jones agreed to testify. However, on April 24, 2008,
Jones signed an “Inmate Refusal Testify” form. The reason given for
refusing to testify was that he “d[id]n’t want to be involved”. See
Inmate Refusal Testify Form signed by Kenneth Jones, Deutsch Ex. A.
The First Hearing concluded on April 24, 2008, at which time
CHO

Kennedy

found

Plaintiff

guilty

of

all

charges.

See

Superintendent Hearing Disposition Rendered, dated 4/24/08, Deutsch
Ex. A. CHO Kennedy agreed that it made “little, if any, sense” for
Plaintiff to punch a corrections officer he did not know, but he
also found it “equally senseless” that CO Burns “would engage in a
massive conspiracy” to assault him and file false documents,
“thereby committing criminal acts, simply for the purpose of
retaliating against” Plaintiff. Id. Because CHO Kennedy found

-7-

“substantial

evidence”

to

support

the

violations

charged,

he

entered guilty findings and imposed the following penalties: 12
months of confinement in SHU and 12 months’ loss of packages,
commissary, and phone privileges. Id.
Plaintiff administratively appealed the adverse disciplinary
finding. Director Bezio reversed CHO Kennedy’s decision without
explanation and ordered a new hearing. See Review of Hearing dated
6/13/08, Terrizzi Ex. I (Dkt #28-8).
C.

The Rehearing

Lt.

Zerniak,

conducted

the

who

was

Rehearing,

an

Acting

which

Captain

commenced

on

at

that

June

22,

point,
2008.

Plaintiff testified that he “never even touched [CO Burns]” but
instead CO Burns “just [went] and sucker punched [him] in the
face[,]” RH.7, on the right side of his right eye, RH. 9. Plaintiff
testified that he asked CO Burns, “[W]hat the hell did you do that
for[,]” RH.9, and CO Burns replied, “[Y]ou won’t be working in
grievance no more mother fucker.” Id. Plaintiff related that
additional corrections officers then came up the steps and “pounded
on [him][,]” which he argued to Lt. Zerniak was “their way of
getting [him] out of the grievance office.” Id.
As character witnesses at the Rehearing, Plaintiff requested
Wende Deputy Superintendent of Security Sticht, Wende CO Kwas, and

-8-

Wende CO Martin5, which Lt. Zerniak denied. RH.17, 23. Plaintiff
also requested Investigator James Kessel (“Inv. Kessel”) of DOCCS’
Inspector General’s Office, as well as OMH psychologist Dr. Bush,
who had interviewed him after the incident “to get a psychological
profile of [him].” RH.18. Lt. Zerniak denied Inv. Kessel and
Dr. Bush as witnesses. RH.23. Lt. Zerniak’s reason for denying all
of these individuals as witnesses was that they “were not in the
area of the alleged incident” and had “no knowledge” of it. RH.23.
As far as inmates, Plaintiff requested Rosales, Bumpus, and
Squires, who had testified at the First Hearing. RH.18. Plaintiff
was permitted to read into the record Rosales’ March 28, 2008
letter to Commissioner Fischer in which Rosales described a plan by
Wende IGRC staff to retaliate against him and Plaintiff for their
participation on the IGRC. See RH.20-22. Rosales, who was still at
Wende,

testified

by

phone.

Lt.

Zerniak

ask

if

“all

of

the

knowledge” Rosales had of the April 7, 2008 incident was contained
in the letter he wrote to Commissioner Fischer (which Plaintiff had
already read into the record), and Rosales said yes. Lt. Zerniak
then refused to allow Plaintiff to ask any further questions of
Rosales. RH.28-29.

5

Plaintiff testified that CO Kwas and CO Martin were the regular officers
on his gallery at Wende. RH.19-20. CO Burns testified that he was a “recourse
officer” and was filling in on Plaintiff’s gallery on the day of the incident;
he had had no dealings with Plaintiff prior to that day. RH.30.

-9-

Squires, who testified by phone, stated that he was “not too
far from the gate [on 15 gallery] . . . in 4 cell” when he “heard
a lot of commotion and all [he] heard was Diaz screaming out what
are you hitting me fore [sic]?” RH.25. Squires then heard a
corrections officer say, in reply to Diaz, “something about the
grievance office.” RH.26. According to Squires, “everyone from
4 cell to 1 cell” heard it. Id. Plaintiff asked if he could
“refresh [Squires’] memory from the last hearing”6 but Lt. Zerniak
declined, stating, “we are dealing with this incident.” RH.26.
Plaintiff wanted to ask Squires if it sounded as though he hit the
corrections officer, but Lt. Zerniak refused because “sounds are
sounds that’s irrelevant he did not see anything.” RH.27.
CO Burns testified by phone from Wende. When asked where Diaz
punched him, CO Burns replied, “In my head[.]” RH.30. Plaintiff
attempted to ask if CO Burns “recall[ed] if [he] did anything else
after that” for purposes of “getting the details exactly how the
supposed assault went down.” RH.30, 31. Lt. Zerniak stated, “[Y]ou
punched him, and then force took place. I don’t need to ask him[.]
[D]o you have anything else to ask.” RH.31. Plaintiff requested
that

Lt.

Zerniak

ask

CO

Burns

“where

exactly

did

he

hit

[Plaintiff].” Id. CO Burns responded, “[I]n his head.” Id. Lt.

6

The Court infers from Diaz’s question that Squires provided more detailed
testimony at the First Hearing. However, as noted above, the Court has not been
supplied with a complete copy of the transcript of the First Hearing, and has not
been able to review Squires’ previous testimony.

-10-

Zerniak

refused

to

allow

Plaintiff

to

ask

him

any

further

questions, such as to clarify which side or area of the head on
which CO Burns allegedly was hit. Id.
Bumpus testified by phone that on the day of the incident,
Diaz was coming out of his cell to go to the law library when
Bumpus heard “a ruckus going on” and saw “two officers . . .
holding [Diaz] on the floor. [Diaz] was saying what are you doing
this for, I didn’t do nothing, I didn’t do nothing, what are you
doing this for? And then all of a sudden then officer [B]urns was
holding him down on the floor punching him in the face.” RH.32-33.
Bumpus did not see Diaz punch Officer Burns. RH.33. Plaintiff was
permitted to ask what Bumpus heard the corrections officers say as
they were assaulting him, but Bumpus’s response was not recorded,
as it was inaudible. Id. Plaintiff was permitted to ask whether
Bumpus heard the corrections officers give a reason why Plaintiff
was assaulted; Bumpus’s response was as follows: “(inaudible) the
grievance committee is my understanding.” Id. At the conclusion of
Bumpus’s testimony, Diaz stated, “[H]is memory was better last
time.” RH.34.
No further witnesses testified. Lt. Zerniak took a five-minute
recess and then proceeded to read his decision into the record.
RH.36. He found Plaintiff guilty of all charges and imposed a more
severe penalty than had been imposed after the First Hearing,
namely, a recommended loss of 12 months of good time credits in

-11-

addition

to

a

12-month

term

in

SHU

and

12

months

of

lost

privileges. RH.36.
Plaintiff appealed administratively, and on August 7, 2008,
Director Bezio modified the Rehearing to remove the loss of good
time

credits,

since

the

penalty

was

unlawful

under

DOCCS

regulations. See Director Bezio’s Review of Hearing dated 8/07/08
(stating that the “penalty imposed at rehearing cannot exceed the
penalty

imposed

at

the

original

hearing”),

Terrizzi

Ex.

H

(Dkt #28-7).
Plaintiff

then

filed

a

pro

se

administrative

proceeding

pursuant to Article 78 of the New York Civil Practice Law and Rules
in state court. The Appellate Division, Third Department, of
New York State Supreme Court (“the Third Department”) annulled the
disciplinary

determination

and

directed

DOCCS

to

expunge

all

references to the matter from Plaintiff’s institutional record.
Matt of Diaz v. Fischer, 70 A.D.3d 1082, 894 N.Y.S.2d 218 (3d Dep’t
2010). In relevant part, the Third Department held that Plaintiff
had been denied both his statutory and constitutional right to call
witnesses at the Rehearing.
III. Procedural History in This Court
Proceeding pro se, Diaz timely commenced the instant lawsuit.
A.

Defendants’ Motion to Dismiss

Defendants filed a partial motion to dismiss several causes of
action

and

the

claims

against

-12-

several

of

the

supervisory

defendants. In a Decision and Order dated November 6, 2013, the
Court granted Defendants’ motion to dismiss (i) Plaintiff’s First
Claim alleging a violation of the equal protection clause, (ii) all
claims against Commissioner Fischer and Wende Superintendent Robert
Kirkpatrick (“Sup’t Kirkpatrick”) based on their lack of personal
involvement; and (iii) the claim based on CO Burns’ filing of a
false misbehavior report on the ground that, without more, such an
allegation failed to state a constitutional claim.
Defendants did not move to dismiss the following claims, which
the Court allowed to proceed: (i) the Second Claim, insofar as it
asserts claims of retaliation under the First Amendment and an
excessive use of force under the Eighth Amendment, and which seeks
to hold CO Burns and CO Moran directly liable for the April 7, 2008
assault; (ii) the Second Claim, which alleges that Sgt. Kintzel
failed to intervene to stop the April 7, 2008 assault on Plaintiff
by his subordinates, CO Burns and CO Moran; (ii) the Third Claim,
insofar as it alleges that Lt. Zerniak committed due process
violations at the re-hearing and that Director Bezio failed to
remedy these errors on administrative appeal.
B.

The Pending Cross-Motions for Summary Judgment

On January 17, 2013, defendants Director Bezio and Lt. Zerniak
moved for partial summary judgment (Dkt #21) with regard to the
claims
Lt.

against

Zerniak

them

denied

in

Plaintiff’s

Plaintiff’s

complaint,

constitutional

-13-

namely,
rights

at

that
the

Rehearing, and that Director Bezio failed to remedy on appeal the
constitutional violations committed by Lt. Zerniak.
Plaintiff, through counsel, filed a cross-motion for partial
summary judgment (Dkt #26), seeking judgment as a matter of law
with regard to his claims against Lt. Zerniak and Director Bezio.
The summary judgment motions are now fully submitted. As
discussed further below, the Court grants Plaintiff’s summary
judgment motion (Dkt #26) in part and denies it part. The Court
denies Defendants’ partial summary judgment motion (Dkt #21) in its
entirety. In addition, the Court reinstates Plaintiff’s due process
claim against CO Burns based on the filing of a false misbehavior
report.
IV.

General Legal Principles
A.

42 U.S.C. § 1983

In order to state a claim under 42 U.S.C. § 1983 (“Section
1983”),

the

plaintiff

must

establish

the

following

elements:

(1) conduct attributable at least in part to a person acting under
color of state law, and (2) the deprivation, as the result of the
challenged conduct, of a right, privilege, or immunity secured by
the Constitution or laws of the United States. Dwares v. City of
New York, 985 F.2d 94, 98 (2d Cir. 1993). To prevail, the Section
1983 plaintiff must adequately demonstrate “personal involvement of
defendants

in

alleged

Constitutional

deprivations.”

Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

-14-

Colon

v.

“Personal involvement

of a supervisory official may be established ‘by evidence that:
(1)

the

[official]

participated

directly

in

the

alleged

constitutional violation, (2) the [official], after being informed
of the violation through a report or appeal, failed to remedy the
wrong, (3) the [official] created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of
such a policy or custom, (4) the [official] was grossly negligent
in supervising subordinates who committed the wrongful acts, or
(5) the [official] exhibited deliberate indifference to the rights
of [others] by failing to act on information indicating that
unconstitutional

acts

were

occurring.’”

Johnson

v.

Newburgh

Enlarged School Dist., 239 F.3d 246, 254 (2d Cir. 2001) (quoting
Colon, 58 F.3d at 873) (alterations in original)).
B.

Summary Judgment Standard

Under F.R.C.P. 56, if there is “no genuine issue as to any
material fact . . . the moving party is entitled to a judgment as
a matter of law . . . where the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party.”
Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475
U.S. 574,

(1986).

Initially,

the

movant bears

the

burden

of

demonstrating the absence of a genuine issue of material fact.
Adickes v. S.H. Kress and Co., 398 U.S. 144, 157 (1970). This
burden may be met by demonstrating that there is an absence of
evidence

to

support

the

non-movant’s

-15-

case.

Celotex

Corp.

v.

Catrett, 477 U.S. 317, 323 (1986). The non-movant then has the
burden of coming forward with “specific facts showing that there is
a genuine issue for trial,” FED. R. CIV. P. 56(e). This requires the
non-movant to make “a showing sufficient to establish the existence
of [every] element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex Corp.,
477 U.S. at 322.
In determining whether there are genuine issues of material
fact, the reviewing court is “‘required to resolve all ambiguities
and draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’” Johnson v. Killian, 680
F.3d 234, 236 (2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d
128, 137 (2d Cir. 2003); internal quotation marks omitted in
original); see also Adickes, 398 U.S. at 158–59. Nonetheless, the
Court still must inquire whether “there is sufficient evidence
favoring the non-moving party for a jury to return a verdict for
that party,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986), and may grant summary judgment if the non-movant’s evidence
is “merely colorable” or “is not significantly probative[.]” Id. at
249–50 (citations omitted). The same standards apply where, as
here, the parties have filed cross-motions for summary judgment.
Morales v. Quintel Entertainment, Inc., 249 F.3d 115, 121 (2d Cir.
2001) (citations omitted). “[E]ach party’s motion must be examined
on its own merits, and in each case all reasonable inferences must

-16-

be drawn against the party whose motion is under consideration.”
Id. (citing Schwabenbauer v. Board of Educ., 667 F.2d 305, 314
(2d Cir. 1981)).

It is with these considerations in mind that the

Court addresses the instant motions.
V.

Discussion
A.

Failure to
Rehearing
1.

Provide

Pre-Hearing

Assistance

at

the

Background

After the First Hearing but before the Rehearing, Plaintiff
was

transferred

from

Wende

to

Upstate

Correctional

Facility

(“Upstate”), where he was confined to SHU. On June 18, 2008,
Plaintiff met with CO R. Holland (“CO Holland”), his assigned
employee assistant at Upstate. Plaintiff avers that he since he had
just been moved to Upstate, he did not yet have any of his
documents from the First Hearing, and therefore could not identify
some of the witnesses by their name or inmate number. Plaintiff
asserts that he explained to CO Holland that he needed help
identifying other witnesses who were present on the gallery at
Wende when the April 7, 2008 incident occurred, including the
inmate who had preceded Plaintiff out of the gallery gate on his
way to the law library. According to Plaintiff, CO Holland informed
him that there was nothing he could do in regards to interviewing
any witnesses at Wende because he (CO Holland) was at Upstate.
See Diaz Aff., ¶ 2. CO Holland completed an Assistant Form on June
18, 2008, indicating “[n]one” with regard to all of the following:
-17-

requests for inmate witnesses to be interviewed, potential staff
witnesses, and other requests. See Terrizzi Ex. B (Dkt #28-2, p. 9
of 15). Plaintiff signed the form. See id.
At the Rehearing, Lt. Zerniak noted that the “records . . .
indicate[d] that [Plaintiff] did not request any assistance. . . .”
RH.3. Plaintiff stated that was “because [CO Holland] couldn’t help
[him] with anything[.]” Id. Lt. Zerniak did not inquire further
into this subject.
2.

Relevant Law

In Wolff v. McDonnell, 418 U.S. 539 (1973), the Supreme Court
held that an inmate facing disciplinary charges that could result
in punitive segregation is entitled, at a minimum, to advance
written notice of the charges against him and of the evidence
available to the factfinder. Id. at 563–64. Thus, Wolff recognized
that an inmate facing disciplinary charges must have an opportunity
to marshal the facts and prepare a defense. See id. The Second
Circuit has held that prison officials 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, 897–98 (2d Cir. 1988). The Second Circuit recognized in
Eng that “[c]onfinement in SHU is a factor which, like illiteracy
or complexity of charges, makes it nearly impossible for an inmate
to formulate a defense, collect statements, interview witnesses,
compile

documentary

evidence,

and

-18-

otherwise

prepare

for

a

disciplinary hearing.” 858 F.2d at 897. Accordingly, when an inmate
is

“disabled

either

by

being

confined

full-time

to

SHU

or

transferred from the prison in which the incidents occurred, the
duty of assistance is greater because the inmate’s ability to help
himself is reduced.” Id. at 898 (citation omitted). In short, the
Second Circuit concluded, “[i]f the inmate’s right to marshal
evidence and present a defense to charges of breaches of prison
disciplinary rules is to mean anything, then an inmate so disabled
must be provided with some assistance.” Id.
3.

Application

Here, Plaintiff was disabled in two ways: he was transferred
from the facility where the incident occurred and the witnesses
still resided, and he was confined in SHU. In Ayers v. Ryan, 152
F.3d 77 (2d Cir. 1988), the Second Circuit held that the defendant
hearing officer, who had undertaken to act as the plaintiff’s
inmate assistant, violated the plaintiff’s due process rights where
the defendant “admit[ted]” that “‘as of the commencement of the
hearing . . ., he hadn’t returned plaintiff’s handwritten list,
hadn’t interviewed plaintiff’s witnesses, nor had he received any
of plaintiff’s requested documents[.]’” Id. at 81. The Second
Circuit held that “[t]his failure of assistance is just the sort .
. . found to violate an inmate’s limited due process rights in
Eng.” Id.

-19-

As
informed

noted
him

above,
that

Plaintiff

he

would

has

not

asserted

assist

him

that
in

CO

Holland

locating

and

interviewing witnesses because all of the potential witnesses were
at Wende and CO Holland was at Upstate. CO Holland, unlike the
defendant in Ayers, has not admitted that he failed to render any
assistance to Plaintiff. And, the documentary evidence indicates
that

Plaintiff

“signed

off”

on

the

assistance

form,

thereby

agreeing with statements on the form to the effect that he had no
requests for assistance or witnesses. Accordingly, the record
presents genuine issues of material fact as to whether Plaintiff
was totally denied prehearing assistance by CO Holland.
To the extent Defendants argue that, as a matter of law,
CO Holland cannot be faulted because Plaintiff did not provide him
with the names or inmate numbers of any potential witnesses, this
is unpersuasive. As noted above, Plaintiff has submitted a sworn
statement averring that he informed CO Holland about the First
Hearing,

that

he

requested

assistance

from

CO

Holland

in

identifying and interviewing inmates at Wende and explained that he
was unable to provide CO Holland with names and inmate numbers
because, as a result of his recent transfer from Wende to Upstate,
he did not have any of his legal documents, including the records
from the

First

Hearing.

CO

Holland,

being

a

DOCCS

employee,

presumably could have obtained a copy of the witness list and
transcript from the First Hearing and provided it to Plaintiff so

-20-

he could have referred to it in drafting his request for assistance
to CO Holland. However, CO Holland did not do so.
While the present record suggests that Plaintiff has a strong
claim based on the denial of pre-hearing legal assistance, the
Court cannot find as a matter of law for Plaintiff or Defendants
without resolving issues of credibility, which it is not permitted
to do on summary judgment. As the discussion of the evidence above
shows, there are genuine issues of material fact as to whether
CO Holland violated Plaintiff’s limited due process right to predisciplinary hearing legal assistance, and whether Lt. Zerniak and
Director Bezio are liable in a supervisory capacity for failing to
rectify any such deficiencies.
B.

Failure to Call Witnesses at the Rehearing
1.

Relevant Law

The Supreme Court has recognized that an inmate has a
conditional due process right to call witnesses when to do so will
not be unduly hazardous to institutional safety or correctional
goals. Wolff, 418 U.S. at 566. In Fox v. Coughlin, 893 F.2d 475
(2d Cir. 1990) (per curiam), the Second Circuit “held that prison
authorities may not refuse to interview an inmate’s requested
witnesses ‘without assigning a valid reason.’” Ayers, 152 F.3d at
81 (quoting Fox, 893 F.2d at 478). In Fox, the inmate asked his
hearing officer to interview seven witnesses who had been present
when the inmate allegedly pushed an officer. The hearing officer

-21-

interviewed five of the witnesses, but declined to interview the
two others because he believed that their testimony would be
“redundant.” 893 F.2d at 477. The Second Circuit concluded that,
when a prison official refuses to conduct an interview, “[t]he
burden is not upon the inmate to prove the official’s conduct was
arbitrary and capricious, but upon the official to prove the
rationality of his position.” Id. at 478 (citation omitted); accord
Kingsley v. Bureau of Prisons, 937 F.2d 26, 30-31 (2d Cir. 1991)
(citing Ponte v. Real, 471 U.S. 491, 499 (1985)). Thus, the prison
official bears the burden of showing that the denial of witnesses
is “logically related to preventing undue hazards to ‘institutional
safety or correctional goals[,]’” Fox, 893 F.2d at 478 (quoting
Wolff, 418 U.S. at 566), or is justified due to “irrelevance or
lack of necessity,” Kingsley, 937 F.2d at 30-31 (citation omitted).
2.

Application
a.

Failure to Call Inmate Kenneth Jones

At both the First Hearing and Rehearing, Plaintiff identified
inmate Kenneth Jones (“Jones”) as a witness with personal knowledge
of the incident at issue. As noted above, inmate Bumpus testified
at the First Hearing that the inmate in “two cell”, which was near
the front of the gallery where the incident occurred, saw and heard
the incident at issue. It turns out that Jones was housed in
“2 cell”. See Assistant Form dated 4/9/08 (CO McGregor noting,

-22-

inter alia, that he met with Jones, housed in C-16-2, and Jones
agreed to testify).
Plaintiff

asserts

that

even

though

Jones

had

agreed

to

testify, he had asked his employee assistant at the First Hearing,
CO McGregor, to obtain a statement from Jones because he was afraid
Jones

would

be

intimidated

into

not

testifying.

However,

CO McGregor did not get a statement from Jones. Plaintiff’s fear
was realized because, on the day he was called to testify, Jones
signed an Inmate Refusal Testify form stating he “d[id]n’t want to
get involved.” See “Inmate Refusal Testify” form signed by Kenneth
Jones, Deutsch Ex. A.
At the Rehearing, Plaintiff explained the situation involving
Jones’ previous refusal to testify to Lt. Zerniak. See RH.5.
However, Plaintiff did not have Jones’ full name or inmate number.
RH.5. Lt. Zerniak did not attempt to determine Jones’ full name or
inmate number, which presumably would have been readily available
to

him

as

a

DOCCS

hearing

officer.

Indeed,

Defendants

have

submitted what is described as a “copy of the rehearing packet”
which, in addition to documents completed by Lt. Zerniak at the
Rehearing, also contains multiple documents from the First Hearing,
including

Jones’

“Inmate

Refusal

Testify”

form

and

“Witness

Interview Notice”. See Deutsch Ex. A. It would be reasonable to
infer that these documents were available to Lt. Zerniak at the
time of the Rehearing. At the very least, it would be reasonable to

-23-

conclude Lt. Zerniak would have been in a better position to
ascertain Jones’ identity than Plaintiff, who was hampered by his
recent transfer from Wende and his confinement to SHU. Lt. Zerniak,
as a DOCCS hearing officer, also obviously would have been in a
better position to locate Jones, contact him, and determine if he
still was refusing to testify, or to ask a fellow DOCCS officer at
Wende to conduct this investigation for him.
The resolution of those inferences aside, the Court finds that
Lt. Zerniak’s

conduct,

as

a

matter of

law,

violated

clearly

established Federal law. Lt. Zerniak made no determination on the
record that Jones’ testimony was irrelevant or unnecessary, or that
his appearance as a witness would pose safety concerns or interfere
with correctional goals. See Fox, 893 F.2d at 478; Kingsley, 937
F.2d at 30-31. Lt. Zerniak thus has not carried his burden of
providing a reason for denying the request, let alone “proving the
rationality of [his] position[,]” Kingsley, 937 F.3d at 30-31
(citation omitted). The Court notes that if Jones had agreed to
testify,

he

very

likely

would

have

offered

highly

relevant

testimony, corroborative of inmate Bumpus’ account of hearing
Plaintiff get punched, yell out in protest, and then get mobbed and
assaulted by several corrections officers. As noted above, Bumpus
testified at the First Hearing that Jones had been standing at the
bars of his cell near the gallery gate when the incident occurred.
Bumpus heard Jones make a comment to the effect of, “‘[W]hy you

-24-

doin’ that to him. He ain’t doin’ nothin.’” Thus, it appears that
Jones actually witnessed the incident. Moreover, Lt. Zerniak could
not credibly argue that Jones’ testimony would have been cumulative
to Bumpus’ testimony, given that he discounted Bumpus’ account to
the extent that it was based only on what Bumpus heard, rather than
saw.

Even

if

Lt.

Zerniak

had

found

Jones’

testimony

to

be

irrelevant or cumulative, such a finding would not have been
supportable. See Fox, 893 F.2d at 478 (rejecting hearing officer’s
proffered reasons for refusing to interview the witnesses requested
by the inmate because officer “had no reason to believe that the
testimony of the two [witnesses] would be redundant”).
Defendants assert that any refusal to call Jones was harmless
because Jones refused to testify at the Rehearing. However, the
Inmate Refusal Testify form on which Defendants rely is from the
First Hearing. Defendants’ reliance on documentation that was part
of the First Hearing is contradictory to Lt. Zerniak’s on-therecord comment to Plaintiff, “This is a rehearing. Anything that
was done at the other hearing has no bearing on this hearing
because I have no idea how the other hearing was conducted.
Basically this is just like having a whole new hearing.” RH.3.
Defendants cannot have it both ways, and therefore the Court
reject’s Defendants’ attempt to rely on the record of First Hearing
as proof that Jones refused to testify at the Rehearing.

-25-

The

Court

also

finds

unpersuasive

Defendants’

post

hoc

assertion that a renewed inquiry into Jones’ willingness to testify
would have been futile. Prison officials cannot take advantage of
a record that is missing a witness’ testimony as a result of the
officials’ obstruction of the inmate’s attempts to secure the
witness’ testimony. See Patterson v Coughlin, 905 F.2d 564, 569
(2d Cir. 1990) (“[T]o the extent that the record is silent as to
what [the witnesses] would have testified in response to questions
pertinent to the charge against [the inmate], the State is not
entitled to rely on that record to show that [the inmate] would
have been found guilty of that charge, since the record’s silence
is the result of the State’s violation of [the inmate]’s due
process

rights.”).

The

Court

notes

that

in

addition

to

Lt. Zerniak’s obstruction of Plaintiff’s attempt to identify and
re-interview Jones, there is circumstantial evidence from which a
factfinder

reasonably could infer that other DOCCS’ staff members

obstructed Plaintiff’s right to call witnesses by intimidating
Jones into not testifying. As noted above, two days after the
incident, Jones was willing to testify on Diaz’s behalf; two weeks
later, on the day of the hearing, he refused to testify. The
timing, as well as Jones’ explanation for not testifying–that he
did not want to “get involved”–suggest an external factor at play
in his sudden about-face.

-26-

In
Lt.

sum,

the

Zerniak’s

Court

handling

finds

of

that,

Plaintiff’s

as

a

request

matter
to

of

call

law,
Jones

violated Plaintiff’s due process right to call witnesses on his
behalf. Director Bezio is liable in a supervisory capacity because,
“after being informed of the violation through . . . an appeal,
[he] failed to remedy the wrong,” Colon, 58 F.3d at 873.
b.

Failure to Call the Inmate in Cell C-15-7

Plaintiff twice identified an inmate by his cell number,
C-15-7, as a witness he wanted to call on his behalf. Plaintiff
explained that he had been told by Squires that this inmate had
relevant testimony to offer because he (the inmate in C-15-7) had
been on the unit at the time of the incident. RH.5, 16. Plaintiff
stated that he had been unable to contact this inmate because, as
discussed above, he was at Upstate while the inmate was still at
Wende. Plaintiff has averred that his inmate assistant, CO Holland,
refused to contact any witnesses at Wende for him. Lt. Zerniak did
not attempt to contact or call the inmate in C-15-7 as a witness,
and he made no attempt to determine the relevancy of his testimony.
Indeed, Lt. Zerniak ignored Plaintiff’s comments regarding the
inmate in C-15-7. Given that Lt. Zerniak ignored the existence of
this potential witness, he obviously did not make a finding that
calling

him

correctional

would
goals,

pose
or

a

threat

that

his

to

institutional

testimony

was

safety

or

irrelevant,

unnecessary or redundant. See Fox, 893 F.2d at 478; Kingsley, 937

-27-

F.2d at 30-31. To the contrary, it is likely that this inmate would
have offered relevant testimony given that he was present on the
gallery when the incident occurred. As Lt. Zerniak has failed to
fulfill his obligation to provide any reason for denying the
request

for

the

inmate

in

C-15-7,

he

cannot

“prov[e]

the

rationality of [his] position[,]” Kingsley, 937 F.3d at 30-31
(citation omitted). The Court accordingly finds as a matter of law
that Plaintiff’s due process right to call witnesses on his behalf
was violated by Lt. Zerniak’s omissions in regard to Plaintiff’s
request for the inmate in C-15-7 as a witness at the Rehearing.
Director Bezio is liable in a supervisory capacity because, “after
being informed of the violation through . . . an appeal, [he]
failed to remedy the wrong,” Colon, 58 F.3d at 873.
c.

Diaz

attempted

Failure to Call Investigator James Kessel of
DOCCS’ Inspector General’s Office
to

call

Inv.

Kessel

from

the

Inspector

General’s Office, with whom he had met on April 25, 2008, one day
after the conclusion of the First Hearing. According to Diaz, he
presented to Inv. Kessel his complaints that his first employee
assistant, CO McGregor, had failed to go on the galleries of the
cell block where he was housed to canvass for potential witnesses.
Plaintiff gave Inv. Kessel the names of the witnesses who had
testified at the First Hearing or had been identified at the First
Hearing. According to Plaintiff, Inv. Kessel “told [Plaintiff] he
would canvass the galleries to see if he could find anyone who had
-28-

seen or heard what happened. He told [Plaintiff] he would talk to
Jones who had first agreed to testify and then refused[.]” Diaz
Aff., ¶ 24.
At the Rehearing, Lt. Zerniak denied Inv. Kessel as a witness
on the ground that he was “not in the area of the alleged incident”
and thus, according to Lt. Zerniak, did not have relevant testimony
to

offer.

Lt.

Zerniak

offered

no

other

reasons

for

denying

Inv. Kessel as a witness.
In

connection

with

Plaintiff’s

state

court

Article

78

proceeding, the Third Department recognized this as an error
warranting the reversal and expungement of the Rehearing. See
Matter of Diaz v. Fischer, 70 A.D.3d 1082, 1082-83 (3d Dep’t 2010).
The Third Department observed that Petitioner’s defense at the
First Hearing and Rehearing was that, contrary to the accusation
that

he

assaulted

CO

Burns

(whom

he

had

never

met)

without

provocation, he was actually attacked by CO Burns in retaliation
for his work with the IGRC. Diaz, 70 A.D.3d at 1082.7 The Third

7

Plaintiff acknowledged that he did not know CO Burns and had never filed
a grievance against him, but argued to Lt. Zerniak that CO Burns’ assault on him
“show[ed]. . . facility retaliation against [him] because they did not want
[him] to join the grievance office.” RH.19. It was Plaintiff’s theory that the
staff in the IGRC Office who did not want him serving as a representative
purposely recruited an officer whom Plaintiff did not know to “set him up” by
assaulting him and then using force against him as a pretext for filing a
misbehavior report, which would lead to charges and a disciplinary hearing, and
which would have the practical effect of disqualifying him from serving as an
elected IGRC representative. As Plaintiff pointed out, and as CO Burns admitted,
CO Burns was not the regular officer on Plaintiff’s gallery on the day of the
incident; Plaintiff told Lt. Zerniak that he had no problems with the regular
officers, CO Kwas and CO Martin. RH.19-20. Plaintiff noted that he did not have
any staff assaults during his 22 and 1/2 years in DOCCS, and it made no sense for
him “to punch a guy in the face [he] [did]n’t even know.” Id.

-29-

Department explained that Inv. Kessel could have offered relevant
testimony on Plaintiff’s asserted defense, because he began an
investigation shortly after the April 7, 2008 incident and, in
addition to questioning the witnesses who had testified at the
First Hearing, was planning to interview witnesses who had refused
to testify out of fear of retaliation by DOCCS’ staff. Matter of
Diaz, 70 A.D.3d at 1082-83. The Third Department pointed out that
“investigators

from

the

Inspector

General’s

office

routinely

testify in prison disciplinary hearings, as do other witnesses who
have gained information through investigation, rather than personal
observation.” Id. at fn* [sic] (internal and other citations
omitted). Because Inv. Kessel “may have provided testimony that was
material,

[his]

absence

substantially

prejudiced

[Plaintiff]’

ability to present his defense[,]” and since Lt. Zerniak denied
Inv. Kessel’s testimony “for reasons other than institutional
safety,” the Third Department found “such denial to be error[.]”
Matter of Diaz, 70 A.D.3d at 1083 (citations omitted). The Third
Department further found that since the deprivation constituted a
violation of Plaintiff’s “constitutional right to call witnesses,
rather than merely his statutory right,” the “the appropriate
remedy [was] . . . expungement.” Id.
The Court can find no basis for disagreement with the Third
Department’s reasoning or its conclusion that Lt. Zerniak’s refusal

-30-

to

allow

Inv.

Kessel

as

a

witness

amounted

to

a

denial

of

Plaintiff’s constitutional right to call witnesses. Defendants
argue that the refusal to call Inv. Kessel would have had no impact
on the disciplinary hearing because he allegedly did not interview
anyone other than Plaintiff. See Declaration of James Kessel
(“Kessel Decl.”). The Court is not persuaded. Even if Inv. Kessel
did

not

interview

witnesses,

he

still

could

have

testified

regarding the information he had gained through his investigation.
See 70 A.D.3d at 1082-83, fn*.
The Court notes, as an aside, that the documentary evidence
submitted by Plaintiff tends to undermine Inv. Kessel’s assertion
that he interviewed no other witnesses. In response to a FOIL
request for Inv. Kessel’s investigation file, Plaintiff’s attorney
received a redacted portion of the entire file. See Diaz Ex. E (Dkt
#23-5). The pagination of the documents provided indicates that
there are at least 76 pages in the file, since Inv. Kessel’s
summary of his interview with Plaintiff is page number 76. See Diaz
Aff., ¶¶ 25-26 & Diaz Ex. E (Dkt #23-5). The lengthiness of the
redacted FOIL

response

concerning

Inv.

Kessel’s

investigatory

documents is difficult to reconcile with Inv. Kessel’s assertion
that he did not interview any individuals other than Plaintiff
during his investigation.
To summarize, the Court concludes as a matter of law that
Lt.

Zerniak

failed

to

fulfill

his

-31-

obligation

to

prove

the

rationality of his reason for denying the request for Inv. Kessel.
First,

Inv.

Kessel

could

have

provided

relevant,

material

testimony. Second, Lt. Zerniak did not deny Inv. Kessel’s testimony
on

the

basis

of

concerns

regarding

institutional

safety

or

correctional goals. Therefore, the Court finds that Lt. Zerniak
violated Plaintiff’s constitutional right to call witnesses by
denying his request for Inv. Kessel. Director Bezio is liable in a
supervisory

capacity

because,

“after

being

informed

of

the

violation through . . . an appeal, [he] failed to remedy the
wrong,” Colon, 58 F.3d at 873.
d.

Failure to Call Psychologist Dr. Bush

Dr. Bush of OMH interviewed Plaintiff shortly after the useof-force incident. Plaintiff requested Dr. Bush as a witness at the
First Hearing, and this was denied. Director Bezio reversed the
First

Hearing

because

CHO

Kennedy

failed

to

indicate

how

Plaintiff’s mental health was considered as required by New York
State regulations. See Letter dated 11/20/08 from Director Bezio,
Terrizzi

Ex.

G1b

(Dkt

#28-2,

p.

7

of

15)

(in

response

to

Plaintiff’s inquiry regarding the basis for the reversal of the
First Hearing, Director Bezio stated that “[t]he reason given in
[Diaz’s] records is that ‘the record fails to indicate how the
inmate’s mental health was considered as required by Chapter V’”).8
8

The reference to “Chapter V” is to Title 7, Chapter V, Subchapter A of the
New York State Administrative Code which provides in part that “[w]hen an
inmate’s mental state or intellectual capacity is at issue, a hearing officer

-32-

In reversing the Rehearing, the Third Department held, in
relevant part, as follows:
The Hearing Officer also denied testimony from the
psychologist [Dr. Bush], despite the fact that the first
determination finding petitioner guilty had been
administratively reversed based on the fact that the
record failed to indicate how petitioner’s mental health
status was considered.
Matter of Diaz, 70 A.D.3d at 1083 (internal and other citations
omitted). The Third Department concluded that Dr. Bush, like
Inv. Kessel, “may have provided testimony that was material,” and
his “absence substantially prejudiced [Plaintiff]’s ability to
present his defense[.]” Id. at 1083. Because Lt. Zerniak denied Dr.
Bush’s testimony “for reasons other than institutional safety,” the
Third Department found that “such denial . . . [was] error” and
“constituted a violation of [Plaintiff]’s constitutional right to
call witnesses, rather than merely his statutory right[.]” Id.
(citations omitted). Accordingly, the Third Department found that
this was an additional basis for ordering expungement of the
Rehearing. See id.
Although the Third Department found that Dr. Bush’s testimony
may have been material, this Court has no basis on which to make
such a finding, as it has not been provided with any treatment
notes

or

reports

by

Dr.

Bush

regarding

his

interview

with

Plaintiff, let alone the sum and substance of Dr. Bush’s proposed
shall consider evidence regarding the inmate’s mental condition or intellectual
capacity at the time of the incident and at the time of the [disciplinary]
hearing. . . .” 7 N.Y. COMP. CODES R. & REGS. § 254.6(b).

-33-

testimony. In the “rehearing packet” submitted as Deutsch Ex. A,
there is a form titled, “Superintendent Review of Disciplinary
Dispositions For Inmates Where Mental Health Was At Issue” which
was

completed

by

Sup’t

Kirkpatrick,

who

declined

to

change

Plaintiff’s confinement time on the basis that Plaintiff “is not an
active OMH patient[;] he was seen as part of the SHU OMH screening
process and his mental health status had not [sic] impact on the
incident.” See Superintendent Review of Disciplinary Dispositions
For Inmates Where Mental Health Was At Issue, Deutsch Ex. A.
Defendants seem to suggest that this form disposes of Plaintiff’s
claim regarding Dr. Bush, but the Court cannot agree. The form
contains an unexplained discrepancy in that it is dated and signed
April 20, 2006, yet purports to pertain to a disciplinary hearing
on April 11, 2008. Furthermore, it does not shed any light on the
substance of Dr. Bush’s interview and assessment of Plaintiff, or
why Director Bezio reversed the First Hearing because Plaintiff’s
mental health was not considered.
In short, on the present record, the Court is unable to find
in either Plaintiff’s or Defendants’ favor as a matter of law on
this claim. There are genuine issues of fact that remain to be
decided, and which cannot be resolved on the record before the
Court. Summary judgment therefore is denied to both Plaintiff and
Defendants on this claim.

-34-

C.

Erroneous Curtailment of Plaintiff’s Right to Present a
Defense and Question Witnesses
1.

Relevant Law

As noted above, due process requires that an inmate be given
a meaningful opportunity to marshal and present evidence in his
defense. See Wolff, 418 U.S. at 564, 570. To that end, the inmate
should ordinarily be permitted to call witnesses and present
documentary evidence in his defense, so long as “permitting him to
do so will not be unduly hazardous to institutional safety or
correctional goals.” Id. at 566. Unlike a defendant in a criminal
proceeding, an inmate does not have a constitutional right to
confront or to cross-examine the witnesses against him. See Baxter
v. Palmigiano, 425 U.S. 308, 322 (1976) (“Mandating confrontation
and cross-examination, except where prison officials can justify
their

denial

effectively

on

one

preempts

or
the

more

grounds

area

that

that

Wolff

appeal
left

to

to

judges,

the

sound

discretion of prison officials.”) (footnote omitted).
2.

Application

Plaintiff asserts that his right to meaningfully present a
defense and adequately question inmate witnesses Rosales and Bumpus
and staff witness CO Burns was unconstitutionally curtailed by
Lt. Zerniak at the Rehearing. Plaintiff also argues that he was
improperly denied a documentary request for CO Burns’ medical
records.

-35-

With regard to the restriction on Plaintiff’s questioning of
Rosales, Bumpus, and CO Burns, the Court agrees that Lt. Zerniak
violated Plaintiff’s due process rights. Plaintiff was not seeking
to cross-examine any of the witnesses, which the Court recognizes
is not a constitutional right guaranteed to inmates. See Baxter,
425 U.S. at 322. Furthermore, Lt. Zerniak did not make any finding
that allowing Plaintiff to question these witnesses would be
“unduly hazardous to institutional safety or correctional goals[,]”
Wolff, 418 U.S. at 566, and there is no suggestion in the record
that this was the case. All three witnesses had testified more
extensively

at

the

First

Hearing

without

incident.

At

the

Rehearing, the witnesses were testifying by phone from other
facilities.

Although

Lt.

Zerniak

nominally

allowed

these

individuals to testify at the Rehearing, he limited Plaintiff’s
right to question them so significantly that it amounted to a
denial, in substance, of his right to present a defense.
With regard to Plaintiff’s request to review CO Burns’ medical
records, Lt. Zerniak noted that the records were included among
“information that [Plaintiff was] not privileged to.” RH.15. The
Court has found no basis for the proposition that redacted medical
records of a corrections officer are documents to which an inmate
categorically is “not privileged”. Indeed, New York State courts
have found error where a hearing officer unjustifiably denies an
inmate’s request for the medical records of a corrections officer

-36-

whom the inmate allegedly assaulted. See, e.g., Matter of Joseph v.
Fischer, 67 A.D.3d 1103, 1104 (3d Dep’t 2009) (“agree[ing] with
[inmate accused of assault on staff] that the Hearing Officer
should

not

have

denied

disclosure

of

the

injured

correction

officer’s medical records absent a showing that institutional
safety would have been jeopardized”, but finding error harmless
considering “overwhelming evidence” against inmate) (citations
omitted). Here, Lt. Zerniak made no finding that CO Burns’ medical
records were irrelevant or unnecessary; indeed, they would have
been relevant to Petitioner’s defense that he did not strike
CO

Burns

at

all

and

to

potentially

undermining

CO

Burns’

credibility about how the incident occurred. Likewise, Lt. Zerniak
did not find that disclosure of the medical records would have
jeopardized facility safety or correctional goals. Moreover, given
the paucity of evidence supporting CO Burns’ rather vague and
shifting description of the incident, it is impossible for the
Court to say that the error was harmless. Accordingly, the Court
finds that Lt. Zerniak violated Plaintiff’s right to present a
defense by unjustifiably curtailing his questioning of witnesses
and denying him access to redacted copies of CO Burns’ medical
records in regards to the April 7, 2008 incident. The Court finds
that Director Bezio is liable in a supervisory capacity because,
“after being informed of the violation through . . . an appeal,
[he] failed to remedy the wrong,” Colon, 58 F.3d at 873.

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D.

Biased Hearing Officer
1.

Relevant Law

Prisoners are entitled to have their disciplinary charges
reviewed by an unbiased hearing officer. See Russell v. Selsky,
35 F.3d 55, 59 (2d Cir. 1994) (“Due process requires that a prison
disciplinary hearing be impartial.”) (citation omitted). The Second
Circuit

has

held,

however,

that

“prison

disciplinary

hearing

officers are not held to the same standard of neutrality as
adjudicators in other contexts,” and “the degree of impartiality
required of prison officials does not rise to the level of that
required of judges generally.” Allen v. Cuomo, 100 F.3d 253, 259
(2d Cir. 1996) (citations omitted). The Second Circuit’s conception
of “an impartial decisionmaker is one who, inter alia, does not
prejudge the evidence and who cannot say . . . how he would assess
evidence he has not yet seen.”

Patterson v. Coughlin, 905 F.2d

564, 569–70 (2d Cir. 1990) (citation omitted).
2.

Application

Throughout the hearing, Lt. Zerniak’s comments evidenced an
attitude

of

disparagement,

bordering

on

frank

disbelief,

of

everything Plaintiff said. In repeatedly preventing Plaintiff from
conducting virtually any direct examination of witnesses, he made
comments indicating he had already formed an opinion about the
outcome of the case See, e.g., RH.31 (“[Y]ou punched him, and then
force took place. I don’t need to ask him[.] [D]o you have anything
-38-

else to ask.”). Without any explanation of why a harsher sentence
was warranted, Lt. Zerniak sentenced Plaintiff after the Rehearing
to a more severe punishment on the exact same charges. In the
criminal context, a lengthier sentence following a successful
appeal

can

give

rise

to

an

inference

of

vindictiveness

or

retribution for the defendant’s vindication of his constitutional
rights. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct.
2072, 23 L.Ed.2d 656 (1969). In sum, Plaintiff has come forward
with much more than a “mere conclusory allegation,” Francis v.
Coughlin, 891 F.2d 43, 47 (2d Cir. 1989), that Lt. Zerniak was not
impartial. Summary judgment in Defendants’ favor is not warranted
on this claim.
E.

Qualified Immunity
1.

Relevant Law

In actions under 42 U.S.C. § 1983, qualified immunity is an
affirmative defense which allows officials to escape liability
unless their “alleged conduct, when committed, violated ‘clearly
established

statutory

or

constitutional

rights

of

which

a

reasonable person would have known.’” Williams v. Smith, 781 F.2d
319, 322 (2d Cir. 1986) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 815 (1982)). Qualified immunity in a civil rights matter
generally involves two inquiries: (1) “whether the facts, viewed in
the

light

most

favorable

to

the

plaintiff

establish

a

constitutional violation”; and (2) “whether it would be clear to a

-39-

reasonable

[official]

that

his

conduct

was

unlawful

in

the

situation confronted.” Sira v. Morton, 380 F.3d 57, 68–69 (2d Cir.
2004) (citations omitted).
2.

Application

Defendants simply assert that there is “no authority that the
rehearing was unconstitutional” and therefore it was “objectively
reasonable for the Defendants to believe that their actions did not
violate Plaintiff’s due process rights.” Defendants’ Memorandum of
Law at 12-13. However, the Court has found, as a matter of law,
that

the

Rehearing

violations,

namely,

was
the

flawed
denial

by

of

multiple

Plaintiff’s

constitutional
right

to

call

witnesses and present evidence in his defense. Furthermore, all of
the rights which Plaintiffs allege Defendants violated were clearly
established at the time of the challenged conduct.9 Defendants do
not attempt to argue otherwise. The Court accordingly rejects
Defendants’ qualified immunity argument.
F.

Reinstatement of False Misbehavior Report Claim

The Court had previously dismissed Plaintiff’s due process
claim against CO Burns for filing a false misbehavior report
because the filing of baseless or false charges against an inmate
does

not,

in

and

of

itself,

give

rise

to

a

constitutional

violation. See Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)
9

For instance, a prisoner’s right to call witnesses was initially recognized
in 1974, see Wolff, 418 U.S. at 556, and was clearly established in 1979, see
McCann v. Coughliin, 698 F.2d 112, 124-25 (2d Cir. 1983).

-40-

(stating

that

an

inmate

“has

no

constitutionally

guaranteed

immunity from being falsely accused of conduct which may result in
the deprivation of a protected liberty interest”; stating that
“[s]ince Freeman was granted a hearing, and was afforded the
opportunity to rebut the charges against him, the defendant’s
filing

of

unfounded

constitutional

charges

did

not

give

rise

violation actionable under section

to

a

per

1983”).

se
The

Second Circuit suggested in Freeman that an inmate may have an
actionable claim against a correction officer for filing a false
misbehavior report if the inmate can show that he was disciplined
without adequate due process “as a result of” the report. See
Freeman, 808 F.2d at 951–53 (“Plaintiff suffered as a result of the
finding of guilty by the prison disciplinary committee hearing, and
not merely because of the filing of unfounded charges by the
defendant. Since the validity of the hearing is also in issue, the
court must now determine whether the disciplinary hearing provided
Freeman with due process.”). In Freeman, the Second Circuit found
no due process violations at the hearing based on the allegedly
false misbehavior report and thus implicitly denied the inmate’s
claim based on the filing of the false report. Here, the Court has
found as a matter of law that various constitutional violations
occurred at the Rehearing based on CO Burns’ allegedly false
Misbehavior Report issued on April 7, 2008, and that there are
issues of fact as to Plaintiff’s other due process claims related

-41-

to the Rehearing. The Court accordingly finds that Plaintiff has a
viable

claim

against

CO

Burns

based

on

the

allegedly

false

misbehavior report.
The Second Circuit has mentioned a second circumstance that
could give rise to a due process claim based on a false misbehavior
report, that is, where the inmate alleges that the false report was
filed

against

him

in

retaliation

for

his

exercise

of

a

constitutionally protected right. See Franco v. Kelly, 854 F.2d
584, 589–90 (2d Cir. 1988) (reversing grant of summary judgment
where prisoner claimed that false disciplinary charges were filed
against him

as

investigation

retaliation

into

alleged

for

his

inmate

cooperation
abuse;

with

a

“[a]lthough

state
those

allegations do not directly implicate Franco’s right of access to
the

courts

or

similar

judicial

forums,

we

believe

that

his

complaint does implicate his broader right to petition government
for

redress

Fourteenth

of

grievances,

Amendments”).

as

guaranteed

Plaintiff

has

by

the

asserted

a

First
claim

and
of

retaliation by Wende staff based on his filing of grievances and
participation on the IGRC, and argues that the false misbehavior
report was part of this retaliatory campaign. Therefore, the Court
finds that Plaintiff has stated a viable due process claim under
the theory articulated in Franco, 854 F.2d at 589–90.

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VI. Conclusion
For the reasons discussed above, defendant Lt. Zerniak’s and
Director Bezio’s motion for summary judgment (Dkt #21) is denied in
its entirety. Plaintiff’s motion for summary judgment (Dkt #26)
against Lt. Zerniak and Director Bezio is granted in part and
denied in part. Specifically, judgment as a matter of law is
granted in Plaintiff’s favor against Lt. Zerniak and Director Bezio
with regard to his claims that he was denied his right to call
Kenneth Jones, the inmate in C-15-7, and Inv. Kessel as witnesses
at the Rehearing, that he was denied his right to present a defense
by questioning witnesses at the Rehearing, and that he was denied
his right to present a defense by being refused redacted copies of
CO Burns’ medical records generated following the use of force
incident.

Plaintiff’s

motion

for

summary

judgment

against

Lt. Zerniak and Director Bezio is denied without prejudice as to
the remaining claim involving these two defendants. The Court
reinstates Plaintiff’s due process claim against CO Burns based on
the filing of a false misbehavior report.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

September 3, 2015
Rochester, New York

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