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finding that any failure of the plaintiff's inmate assistant to interview a witness was, at most, harmless error because the witness testified in the plaintiffs favor
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01 Civ. 9368 (DAB)(AJP)
September 13, 2002
REPORT AND RECOMMENDATION
To the Honorable Deborah A. Batts, United States District Judge:
Pro se petitioner Anthony Louis, an Upstate Correctional Facility inmate, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a New York State Department of Corrections ("DOCS") Tier III disciplinary hearing which resulted in his "placement in SHU [Special Housing Unit] — confinement" and "deprivation of [seventy two months] good conduct time-credits." (Dkt. No. 2: Pet. ¶¶ 3-5, 13.) Louis argues that his due process rights were violated because (1) he "was found guilty" of assaulting another inmate, violent conduct and creating a disturbance "without any substantial evidence to support [the] hearing officer's findings" (Dkt. No. 2: Louis Br. at 6-11) and the hearing officer "considered evidence outside of the four corners of the superintendent['] s hearing record" by consolidating the Tier II and Tier III hearings (Louis Br. at 14-17); and (2) he received "inadequate Inmate Assistance" (Louis Br. at 11-14).
Louis' brief is attached to his habeas petition (Dkt. No. 2).
For the reasons set forth below, Louis' petition should be DENIED.
FACTS
On February 7, 1999, Louis was involved in two incidents of alleged misconduct which led to the DOCS disciplinary proceeding challenged by Louis' habeas petition (see Louis Br. ¶¶ 5-7; Ex. A: First Misbehavior Report; Ex. B: Second Misbehavior Report; Ex. C: Unusual Incident Report). First Incident of Misconduct
At that time, Louis was incarcerated in Fishkill Correctional Facility serving a two and one-half to five year sentence for a 1996 conviction of fifth degree criminal possession of a controlled substance. (Dkt. No. 2: Louis Br. at 1, 6.) On July 22, 1998, while serving his original sentence for the controlled substance conviction, Louis was sentenced to an additional term of one and one-half to three years imprisonment in connection with a charge of "promoting prison contraband in the first degree." (Louis Br. ¶ 2.) On March 29, 2000, the Fourth Department affirmed Louis' prison contraband conviction. People v. Louis, 270 A.D.2d 837, 837, 705 N.Y.S.2d 541, 541 (4th Dep't 2000). (See also Louis Br. ¶ 3.) The controlled substance and prison contraband convictions are not the subject of Louis' present habeas petition.
Referenced exhibits are attached to the April 23, 2002 Affidavit of Assistant Attorney General Maria Filipakis "in Opposition to [Louis'] Petition for a Writ of Habeas Corpus." (Dkt. No. 10.)
On the morning of February 7, 1999, because of "a toilet blockage" in their cells, Louis and three other inmates, Leroy Webster, Joseph Williams and Gregory Williams, were placed together in the prison "bullpen," a holding area. (Ex. C: Unusual Incident ["U.I."] Report at 1; Ex. I: 2/17/99 Hearing Transcript ["Tr."] at 20, 79-81.) Ideally, the bullpen was supervised by a corrections officer ("C.O.") from a "'bubble' area" or "console" directly across from it, who would monitor bullpen activity via a video screen. (See Dkt. No. 9: State Br. at 2 n. 2; Tr. 38-41.) That morning, C.O. Straley was assigned to the console. (Tr. 39.) At around 10:45 a.m., C.O. Straley asked CO. Hernandez to relieve him so that he could use the bathroom. (Tr. 39.) While C.O. Hernandez was in the bubble with his "back . . . towards the bullpen," "letting [another] officer bringing some inmate in," he saw "[b]lood coming from [inmate Joseph William's] face. So [C.O. Hernandez] knew something had happened" in the bullpen. (Tr. 41.) Williams asked to see a nurse. (Tr. 46.) C.O. Hernandez "interviewed inmate Williams" who said that "inmate Webster and inmate Louis assaulted him inside the bullpen. Pushed him, kicked him and [that's] where he got slashed across the face." (Tr. 39.)
The Unusual Incident Report states:
Williams, Joseph, 97 A. 7686 was assaulted in the first floor bull pen by Webster. Leroy 96 B 2043 and Louis, Anthony 96 A. 5774. Webster first kicked Williams to the floor and then both Webster and Louis, who were in shackles at the time, continued the assault by hitting Williams with the handcuffs and waist chains. A fourth inmate William[s], Gregory 90 A. 4761 was in the bull pen was not involved in the assault. All four inmates were in the bull pen together because of a toilet blockage in cells A-1-14 A-1-15. Williams and William[s] occupied A-1-14 and Webster and Louis occupied A-1-15. [Joseph] Williams stated to Officer Hernandez that Webster and Louis assaulted him because of a previous incident with another inmate months ago. Sgt. Sisco was notified of the incident and showed Williams photos of the three other inmates in the bullpen with him. Williams identified Webster and Louis as the inmates that assaulted him. No staff eyewitnessed the assault. The video of the bull pen showed the assault and was held as evidence. [Correction] Officer Rizzo was the first Officer to the bullpen and was told Williams was bleeding.
It is undisputed that no DOCS staff witnessed the assault (Ex. C: U.I. Report at 1; Tr. 41, 46), but it is unclear which C.O. arrived on the scene first. C.O.s Straley and Rizzo both testified at the Disciplinary Hearing that they arrived first on the scene. (Tr. 47, 50.)
(Ex. C: U.I. Report at 1, emphasis added.)
C.O. Hernandez issued an "Inmate Misbehavior Report" charging Louis with violating 7 N.Y.C.R.R. § 270.2(B)(1)(i) (Rule 100.10) ("Inmates shall not assault, inflict or attempt to inflict bodily harm upon any other inmate.") and 7 N.Y.C.R.R. § 270.2(B)(6)(iii) (Rule 105.12) ("Inmates shall not engage or encourage others to engage in unauthorized organizational activities . . .", i.e., gang activities.):
[I]nmate Louis 96A5774 was identified by inmate Williams as being a member of the Bloods gang and one of the two inmates that assaulted and slashed him while he was waiting in the bull pen. Williams suffered two lacerations to the right side of the face requiring 57 stitches.
(Ex. A: First Misbehavior Report.) Second Incident of Misconduct
DOCS' disciplinary procedure consists of three tiers, defined in 7 N.Y.C.R.R. § 270.3. See Jamison v. Dee, 99 Civ. 5854, 2000 WL 502871 at *1 n. 1 (S.D.N.Y. Apr. 27, 2000), aff'd, 4 Fed. Appx. 81 (2d Cir. 2001). The most serious prison disciplinary charges are considered at Tier III hearings. 7 N.Y.C.R.R. Ch. V Part 254. At a Tier III hearing, the maximum penalty that may be imposed is "keeplock" or SHU confinement for a period of time limited only by the length of the inmate's sentence, as well as a loss of" good time credit" and privileges. 7 N.Y.C.R.R. § 254.7(a)(1). See Jamison v. Dee, 2000 WL 502871 at *1 n. 1; Jackson v. Johnson, 15 F. Supp.2d 341, 355 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Ruiz v. Selsky, 96 Civ. 2003, 1997 WL 137448 at *1 (S.D.N.Y. March 24, 1997) (Peck, M.J.). "Keeplock is a type of housing unit in New York prisons where the conditions are more restrictive than those of the general prison population. Prisoners may be placed in keeplock awaiting disciplinary or superintendent's hearings, pursuant to the disposition of such hearings, or awaiting transfer to another facility." Jamison v. Dee, 2000 WL 502871 at *1 n. 2; see also 7 N.Y.C.R.R. § 301.6(a). "[G]ood-time credits" make a prisoner "eligible for early release from incarceration." Jamison v. Dee, 2000 WL 502871 at *1.
The charges under Louis' First Misbehavior Report constituted "Tier III violations." (Ex. A: First Misbehavior Report; Tr. 1, 5, 7; see also 7 N.Y.C.R.R. § 270.2(B)(1)(i); 7 N.Y.C.R.R. § 270.2(B)(6)(iii).) A hearing held on a "Tier III" charge is known as a "Superintendent's Proceeding" while hearings on Tier I or II charges are simply "Disciplinary Hearings." (Tr. 27.) However, for convenience the Court will refer to Louis' Tier III Superintendent's Proceeding as a "disciplinary proceeding" or "disciplinary hearing."
Later the same day, at around 2:40 p.m., after Louis was returned to his cell, C.O. Conklin was "making rounds" and "heard a loud violent banging of [Louis's] cell door," that "went on for approximately two minutes [and] caused the other inmates on the gallery to become loud and unruly." (Ex. B: Second Misbehavior Report.) Louis was "banging on his cell door . . . because he demanded to clean his cell [which had a mess on the floor from the toilet overflow] immediately." (Id.) C.O. Conklin "informed inmate Louis that this type of behavior would not be tolerated, and that he would be allowed to clean his cell as soon as [the C.O.s] could get to it." (Id.) C.O. Conklin gave Louis a "direct order to stop banging," to which Louis "complied." (Id.). C.O. Conklin issued a misbehavior report to Louis for banging on his cell, charging Louis with engaging in "violent conduct" in violation of 7 N.Y.C.R.R. § 270.2 (B)(5)(ii) (Rule 104.11) and "creating a disturbance" in violation of 7 N.Y.C.R.R. § 270.2(B)(5)(iv) (Rule 104.13). This second incident was designated a Tier II violation (Ex. B: Second Misbehavior Report; Tr. 4;see also 7 N.Y.C.R.R. § 270.2(B)(5)(ii) (iv).)
Louis' Tier III Assistant
On February 8, 1999, Louis was served with notices that a Tier III disciplinary hearing was scheduled for February 17, 1999 for both incidents. (Ex. F: 2/8/99 Hearing Record Sheet.) That day, Louis filled out an "Assistant Selection Form" and chose Jane Cummings from a pre-printed list as his "Tier Assistant" "to assist [him] in connection with charges of misbehavior filed on 2-7-99." (Ex. D: Assistant Selection Form; Ex. E: Cummings 2/11/99 Notes.)
Under 7 N.Y.C.R.R. §§ 251-4.1(4) and 251-4.2, a petitioner who is confined in SHU pending a superintendent's hearing for a Tier III offense is entitled to an assistant whose "role is to speak with the inmate charged, to explain the charges to the inmate, interview witnesses and to report the results of his efforts to the inmate [and who] may assist the inmate in obtaining documentary evidence or written statements which maybe necessary." 7 N.Y.C.R.R. § 251-4.2. (See also Ex. D: Assistant Form.) Louis received assistance in connection with his Tier III charge, but not his Tier II charge. (Tr. 8-9, 27.)
Cummings met with Louis on February 9, 1999. (Ex. D: Assistant Form.) Louis asked that Cummings interview "as potential witnesses" C.O.s Hernandez and Straley. (Ex. D: Assistant Form.) Louis also requested "a copy of the U.I. report + Chapter 5 [7 N.Y.C.R.R. Ch. 5], + [Williams'] medical examination, [and] statement." (Ex. D: Assistant Form.) In addition, Louis "want[ed] to view the video [of the assault] + want[ed] [Cummings] to view the video + report to him [her] observations of the video." (Ex. D: Assistant Form.) Louis also wanted Cummings to "interview the victim, Williams [and] ask him his version of the incident" and wanted "to know the actual time of incident." (Ex. D: Assistant Form, handwritten notes on the back.) For "anything [Louis requested that] he can not obtain," Louis "want[ed] to know why" and asked that "the response [explaining why] be in writing." (Id.)
Cummings' notes detailing her efforts on Louis' behalf pursuant to Louis' requests provided:
Requests, Inmate Louis 96A5774 requested a copy of the U.I. report — I have attached the U.I. report to the assistant form. Inmate Louis requested a copy of Chapter 5 — I have attached a copy of Chapter 5 to the assistant form. Inmate Louis has requested a copy of the victim's medical examination —
Inmate Louis is not able to see inmate Williams['] medical examination report. [I]t is confidential information. . . .
Inmate Louis wants me J. Cummings . . . Tier assistant to view the video with the incident, to make any comments and observations and report back to him. . . .
Cummings' notes originally provided "Inmate Louis will have to take this [Cummings' viewing of the tape] up with the hearing officer. I am prohibited from viewing the video," but this was crossed off and was followed by Cummings' impressions after viewing the tape. (Ex. E: Cummings Notes at 1, 3.)
[Cummings viewed the tape and] observed two inmates go to the right handside of the bull pen and assault another inmate.
Inmate Louis wants to view the video of the incident — He will be able to view the video at the time of the hearing.
Inmate Louis wants to request inmate Williams as a potential witness — Inmate Williams has said no. Further inmate Louis requested that I ask inmate Williams for his version of the incident. Inmate Williams declined to give a statement, see U.I. report.
Inmate Louis has requested the actual time of the incident, as according to the U.I. report the time was 10:44 am.
. . . .
As requested by Inmate Louis . . . [Cummings] interviewed C.O. Hernandez on February 12, 1999. C.O. Hernandez gave [her] a brief statement in regards to the incident dated 2-7-99 involving Inmate Louis. The C.O. interviewed the victim Williams for his statement, as to what happened, Williams told C.O. Hernandez that he was assaulted by two inmates in the bull pen. C.O. Hernandez showed Williams 3 photos of the inmates inside the bullpen that were there at the time of the incident. Inmate Williams made a positive identification of Louis being one [of] his attacker[s] and Webster the other attacker.
2/16/99
As requested by inmate Louis [Cummings] interviewed C.O. Straley. C.O. Straley was watching the bullpen from the bubble, he stepped out of the bubble to use the bathroom (approx 2 mm he was away from his post). C.O. Hernandez was the relief for CO Straley in the bubble. While CO Straley was walking back to his post inmate Williams said I need to see a nurse because I'm bleeding. CO Straley notified Sergeant Sisco of the situation. CO Straley did say when inmate Williams was pulled from his cell [before being placed in the bull pen] there weren't any scratches or marks on his face.
2/11/99
As requested by inmate Louis 96A5774 he wanted a copy of the title 7 [N.Y.C.R.R. Ch. 5] annotations. I went to the Law Library at Fishkill Correctional Facility to get a copy for him. While I was there I saw he had his request in the process of being filled. I then left, since the Law Library clerks would be making the copy and sending to him the title 7 information he requested.
(Ex. E. Cummings 2/11 2/16 Notes at 1-3, emphasis added.) Louis' Tier III Disciplinary Hearing
Cummings' notes also were read into the record at the disciplinary hearing. (Tr. 18-20.)
Louis' Tier III disciplinary hearing was held before a state-wide hearing officer who was "not connected" with the "Correctional Facility," reports to "Supervisors up in [the] Central Office," and "conduct[s] hearings independently from any Correctional Facility." (Tr. 2.) See also 7 N.Y.C.R.R. § 254.1 ("The person appointed to conduct the superintendent's hearing shall be either the superintendent, a deputy superintendent, captain or commissioner s hearing officer employed by the department's central office. . . .").
Although the assault involved a Tier III charge, and the creating a disturbance incident involved a Tier II charge, both misbehavior "tickets" issued on February 7, 1999 were heard at the same hearing on February 17, 1999 "in the interest of time and energy." (Tr. 6-7.) Louis objected to this combination at the hearing. (See Tr. 4-13).
The hearing officer began the proceedings by informing Louis:
The entire proceeding is tape recorded. You have the right to call witnesses on your behalf. Nothing said by you during the course of this hearing can be used against you in any future criminal action.
Louis called as witnesses C.O. Straley (who was monitoring inmates from "the bubble"), C.O. Hernandez (the relief officer for C.O. Straley), Webster (the other inmate in the bullpen accused of participating in the assault), his Tier III assistant Cummings, and Nurse Weber (who treated Williams' injuries). (Tr. 3-4.) Louis was permitted to ask questions of the witnesses through the hearing officer. (See generally Tr.)
The hearing officer asked Louis if he wanted to call the victim, Williams, as a witness, but because Williams "refused to get interviewed by [Louis'] assistant," Louis did not "want him." (Tr. 3, 13-17.) The hearing officer explained to Louis that despite Williams' refusal to testify, Louis "could have . . . the Hearing Officer go further into it" (Tr. 13-15), but Louis responded "I don't care. I don't want to call him. He already refused me" (Tr. 14). Louis said that if the hearing officer wanted to call Williams that was up to the hearing officer, but that Louis did not want to call him. (Tr. 14-16.) The hearing officer later called Williams to testify at the hearing. (Tr. 50-60.)
(Tr. 1, emphasis added.) The hearing officer read the first misbehavior report (charging Louis with "assault[ing]" Williams) and the second misbehavior report (charging Louis with "violent conduct" and "creating a disturbance" for banging on his cell door) into the record. (Tr. 5-6; see also Ex. A: First Misbehavior Report; Ex. B: Second Misbehavior Report.) Louis pleaded "not guilty" to the assault, unauthorized organization, and violent conduct charges, and "guilty with explanation" to the creating a disturbance charge. (Tr. 26-27, 68; see also Ex. F: 2/8/99 Hearing Record Sheet ¶ 12.)
Louis admitted to banging on his cell door, but explained he did so because of how long he was kept locked in the cell with feces on the floor from the overflowing toilet. (Tr. 68-69.)
Louis asserted a multitude of objections throughout his hearing. (See pages 10-11, 18 n. 16 below; see also Tr. 33, 64-65.) Indeed, when the hearing began, Louis objected to the fact that the hearing officer had "knowledge of [the assault]" having presided over "inmate Webster's hearing" "five days ago," in which the hearing officer "called [Louis as] a witness." (Tr. 1.)
Webster was found guilty of "assault on [an] inmate." (Tr. 2.) At Louis' hearing, the hearing officer saw "no reason for excusing [him]self," explaining that finding Webster guilty "doesn't mean . . . that [the hearing officer has] found [Louis] guilty of the allegations." (Tr. 2.)
At the hearing, Louis alleged that Cummings' "assistance was defective" because he asked her to "do little things . . . and she had a hard time." (Tr. 22; see also Tr. 4-5.) Specifically, Louis argued that Cummings was unable to obtain "Title 7 [case] annotations" (7 N.Y.C.R.R. Ch. 5) which he believed "could help [him] out in this ticket." (Tr. 22-24.) Louis was belatedly presented with the annotations at the hearing, over his protest that "[i]t's too late for me to get the annotation" (i.e., too late for him to read them before the hearing). (Tr. 30-31, 66-67.) Further, Louis "asked her can [he] view the video tape" "[s]o [he] could prepare for [his] defense" and "[s]he said no." (Tr. 24.) Louis protested:
Louis also complained that she did not assist him on the Tier II charges, but the hearing officer correctly advised Louis that "[i]nmates are not entitled to assistance on Tier II" charges. (Tr. 8-9.)
The hearing officer told Cummings "for future reference" that "hearing assistan[ts] should sit down with the inmate and . . . see the tapes." (Tr. 31-32.)
[T]he assistant's not doing her job. She want to bring me something I asked her from yesterday. I said I'll sign you off soon as you go and get me this information I need. The uh, annotations. She told me I got it already. I just tried to talk to the lady. She told me I got it and walked off and signed herself off. But today she want to come in here and bring [with] her what I asked her [for] yesterday. We're in the middle of a hearing. How you going to bring me that? If you're in the middle of a hearing now? You signed yourself off. Your job is done once you walked away from my cell and decide to sign. I ain't signing off. She got fed up. So that's defective assistance. . . . I asked her yesterday. She made a mistake. . . . It was her job to get that and make sure I get it. She didn't get that and make sure I get it. She went there [to the library] and seen the paper that I had put in [requesting the case annotations] and thought I got it.
(Tr. 66-67.) The hearing officer found that Louis "was provided with adequate Tier Hearing Assistance in this case." (Tr. 33.)
Nurse Elizabeth Weber testified that she examined and treated the victim Williams on February 7, 1999 after he was attacked. (Tr. 34.) Williams had "2 to 3 lacerations to his face starting around the cheek area . . . and heading towards the ear" on "[t]he right side" of his face. (Tr. 34.) The wound required "over 55" stitches "was very serious" but "not life threatening." (Tr. 35.) As a result of the injury, "Williams will be scarred for the rest of his life." (Tr. 36.) According to Nurse Weber, "the injuries sustained were consistent with [that created by] a very sharp object as in a razor." (Tr. 36.)
No one who testified saw the attack on Williams. CO. Hernandez testified he "did not see anything" when the assault occurred because his "back was . . . towards the bullpen." (Tr. 40-41.) However, at one point CO. Hernandez saw "[b]lood coming from [Williams'] face. So [he] knew something had happened over there." (Tr. 40-41.) C.O. Hernandez testified that although Williams "was scared," C.O. Hernandez "showed [Williams] three pictures and [Williams] chose Louis and Webster as the two that assaulted him." (Tr. 39-40, 60-61.) According to C.O. Hernandez, Williams said "he was kicked and punched by both Webster and Louis." (Tr. 61-62.) Based on questions suggested by Louis, C.O. Hernandez testified that Williams did not specify who (as between Webster and Louis) actually slashed Williams. (Tr. 40, 61-62.)
Similarly, C.O. Straley did not see the attack, but saw "the aftermath" and Williams asked him "to see a nurse." (Tr. 46.) CO. Straley immediately called his supervisor, Sergeant Sisco, who arrived in "[a]pproximately" "40 seconds." (Tr. 46.)
The hearing officer viewed videotape of the assault at the hearing in Louis' presence and saw "[s]omething moving" but did not see much detail and then the tape "went blank." (Tr. 43-45; see also Tr. 59-60.) The entire assault did not take more than one minute. (Tr. 43-44.) Cummings' notes regarding her viewing of the videotape, which were read into the record, merely provided that "two inmates" attacked another inmate in the bullpen. (See pages 6-7 above; Tr. 18-19.)
The hearing officer called inmate Williams to testify. (Tr. 50.)
[HEARING OFFICER]: . . . I'm calling you as a witness. However, not in inmate Louis' presence. But, be advised that this conversation that you and I have . . . is going to be played back to inmate Louis. All right? On those basis I'm going to ask you the following questions. . . . The allegation is that you [were] assaulted on 2/7/99 approximately 10:45 to 11:00 a.m. In that range. In the bullpen. Downstairs. On the first floor. [Were] you assaulted?
"Because of the allegations" involved, the hearing officer explained to Louis that it would be "a breach to security" if Williams were to be in the hearing room "at the same time" as Louis, and Louis therefore was removed from the hearing room before Williams was brought in. (Tr. 51, 53.) However, the hearing officer permitted Louis to suggest questions to ask Williams, and Williams' taped testimony was "played back to inmate Louis." (Tr. 51-53.)
WILLIAMS: That's correct.
[HEARING OFFICER]: Okay. And the allegation further goes to say that it was inmate Louis, one of the persons who allegedly assaulted you. Now do you recall that incident, sir?
WILLIAMS: No.
[HEARING OFFICER]: You don't recall being assaulted?
WILLIAMS: Yeah, but I don't know uh, inmate Louis was involved.
[HEARING OFFICER]: You don't know if he was involved?
WILLIAMS: Yeah.
[HEARING OFFICER]: Okay. Uh, is it true that you later on was shown, uh, pictures of uh, the other three inmates in the bullpen at the time with you?
WILLIAMS: Yeah.
[HEARING OFFICER]: And is it true that you picked inmate Louis as one of the persons who allegedly assaulted you?
WILLIAMS: No.
[HEARING OFFICER]: No, you didn't? I got a whole bunch of questions here that inmate Louis wants me to ask you. I'm going to go through the questions. First question is did you state anything to . . . Lt. Buonato [who is] the person, the Watch Commander at the time, who wrote the U.I. of the incident. Do you recall speaking to that Lieutenant?
WILLIAMS: No.
[HEARING OFFICER]: No?
WILLIAMS: No.
[HEARING OFFICER]: Okay. Second, so you didn't say nothing to a Lieutenant? Because you didn't speak to him?
WILLIAMS: Yeah.
[HEARING OFFICER]: Okay. So the answer is nothing. Second question. Who . . . showed you the . . . the pictures of . . . the other three inmates? In the bullpen?
WILLIAMS: I believe uh, Officer Hernandez.
. . . .
[HEARING OFFICER]: What role did [Louis] play in your assault? In the assault on you? What was his role?
WILLIAMS: To be honest, I don't know.
[HEARING OFFICER]: You don't know is the answer. Okay. How did you get assaulted? Explain to me. [Louis is] asking it.
WILLIAMS: I got 57 stitches on the left side of my face. [HEARING OFFICER]: Is that why you're turning your face to the right side to me? . . .
. . . .
[T]here's [a scar] about five to six inches long. Perhaps more. About seven inches perhaps. The middle of the cheek to the back of your neck. How about the other one . . . next to your ear? Did you receive that injury as well in the, in this incident? Huh?
WILLIAMS: Yeah.
[HEARING OFFICER]: So you got assaulted?
WILLIAMS: That's correct.
[HEARING OFFICER]: Did you, did you bleed?
WILLIAMS: Yeah.
[HEARING OFFICER]: All right. There were three inmates in the bullpen at the time with you. Is that correct?
WILLIAMS: Four including myself.
[HEARING OFFICER]: Four including yourself.
WILLIAMS: Yeah.
. . . .
[HEARING OFFICER]: Of . . . Webster and Louis, do you recall if any of them assaulted you? Any of the two?
WILLIAMS: In which way?
. . . .
[HEARING OFFICER]: If any have to do anything with . . . your assault? With the assault on you? . . . Webster or Louis? Any of the two? Did they have anything to do with, with the assault on yourself? On your person?
WILLIAMS: Somebody had to do it. I got cut right?
[HEARING OFFICER]: Well that sounds logical. Yes. But do you recall who of these two individuals, Webster, Louis or the two?
WILLIAMS: I can't really judge that.
[HEARING OFFICER]: Could you tell me why not?
WILLIAMS: I was face down towards the ground.
[HEARING OFFICER]: You was face down when you was assaulted?
WILLIAMS: Yeah. I was facing the ground.
[HEARING OFFICER]: And why was you facing down?
WILLIAMS: I had fell to my knees and . . . I think one kicked me in my face.
[HEARING OFFICER]: One kicked you in your face and you fell to the, to the ground?
WILLIAMS: Yeah.
[HEARING OFFICER]: Okay. So you didn't see anything after that? After you got kicked to the ground?
WILLIAMS: Yeah.
[HEARING OFFICER]: And do you know who kicked you to the ground?
WILLIAMS: No.
[HEARING OFFICER]: And you do not know how you sustained those injuries?
WILLIAMS: No.
[HEARING OFFICER]: You don't know? So all you know is that you got kicked to the ground? And then following that the injuries. Did it feel like somebody slashed you?
WILLIAMS: No, I didn't feel it.
[HEARING OFFICER]: You didn't feel it. Did you feel the bleeding?
WILLIAMS: Yeah.
[HEARING OFFICER]: Okay. Did it happen right after they [Louis and Webster] came to the bullpen?
WILLIAMS: Yeah.
[HEARING OFFICER]: Has there been any bad blood between either you and uh, Webster or and you and Louis?
WILLIAMS: No.
[HEARING OFFICER]: No? Do you know if any, if either or Louis or Webster had . . . any reason to assault you?
WILLIAMS: That I can't recall.
[HEARING OFFICER]: Did you tell anybody that . . . Louis was a Blood? Meaning an [un]authorized gang.
WILLIAMS: I don't know.
[HEARING OFFICER]: You don't know?
WILLIAMS: I don't know.
. . . .
[HEARING OFFICER]: Why did you refuse to be a witness on behalf on inmate Louis?
WILLIAMS: I was never called to a hearing for inmate Louis.
[HEARING OFFICER]: Never called? To be a witness? Do you recall being approached by [Inmate Assistant] Mrs. Cummings? . . .
WILLIAMS: No.
[HEARING OFFICER]: No? Inmate assistant never came to talk to you?
WILLIAMS: No.
[HEARING OFFICER]: . . . Now I got a couple of questions. Are you hiding anything from me?
WILLIAMS: Such as what?
[HEARING OFFICER]: Such as who assaulted you?
WILLIAMS: No.
. . . .
[HEARING OFFICER]: And did you tell Officer Hernandez uh, who you identified as uh, your assailants?
WILLIAMS: Yes.
[HEARING OFFICER]: Who did you [identify]?
WILLIAMS: Uh, Webster.
[HEARING OFFICER]: Webster only?
WILLIAMS: Yeah. I seen Webster.
[HEARING OFFICER]: Not Louis though?
WILLIAMS: I can't recall that.
[HEARING OFFICER]: You can't recall if you t[old] Officer Hernandez if Louis was uh, of the assailants?
WILLIAMS: Yes.
. . . .
I can't recall.
[HEARING OFFICER]: Can't recall. But it's possible though.
WILLIAMS: Yeah it's possible.
. . . .
[HEARING OFFICER]: So, let me, let me go back. [You got] kick[ed] to the ground out of the clear blue?
WILLIAMS: Yeah.
(Tr. 53-59.)
The fourth inmate in the bullpen, Gregory Williams, was the cellmate of victim Joseph Williams. (Tr. 77.) Gregory testified that on February 9, 1999, Joseph Williams suddenly yelled "You got a man in here bleeding," at which point Gregory "look[ed] up" and noticed that Joseph Williams was injured. (Tr. 75.) Gregory testified he "seen a lot of things out of the ordinary" about Joseph Williams while he was living with him. (Tr. 77). For example, Gregory testified that Williams would "say things to [him]self. Ask questions and then answer them. . . . Stuff like that." (Tr. 77.) Gregory testified that Louis did not assault or cut Joseph Williams. (Tr. 76.) The hearing officer also asked Gregory questions (to which Louis objected) regarding a scar on Gregory's face. Disciplinary Disposition
[HEARING OFFICER]: I see a scar on your face. Did it happen a long time ago[?]
[G.] WILLIAMS: A very long time ago.
[HEARING OFFICER]: Yeah. What was your reaction to that scar?
. . . .
[G.] WILLIAMS: [T]he guy that did it just started fighting. You know.
[HEARING OFFICER]: The two of you only? Uh, the two of you alone?
There was nobody else around? At the time I mean?
[G.] WILLIAMS: No.
. . . .
They were all occupied.
[HEARING OFFICER] You think that the other people noticed that?
. . . .
[G.] WILLIAMS: Yeah, 'cause it was, it was a big commotion back here.
. . . .
LOUIS: Excuse me, sir. I don't see uh, how that was relevant what you just asked. . . .
(Tr. 77-78.)
The hearing officer found Louis guilty of assault, violent conduct and creating a disturbance, and not guilty of unauthorized organization. (Ex. F: Hearing Disposition Penalty; Tr. 85-86.) The hearing officer sentenced Louis to 144 months of "keeplock," "loss of packages," "loss of commissary," "loss of phone," and "loss of good time." (Ex. F: Hearing Disposition Penalty; Tr. 86.) The hearing officer explained the reasons for his decision:
Statement of Evidence Relied Upon: Misbehavior report by Officer Hernandez in that on 2/7/99 at approximately 11:00 a.m. you were in violation of Rules 100.10 Assault on Inmate in the following manner, and I quote, "you, inmate Louis 96-A-5774 was identified by inmate Williams as being one of the two inmates that assaulted and slashed him while he was waiting in the bullpen. Williams suffered two lacerations to the right side of the face requiring 57 stitches." End of the quote. We saw the videotape of the incident. The videotape shows an inmate kicking another who fell on the floor and the two others rushing at him. It was at about 10:44 a.m. Inmate Williams 90-A-4761 was not identified by anybody as being the aggressor. The evidence clearly establishes inmate Williams 97-A-7686 was badly assaulted. Two other inmates assaulted Williams 97-A-7686. You had to be one of the two. One of them two, correction. Officer Hernandez testified Williams 97-A-7686 identified you as one of the assailants. We saw the photograph shown to Williams 97-A-7686 to identify you as one of assailants. This act of assault was done in concert and you was one of the two assailants. Williams 97-A-7686 suffered injuries, which will leave a mark in him, on him, correction, for the rest of his life. You introduced into evidence the U.I of the incident which also corroborates the assault. Officer Hernandez stated he used 11:00 a.m. as the time of the incident as this was the time inmate Williams 97-A-7686 accused you of one of the assailants. Your witnesses Webster and Williams 90-A-4761 established a possible motive for the assault. At least the straw that broke the camel's back. . . . Part B, Reason for Disposition: Assault on inmate, 57 stitches on the fac[e] to leave a permanent mark, pose a very serious threat to the safety and the security of the facility. So do Creating a Disturbance and Violent Conduct. Your record has two prior Creating a Disturbance. This disposition is being imposed upon you in hopes it will deter you from behaving in a similar manner in the future.
(Tr. 86-87, emphasis added; see also Ex. F: 2/17/99 Hearing Disposition at 2.)
As to the Tier II charge, the hearing officer concluded:
Statement of Evidence Relied Upon: Misbehavior Report by Sgt. Conklin in that on 2/7/99 at approximately 2:40 p.m. you were in violation of rules 104.111 Violent Conduct and 104.13 Creating a Disturbance in the following manner and I quote, "I heard a loud violent banging of a cell door. Caused other inmates on the gallery to become loud and unruly. He, my parenthesis, (Louis, Anthony 96-A-5774) was given a direct order to stop banging to which he complied to." End quote. You pleaded guilty with an explanation to Creating a Disturbance and gave an explanation for your actions. Sgt. Conklin testified that banging, that the banging, correction, was so loud that it was violent in nature.
(Tr. 87.)
Louis administratively appealed the disposition and on April 22, 1999 his penalty was reduced to 72 months of "keeplock," "loss of packages," "loss of commissary," "loss of phone," and "loss of good time." (Ex. F: Hearing Disposition Penalty, indicating modified sentence; Ex. G: Appeal Decision.)
Louis' Proceedings in State Court
On or about June 30, 1999, Louis filed an Article 78 proceeding in New York State Supreme Court, Dutchess County, to overturn the Tier III determination and punishment. (See Dkt. No. 7: Louis Habeas Docs.: Article 78 Pet.; Dkt. No. 15: Louis v. Goord, No. 2842/99, slip op. at 1-2 (Sup.Ct. Dutchess Co. Oct. 29, 1999).) In his Article 78 petition, Louis argued that:
the penalty imposed is harsh and severe; that he was deprived his due process right to the effective assistance of inmate assistance; that there was insufficient substantial evidence in support of the determination finding him guilty of inmate rule violation 100.10 (Assault on Inmate); and, that he was denied his due process right to review the video tape, which would've showed that he had nothing to do with the incident.
(Dkt. No. 7: Louis Docs.: Louis Article 78 Aff at 2; see also Dkt. No. 7: Louis Habeas Docs.: Louis Article 78 Pet. at 7-11.)
On October 29, 1999, the Supreme Court, Dutchess County, transferred Louis' Article 78 proceeding to the Appellate Division, Second Department, pursuant to CPLR §§ 7803 and 7804(g) because "[t]he issue of whether, after a hearing, the determination of[DOCS] is supported by substantial evidence is an issue that requires the transfer of this case to the Appellate Division." (Louis v. Goord, No. 2842/99, slip op at 1, 3 (Sup.Ct. Dutchess Co. Oct. 29, 1999).)
CPLR § 7803 provides:
The only questions that may be raised in a proceeding under this article are:
1. whether the body or officer failed to perform a duty enjoined upon it by law; or
2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or
3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or
4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.
CPLR § 7804(g) provides:
Hearing and determination; transfer to appellate division. Where the substantial evidence issue specified in question four of section 7803 is not raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue. If the determination of the other objections does not terminate the proceeding, the court shall make an order directing that it be transferred for disposition to a term of the appellate division held within the judicial department embracing the county in which the proceeding was commenced. When the proceeding comes before it, whether by appeal or transfer, the appellate division shall dispose of all issues in the proceeding, or, if the papers are insufficient, it may remit the proceeding.
On June 13, 2000, the Second Department summarily dismissed Louis' case "[p]ursuant to 22 NYCRR 670.8(h)" because he "failed to perfect [his] appeal within the time limitations specified in subdivision (e) of section 670.8 of the rules of this court." (See Dkt. No. 16: In re Matter of the Dismissal of Causes for Failure to Perfect — May 2000 Calendar at 11 (2d Dep't June 13, 2000); Dkt. No. 7: Louis Habeas Docs.: 2d Dep't 8/31/02 Clerk's Office Letter to Louis.) Louis was not served with a copy of the Second Department's June 13, 2000 dismissal order until August 27, 2001 (Dkt. No. 7: Louis Habeas Docs.: 2dDep't 8/27/01 Postmarked Envelope), although he requested it several times (see Dkt. No. 7: Louis Habeas Docs.: Louis 8/11/00, 10/3/00, 1/16/01 8/21/01 Letters to 2d Dep't).
22 N.Y.C.R.R. §§ 670.8(e) (h) provide:
(e) Notwithstanding any of the provisions of this Part, a civil appeal, action, or proceeding shall be deemed abandoned unless perfected:
(1) within six months after the date of the notice of appeal, order granting leave to appeal, or order transferring the proceeding to this court; or
(2) within six months of the filing of the submission with the county clerk in an action on submitted facts pursuant to CPLR 3222, unless for good cause shown an order shall have been entered on motion, extending the time to perfect. The clerk shall not accept any record or brief for filing after the expiration of such six-month period.
. . . .
(h) The clerk shall periodically prepare a calendar of all civil causes which have been ordered to be perfected by a date certain and which have not been perfected and a calendar of all civil causes which have been assigned an Appellate Division docket number and have not been perfected within the time limitations set forth in subdivision (e) of this section. Such calendars shall be published in the New York Law Journal for five consecutive days. Upon the failure of the appellant to make an application to enlarge time to perfect within 10 days following the last day of publication, an order shall be entered dismissing the cause.
Louis' Present Federal Habeas Corpus Petition
Louis' federal habeas corpus petition is dated September 10, 2001 and was received by this Court's Pro Se office on September 20, 2001. (Dkt. No. 2: Pet. at 1 last page, attached Louis Aff. of Service.) Louis alleges that his due process rights were violated because (1) he "was found guilty" of assaulting another inmate, violent conduct and creating a disturbance "without any substantial evidence to support [the] hearing officer's findings" (Dkt. No. 2: Louis Br. at 6-11) and the hearing officer "considered evidence outside of the four corners of the superintendent[']s hearing record" (Louis Br. at 14-18); and (2) he received "inadequate Inmate Assistance" (Louis Br. at 11-14).
The State argues that Louis' petition is barred by the Antiterrorism and Effective Death Penalty Act ("AEDPA") one-year statute of limitations. (Dkt. No. 9: State Br. at 8-9.)
The Second Department dismissed Louis' case on June 13, 2000. See above.) However, while the record indicates that Louis became aware of the Second Department's disposition by October 2000 (see Louis Habeas Docs.: Louis 10/3/00 Letter to 2d Dep't), he was not sent a copy of the order until August 27, 2001 (Dkt. No. 2: Louis Br. ¶ 20; Dkt. No. 7: Louis Docs.: 8/27/01 Postmarked Envelope from 2d Dep't.). This Court need not determine whether Louis' petition was timely because, as discussed below, Louis' petition fails on the merits.
The State also argues that Louis' petition is barred by an adequate and independent state ground, to wit, dismissal of his Article 78 proceeding for failure to timely perfect the appeal. (State Br. at 9-12.) Louis contended (Louis Br. ¶ 19) and the State appears to agree that the Second Department dismissed his transferred Article 78 proceeding for failure to pay the filing fee. (See State Br. at 10-11.) But when Louis originally filed his Article 78 proceeding, he sought "poor person" status (Dkt. No. 7: Louis Habeas Docs.: Cover Letter and Aff. in Support of Motion to Proceed as a Poor Person.) Moreover, the actual Second Department order indicates only that the dismissal is for failure to perfect the appeal. (See pages 22-23 above.) In light of the confusion and lack of clarity as to the State court record, and since the Court denies the petition on the merits, the Court will not further address the State's claim that the petition is barred by an adequate and independent state ground.
On May 8, 2002 Louis also filed a motion for the appointment of counsel pursuant to 18 U.S.C. § 3006A(g). (Dkt. No. 13; see also Dkt. No. 14: Louis 5/3/02 Br. ¶ 15.) Because the Court finds that Louis' petition lacks merit, the Court denies his request for appointment of counsel.
ANALYSIS
I. LOUIS' DUE PROCESS CLAIMS LACK MERIT A. Legal Standard for Habeas Review of Prison Disciplinary ProceedingsThe State concedes that Louis' loss of good-time credits involved a "liberty interest protected by the Due Process Clause." (Dkt. No. 9: State Br. at 12.) It is well-established that an inmate can challenge the loss of good-time credits as a result of a prison disciplinary proceeding only by a habeas corpus petition See e.g., Edwards v. Balisok, 520 U.S. 641, 646-48, 117 S.Ct. 1584, 1588-89 (1997) (§ 1983 damage claim does not lie where prison disciplinary proceeding results in loss of good-time credits); Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841 (1973) (habeas corpus is the exclusive remedy when a state prisoner seeks "a speedier release from . . . imprisonment"); Carmona v.United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (federal inmate's challenge to prison disciplinary proceeding that resulted in loss of good-time credits properly brought as writ of habeas corpus pursuant to 28 U.S.C. § 2241); Jamison v. Dee, 99 Civ. 5854, 2000 WL 502871 at *2 (S.D.N.Y. Apr. 27, 2000), aff'd, 4 Fed. Appx. 81 (2d Cir. 2001); cf. Jenkins v. Haubert, 179 F.3d 19, 27 (2d Cir. 1999) (petitioner challenging prison disciplinary sanction other than loss of good-time credits may bring a § 1983 action); Jackson v. Johnson, 15 F. Supp.2d 341, 347-50, 357-60 (S.D.N.Y. July 23, 1998) (Kaplan, D.J. Peck, M.J.) (same).
"Although the 'due process requirements for a prison disciplinary hearing are in many respects less demanding than those for criminal prosecutions,' the Fourteenth Amendment guarantees prisoners certain minimum rights." Simon v. Selsky, 99 Civ. 5747, 2002 WL 1205737 at *4 (S.D.N.Y. Mar. 12, 2002) (quoting Edwards v. Balisok, 520 U.S. 641, 647, 117 S.Ct. 1584, 1588 (1997)). Specifically, with respect to a disciplinary hearing involving a liberty interest, due process requires: (1) "advance written notice of the charges"; (2) the opportunity "to call witnesses and present documentary evidence" ("[s]ubject to legitimate safety and correctional goals of the institution"); (3) that the inmate be judged by a "fair and impartial hearing officer"; and (4) that the disciplinary conviction be in writing, listing the "reasons for the disciplinary action taken," and "be supported by at least 'some evidence.'" Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir. 1999);see also, e.g., Superintendent v. Hill 472 U.S. 445, 454-56, 105 S.Ct. 2768, 2773-74 (1985); Wolff v. McDonnell, 418 U.S. 539, 563-567, 94 S.Ct. 2963, 2978-80 (1974); Johnson v. Mueller, No. 00-262, 9 Fed. Appx. 60, 62-63, 2001 WL 514298 at *2 (2d Cir. May 15, 2001); Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000); McCann v. Coughlin, 698 F.2d 112, 121-22 (2d Cir. 1983); Espinal v. Goord, 180 F. Supp.2d 532, 537-38 (S.D.N.Y. 2002); Simon v. Selsky, 2002 WL 1205737 at *4. In addition, in certain circumstances — such as when an inmate is in SHU or keeplock, as Louis was here (Tr. 5-6) — an inmate facing a disciplinary hearing at which a protected liberty interest is at stake must be assisted in presenting a defense by a prison staff member or fellow inmate See e.g., Wolff v. McDonnell, 418 U.S. at 570, 94 S.Ct. at 2982; Ayers v. Ryan, 152 F.3d 77, 80-81 (2d Cir. 1998); Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993); Eng v. Coughlin, 858 F.2d 889, 897-98 (2d Cir. 1988); see pages 32-33 below.
Confrontation and cross-examination, however, are not required.See, e.g, Wolff v. McDonnell, 418 U.S. at 567-69, 94 S.Ct. at 2980-81;see fn.25 below.
Finally, prison disciplinary hearings are subject to harmless error analysis:
If a person may be convicted and obliged to serve a substantial prison sentence notwithstanding a constitutional error determined to be harmless, . . . surely the conditions of confinement of a sentenced prisoner may be made temporarily more severe as discipline for a prison rules infraction despite a harmless error in adjudicating the violation.Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir. 1991) (§ 1983 action); accord, e.g., Dullen v. McBride, No. 00-4278, 27 Fed. Appx. 607, 610, 2001 WL 1222433 at *3 (7th Cir. Oct. 9, 2001) (applying harmless error analysis to prison disciplinary proceeding involving loss of good-time credits); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1110-11 (S.D.N.Y. 1995) (Sotomayor, D.J. Peck, M.J.) (prison hearing officer's failure to obtain testimony from certain witnesses was harmless error).
B. Application to Louis' Prison Disciplinary Hearing 1. The Evidence Supported the Hearing Officer's Disposition
Louis argues that he was deprived of"substantive and procedural due process of law" because he "was found guilty of Tier III charges and penalized . . . with six years keeplock confinement, loss of good time credits . . . without any substantial evidence to support [the] hearing officer's findings." (Dkt. No. 2: Louis Br. at 6-11.)
When reviewing disciplinary proceedings involving a liberty interest, the relevant inquiry is whether there was "some evidence" supporting the findings of the hearing officer. E.g., Superintendent v. Hill 472 U.S. 445, 454-56, 105 S.Ct. 2768, 2773-74 (1985); Gaston v. Coughlin, 249 F.3d 156, 163 (2d Cir. 2001); Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir. 1999); Simon v. Selsky, 99 Civ. 5747, 2002 WL 1205737 at *4 (S.D.N.Y. Mar. 12, 2002); Jackson v. Johnson, 15 F. Supp.2d 341, 350 (S.D.N.Y. 1998); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1104-05 (S.D.N.Y. 1995) (Sotomayor, D.J. Peck, M.J.). "[T]he relevant question is whether there is any evidence in the record that could support the conclusion reached by the" hearing officer. Superintendent v. Hill 472 U.S. at 455-56, 105 S.Ct. at 2774; accord, e.g., Gastonv. v. Coughlin, 249 F.3d at 163;Zavaro v. Coughlin, 970 F.2d 1148, 1149 (2dCir. 1992); Espinal v.Goord, 180 F. Supp.2d at 539; Simon v. Selsky, 2002 WL 1205737 at *4;Zamakshari v. Dvoskin, 899 F. Supp. at 1105.
The Supreme Court's decision in Superintendent v. Hill 472 U.S. 445, 105 S.Ct. 2768 (1985), is particularly apt. In Hill, a prison guard testified that he
opened the door to the walkway and found an inmate named Stephens bleeding from the mouth and suffering from a swollen eye. Dirt was strewn about the walkway, and [the guard] viewed this to be further evidence of a scuffle. He saw three inmates, including respondents, jogging away together down the walkway. There were no other inmates in the area, which was enclosed by a chain link fence. [The guard] concluded that one or more of the three inmates had assaulted Stephens and that they had acted as a group. [The guard] also testified at [the disciplinary] hearing that a prison "medic" had told him that Stephens had been beaten. Hill and Crawford each declared their innocence before the disciplinary board, and Stephens gave written statements that the other inmates had not caused his injuries.Id. at 447-48, 105 S.Ct. at 2770; see also id. at 456, 105 S.Ct. at 2774. The Supreme Court found that the prison disciplinary board had not violated due process in finding the two respondents guilty of the assault:
Ascertaining whether [the due process] 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. . . .
Turning to the facts of this case, we conclude that the evidence before the disciplinary board was sufficient to meet the requirements imposed by the Due Process Clause. . . . That evidence indicated that the guard heard some commotion and, upon investigating, discovered an inmate who evidently had just been assaulted. The guard saw three other inmates fleeing together down an enclosed walkway. No other inmates were in the area. The [state court] found that this evidence was constitutionally insufficient because it did not support an inference that more than one person had struck he victim or that either of the respondents was the assailant or otherwise participated in the assault. . . . This conclusion, however, misperceives the nature of the evidence required by the Due Process Clause.
The Federal Constitution does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board. Instead, due process in this context requires only that there be some evidence to support the findings made in the disciplinary hearing. Although the evidence in this case might be characterized as meager, and there was no direct evidence identifying any one of three inmates as the assailant, the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary.Id. at 455-57, 105 S.Ct. at 2774-75; see also, e.g., Simon v. Selsky, 2002 WL 1205737 at *4-5.
Cf., e.g., Zavaro v. Coughlin, 970 F.2d at 1152 ("Whereas theHill inmates were observed in an enclosed walkway, Zavaro was observed in a large mess hail. In comparison to the three inmates in Hill, Zavaro was in a room with at least one hundred inmates. . . . Were the number of inmates fewer and the enclosed area far smaller, then perhaps witnesses' statements that 'every inmate' participated in the riot would constitute 'some evidence' of a particular inmate's guilt, within the meaning ofHill.").
The evidence offered here in support of the hearing officer's finding was stronger than the "meager" evidence found sufficient in Hill. An inmate is guilty of violating Rule 100.10 if it is shown that he "assault[ed], inflict[ed] or attempt[ed] to inflict bodily harm upon any other inmate." 7 N.Y.C.R.R. § 270.2(B)(1)(i). There were four inmates in the bullpen — Louis, the victim Joseph Williams, Joseph's cell-mate Gregory Williams, and Webster. (See pages 2, 19-20 above.) The videotape showed "two inmates go to the right handside of the bull pen and assault another inmate." (See pages 19-20 above; Ex. B; Tr. 19.) While the videotape was admittedly unclear, it is undisputed that inmate Joseph Williams was injured and that his cell-mate, Gregory Williams, was not involved in the incident. See pages 19-20 above.) By process of elimination, the only two remaining inmates, Louis and Webster, must have been the assailants. Similarly, in Hill, the perpetrators of the assault were identified based on their presence in an enclosed area with the victim. 472 U.S. at 456, 105 S.Ct. at 2774.
Both at the hearing (e.g., Tr. 65-66) and in his habeas petition (Dkt. No. 2: Louis Br. at 6, 11), Louis argues that there was no evidence he slashed Williams. Louis was charged with and found guilty of "assault" on another inmate (see pages 19-20 above), and there was sufficient evidence from the videotape itself that Louis kicked Williams, constituting assault, regardless of whether Louis also slashed Williams.
Further, here CO. Hernandez testified at the hearing that soon after the attack, which left Williams' face scarred for life, Williams identified Louis and Webster as the attackers. Although Williams testified at Louis' disciplinary hearing that he "didn't know" who attacked him, Williams' testimony was evasive and the hearing officer obviously did not credit it. At one point Williams testified he did not know who attacked him, then he admitted that he had previously identified Webster as his attacker, and then admitted that it was "possible" that he identified Louis as one of his attackers as well. (See pages 12-18 above.) This conflicting testimony required a credibility determination, and "a hearing officer's resolution of a conflict that involves a determination of witness credibility is accorded particular deference." Simon v. Selsky, 2002 WL 1205737 at *5. Indeed, while victim Williams here recanted his earlier statement that Louis attacked him inHill the victim unequivocally stated that Hill had not caused the victim's injuries, Supervisor v. Hill 472 U.S. at 448, 105 S.Ct. at 2770, but the Supreme Court nevertheless upheld the disciplinary finding of Hill's guilt. (See page 28 above.)
Such hearsay is admissible in a disciplinary proceeding. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 567-68, 94 S.Ct. 2963, 2980 (1974) (confrontation and cross-examination are generally not required in the prison hearing context); Kalwasinski v. Morse, 201 F.3d at 109 ("It is not a violation of due process at a disciplinary hearing to take the testimony of a witness outside the presence of an inmate. Nor does an inmate have a constitutional right of confrontation.") (citations omitted); Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993) ("an inmate has no constitutional right of confrontation"); Espinal v. Goord, 01 Civ. 6569, 2002 WL 1585549 at *1 (S.D.N.Y. July 17, 2002) ("for a prison disciplinary hearing to satisfy this element of due process, a decision adverse to a prisoner merely must have been supported by 'some evidence,' whether hearsay or otherwise"); Moore v. Selsky, 900 F. Supp. 670, 674-75 n. 2 (S.D.N.Y. 1995) (reliance on hearsay letter at prison hearing did not violate due process), aff'd, 101 F.3d 683 (2d Cir. 1996); see also Rodriguez v. Ghoslaw, 98 Civ. 4658, 2001 WL 755398 at *9 (S.D.N.Y. July 5, 2001) ("Procedures established by the New York Department of Correctional Services governing disciplinary hearings comport with due process procedural rights to which prison inmates are entitled."). Indeed, the Second Circuit has held that in a prison disciplinary hearing, due process "may be met even where the only evidence was supplied by a confidential informant?? who did not testify at the hearing "'as long as there has been some examination of indicia relevant to [the informant's] credibility.'" Gaston v. Coughlin, 249 F.3d at 163; accord, e.g., Espinal v. Goord, 180 F. Supp.2d at 540. Here, by contrast, there was no "informant" — the hearing officer heard direct testimony from both the victim, Williams, and CO. Hernandez, and was able to gauge the reliability of Williams' out-of-court statement to C.O. Hernandez.
Williams' decision to recant his earlier accusation is hardly surprising, given the violent realities of prison life, and the fact that he had already been attacked by the inmates against whom he would have to testify. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 2980 (1974) ("Prison officials must have the necessary discretion to . . . refuse to call witnesses that may create a risk of reprisal. . . ."); Freeman v. Rideout, 808 F.2d 949, 953-54 (2d Cir. 1986) (a hearing officer need not call an inmate victim who has refused to testify based on fear of reprisal), cert. denied, 485 U.S. 982, 108 S.Ct. 1273 (1988). One can easily imagine Williams identifying his attackers in the excitement immediately following the attack, but later deciding to recant after reflecting upon the clear danger of reprisal. Moreover, aside from the danger of reprisal from Louis, Williams would reasonably fear reprisal from the general prison population if he testified and thus became known as a "snitch" See e.g., Noguera v. Hasty, 99 Civ. 8786, 2000 WL 1011563 at *9 n. 20 (S.D.N.Y. July 21, 2000) (Peck, M.J.) ("As Warden Reish candidly conceded here, being labeled a snitch '[i]n a prison . . . can get you killed.'"), report rec. adopted in part by 2001 WL 243535 (S.D.N.Y. Mar. 12, 2001) (Wood, D.J.); Watson v.McGinnis, 964 F. Supp. 127, 131-32 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.) ("a guard's intentionally calling a prisoner a snitch in order to cause him harm by other inmates states an Eighth Amendment excessive force claim.") (citing cases).
Similarly, in Crusoe v. O'Leary, No. 85 C 4205, 1986 WL 4184 at *1, 3 (N.D. Ill. Mar. 23, 1986), a § 1983 action, the court found no violation of due process where a prison disciplinary conviction was basedsolely on the victims' subsequently-recanted hearsay identification:
The record reveals a conflict in [the victim's] accounts of the assault. On the one hand, the disciplinary committee had evidence that [the victim] identified [petitioner] as the inmate who ordered the attack upon him. These statements were made both immediately following the attack and several days thereafter. In contrast to this evidence, [petitioner] introduced an affidavit [the victim] made almost a month after the attack disclaiming [petitioner's] involvement in the assault. [Petitioner] submitted further evidence to prove that [the victim] had made the affidavit voluntarily. The issue confronting the disciplinary committee was thus one of credibility. The disciplinary committee . . . chose to believe the statements [the victim] had made contemporaneously with the assault. Although the evidence [petitioner] produced directly contradicted that relied on by the disciplinary committee, nothing required the disciplinary committee to give preferential weight to the evidence he submitted. Officials could reasonably infer that outside pressure influenced [the victim] to recant the identification he made at the time of the incident. Because the disciplinary committee had some evidence to support its decision, [petitioner] challenge to the evidentiary sufficiency of the committee's findings is without constitutional merit.Id. at *3; see also, e.g., Hutchinson v. Blaetz, 94 Civ. 3695, 1996 WL 374164 at *2, 5 (S.D.N.Y. July 1, 1996) (§ 1983 action; evidence supporting conviction at prison disciplinary hearing found sufficient for due process, even though victim "apparently recanted his earlier identification of Plaintiff as one of his assailants and testified that Plaintiff did not assault him").
Louis also alleges that he suffered "prejudice" from: (1) the combination of his Tier II and Tier III offenses into one hearing that served "to depict petitioner as a violent person"; and (2) the hearing officer's consideration of "irrelevant evidence" regarding a scar on Gregory Williams' face. (Dkt. No. 2: Louis Br. at 14-17.) The hearing officer was surely capable of understanding that, while the Tier II offense charged Louis with engaging in "violent conduct" in violation of 7 N.Y.C.R.R. § 270.2(B)(5)(ii) (Rule 104.11), that conduct consisted merely of a loud "banging" on his cell door to get attention. There was no prejudice from combining the hearings. Similarly, while the evidence regarding Gregory Williams' scar may have been "irrelevant," as Louis asserts, it was not in any way prejudicial. See Powell v. Coughlin, 953 F.2d 744, 749-50 (2d Cir. 1991) (prison disciplinary hearings are subject to harmless error analysis).
Accordingly, the hearing officer's decision finding Louis guilty of assaulting Williams should not be disturbed and Louis' should be denied habeas relief on this claim.
2. Louis Did Not Have inadequate Inmate Assistance
The Second Circuit has held that "[p]rison authorities have a constitutional obligation to provide assistance to an inmate in marshaling evidence and presenting a defense when he is faced with disciplinary charges." Eng v. Coughlin, 858 F.2d 889, 897 (2d Cir. 1988); see also, e.g., Wolff v. McDonnell, 418 U.S. 539, 570, 94 S.Ct. 2963, 2981-82 (1984);Ayers v. Ryan, 152 F.3d 77, 80-81 (2d Cir. 1998);Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993); Fox v. Coughlin, 893 F.2d 475, 478 (2d Cir. 1990); Jackson v. Johnson, 30 F. Supp.2d 613, 619 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.) (collecting cases). As the Second Circuit explained in Eng:
Confinement 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 otherwise prepare for a disciplinary hearing. Although we recognize that inmates are not entitled to the full panoply of rights involved in a full-scale criminal proceeding, the list of disabling factors in Wolff which trigger the right to some assistance in preparation for constitutionally-mandated procedures is not exclusive.
Prison authorities have a constitutional obligation to provide assistance to an inmate in marshaling evidence and presenting a defense when he is faced with disciplinary charges. No additional procedures are required to implement that obligation. When the 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. If 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. Although this is not the occasion to define the assigned assistant's precise role and the contours of the assistant's obligations, such help certainly should include gathering evidence, obtaining documents and relevant tapes, and interviewing witnesses. At a minimum, an assistant should perform the investigatory tasks which the inmate, were he able, could perform for himself.Eng v. Coughlin, 858 F.2d at 897-98 (citations omitted).
However, "[t]he assistant is not obliged to go beyond the specific instructions of the inmate because if he did so he would then be acting as counsel in a prison disciplinary proceeding, assistance to which a prisoner is not entitled." Silva v. Casey, 992 F.2d at 22; see also, e.g., Jackson v. Johnson, 30 F. Supp.2d at 619 ("An assistant's role is to act as 'merely a surrogate for the inmate, not a legal adviser or advocate.'").
The adequacy of inmate assistance is subject to harmless error analysis. See, e.g., Pacheco v. Vanwyk, No. 97-2767, 164 F.3d 618 (table), 1998 WL 716572 at *2 (2d Cir. Oct. 9, 1998) (affirming summary judgment dismissing § 1983 action; "the record shows nothing about [prison employee's] assistance that was inadequate or prejudicial to" plaintiff, citing Powell v. Coughlin); Burnell v. Mann, No. 92-CV-744, 1994 WL 719222 at *4 (N.D.N.Y. Dec. 27, 1994) (Kaplan, D.J.) (Rejecting inmate's claim that the assistance he received was "inadequate"; "Plaintiff's conduct at the hearing and his performance in this litigation demonstrate that he was sufficiently able to defend himself on this charge so that any inadequacy in his assistance was not prejudicial in a constitutional sense. . . . And while plaintiff seems to have been in SHU during his hearing, he does not claim that this inhibited his defense.").
The total failure to provide the required assistance may be a "structural" error not susceptible to harmless error analysis. See Giano v. Sullivan, 709 F. Supp. 1209, 1215, 1217-18 (S.D.N.Y. 1989) (an inmate "assistant [who] did not provide any assistance whatsoever" effectively denied the inmate "his constitutional right to assistance in marshaling evidence and presenting a defense. . . ."). By contrast, Louis does not assert that he received no assistance whatsoever, but merely that his inmate assistant performed certain tasks inadequately. Accordingly, his claim is clearly subject to harmless error analysis. Cf., e.g., Roe v.Flores-Ortega, 528 U.S. 470, 482-83, 120 S.Ct. 1029, 1037-38 (2000) (distinguishing between (1) claims that petitioner was denied effective assistance of counsel, where petitioner has burden of proving prejudice, and (2) claims that petitioner was "denied the assistance of counsel altogether," where prejudice is presumed).
Louis asserts that his assistant, Jane Cummings, was ineffective because she did not view the videotape of the incident with Louis, and did not provide Louis with the "Title 7 annotations" he requested. (Dkt. No. 2: Louis Br. at 11-14.)
Ms. Cummings did provide Louis with the regulations themselves, and her failure to provide him with the annotations until the hearing appears to be the result of bureaucratic confusion. (See pages 8, 10-11 above.) In any event, the Court does not see anything in the "annotations" that would have helped Louis, so any error would be harmless.
As to the videotape, assistant Cummings reviewed it before the hearing and discussed the tape with Louis. (See pages 6-7 above; Tr. 18-19.) Louis viewed the videotape at his hearing. (See page 12 above.) The tape showed two unidentifiable inmates assaulting a third. See pages 19-20 above.) Louis has not advanced any theory as to how, on these facts, viewing the tape before the hearing could have helped him prepare his defense. The Court finds that any error in this regard was harmless.
Louis also claims that Cummings lied when she said she viewed the incident videotape because the misbehavior report lists the time of the incident as "approx. 11 AM" (Ex. A), but the tape played at the hearing was for around 10:45 a.m. (Dkt. No. 2: Louis Br. at 12-13.) This time discrepancy argument was explored at the hearing, and, as the hearing officer found, Louis' argument ignores the word "approximately" before the time of 11 a.m. (See pages 12, 19 above.) In any event, since no 11 a.m. tape existed, if Louis' argument were correct, assistant Cummings would not have been able to comply with Louis' request to allow him to view this (non-existent) 11 a.m. videotape before the hearing.
Finally, Louis claims that Cummings' statement that the victim, Williams, declined to testify for Louis and declined to give her a statement was untrue, because at the hearing Williams testified that no inmate-assistant ever spoke to him. (Dkt. No. 2: Louis Br. at 13-14.) Louis is asking this Court to find Williams more credible than Cummings. In light of the hearing officer's implied finding that Williams was not a credible witness (with which the Court agrees based on its reading of the hearing transcript), the Court declines. In any event, since Williams did testify and since he testified that Louis did not attack him (see pages 12-15 above), any failure of Cummings to interview Williams is at most harmless error.
CONCLUSION
For the reasons set forth above, the Court should deny Louis' habeas petition, deny appointment of counsel, and not issue a certificate of appealability.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts, 500 Pearl Street, Room 2510, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Batts. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v.Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2dCir. 1988);McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).