Opinion
Civil Action No. 9:15-CV-1437 (LEK/DEP)
08-30-2018
NICHOLAS ZIMMERMAN, Plaintiff, v. T. TODD, Assistant Inspector General, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: NICHOLAS ZIMMERMAN, Pro se 02-A-1663 Wende Correctional Facility P.O. Box 1187 Alden, NY 14004 FOR DEFENDANTS: HON. BARBARA D. UNDERWOOD New York State Attorney General The Capitol Albany, NY 12224 RYAN HICKEY, ESQ. Assistant Attorney General
APPEARANCES:
FOR PLAINTIFF: NICHOLAS ZIMMERMAN, Pro se
02-A-1663
Wende Correctional Facility
P.O. Box 1187
Alden, NY 14004 FOR DEFENDANTS: HON. BARBARA D. UNDERWOOD
New York State Attorney General
The Capitol
Albany, NY 12224 RYAN HICKEY, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
This is a civil rights action brought by pro se plaintiff Nicholas Zimmerman against individuals employed by the New York State Department of Corrections and Community Supervision ("DOCCS") pursuant to 42 U.S.C. § 1983. Although plaintiff's original complaint included additional causes of action, and named a host of defendants, the only claims that remain pending in this court arise under the First, Eighth, and Fourteenth Amendments, and are asserted against four named defendants.
Currently pending before the court are cross-motions brought by the parties seeking the entry of summary judgment in their favor. For the reasons set forth below, I recommend that plaintiff's motion be denied, defendants' motion be granted, and plaintiff's amended complaint be dismissed in its entirety. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in the non-movant's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). In this case, in light of the parties' cross-motions for summary judgment, the court draws "all factual inferences . . . against the party whose motion is under consideration." Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005) (quotation marks omitted).
Plaintiff is a New York State prison inmate currently being held in the custody of the DOCCS. See generally Dkt. No. 30. Although he is now confined elsewhere, at the times relevant to the claims in this case, plaintiff was incarcerated in the Auburn Correctional Facility ("Auburn") located in Auburn, New York. Id.
Defendant Thomas Todd, a Senior Investigator for the New York State Office of Special Investigations ("OSI"), issued a misbehavior report to the plaintiff on July 9, 2009, accusing him of violating two prison rules. Dkt. No. 57-2 at 37; Dkt. No. 66-4 at 5. In particular, the misbehavior report alleges that plaintiff had been working with "non-family members" to run a business identified as the Madison Avenue Entertainment Group ("MAEG"). Id. Based on defendant Todd's investigation, he concluded that the MAEG is a distributor of a book authored by plaintiff that describes his attempted escape from the Sing Sing Correctional Facility ("Sing Sing") in 2003. Id. The website for the MAEG included links to other websites, as well, including www.FREENicholasZimmerman.com and www.Myspace.com/FreeNicholasZimmerman.correspondence. Id. Defendant Todd's misbehavior report alleged that, utilizing those websites, plaintiff, "through his accomplices, solicit[s] viewers" to purchase items, "such as compact discs" and that the proceeds "fund [plaintiff]'s ongoing legal work." Id.
The OSI was formerly known as the office of the DOCCS Inspector General ("IG"). Dkt. No. 66-7 at 1.
A tier three disciplinary hearing regarding the misbehavior report was conducted, beginning on July 14, 2009, and concluding on July 23, 2009, by defendant Joseph Wolczyk, a DOCCS Commissioner Hearing Officer. Dkt. No. 66-1 at 1, 4; Dkt. No. 66-4 at 4. During the hearing, plaintiff requested that two unidentified individuals testify on his behalf because, according to plaintiff, they were employed by the DOCCS IG and had previously investigated his involvement in FREENicholasZimmerman.com and the MAEG in 2008, but did not issue a misbehavior report as a result of their investigation. Dkt. No 66-13 at 50. Defendant Wolczyk denied plaintiff's request to have the individuals testify after determining that the information they possessed regarding plaintiff was irrelevant to defendant Todd's investigation and misbehavior report. Dkt. No. 57-2 at 42; Dkt. No. 66-1 at 6; Dkt. No. 66-4 at 6.
The DOCCS conducts three types of inmate disciplinary hearings. See 7 N.Y.C.R.R. § 270.3; see also Hynes v. Squillace, 143 F.3d 653, 655 n.1 (2d Cir. 1998). Tier I hearings address the least serious infractions and can result in minor punishments such as the loss of recreation privileges. Hynes, 143 F.3d at 655 n.1. Tier II hearings involve more serious infractions, and can result in penalties which include confinement for a period of time in the SHU. Id. Tier III hearings address the most serious violations and can result in unlimited SHU confinement and the loss of "good time" credits. Id.
Defendant Todd testified at plaintiff's disciplinary hearing, both confidentially and on the record. Dkt. No. 66-5 at 6-23; Dkt. No. 57-2 at 42. Defendant Wolczyk determined that some of defendant Todd's testimony would reveal "the methods of the OSI's investigation . . . into plaintiff's correspondence activities" and therefore would not be appropriate for plaintiff to hear because it might jeopardize the security and safety of the prison, as well as the integrity of future OSI investigations. Dkt. No. 66-1 at 9.
At the conclusion of the hearing, defendant Wolczyk found plaintiff guilty on both disciplinary charges in the misbehavior report. Dkt. No. 57-2 at 44; Dkt. No. 66-1 at 10-11; Dkt. No. 66-4 at 2. As a result of his finding, defendant Wolczyk sanctioned plaintiff to six months of confinement in the facility's special housing unit ("SHU"), and six months loss of privileges, together with a recommended eight-month loss of good time credits. Dkt. No. 57-2 at 44; Dkt. No. 66-4 at 2. Defendant Harold Graham, the superintendent at Auburn, and defendant Norman Bezio, the DOCCS Director of Special Housing/Inmate Disciplinary Program, denied plaintiff's appeals of defendant Wolczyk's disciplinary hearing determinations. Dkt. No. 57-2 at 51-52.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about August 13, 2012, by the filing of a complaint in the Western District of New York. Dkt. No. 1. While the original complaint included several other individuals as named plaintiffs, with the exception of plaintiff Zimmerman, none of the plaintiffs filed an application to proceed in forma pauperis ("IFP") or paid the requisite filing fee. Dkt. Nos. 6, 11, 12, 14. Accordingly, Western District of New York District Judge Richard J. Arcara issued an order on December 1, 2014, dismissing the action "as to all plaintiffs except plaintiff Zimmerman." Dkt. No. 11 at 7. Thereafter, following review of plaintiff's IFP request and complaint, pursuant to 28 U.S.C. §§1915(e), 1915A, Western District of New York Senior District Judge William M. Skretny issued an order, inter alia, granting plaintiff permission to proceed without the prepayment of filing fees and severing certain claims from the complaint and transferring them to this district. Dkt. No. 17.
Upon receipt of the severed and transferred claims in this district, Senior District Judge Lawrence E. Kahn reviewed those claims implicating the events at Auburn and issued a decision and order dismissing the claims with leave to replead. Dkt. No. 26. On May 4, 2016, plaintiff filed an amended complaint in this district against several individuals. Dkt. No. 30. Pursuant to 28 U.S.C. §§1915(e), 1915A, Judge Kahn reviewed plaintiff's amended complaint and dismissed all of the claims set forth in it, with the exception of the First and Eighth Amendment causes of action asserted against defendants Todd, Wolczyk, Graham, and Bezio, and directed plaintiff to file a Peralta waiver if he wished to pursue his Fourteenth Amendment due process claims against defendants Wolczyk, Graham, and Bezio in the context of this section 1983 action. Dkt. No. 37. Following receipt of plaintiff's Peralta waiver, Judge Kahn dismissed the Fourteenth Amendment due process claims relating to disciplinary sanctions imposed on plaintiff that affected the duration of his confinement but otherwise directed that the due process claims asserted against defendants Wolczyk, Graham, and Bezio proceed. Dkt. No. 42.
The Peralta waiver issue was discussed in Judge Kahn's decision and order dated July 8, 2016. Dkt. No. 37 at 7-8. Judge Kahn explained as follows:
In Peralta v. Vasquez, 467 F.3d 98, 104 (2d Cir. 2006), the Second Circuit ruled that . . . [the] 'favorable termination' rule [derived from Heck v. Humphrey, 512 U.S. 477 (1994),] was not an absolute bar to consideration of due process claims arising from a disciplinary proceeding at which the plaintiff was subject to 'mixed sanctions.' The Second Circuit held that 'a prisoner subject to such mixed sanctions can proceed separately, under [section] 1983, with a challenge to the sanctions affecting his conditions of confinement without satisfying the favorable termination rule, but . . . can only do so if he is willing to forgo once and for all any challenge to any sanctions that affect the duration of his confinement.'Id. (emphasis omitted) (quoting Peralta, 467 F.3d at 104).
On September 13, 2017, following the conclusion of discovery in the matter, plaintiff filed a motion for summary judgment in his favor. Dkt. No. 57. In response, on December 11, 2017, defendants filed a cross-motion seeking the entry of summary judgment dismissing plaintiff's remaining claims. Dkt. No. 66. Both motions are now fully briefed and have been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Legal Standard Governing Motions for Summary Judgment
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Plaintiff's First Amendment Retaliation Claim
Plaintiff's amended complaint asserts a First Amendment retaliation claim against defendant Todd in connection with his issuance of a misbehavior report to plaintiff on July 9, 2009. Dkt. No. 30 at 7. In particular, plaintiff contends that defendant Todd retaliated against him because he was exercising his First Amendment free speech rights by operating the website FREENicholasZimmerman.com. Id.
A cognizable section 1983 retaliation claim lies when prison officials take adverse action against an inmate that is motivated by the inmate's exercise of a constitutional right, including the free speech provisions of the First Amendment. See Friedl v. City of N.Y., 210 F.3d 79, 85 (2d Cir. 2000) ("In general, a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws."). As the Second Circuit has repeatedly cautioned, however, because such claims are easily incanted and inmates often attribute adverse action, including the issuance of misbehavior reports, to retaliatory animus, courts must approach such claims "with skepticism and particular care." Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); accord, Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003).
To succeed on a claim under section 1983 for retaliatory conduct, a plaintiff establish that (1) the conduct at issue was protected, (2) the defendants took adverse action against the plaintiff, and (3) there was a causal connection between the protected activity and the adverse action - in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe, M.J.).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
In this case, plaintiff's claim fails because he cannot establish that he engaged in constitutionally protected conduct. Plaintiff's claim is premised upon his contention that his operation of a website and his correspondence with outside businesses constituted protected conduct, notwithstanding the DOCCS regulations prohibiting inmates from operating businesses and soliciting goods and services. Dkt. No. 57 at 1. Plaintiff has offered no legal support for his contention, and the court has found none.
The undisputed record in this case shows that the websites with which plaintiff was affiliated solicited business, including by urging people to purchase a book authored by plaintiff and compact discs. Dkt. No. 66-4 at 7-15. The websites also informed visitors that they could send correspondence and money to plaintiff in prison. Id. In addition, there is undisputed record evidence that plaintiff was engaged in business activity, including to request advertising and graphic designs. Id. at 22, 28-31. Such conduct was in direct violation of DOCCS Directive 4422, which prohibits inmates from using the mail to "conduct a mail order or other business" or "use their correspondence privileges to solicit or otherwise commercially advertise for money, services, or goods." Dkt. No. 66-3 at 4. A prison official's enforcement of prison regulations that restrict an inmate's First Amendment right to freedom of speech is constitutional if enforcement is tied to a legitimate penological interest. See Giano v. Senkowski, 54 F.3d 1050, 1052-53 (2d Cir. 1995) ("A prison inmate. . . retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system."). In this case, in light of the fact that the book that plaintiff authored and offered for sale on his website detailed his attempted prison escape from Sing Sing in 2003, enforcement of DOCCS Directive 4422 by defendant Todd did not violate plaintiff's constitutional rights.
Because no reasonable factfinder could conclude that plaintiff engaged in constitutionally protected conduct by operating a business in violation of prison regulations, I recommend that his retaliation claim be dismissed.
Because I have found that plaintiff cannot establish that he engaged in constitutionally protected conduct, I have not examined the record to determine whether a reasonable factfinder could conclude that the adverse action and causation prongs of the controlling retaliation test have been satisfied.
C. Plaintiff's Fourteenth Amendment Due Process Claims
Construing plaintiff's submissions liberally, I perceive that plaintiff's due process claims are based upon the following allegations: (1) defendant Todd unlawfully obtained a mail-watch order with respect to plaintiff and did not incorporate a copy of the order into the disciplinary hearing record; (2) defendant Wolcyzk concealed the names of the "accomplices" referenced in the misbehavior report; (3) defendant Wolczyk denied plaintiff's request to call certain witnesses at the disciplinary hearing; (4) defendant Wolczyk was not a fair and impartial hearing officer; (5) defendant Wolczyk did not have sufficient evidence to find plaintiff guilty of the charges included in the misbehavior report; and (6) defendants Graham and Bezio affirmed the disciplinary hearing determination knowing there was insufficient evidence to support a guilty finding. Dkt. No. 30 at 7-9; see also generally Dkt. No. 57.
1. Mail Watch Order
The focus of the portion of plaintiff's due process claim involving the mail-watch order he was under at the time defendant Todd issued plaintiff the misbehavior report in July 2009 is unclear. See generally Dkt. No. 57. A significant portion of plaintiff's motion papers involve the description of state regulations concerning mail-watch orders. Yet, plaintiff also contends that he was not provided a copy of the order in connection with the disciplinary hearing. Dkt. No. 57 at 4-6. Plaintiff also seems to argue that the basis for issuance of the mail-watch order was insufficient. Id. at 6-9.
There is no evidence in the record that defendants violated any state regulation or prison directives in connection with plaintiff's mail watch. In accordance with DOCCS Directive 4422, the superintendent of a facility may authorize a mail-watch of incoming and/or outgoing mail of an inmate. Dkt. No. 66-3. On June 25, 2009, defendant Todd submitted a request to defendant Graham to authorize a sixty-day mail-watch of plaintiff's incoming and outgoing mail "based on a confidential investigation being conducted by the Inspector General's Office[.]" Dkt. No. 66-9. The undisputed record evidence reflects that the mail-watch in fact yielded evidence that plaintiff was conducting business activity, causing defendant Todd to issue the misbehavior report to plaintiff. Dkt. No. 66-7 at 2.
To the extent plaintiff alleges that his due process rights were denied because he was not provided a copy of the mail-watch order in connection with the disciplinary hearing, I have found no authority for such a requirement. Plaintiff was provided with the evidence upon which defendant Wolcyzk relied in rendering his disciplinary hearing determination, which included screenshots of his websites that solicited business, letters plaintiff wrote to outside businesses, and testimony by defendant Todd. See generally Dkt. No. 66-5.
Because no reasonable factfinder could conclude that plaintiff's due process rights were violated in connection with the mail-watch order, I recommend defendants' motion be granted with respect to this portion of plaintiff's Fourteenth Amendment claim.
2. Concealment of "Accomplices" and Permitting Confidential Testimony by Defendant Todd
Plaintiff next contends that defendant Wolczyk violated his procedural due process rights by refusing to disclose to plaintiff during the disciplinary hearing the identities of the individuals to which defendant Todd referred in his misbehavior report as "accomplices." Dkt. No. 57 at 12, 16. Defendant Wolczyk, however, did not rely on any information provided by those individuals in rendering his disciplinary hearing determination. Dkt. No. 66-1 at 7. This is because the evidence submitted at the hearing, including printouts of the websites with which plaintiff was affiliated, confirmed that plaintiff was soliciting business in violation of DOCCS Directive 4422. Id. Accordingly, even assuming that plaintiff had a procedural due process right to know the identities of the "accomplices" to whom the misbehavior report referred, failure to disclose the identities was harmless.
Plaintiff also argues that, by permitting defendant Todd to testify confidentially, defendant Wolczyk denied him due process. Id. at 16. The Supreme Court, however, has concluded that inmates do not possess a constitutional right to confront or cross-examine witnesses in prison disciplinary hearings. Wolff v. McDonnell, 418 U.S. 539, 567-68 (1974). In addition, "[c]ourts have recognized . . . that the right to know evidence supporting prison disciplinary rulings is not absolute." Sira v. Morton, 380 F.3d 57, 74 (2d Cir. 2004). Where disclosure of the evidence supporting a disciplinary hearing determination would risk the safety and security of a prison, "hearing officers may properly decline to inform an inmate of the adverse evidence." Sira, 380 F.3d at 75.
In this case, defendant Wolczyk permitted defendant Todd to testify to "the methods of the OSI's investigation . . . into plaintiff's correspondence activities" outside the presence of plaintiff in light of plaintiff's disciplinary history, which included an attempted prison escape. Dkt. No. 66-1 at 9. Defendant Wolczyk determined that "[s]uch information was extremely sensitive and, if revealed to plaintiff, could impede OSI's investigation techniques and potentially jeopardize the safety and security of the facility." Id. In light of these legitimate concerns, I find that none of plaintiff's due process rights were violated by permitting defendant Todd to give a portion of his hearing testimony outside of the presence of plaintiff.
It is worth noting that defendant Todd also testified, in part, in plaintiff's presence, and that defendant Wolczyk permitted plaintiff to ask defendant Todd questions during the hearing. Dkt. No. 66-5 at 6-23.
3. Denial of Witnesses
Plaintiff also alleges that defendant Wolcyzk violated his procedural due process right to call witnesses at the disciplinary hearing. Dkt. No. 30 at 8; Dkt. No. 66-5 at 4. Although it is true that prison inmates retain a constitutional right to call witnesses to testify on their behalf during disciplinary hearings, that right is not unqualified. Wolff, 418 U.S. at 566. In particular, hearing officers retain the discretionary authority to refuse to call a witness "on the basis of irrelevance or lack of necessity." Scott v. Kelly, 962 F.2d 145, 147 (2d Cir. 1992); see also Wolff, 418 U.S. at 566 (envisioning that a hearing officer may deny an inmate's request to call a witness "whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases").
In this case, according to plaintiff, the two unidentified individuals he requested be called to testify on his behalf worked for the New York State DOCCS IG and "investigated [his website] in 2008 and concluded no wrongdoing on [his] part." Dkt. No. 57 at 15. Other than plaintiff's allegation that those individuals investigated the same websites that defendant Todd did, there is no evidence in the record that they had any relevant information about plaintiff's business activities that were the subject of the July 9, 2009 misbehavior report. Indeed, aside from defendant Todd, the misbehavior report does not identify any people involved in the investigation into plaintiff's conduct. Dkt. No. 66-2 at 1. Accordingly, defendant Wolczyk determined that the unidentified individuals plaintiff requested to testify on his behalf would have no relevant testimony to offer concerning the July 9, 2009 misbehavior report because they had no involvement in defendant Todd's investigation of plaintiff's mail. Dkt. No. 66-1 at 6.
Based on the record evidence, no reasonable juror could find that defendant Wolczyk violated plaintiff's due process rights by denying his request to call the unidentified individuals as witnesses. See Kalwasinski v. Morse, 201 F.3d 103, 109 (2d Cir. 1999). ("[A] hearing officer does not violate due process by excluding irrelevant or unnecessary testimony."). Courts have been cautioned not to "second guess" a hearing officer's decision to deny an inmate's witness requests where the hearing officer articulates a basis for his decision. See Wolff, 418 U.S. at 566 (explaining that courts "should not be too ready to exercise oversight and put aside the judgment of prison administrators," and noting that "it would be helpful for [hearing officers] to state [their] reasons for refusing to call a witness"). Accordingly, I recommend that the court grant defendants' motion for summary judgment with respect to this part of plaintiff's due process claim.
4. Fair and Impartial Hearing Officer and Evidence Supporting the Determination
Plaintiff next alleges that defendant Wolczyk was not a fair and impartial hearing officer, and that the hearing determination was not supported by the evidence adduced at the hearing. Dkt. No. 30 at 8; Dkt. No. 57 at 17.
The due process clause of the Fourteenth Amendment guarantees that "[a]n inmate subject to a disciplinary hearing is entitled to. . . an impartial hearing officer." Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citing Wolff, 418 U.S. at 570-71). The Second Circuit has explained that its "conception of an impartial decisionmaker is one who, inter alia, does not prejudge the evidence and who cannot say . . . how he would assess evidence he has not yet seen." Patterson v. Coughlin, 905 F.2d 564, 570 (2d Cir. 1990). "The degree of impartiality required of prison officials[, however,] does not rise to the level of that required of judges." Allen, 100 F.3d at 259. Indeed, "[i]t is well recognized that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts." Russell v. Selsky, 35 F.3d 55, 60 (2d Cir. 1996). "A hearing officer may satisfy the standard of impartiality if there is 'some evidence in the record' to support the findings of the hearing." Allred v. Knowles, No. 06-CV-0456, 2010 WL 3911414, at *5 (W.D.N.Y. Oct. 5, 2010) (quoting Hill, 472 U.S. at 455).
Plaintiff's claim of hearing officer bias appears to derive from defendant Wolczyk's decision to permit defendant Todd to testify, in part, confidentially and outside of the presence of plaintiff. Dkt. No. 30 at 8; Dkt. No. 56 at 17. As was discussed above in part III.C.2. of this report, however, "when the disclosure of evidence presents [risks to the safety and security of prison operations], hearing officers may properly decline to inform an inmate of the adverse evidence." Sira, 380 F.3d at 75. Defendant Wolczyk in this case allowed defendant Todd to testify confidentially, having concluded that revealing the details of the investigation "could impede OSI's investigation techniques and potentially jeopardize the safety and security of the facility." Dkt. No. 66-1 at 9. In light of plaintiff's extensive disciplinary history, which included an escape attempt, defendant Wolczyk's decision to allow defendant Todd to testify confidentially about investigation techniques was reasonable and in no way suggests partiality. Dkt. No. 66-1 at 9; Dkt. No. 66-5 at 14; see generally Dkt. No. 66-6; see Kalwasinski, 201 F.3d at 109-10 (concluding that the plaintiff's due process claim, which was based on an allegation that the defendant-hearing officer was impartial because he relied on confidential information in rendering his determination, was unfounded). In addition, plaintiff does not articulate how allowing defendant Todd to testify confidentially biased defendant Wolczyk. The hearing transcript reflects that defendant Wolczyk repeatedly stated he would consider all of the evidence presented at the hearing, and its credibility, before making a decision. Dkt. No. 66-5 at 10, 20, 21, 24.
With respect to plaintiff's argument that the determination was not supported by sufficient evidence, even assuming for the sake of argument that the mail-watch order was obtained in violation of plaintiff's constitutional rights (which it was not, as discussed above in part III.C.1.), "[t]he fruit of the poisonous tree doctrine . . ., which applies to evidence that is obtained during a criminal investigation, . . . has no applicability to prison disciplinary hearings." Dillhunt v. Theriault, No. 07-CV-0412, 2009 WL 4985477, at *15 (N.D.N.Y. Dec. 15, 2009) (Suddaby, J., adopting report and recommendation by Peebles, M.J.) (citing Rabb v. McMaher, No. 94-CV-0614, 1998 WL 214425, at *7 (N.D.N.Y. Apr. 24, 1998) (Pooler, J.)). Accordingly, the evidence upon which defendant Wolczyk relied in finding plaintiff guilty of the charges contained in the misbehavior report was properly considered and constitutes a sufficient basis for his decision. In particular, defendant Wolczyk relied on the letters plaintiff wrote to graphic shops, letters from plaintiff requesting assistance with book editing, and screenshots from plaintiff's websites. Dkt. No. 66-1 at 8; Dkt. No. 66-4 at 22, 28-36. Some of the letters contained budgets, advertising requests, and marketing strategies for FREENicholasZimmerman.com, MAEG, and plaintiff's book and compact discs for sale online. Dkt. No. 66-4 at 22, 28-36. In light of this evidence, it is clear that defendant Wolczyk's determination was based upon "some evidence." Superintendent v. Hill, 472 U.S. 445, 455 (1985). Accordingly, I recommend that defendants' motion with respect to this portion of plaintiff's due process claim be granted.
5. Hearing Determination Affirmance on Appeal
Plaintiff further alleges that, by affirming defendant Wolczyk's disciplinary hearing determination, defendants Graham and Bezio violated his due process rights. See, e.g., Dkt. No. 30 at 8-9. Because I have concluded that defendant Wolczyk did not violate plaintiff's due process rights in connection with the disciplinary hearing, I recommend the court also grant defendants' motion with respect to plaintiff's due process claim asserted against defendants Graham and Bezio. See, e.g., Lopez v. Whitmore, No. 13-CV-0952, 2015 WL 4394604, at *11 (July 16, 2015) (Sannes, J., adopting report and recommendation by Baxter, M.J.) (dismissing due process claim against defendant Prack "[b]ecause his only involvement in plaintiff's claims was to affirm the results of a disciplinary hearing that th[e] court . . . found comported with due process").
D. Plaintiff's Eighth Amendment Claims
Plaintiff contends that his Eighth Amendment right to be free from cruel and unusual punishment was denied when he was sentenced to serve six months of SHU confinement, with a corresponding loss of privileges, as a result of the disciplinary hearing determination. Dkt. No. 30 at 8; Dkt. No. 57 at 17-19.
The Eighth Amendment prohibits punishment that is "incompatible with 'the evolving standards of decency that mark the progress of a maturing society[,]' or 'involve[s] the unnecessary and wanton infliction of pain[.]'" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) and Gregg v. Georgia, 428 U.S. 153, 169-73 (1976) (citations omitted)). While the Eighth Amendment "'does not mandate comfortable prisons,' neither does it permit inhumane ones." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)); Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013).
A claim alleging that prison conditions have violated the Eighth Amendment must satisfy both an objective and a subjective requirement. Walker, 717 F.3d at 125; Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996). To satisfy the objective element, "the plaintiff must demonstrate that the conditions of his confinement result in 'unquestioned and serious deprivations of basic human needs.'" Jolly, 76 F.3d at 480 (quoting Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985)); see also Walker, 717 F.3d at 125 ("To meet the objective element, the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health."). In a prison setting, basic needs include "food, clothing, medical care, and safe and sanitary living conditions." Walker, 717 F.3d at 125 (citing, inter alia, Rhodes, 452 U.S. at 347). As to the subjective requirement, "the plaintiff must demonstrate that the defendants imposed those conditions with 'deliberate indifference.'" Jolly, 76 F.3d at 480 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)); see also Walker, 717 F.3d at 125; Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J., adopting report and recommendation by Homer, M.J.). Deliberate indifference exists if an official "knows of and disregards an excessive risk to inmate health or safety; [he] must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837; see also Walker, 717 F.3d at 125; Waldo, 1998 WL 713809, at *2.
Although plaintiff describes the SHU confinement and loss of privileges as "torture" that eventually resulted in his depression and suicide attempt, there is no evidence in the record that his sanctions deprived him of basic human needs. Dkt. No. 57 at 17-19; Dkt. No. 66-13 at 44. Generally speaking, confinement in a DOCCS facility's SHU under ordinary conditions does not rule afoul of the Eighth Amendment's prohibition of cruel and unusual punishment. See, e.g., Smith v. Fischer, No. 07-CV-1264, 2009 WL 632890, at *11 (N.D.N.Y. Feb. 2, 2009) (Lowe, M.J.) ("Although the service of a disciplinary sentence under ordinary conditions prevailing in the SHU may implicate other constitutional rights, it does not rise to a level of constitutional significance under the Eighth Amendment and fails to support a claim of cruel and unusual punishment under that provision." (internal quotation marks and alteration omitted)).
It should be noted, moreover, that plaintiff testified at his deposition that, until his period of SHU confinement, he "never had any serious bouts with depression." Dkt. No. 66-13 at 44. Accordingly, no reasonable factfinder could conclude that sentencing plaintiff to SHU confinement should have been avoided due to a preexisting suicidal ideation or otherwise constituted deliberate indifference. According to plaintiff, upon learning of plaintiff's suicide attempt, defendant Graham restored plaintiff's correspondence privileges, which occurred less than two weeks after the disciplinary hearing concluded. Dkt. No. 66-13 at 44. In light of this, no reasonable factfinder could conclude that plaintiff was subjected to unconstitutional conditions of confinement that risked either his health or safety. Accordingly, I recommend that the court grant defendants' motion for summary judgment with respect to plaintiff's Eighth Amendment claim.
IV. SUMMARY AND RECOMMENDATION
Plaintiff has asserted First, Eighth, and Fourteenth Amendment causes of action against four defendants arising out disciplinary action taken against him for violating prison rules and regulations. Having considered the record evidence presented by the parties' cross-motions for summary judgment, it is respectfully
RECOMMENDED that plaintiff's motion for summary judgment (Dkt. No. 57) be DENIED, defendants' motion (Dkt. No. 66) be GRANTED, and plaintiff's amended complaint be DISMISSED in its entirety.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
If you are proceeding pro se and are served with this report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: August 30, 2018
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge