Opinion
17 Civ. 7307 (NSR)
08-02-2024
DEWITT MCGRIFF, Plaintiff, v. SUPERINTENDENT KEYSER; HEARING OFFICER POLIZZI; DIRECTOR OF SHU VENNETOZZI, in their official and individual capacities, and INVESTIGATOR STEPHEN KEYSER, Defendants.
OPINION & ORDER
NELSON S. ROMAN, UNITED STATES DISTRICT JUDGE.
Pursuant to Federal Rule of Civil Procedure 56, Defendants have moved to dismiss the Plaintiff's claims. (See ECF No. 110.) For the following reasons, Defendants' motion to dismiss is granted in part and denied in part.
Plaintiff Dewitt McGriff (“Plaintiff” or “McGriff”), proceeding pro se, commenced the instant action on September 22, 2017. (See ECF No. 2, Complaint; ECF No. 32, Amended Complaint (“Amend. Compl.”).) Plaintiff alleges claims pursuant to 42 U.S.C. § 1983 sounding in the First, Eighth, and Fourteenth Amendments to the United States Constitution against Defendants Superintendent Keyser (Sup. Keyser), Hearing Officer Polizzi (“H.O. Polizzi”), Director of the Special Housing Unit Vennetozzi (“SHU Dir. Vennetozzi”), and Investigator Stephen Keyser (“Inv. Keyser”) (together, “Defendants”). Specifically, Plaintiff alleges Defendants denied him due process in relation to an administrative hearing, violated his First Amendment right to petition the courts, violated his Fourteenth Amendment right to equal protection, and subjected him to cruel and unusual punishment in violation of his Eighth Amendment rights.
Defendant SHU Dir. Vennetozzi was dismissed from the action pursuant to the Court's Opinion & Order dated November 13, 2019. (See ECF No. 57.)
BACKGROUND
I. Factual Allegations
The following facts are derived from the record, Defendants' Rule 56.1 statement, and Defendants' declarations. They are not in dispute unless otherwise noted.
Citations to “Pl. Tr.” refers to Plaintiff's deposition transcript, which is attached to the Declaration of Jessica Acosta-Pettyjohn. (ECF No. 111-1.)
The Court notes Plaintiff failed to file a 56.1 statement. As Plaintiff's Opposition is not consecutively paginated, the Court has assigned it page numbers.
A. Misbehavior Report
Plaintiff was an inmate at the Sullivan Correctional Facility, a maximum-correctional facility operated by the Department of Corrections and Community Supervision (“DOCCS”). (Defs. 56.1 ¶ 1; ECF No. 112, Declaration of Sup. Keyser, “Sup. Keyser Decl.,” ¶ 1.) On October 17, 2015, Defendant Inv. Keyser issued a misbehavior report charging Plaintiff with (1) soliciting smuggled contraband; (2) abuse of telephone privileges; and (3) violating visiting procedures. (Defs. 56.1 ¶ 2; ECF No. 113, Declaration of Inv. Keyser, “Inv. Keyser Decl.,” Ex. B.) Inv. Keyser accused Plaintiff of conspiring with another inmate (the “Inmate”) and an individual visiting the facility (the “Visitor”) to smuggle drugs into the facility using the inmate telephone system. (Pl. Tr. 27:5-9; Inv. Keyser Decl. ¶ 6, Ex. B.) Inv. Keyser stated the information in his report was supported by Plaintiff's phone calls. (Inv. Keyser Decl. Ex. B a MCGRIFF0017.) As a result, that same day, Plaintiff was placed in a Special Housing Unit (“SHU”) cell pending a disciplinary hearing on the charges in the report. (Id. ¶ 3.)
B. Administrative Hearing and Sentence
Starting on October 27, 2015, Plaintiff participated in a hearing before Hearing Officer Polizzi (“H.O. Polizzi”). (Defs. 56.1 ¶ 4.) Plaintiff was provided a pre-hearing assistant for the hearing. (Pl. Opp. ¶ 19; ECF No. 114, Declaration of H.O. Polizzi, “H.O. Polizzi Decl.,” ¶ 5, Ex. C.) Inv. Keyser, Investigator Malave, and the Inmate testified at the hearing. (Defs. 56.1 ¶ 9; Polizzi Decl. ¶ 7.) During the hearing, the phone call which was the subject of the misbehavior report was played in Plaintiff's presence. (Id. ¶ 10.) Plaintiff's hearing concluded on November 24, 2015. (Id. ¶ 12.) H.O. Polizzi found Defendant guilty of three charges: drug possession (charge 113.25), smuggling (charge 114.10), and 3rd party calling (charge 121.11); and not guilty of facility visiting violations (180.10). (Id. ¶ 13; Polizzi Decl. Ex. A at MCGRIFF0005.)
In making his determination, H.O. Polizzi relied on: Inv. Keyser's misbehavior report; recordings of Plaintiff's telephone calls; Inv. Keyser's testimony, including his identification of Plaintiff as the caller on the recording; the Unusual Incident Report (“UI Report”); photos; the Crime Laboratory Case Receipt; and Investigator Malave, the Inmate, and Plaintiff's testimony. (H.O Polizzi Decl. Ex. A at MCGRIFF0007.) The Crime Lab Case Receipt identifies the contraband taken off the Visitor as two plastic bags containing a powder substance. (H.O. Polizzi Decl. Ex. F.) The UI Report states that Inv. Keyser secured the contraband, and it tested positive for heroin. (H.O. Polizzi Decl. Ex. E at MCGRIFF0042.) The UI Report further states that Inv. Keyser determined that Plaintiff conspired with the Inmate and the Visitor to smuggle the contraband into the facility, although no contraband was found on Plaintiff. (Id.)
Plaintiff was sentenced to 45 days in keeplock; 90 days lost of commissary, phone and packages. (H.O. Polizzi Decl. Ex. A at MCGRIFF0006.) At the conclusion of his hearing, Plaintiff was transferred from SHU to keeplock to serve his 45-day sentence. (Defs. 56.1 ¶ 16.) Plaintiff spent thirty-eight days in the SHU prior to the disposition of his misbehavior report appeal, which was not credited towards the keeplock punishment period of forty-five days. (Id. ¶ 21.) During his time in the SHU, Defendants contend that there were no maintenance, rehabilitation, or construction projects. (Id. ¶ 21.) Sup. Keyser further attests that he never discussed or received any correspondence from Plaintiff regarding the conditions in the SHU. (Sup. Keyser Decl. ¶¶ 10-14.) Plaintiff, however, contends that the noise entering the SHU recreation funneled directly into the SHU cells. (ECF No. 120, Plaintiff's Opposition, “Pl. Opp.” ¶ 43.) Plaintiff also submitted a copy of a letter he sent to Sup. Keyser regarding “what [they] talked about with [his] hearing” in which he complained of the noise and dust from the construction. (See Pl. Opp. Ex. B.)
C. Plaintiff's Administrative Appeal
On December 4, 2015, Plaintiff filed a petition in state court pursuant to N.Y. C.P.L.R. Article 78 to review Director of the Special Housing Unit Vennetozzi's (“SHU Dir. Vennetozzi”) determination that Plaintiff was guilty of the misbehavior charges. (See ECF No. 111, Declaration of Jessica Acosta-Pettyjohn, “Acosta-Pettyjohn Decl.,” Ex. C.) Plaintiff received an affirmation of the disposition from SHU Dir. Vennetozzi, who was responsible for reviewing administrative appeals and correcting any violations. (Defs. 56.1 ¶ 17.)
On January 26, 2017, the New York State Appellate Division, Third Department ruled in Plaintiff's favor. The Appellate Division annulled the determination that Plaintiff was guilty of smuggling and conspiring to introduce drugs into the correctional facility and ordered SHU Dir. Vennetozzi to expunge all references to those charges from Plaintiff's institutional record. See McGriff v. Vennetozzi, 146 A.D.3d 1269 (3rd Dep't 2017). Specifically, the Appellate Division found that the determination regarding smuggling and conspiring to introduce drugs into the facility was “not supported by substantial evidence,” because:
The tape-recorded conversation that was read into the record during the hearing is replete with inaudible portions rendering it impossible to ascertain if . . . petitioner was a participant in the smuggling plan....
[T]he investigator who authored the misbehavior report did not identify the coded language allegedly used during the telephone conversation that led him to believe that petitioner was involved in such a plan....
The confidential information considered by the Hearing Officer in camera-which only calls the accuracy of the conversation read into the record at the hearing into further doubt-does not remedy these deficiencies. Thus, the determination must be partially annulled.McGriff, 146 A.D.3d at 1269-70.
D. Plaintiff's Filed Grievances
Grievances at the New York State correctional facilities are governed by the Inmate Grievance Program (“IGP”), which consists of three steps: (1) the prisoner files a grievance with the Inmate Grievance Resolution Committee (“IGRC”) within 21 calendar days of the alleged incident; (2) the prisoner may appeal an adverse decision by the IGRC to the superintendent of the facility within 7 calendar days, and (3) the prisoner may then appeal an adverse decision by the superintendent to the Central Office Review Committee (“CORC”) within 7 calendar days after receipt of the Superintendent's written response. (ECF No. 116, Declaration of Rachael Seguin, “Seguin Decl.,” ¶ 5.) The IGP provides an expedited procedure for grievances relating to harassment or misconduct by DOCCS employees, but a prisoner must still initiate the grievance process by filing a grievance with the IGRC. (Seguin Decl. ¶ 6.)
During the relevant time period, Plaintiff filed a grievance regarding the handling of food in the SHU. (Pl. Tr. 70:6-10.) The grievance complained that officers were “not trained to handle food,” “do not have food handler certificates,” and “do not wear gloves or hairnets.” (ECF No. 115, Declaration of Corey Proscia, “Proscia Decl.,” Ex. B.) Plaintiff did not file a grievance about noise or construction in the SHU. (Pl. Tr. 70:18-20.) Plaintiff did not file any appeals to the CORC regarding the food or construction at the SHU or the procedure of his administrative hearing. (Proscia Decl. Ex. B.)
II. Procedural History
On February 6, 2019, Plaintiff filed his Amended Complaint asserting claims against Defendants for (1) placing him in SHU and keeplock confinement in violation of his Fourteenth Amendment Due Process rights; (2) cruel and unusual punishment in violation of the Eighth Amendment; (3) deprivation of his access to courts in violation of his First Amendment rights; and (4) violation of his Fourteenth Amendment Equal Protection Rights. (ECF No. 26.) On August 26, 2019, with leave of the Court, Defendants filed a motion to dismiss Plaintiff's Amended Complaint. (ECF No. 54.)
On November 13, 2019, the Court issued an Opinion & Order granting in part and denying part Defendants' motion. (“Order & Opinion,” ECF No. 57.) The Court dismissed Plaintiff's First Amendment and Fourteenth Amendment Equal Protection claims in their entirety. Only partially dismissing the remaining two claims, the Court denied the motion to dismiss with respect to Plaintiff's (1) Eighth Amendment claim against Sup. Keyser and (2) Fourteenth Amendment due process claim against H.O. Polizzi and Inv. Keyser. Despite the Court granting leave to amend, Plaintiff did not file a second amended complaint.
On January 9, 2020, Defendants filed an Answer to the Amended Complaint. (ECF No. 59.) With regards to discovery, Defendants deposed pro se Plaintiff. However, as of the date of this Order, Plaintiff has not sought or received any discovery from Defendants. (ECF No. 124.) On February 13, 2022, the parties fully briefed the instant motion for summary judgment. (ECF Nos. 110-121.) In May 2022, Plaintiff was appointed limited pro bono counsel, who requested leave for Plaintiff to submit a new proposed discovery schedule upon the Court's resolution of the instant motion. (ECF No. 124.)
On August 28, 2020, the Court granted Plaintiff's renewed request for pro bono counsel in light of the Court's Opinion & Order granting in part and denying in part Defendants' motion to dismiss Plaintiff's Amended Complaint. (ECF No. 79.) The Court amended its Order on September 9, 2020 to permit pro bono counsel to appear for discovery purposes only. (ECF No. 80.) On September 9, 2020, Magistrate Judge Paul E. Davison (ret.) granted Defendants' motion to stay discovery to give pro bono counsel the opportunity to appear on Plaintiff's behalf. (ECF Nos. 82-83.) On July 22, 2022, pro bono counsel filed a notice of appearance on behalf of Plaintiff for the limited purpose of attempting to obtain discovery from Defendants. (ECF Nos. 122-123.)
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of pointing to evidence in the record, including depositions, documents, affidavits, or declarations “which it believes demonstrate[s] the absence of a genuine issue of material fact,” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may support an assertion that there is no genuine dispute of a particular fact by “showing . . . that [the] adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B). If the moving party fulfills its preliminary burden, the onus shifts to the nonmoving party to raise the existence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). To oppose summary judgment, “[s]tatements that are devoid of any specifics, but replete with conclusions” will not suffice. Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (holding the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts”); FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (holding the nonmoving party “may not rely on conclusory allegations or unsubstantiated speculation”) (internal quotations and citations omitted).
A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; accord Gen. Star Nat'l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir. 2009); Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008); Benn v. Kissane, 510 Fed.Appx. 34, 36 (2d Cir. 2013). Courts must “draw all rational inferences in the non-movant's favor” when reviewing the record. Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (citing Anderson, 477 U.S. at 248). Importantly, “the judge's function is not [ ] to weigh the evidence and determine the truth of the matter” or determine a witness's credibility. Anderson, 477 U.S. at 249. Rather, “[t]he inquiry performed is the threshold inquiry of determining whether there is the need for a trial.” Id. at 250. A court should grant summary judgment when a party “fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex, 477 U.S. at 322.
“When a pro se litigant is involved, the same standards for summary judgment apply, but ‘the pro se litigant should be given special latitude in responding to a summary judgment motion.'” Williams v. Savory, 87 F.Supp.3d 437, 451 (S.D.N.Y. 2015) (quoting Knowles v. N.Y City Dep't of Corr., 904 F.Supp. 217, 220 (S.D.N.Y. 1995) (citation and internal quotation marks omitted)); see also Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) (“[S]pecial solicitude should be afforded pro se litigants generally, when confronted with motions for summary judgment.”).
DISCUSSION
Plaintiff's remaining claims are his (1) Eighth Amendment cruel and unusual punishment claim against Sup. Keyser arising out of the noise conditions in the SHU and (2) Fourteenth Amendment due process claim against H.O. Polizzi and Inv. Keyser arising out of their conduct at Plaintiff's administrative hearing. Defendants seek summary judgment on both claims.
Before addressing Plaintiff's claims on the merits, the Court first considers whether Plaintiff satisfied the exhaustion requirement for each claim.
I. Exhaustion of Administrative Remedies
As a threshold matter, Defendants argue Plaintiff's claims should be dismissed for failure to exhaust administrative remedies pursuant to the Prisoner Litigation Reform Act (“PLRA”). The PLRA precludes the filing of an action “with respect to prison conditions under [42 US.C. § 1983] . . . by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted.” See 42 U.S.C. § 1997e(a). Whether an inmate has exhausted all administrative remedies turns on a review of “the state prison procedures [available] and the prisoner's grievance ....” See Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009) (citing Jones v. Bock, 549 U.S. 199, 218 (2007)); see also Ross v. Blake, 136 S.Ct. 1850, 1862 (2016) (“An inmate need exhaust only such administrative remedies as are ‘available.'”). Defendants have the burden of demonstrating Plaintiff's failure to exhaust. Key v. Toussaint, 660 F.Supp.2d 518, 523 (S.D.N.Y. 2009). If administrative remedies are available to a plaintiff, then “a court may not excuse a failure to exhaust, even to take [special] circumstances into account.” Ross, 578 U.S. at 639.
Grievances at the New York State correctional facilities are governed by the Inmate Grievance Program (“IGP”), which is based on a three-tiered system. Espinal, 558 F.3d at 125. To adjudicate an inmate complaint: “(1) the prisoner files a grievance with the Inmate Grievance Resolution Committee (“IGRC”), (2) the prisoner may appeal an adverse decision by the IGRC to the superintendent of the facility, and (3) the prisoner then may appeal an adverse decision by the superintendent to the Central Office Review Committee (“CORC”).” Id.; see also 7 N.Y.C.R.R. § 701.5. The relevant regulations provide that the CORC shall render a written decision within thirty calendar days of receipt of the appeal. See 7 N.Y.C.R.R. § 701.5.
First, the CORC record provided by Defendants indicate Plaintiff failed to appeal any grievance related to construction, noise levels, or dust in the SHU or due process violations concerning improper conduct during his administrative hearing. (Seguin Decl. ¶¶ 10-12, Ex. B.) Moreover, Plaintiff himself testified that he never filed a grievance regarding the noise or dust from construction in the SHU, only about the food. (Pl. Tr. 70:6-10, 70:18-20.) Defendants provide a copy of the grievance Plaintiff filed, which complains that officers were “not trained to handle food,” “do not have food handler certificates,” and “do not wear gloves or hairnets.” (Proscia Decl. Ex. B.) Because Plaintiff properly filed a grievance regarding the food at the SHU, the grievance procedure was clearly available to him. Accordingly, the Court dismisses Plaintiff's Eighth Amendment claim for failure to exhaust.
Plaintiff submitted a letter showing that he discussed the noise and dust from construction with Sup. Keyser. (Pl. Opp., Ex. B.) However, the IGP still requires Plaintiff to file a formal grievance with the IGRC and to appeal a decision to the CORC. 7 N.Y.C.R.R. 701.8(h).
With regards to his due process claim, Plaintiff argues he exhausted his judicial remedies by filing his Article 78 petition. Defendants concede that Plaintiff exhausted his due process claim as against H.O. Polizzi. (ECF No. 121, Defendants' Reply Memorandum of Law, “Reply,” at 3.) However, Defendants argue the Article 78 petition was insufficient to exhaust judicial remedies with respect to Plaintiff's due process claim against Inv. Keyser for his misconduct during the hearing. (Id.) The Court agrees with Defendants.
Defendants properly concede Plaintiff fully exhausted his due process claim against H.O. Polizzi. See Davis v. Barrett, 576 F.3d 129, 132-33 (2d Cir. 2009) (plaintiff exhausted his due process claim against the hearing officer by filing an administrative appeal); Caimite v. Rodriguez, No. 17CV0919GLSCFH, 2020 WL 6530780, at *11-12 (N.D.N.Y. Apr. 9, 2020), report and recommendation adopted, No. 917CV919GLSCFH, 2020 WL 5651672 (N.D.N.Y. Sept. 23, 2020) (plaintiff exhausted due process claim against hearing officer by appealing disciplinary determination).
Plaintiff alleges Inv. Keyser violated his due process rights by making false statements and misrepresentations while testifying at the hearing. (Amend. Compl. ¶¶ 14-32.) “Though a disciplinary appeal is sufficient to exhaust a claim that Plaintiff was deprived of due process at a disciplinary hearing, ‘allegations of staff misconduct related to the incidents giving rise to the discipline must be grieved.'” Barker v. Smith, No. 16-CV-76 (NSR), 2017 WL 3701495, at *3 (S.D.N.Y. Aug. 25, 2017) (citations omitted) (collecting cases); see also Scott v. Gardner, 287 F.Supp.2d 477, 489 (S.D.N.Y. 2003), on reconsideration in part, 344 F.Supp.2d 421 (S.D.N.Y. 2004), and on reconsideration in part, No. 02 CIV.8963(RWS), 2005 WL 984117 (S.D.N.Y. Apr. 28, 2005) (“Although completion of the disciplinary appeal process may satisfy the exhaustion requirement with respect to [plaintiff's] claims that he was denied due process in the disciplinary proceedings, allegations of staff misconduct related to incidents giving right to the discipline must be grieved.”) (citing McCoy v. Goord, 255 F.Supp.2d 233, 256 (S.D.N.Y.2003); Cherry v. Selsky, No. 99 Civ, 4636, 2000 WL 943436, at *6-7 (S.D.N.Y. July 7, 2000)).
Plaintiff's Article 78 petition seeking annulment of his guilty determination cannot exhaust his claim against Inv. Keyser. “[A] plaintiff cannot satisfy the PLRA's exhaustion requirement as to grievable matters that do not relate directly to the conduct of the hearing simply by alluding to them in his administrative appeal of the hearing decision.” Rosales v. Bennett, 297 F.Supp.2d 637, 639 (W.D.N.Y. 2004). Plaintiff's appeal of his guilty determination raised four points: (1) H.O. Polizzi denied Plaintiff the right to present documentary evidence at the hearing; (2) H.O. Polizzi improperly admitted the tape recording into the record; (3) H.O. Polizzi engaged in improper questioning of the witnesses; and (4) Plaintiff's guilty determination was not based on substantial evidence. (Acosta-Pettyjohn Decl. Ex. C.) Plaintiff's appeal thus merely alludes to Inv. Keyser making false statements. Therefore, Plaintiff's claim against Inv. Keyser-who authored the misbehavior report and served as a witness at the hearing-arises out of his alleged conduct at the hearing rather than the procedure of the hearing. (Amend. Compl. ¶ 7.) Accordingly, Plaintiff fails to exhaust his due process claim against Inv. Keyser because he failed to separately grieve Inv. Keyser's alleged misconduct prior to and during the hearing. Mayo v. Lavis, 16-1664 (PR), 2017 WL 1493680, at *2 (2d Cir. Apr. 26, 2017) (summary order) (barring claims against defendants for writing a false misbehavior report and providing false testimony at disciplinary hearing for failure to exhaust administrative remedies).
The Court therefore finds Plaintiff failed to exhaust his administrative remedies for his due process claim against Inv. Keyser and his Eighth Amendment claim against Sup. Keyser. Accordingly, the Court grants Defendants' motion for summary judgment with respect to these claims.
II. Due Process
Plaintiff asserts its remaining claim against H.O. Polizzi for violation of his Fourteenth Amendment Due Process rights. The Fourteenth Amendment provides that no state shall deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. To state a procedural due process claim, Plaintiff must show “(1) that Defendants deprived him of a cognizable interest in life, liberty, or property, (2) without affording him constitutionally sufficient process.” Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017) (internal quotation marks omitted).
Regarding the liberty interest, the Court previously determined that Plaintiff may have alleged an implicated liberty interest due to the food contamination and noise conditions in the SHU. (Order & Opinion at 9-10.) Defendants argue Plaintiff fails to raise a material dispute of fact because the record indicates that there was no construction or maintenance projects while in the SHU. (ECF No. 117, Defendants' Memorandum of Law in Support, “Defs. Mem.,” at 14.) However, the only evidence Defendants adduce in support of this contention is a heavily redacted document showing only four rehabilitation projects during the relevant time period. (Sup. Keyser Decl. Ex. B.) Moreover, Plaintiff argues that the “booming” construction noises were from the SHU recreation alleyway, which funneled the noise directly into SHU cells. (Pl. Opp. at 7.) Defendants fail to address this argument in their Reply. While the Court again acknowledges that Plaintiff was subject to a relatively short period of confinement, the Court finds dismissal on this ground inappropriate at this stage of the proceedings given that Plaintiff (1) contests the lack of noise in the SHU and (2) did not have the full opportunity to conduct discovery and present evidence on the issue. Palmer v. Richards, 364 F.3d 60, 65-66 (2d Cir. 2004) (“In the absence of a detailed factual record, we have affirmed dismissal of due process claims only in cases where the period of time spent in SHU exceedingly short-[less than 30 days]-and there was no indication that the plaintiff endured unusual SHU conditions.”).
Regardless, Defendants argue that Plaintiff “received all the process that was due in any event.” (Defs. Mem. at 15.) At a prison disciplinary hearing, an inmate is entitled to “advance written notice of the charges against him; a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition, including all evidence relied upon and the reasons for disciplinary actions taken.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004). Here, Plaintiff's due process claim rests on whether his administration segregation disposition was based on “some evidence.” (See Order & Opinion at 13 (declining to dismiss Plaintiff's due process based on the “some evidence” rule).) The “some evidence” standard is satisfied if “there is any evidence in the record that supports the disciplinary ruling.” Sira, 380 F.3d at 69 (citing Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)) (emphasis in original). That said “the some evidence standard requires some reliable evidence.” Id. (citations omitted) (emphasis added).
Defendants argue, even if the Court disregarded Inv. Keyser's testimony, “the misbehavior report, testimony of other witnesses, and crime lab receipt were more than sufficient to meet th[e] [some evidence] standard.” (Reply at 8.) The Court disagrees and finds that Plaintiff raises a material dispute of fact whether H.O. Polizzi's determination was based on “some” “reliable” evidence.
Polizzi states he based his decision on (1) the UI Report by Inv. Keyser; (2) Inv. Keyser, Investigator Malave, the Inmate, and Plaintiff's testimony; (3) the Crime Lab Case Receipt; (4) the Misbehavior Report of Inv. Keyser; and (5) Plaintiff's phone calls. (Polizzi Decl. ¶¶ 11-12; Ex. A at MCGRIFF0007.) Plaintiff, however, calls into question the reliability of most of this evidence. In his Amended Complaint, Plaintiff argues Inv. Keyser failed to produce evidence he claimed to exist at the hearing; Plaintiff's voice was not heard on the phone call recording; neither the Inmate or Investigator Malave testified to his involvement; Inv. Keyser failed to identify the allegedly coded language used on the phone call; and H.O. Polizzi first denied the existence of a confidential informant and then later failed to determine the reliability of said confidential informant. (Amend. Compl. ¶¶ 13-32.) Plaintiff relies on the same arguments in his Opposition. (Pl. Opp. at 5-6.)
H.O. Polizzi relied on (1) testimony from witnesses who denied Plaintiff's involvement; (2) statements from Inv. Keyser, including confidential testimony, whose credibility was not assessed; (3) a telephone recording Plaintiff alleges did not contain his voice and the Appellate Division described as “replete with inaudible portions rending it impossible to ascertain if . . . [Plaintiff] was a participant in the smuggling plan”; and (4) a crime lab report which merely confirms that contraband was smuggled into the facility without making any indication as to Plaintiff's involvement. H.O. Polizzi's determination, therefore, relies on little more than Inv. Keyser's word. Moreover, Plaintiff has repeatedly claimed that Inv. Keyser's statements were false.
Defendants did not provide the telephone recording to the Court for its review.
Based on the foregoing, the Court finds that the evidence presented by Defendants fail to prove as a matter of law that H.O. Polizzi based his determination of Plaintiff's guilt on “reliable” evidence. See Taylor v. Rodriguez, 238 F.3d 188, 194 (2d Cir. 2001) (reversing dismissal of plaintiff's due process claim where the hearing officer failed to produce any contemporaneous findings regarding the reliability of confidential informants). Accordingly, the Court finds summary judgment inappropriate at this stage where Plaintiff has not had the full opportunity to pursue discovery and present evidence.
Because there are pending questions of fact, the Court also denies Defendants' motion to dismiss on qualified immunity grounds. H'Shaka v. O'Gorman, 444 F.Supp.3d 355, 389 (N.D.N.Y. 2020) (“Faced with the questions of fact that remain to be resolved in this case, the Court finds that it would be inappropriate to conclude that Defendants are entitled to qualified immunity at this stage of the litigation.”). The Court therefore denies Defendants' motion to dismiss Plaintiff's Due Process claim against H.O. Polizzi.
CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment is granted in part and denied in part. The Court dismisses Plaintiff's Eighth Amendment claim against Sup. Keyser and Fourteenth Amendment Due Process claim against Inv. Keyser. Plaintiff's remaining claim is his Due Process claim against H.O. Polizzi. In light of Plaintiff's appointment of pro bono counsel and said counsel's letter indicating they would seek discovery upon resolution of the instant motion, Plaintiff's request for completion of discovery is GRANTED. The action is hereby referred to Magistrate Judge Victoria Reznik for completion of discovery with regards to Plaintiff's remaining claim.
The Clerk of the Court is directed to terminate the motion at ECF No. 110, to mail a copy of this Order to Plaintiff at the address listed on ECF, and to show service on the docket.
SO ORDERED.