Austin v. Commissioner Brian Fischer et al, No. 1:2009cv04812 - Document 23 (S.D.N.Y. 2010)
Court Description: OPINION: Based on the conclusions set forth above, defendants' motion is granted and the Amended Complaint is dismissed pursuant to F.R.C.P. 12(b). (Signed by Judge Robert W. Sweet on 8/9/2010) (jpo)
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Austin v. Commissioner Brian Fischer et al Doc. 23 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x KENRICK AUSTIN, Plaintiff, 09 Civ. 4812 against OPINION COMMISSIONER BRIAN FISCHER, C.H.O. JOSE E. PICO, C.O. L. GONZALEZ, rr..ï¼»ï½¾ï¼©ï½ ï¼ II . ï½ ï½²ï¼»ï½¾ï¼ DOCU:rvIENT _____________________________________ Y11.ELECTRONICAL/I.Y PILED Defendants. ."!! r·.....' r # .J\.}'V: A P PEA RAN C E S: ll.Dl..TE ï½ ï½ ï½ ï½ ï½¾ï¼ _ _ï½¾ï¼ºï¼¾ï¼¢ï¼§ï½ ï¼ï¼»ï¼®ï¼¬ï½ ;, - - ..... ?? _- ï½¬ï½ ï½¾ï¼¬ï¼¢ï¼ j I( ) Pro Se KENRICK AUSTIN #83B0146 Clinton County Correctional Facility Dannemora, NY 12929 Attorneys for Defendants ANDREW M. CUOMO Attorney General of the State of New York 120 Broadway, 24th Floor New York, NY 10271 By: Michael Arcati, Esq. Assistant Attorney General Dockets.Justia.com Sweet, D.J. Defendants Brian Fischer, Commissioner of the New York State Department of Correctional Services ("DOCS") ("Fischer" or co, DOCS Director of Chief the "Commissioner"), Jose E. Hearing Officer Program ("Pico") , and Corrections Officer sa Gonzalez ("Gonzalez") (collect ly, "Defendants"), have moved pursuant to Federal Rules of 1 Procedure 12(b) (1) and 12(b) (6) to dismiss the Amended Complaint of plaintiff Kenrick Austin ("Austin" or "Plaintif ). Upon the conclus set below, the motion is granted, and the Amended Complaint dismissed. Prior Proceedings On September 18, 2007, at Fishkill Correctional Facility, Plaintiff as broken broom. See Def. Ex. C.)l On September 19, 2007, Plaintiff was notifi against him and a disc Def. Ex. D.) ted a Corrections Officer with a that a Misbehavior Report was filed inary hearing was to be On the notice, Plaintiff acknowl received a copy of Misbehavior Report. (rd. ld. See that he had On September "Def. Ex. ff refers to exhibits attached to the Declaration of Michael Arcati in Support of Defendants' Motion to Dismiss the Amended Complaint. 1 27 and 28, 2007, a Tier III disciplinary hearing was held at Downstate Correctional Facility regarding the September 18 assault. (See Def. Ex. E.) hearing. (Id. ) Pico was the Hearing Officer at the Plaintiff pleaded not guilty to the charges of (1) Assault on a Staff Member, (2) Possession of a Weapon and (3) Harassment. (Id. at 1.) After the presentation of evidence, Plaintiff was found guilty of all charges. 2.) (Id. at As a result of the disciplinary hearing, Plaintiff alleges that he served eighteen months in the Special Housing Unit ( "SHU") . (See Am. Compl. § II.D.) On October 9, 2007, Plaintiff filed an administrative appeal of the disciplinary hearing. (See Am. Compl. Ex. A.) On December 13, 2007, Plaintiff's disciplinary hearing was reviewed and affirmed by DOCS. (See Am. Compl. Ex. Bi Def. Ex. F.) On March 18, 2008, Plaintiff filed a Petition for a Judgment Pursuant to Article 78 of the New York State Civil Practice Laws and Rules ("Article 78") against Fischer in Albany County. Am. Compl. § VI.) (See The Article 78 Petition was transferred to the Appellate Division, where it is currently pending. (Id. ) On April 28, 2009, the Southern District of New York Pro Se Office received Plaintiff's original Complaint. On August 13, 2009, Plaintiff mailed his Amended Complaint to the 2 Pro Se Office. In the Amended Complaint, Plaintiff alleges that several due process violations labeled as Facts One through Ten occurred during the disciplinary hearing and the administrative appeal that followed. Defendants were served with the Amended Complaint between September 25 and 29, 2009 and moved to dismiss on October 20, 2009. The instant motion was marked fully submitted on April 1, 2010. The Allegations of Due Process Violation Are Dismissed Inmates retain due process rights in prison disciplinary hearings that "would subject an inmate to solitary confinement in SHU." 2004). Luna v. Pico, 356 F.3d 481, 487 (2d Cir. The rights available to inmates at such disciplinary hearings are limited to "advance written notice of the charges; a fair and impartial hearing officer; a reasonable opportunity to call witnesses and present documentary evidence; and a written statement of the disposition, including supporting facts and reasons for the action taken." Id. (citing Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir. 1999)) A disciplinary hearing decision must be supported by "some evidence." 3 See id. at 487 89. In const a s case, none of the alleged violations ion of Plaintiff's due process rights. Under "Fact One," Plaintiff alleges that Pico interviewed unknown witnesses during the disciplinary hearing while Plainti was not present, and did not allow Plaintiff to confront witnesses. However, "[i]t is not a violat See Am. Compl. II.D.) § due process at a disciplinary hearing to take the testimony of a witness outside the presence of an inmate. Nor an inmate have a constitutional right of confrontation." at 109 (internal citations omitted) . Kalwasinski, 201 F.3d Furthermore, using confidential witnesses at a prison disc in itself violate due process. 156, 163 (2d Cir. 2001). hearing does not See ï¼ï½¾ , 249 F.3d s Accordingly, amount to a constitutional due process ion does not at transcript Plaintiff alleges under "Fact Two" of the disciplinary hearing misstates the witnesses' testimony. (See Am. Compl. § two s II .D.) A minor typographical error such as this does not constitute a process violation, particularly where Plaintiff knew dates. correct Moreover, Plaintiff does not have a right to rece transcript of the disciplinary hearing, and there 4 no a constitutional violation can arise from a typographical error in transcript. See Hernandez v. Selsky, No. 04CV0552, 2006 WL 566476, at *3 (N.D.N.Y. Mar. 7, 2006) (ft[T]he Fourteenth Amendment does not require the review of (much ss the existence of) a tape recording or transcript of disciplinary hearing. ,,) . Under ftFact Three," Plaintiff al Commissioner issued a decis that the sixty eight days after Plaintiff's submission of his administrative appeal, exceeding the sixtyday limit set forth in N.Y. Compo Codes R. & Regs. ("NYCRR") tit. 7, § 254.8. See Am. Compl. § II.D.) However, this eight day delay does not violate Plaintiff's due process rights, because "the Fourteenth Amendment does not require administrat review of disciplinary convictions." 2006 WL 566476, at *3 (emphasis in original). Since Plaintiff fails to allege any due process violation caused by this allegation fails to state a claim. Hernandez, delay, See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Plaintiff leges under "Fact Four" that Commissioner "failed to honor" the misspelling of re II and misstatement of the Misbehavior Report. See Am. Compl. 5 co and the "rule e number in § II.D.) Pl iff's right to advance written notice of the disciplinary charges only requires sufficient detail to allow Plaintiff to prepare his defense. See Kalwasinski, 201 F.3d at 108. Plaintiff does not allege that either the misspelling of the "rule reference" or the misstatement of the rule number affected his defense in any way, and therefore fails to state a claim. Under "Fact Five," Plaintiff alleges that Gonzalez delivered his ticket twenty eight hours after the September 18 incident, four hours later than was required. § II.D.) (See Am. Compl. However, an inmate must receive advance notice of the charges against him twenty four hours prior to the disciplinary hearing, not, as Plaintiff suggests, within twenty four hours of the incident. See Kalwasinski, 201 F.3d at 108. Here, Plaintiff received both notice of the disciplinary hearing and a copy of his Misbehavior Report on September 19, seven days before his hearing took place. Under "Fact Six," Plaintiff alleges that the Commissioner and Pico "did not honor" an error in the hearing transcript regarding the identity of the "area Sgt." and that the Misbehavior Report was "not clear" as to the rank of the area supervisor. (See Am. Compl. § II.D.) As stated above, because Plaintiff is not entitled to a transcript, no violation 6 can arise from an error in the transcript. WL 566476, at *3. See Hernandez, 2006 Similarly, as stated above, Plaintiff's right to advance written notice only requires sufficient detail to allow Plaintiff to prepare his defense, and Plaintiff has not alleged that his ability to prepare his defense was prejudiced in any way by the lack of clarity regarding the rank of the area supervisor. Plaintiff alleges under "Fact Seven" that the evidence used to substantiate the weapon possession charge was defective due to breaks in the chainofcustody and conflicting testimonies and written reports. (See Am. Compl. § II.D.) A guilty determination at a prison disciplinary hearing must be supported by "some evidence" in the record. See Superintendent v. Hill, 472 U.S. 445, 45556 (1985); Luna, 356 F.3d at 48788. Judicial review of the "some evidence" standard "'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.'" Sira v. Morton, 380 F.3d 57, 76 (2d Cir. 2004) (quoting Hill, 472 U.S. at 454). Here, Plaintiff does not allege that the determination was based on a lack of evidence, but instead identifies deficiencies or inconsistencies in this 7 piece of dence. The allegation does not show that the weapon possession charge was not supported by any evidence. Under "Fact Eight," iff alleges that the and Pico impermissibly relied on an assault by Commis Plaintiff from 1995. See Am. Compl. not allege any facts indicat II.D.) § Plaintiff does manner in which Def reI on the 1995 assault or any prejudice arising from such reI This allegation therefore lacks sufficient factual matter to "state a claim to reI f that is plausible on its Iqbal, 129 S. Ct. at 1949 (citing Bell Atlantic Corp. v. " ----"'- , 550 U.S. 544, 570 (2007)). Furthermore, even if on evidence of Plaintiff's 1995 Defendants did improperly on other evidence of t, Defendants' reI guilt nonetheless satisfies the "some evidence" a guilty determination. aintiff's rement for See Hill, 472 U.S. at 455 56; Luna, 356 F.3d at 48788. Under "Fact Nine," Plaintiff al " and improperly maintained, and that tapes were "dysfunct the hearing transc See Am. Compl. § was out of order II.D.) hearing transcript that the hearing missing objections. As set forth above, errors in the not amount to a constitutional violation. See Hernandez, 2006 WL 566476 at *3. 1 8 The same is true of a tape recording. See id. ("[TJhe Fourteenth Amendment does not require the review of (much less the existence of) a tape recording or transcript of the disciplinary hearing.") i see also Johnson v. Goord, 487 F. Supp. 2d 377, 386 (S.D.N.Y. 2007) ("'While New York law requires that an electronic record of a disciplinary hearing be maintained, such a record is not constitutionally required.'" (quoting Auricchio v. Goord, 273 A.D. 2d 571, 572 (N.Y. App. Div. 2000))). Plaintiff alleges under "Fact Ten" that the Statement of Evidence was illegible and that Defendants impermissibly relied on "all the illegal procedure[s] committed in the hearing." (Am. Compl. § II.D.) Plaintiff is entitled to a written statement of the disposition of his disciplinary hearing, including the evidence relied upon and the reasons for the disciplinary actions taken. See Sira, 380 F.3d at 69. Here, although Plaintiff did receive the written disposition, he claims that he could not understand it. However, Plaintiff's allegations in the Amended Complaint and his appeal to the Commissioner indicate that he clearly understood the contents of the written disposition. (See Am. Compl. Ex. A.) A review of the Statement of Evidence establishes that pico's written comments, though sloppy, are sufficiently clear to inform the Plaintiff of the evidence relied upon and the reasons for the 9 disciplinary actions taken. 2 "il PIa As procedure[s]" alleged iff's due process rights. reliance on these "procedure[s]1I forth above, none of the Facts One through Ten violated Accordingly, Defendants' not give rise to a constitutional violation. Throughout his Opposition, Plaintiff contends that De s violated his constitutional rights by failing to to the guidelines for conducting prison disciplinary hearings set forth in t 7 of the NYCRR. To support s contention, Plaintiff relies exclusively on the provisions 2 The "Statement of Evidence Relied Upon" reads as follows: MBR [member] arrested by co J. Lynch dated 9/18 @ approx 8: 10 am al violations of Rules 100.11 Assault on Staff [, ] 113.10 Weapon, and 107.11 Harassment as follows, "Inmate Austin said to me "I'm not fucking doing nothing' and grabbed a broom and broke it in half over his knee creating a sharp pointy weapon. Inmate started running towards me and other inmates "Don' t do it man" he continued towards me and with his left hand punched me in the right side of my jaw. . both of us continued to exchange blows inmate was constantly trying to contain him . I also relied on Inmate Reports (Final and I also relied on Inmate Reports (Final and Preliminary) [,] Use of Force Report, Memo Sgt Sullivan [,] Photographs of the weapon, physical inspections of the mess hall and programs administer. I spoke to 4 mess hall workers including Chang (Def. Ex. E at 3.) It also states that the "extensive" and detailed" testimony of witnesses and descriptions of the Plaintiff's conduct confirmed Corrections Officer Lynch's allegations. Under Reasons for Disposition," Pico wrote that Plaintiff was "a threat to the safety and the of the facility. Your disciplinary record recounts 5 prior Harassment and Possession [of] Weapons and one assault on staff. This ition is being imposed upon you in the hopes it will deter you from behaving in such a manner in the future." (Id.) 10 the NYCRR and New York State cases to support his federal constitutional claims under § 1983. This argument fails because violations of state law that do not deprive the Plaintiff of a right "secured by the Constitution and laws" are insufficient to support a claim under § 1983. See Baker v. McCollan, 443 U.S. 137, 13940 (1979) i Shakur v. Selsky, 391 F.3d 106, 119 (2d Cir. 2004) i Blouin v. Spitzer, 356 F.3d 348, 362 (2d Cir. 2004). State procedural protections do not give rise to substantive federal rights. See Olim v. Wakinekona, 461 U.S. 238, 24950 (1983) i Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir. 2003) ("[S]tate statutes do not create federally protected due process entitlements to specific statemandated procedures.") Moreover, "[s]tate procedures designed to protect substantive liberty interests entitled to protection under the federal constitution do not themselves give rise to additional substantive liberty interests." Blouin, 356 F.3d at 363. It is "federal law, not state regulations, [that] determines the procedures necessary to protect that liberty interest." Id. (citing Watson v. City of New York, 92 F.3d 31, 38 (2d Cir. 1996)). Indeed, courts in this Circuit have held that violations of New York prison procedures under 7 NYCRR 254 "do not rise to a level of constitutional significance." Martinez v. Minogue, No. 06CV- 11 546, 2008 WL 4241746, *6 (N.D.N.Y. Sept. 11, 2008); see Ramsey v. Goord, 661 F. Supp. 2d 370, 391 92 (W.D.N.Y. 2009). Therefore, "the only evant inquiry was whether the constitutional [procedures] were met, not whether state procedures were followed." Shakur, 391 F.3d at 119 (citing Holcomb, 337 F.3d at 224). As set forth above, Defendants did not violate any of Plaintiff's constitutional rights. Pla iff's exclusive reliance on Defendants' violations of NYCRR is insufficient to support his claims. F.3d at 224; See Shakur, 391 F.3d at 119; Holcomb, 337 , 661 F. Supp. 2d at 391. In his Oppos ion, aintiff argues that Pico's investigation of Plaintiff's assault during the disciplinary hearing violated his constitutional rights because it violated 7 NYCRR 254.1. (See Opp. 2, 7.) investigated PIa There is no allegation that Pico iff's misconduct prior to the hearing. As a matter of common sense, Pico was required to investigate the assault during the hearing, pursuant to his duties as the Hearing Officer presiding over the hearing. conduct did not violate 7 NYCRR 254.1. 12 Accordingly, co's Plaintiff also argues that the faulty electronic recording and errors in s hearing transcripts violated 7 NYCRR 254.6 and cites several New York State cases in support. opp. 3, 6, 8.) See As concluded above, Plaintiff does not have a constitutional right to a transcript or electronic recording of his disciplinary hearing, and cannot constitutional claim on these errors. 566476, at *3. fore base a See Hernandez, 2006 WL Even if these errors violate the NYCRR, such a violation does not entitle Plaintiff to relief under § 1983. See Ramsey, 661 F. Supp. 2d at 391. Similarly, Plaintiff argues that Fischer's tardy decision on Plaintiff's appeal viol 7 NYCRR 254.8, which requires that the ewing authority issue a decision within sixty days of rece of an appeal. (See Opp. 4.) As set forth above, this does not constitute a ation of PIa process rights because constituti due process does not require administrative review of disciplinary hearings, see Hernandez, 2006 WL 566476, at *3, and because state regulation does not create a substantive federal right. See Blouin, 356 F.3d at 363; Ramsey, 661 F. Supp. 2d at 391. Finally, in his Opposition, Plaintiff in argues that Pico's documentation was not sufficiently detailed to allow 13 Plaintiff to prepare an ef argument ive defense. ( pp . 9.) O Thi s ils because, as explained above, the Statement of Evidence and Reason for Disposition did contain sufficient detail. In addition, in his Appeal Form to the Commissioner, Plaintiff made numerous attacks on both procedural aspects and the merits of the hearing, including lenges to the credibility of witnesses and lack of specificity in the evidence. (See Compl. Ex. A.) This indicates that Plaintiff was able to ascertain enough information from Pico's documentation to articulate a de in his appeal. The Defendants Have Established Qualified Immunity Qualified immunity protects government officials from civil liability in performance of their dut their actions could reasonably s "as long as been thought consistent with the rights they are alleged to have violated." Anderson v. Cre 483 U.S. 635, 638 (1987). "Once qualified immunity is pleaded, plaintiff's complaint will be dismissed unless defendant's alleged conduct, when committed, violated 'clearly established statutory or constitutional rights of which a reasonable person would have known.'n Willi , 781 F.2d 319, 322 (2d Cir. 1986) (quoting Harlow v. Fit U.S. 800, 818 (1982)). 14 d, 457 To determine whether a particular right was "clearly established" at the time defendants acted, a court should consider whether (1) the right was defined with "reasonable specificity," (2) the Supreme Court or the Second Circuit recognized the right, and (3) a reasonable defendant would have understood from the existing law that his or her conduct was unlawful. Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003); Wright v. Smith, 21 F.3d 496, 500 (2d Cir. 1994); Benitez v. Wolff, 985 F.2d 662, 666 (2d Cir. 1993). In this case, Plaintiff's Amended Complaint fails to establish any clearly established right violated by Defendants. As concluded above, none of the allegations set forth under Facts One through Ten amounts to a violation of Plaintiff's due process rights under the controlling decisional law. The Amended Complaint therefore fails to identify a "clearly established" right that was violated by Defendants' conduct. Moreover, even if the due process rights alleged by Plaintiff were supported by the decisional law and violated by Defendants' conduct, Defendants would still be entitled to qualified immunity because they could not have reasonably understood at the time that their conduct was unlawful. 15 Conclusion Based on motion is granted and conclusions set forth above, Defendants' Amended Complaint is dismissed pursuant to Fed. R. Civ. P. 12(b). So ordered. New Yor Q NY 2010 August ( I 16
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