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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------x

                                                                        :

GILBERTO SILVA,                                        :           89 Civ. 8584 (MBM)

                                                                        :

                                                Plaintiff,            :

                                                                        :

                        - against -                                 :           NOTICE OF MOTION

                                                                        :           ORAL ARGUMENT REQUESTED

THOMAS A. COUGHLIN, III, DONALD     :

SELSKY, CHARLES J. SCULLY, and           :

THOMAS L. CASEY,                                     :

                                                                        :

                                                Defendants.      :

                                                                        :

------------------------------------------------------x

 

 

PLEASE TAKE NOTICE that, upon the annexed Rule 3(g) Statement, the annexed affidavit of John L. Sullivan, sworn to August 30, 1991, the exhibits annexed thereto, the accompanying Memorandum of Law In Support of this Motion for Summary Judgment and the pleadings and all prior proceedings had herein, plaintiff Gilberto Silva, through his attorneys, Shearman & Sterling, will make a motion before the Honorable Michael D. Mukasey of this Court, at the United States Courthouse, Foley Square, New York, New York, at 9:30 a.m. on September 16, 1991, for an order pursuant to Rule 56(a) of the Federal Rules of Civil Procedure granting summary judgment in favor of Silva against defendants Thomas E. Casey and Donald Selsky on the issue of liability, and for such other and further relief as this Court deems just and proper.


 

Dated:  New York, New York

            August 30. 1991

 

SHEARMAN & STERLING

 

 

By:                                                                  

            John L. Sullivan

            I.D. No. JS0314

 

153 East 53rd Street

New York, New York 10022

(212) 848-4000

 

Attorneys for Plaintiff

 

To:       Clement J. Colucci, Esq.

Assistant Attorney General

New York State Department of Law

120 Broadway

New York, New York 10271

 


UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------x

                                                                        :

GILBERTO SILVA,                                        :           89 Civ. 8584 (MBM)

                                                                        :

                                                Plaintiff,            :

                                                                        :

                        - against -                                 :           STATEMENT PURSUANT TO

                                                                        :           RULE 3(g) OF THE CIVIL

THOMAS A. COUGHLIN, III, DONALD     :           RULES OF THIS COURT        

SELSKY, CHARLES J. SCULLY, and           :

THOMAS L. CASEY,                                     :

                                                                        :

                                                Defendants.      :

                                                                        :

------------------------------------------------------x

 

 

Plaintiff Gilberto Silva (“Silva”); through his attorneys, Shearman & Sterling, submits, pursuant to Rule 3(g) of the Civil Rules of this Court, the following statement in support of his motion for summary judgment against defendants Thomas E. Casey (“Casey”) and Donald Selsky (“Selsky”) listing those facts as to which Silva contends there is no genuine issue to be tried.

1.         Casey and Selsky were, at all time relevant herein, officials employed by the New York State Department of Correctional Services (“DOCS”).

2.         Casey was, at all times relevant herein, an Assistant Deputy Superintendent at the Green Haven Correctional Facility, whose duties includes conducting Tier III Superintendent’s Hearings with regard to alleged violations by inmates of rules contained in the State Standards of Inmate Behavior.  See N.Y. Comp. Codes R. & Regs. tit. 7, § 270.2.

3.         Donald Selsky was, at all times relevant herein, Director of Special Housing/Inmate Disciplinary Programs for DOCS.

4.         From June 25, 1987 to at least March 28, 1988, Silva was confined in a Special Housing Unit (“SHU”) at the Green Haven Correctional Facility as a result of actions taken or approved by these officials.

5.         On June 25, 1987, Silva was removed from the general population at the Green Haven Correctional Facility and confined to the SHU as a result of two misbehavior reports filed by corrections officers at the facility.  The misbehavior reports accused Silva of violating various rules contained in the State Standards of Inmate Behavior.

6.         The first report, submitted by Correction Officer Stephen D. Pinchak, alleged that Silva failed to obey a direct order to stop fighting with another inmate in the prison yard, and charged him with violating rules 106.10 (disobeying s direct order), 100.11 (Fighting), and 100.20 (disturbing the order of the facility).

7.         Officer Pinchak’s testified at a subsequent disciplinary hearing, convened by Casey and reviewed by Selsky, only that he had seen another inmate chasing Silva with a broom handle, that be apprehended the inmate, and that the inmate broke out of his arms, hit Silva with a rock and proceeded to engage Silva in a fist fight.

8.         The second report, written by Correction Sergeant Michael Britton, alleged that Silva had assaulted two inmates, W. Gonzales and C. Mequita, and charged him with two counts of assault in violation of rule 100.10.

9.         Sergeant Britton’s report was not based on personal knowledge.

10.       Sergeant Britton never specifically identified the hearsay declarants upon whom he allegedly relied in making his report, nor did he give a specific account of what these hearsay declarants allegedly witnessed.

11.       Silva objected at the hearing convened by Casey, and in his appeal to Selsky, to the fact that these alleged hearsay declarants were never identified and that what they allegedly witnessed was never fully described.

12.       Silva requested that Gonzales and Mequita be called to testify at the hearing.

13.       Casey refused Silva’s request to call Gonzales and Mequita to testify, relying on forms (referred to herein as “Witness Refusal Forms”), executed by Gonzalez and Mequita, stating that they “[did] not want to be involved” and that they “[did] not know enough about [the] specific incident to provide relevant testimony.”

14.       Casey made no attempt to otherwise procure the testimony of Gonzales and Requite or confirm their reasons for not testifying.

15.       Silva raised in his appeal to Selsky the fact that no other effort was made to procure the testimony of these witnesses or confirm their reasons for not testifying.

16.       The employee assistant assigned to Silva, who speaks little or no English, made no effort to investigate the incident other than to procure the witness Refusal Forms from Gonzales and Mequita, and did not report the results of his investigation to Silva prior to the hearing, as required by DOCS regulations.

17.       Silva objected at the hearing convened by Casey, and in his appeal to Selsky, to the fact that the assistant did not investigate the incident and did not report to him the results of any investigation prior to the hearing.

18.       At the conclusion of the disciplinary hearing, Casey found Silva not guilty of disobeying a direct order, but convicted Silva on the remaining charges of fighting, assault and disturbing the order of the facility and sentenced Silva to one year of confinement in a cell or the SHU.  Casey also found that Silva should be stripped of commissary and telephone privileges concurrent with his confinement in the SHU.

19.       In a letter dated July 14, 1847, from Silva to Selsky, Silva appealed Casey decision, pointing out that the assistance provided to him in connection with the hearing was inadequate, that the evidence produced at the hearing did not support the rules violations charged and that Casey had refused to call Gonzalez and Mequita as witnesses.

20.       In a disposition dated September 10, 1987, Selsky affirmed Casey’s decision.

21.       In October of 1987, Silva commenced an action (the “Article 78 Proceeding”) in the New York Supreme Court for Dutchess County, pursuant to Article 78 of the New York Civil Practice Law and Rules, seeking an order annulling the results of the disciplinary proceeding and directing that all references to the two misbehavior reports be expunged from his records.

22.       On March 28, 1988, after Silva had spent 9 months confined in the SHU, the Appellate Division granted the relief sought the Article 78 Proceeding.  See Matter of Silva v. Scully, 138 A.D.2d 717, 526 N.Y.S.2d 532 (1988).

23.       The Appellate Division found that there was insufficient evidence to support the charges against Silva and that denial of Silva’s request to call Gonzales and Mequita as witnesses violated DOCS regulations because Casey had failed to interview the witnesses to explore their reasons for not testifying.  138 A.D.2d at 719-720, 526 N.Y.S.2d at 533-534.

Dated:  New York, New York

August 30, 1991

 

Respectfully submitted,

 

SHEARMAN & STERLING

 

 

By:                                                      

John L. Sullivan

I.D. No. JL0314

 

153 East 53rd Street

New York, New York 10022

(212) 848-4000

 

Attorneys for Plaintiff

 


UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------x

                                                                        :

GILBERTO SILVA,                                        :           89 Civ. 8584 (MBM)

                                                                        :

                                                Plaintiff,            :

                                                                        :

                        - against -                                 :           AFFIDAVIT OF

                                                                        :           JOHN L. SULLIVAN

THOMAS A. COUGHLIN, III, DONALD     :

SELSKY, CHARLES J. SCULLY, and           :

THOMAS L. CASEY,                                     :

                                                                        :

                                                Defendants.      :

                                                                        :

------------------------------------------------------x

 

 

STATE OF NEW YORK        )

)

COUNTY OF NEW YORK   )

 

JOHN L. SULLIVAN, being duly sworn, deposes and says:

1.         I am an associate in the firm of Shearman & Sterling, attorneys for plaintiff Gilberto Silva, and am admitted to practice before this Court.  I submit this affidavit in support of plaintiff Gilberto Silva’s motion for summary judgment against defendants Thomas E. Casey and Donald Selsky.

2.         I am familiar with the depositions, documents and pleadings in this action.  The material facts relevant to the present motion are contained in such depositions and documents which are attached hereto and described as follows:

EXHIBIT

DESCRIPTION

 

 

A

Deposition of Thomas E. Casey, in this action, taken July 26, 1991.

 

 

B

Hearing Record Sheet regarding charges against Gilberto Silva.

 

 

C

Transcript of disciplinary hearing held at Green Haven Correctional Facility, prepared by Shearman & Sterling from an audio tape produced by New York State Department of Law.

 

 

D

Transcript of disciplinary hearing held at Green Haven Correctional Facility.

 

 

E

Inmate Misbehavior Report submitted by Michael Britton.

 

 

F

Inmate Misbehavior Report submitted by Stephan D. Pinchak.

 

 

G

Witness Refusal Form executed by W. Gonzalez.

 

 

H

Witness Refusal Form executed by Cristino Mequita.

 

 

I

Superintendent’s & Disciplinary Hearings - Witness Interview Form executed by Thomas E. Casey, dated July 13, 1987.

 

 

J

Letter of appeal from Gilberto Silva to Donald Selsky, dated July 14, 1987.

 

 

K

Review of Superintendent’s Hearing by Donald Selsky, dated September 10, 1987.

 

 

L

Verified petition, In the Matter of Silva v. Charles Scully and Thomas A. Coughlin, dated October 1, 1987.

 

 

                                                                       

John L. Sullivan

 

Sworn to before me this

30 day of August, 1991

 

 

                                                                       

            Notary Public


UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------x

                                                                        :

GILBERTO SILVA,                                        :           89 Civ. 8584 (MBM)

                                                                        :

                                                Plaintiff,            :

                                                                        :

                        - against -                                 :

                                                                        :

THOMAS A. COUGHLIN, III, DONALD     :

SELSKY, CHARLES J. SCULLY, and           :

THOMAS L. CASEY,                                     :

                                                                        :

                                                Defendants.      :

                                                                        :

------------------------------------------------------x

 

 

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S

                        MOTION FOR SUMMARY JUDGMENT                

 

 

 

 

 

 

 

 

SHEARMAN & STERLING

153 East 53rd Street

New York, New York 10022

(212) 848-4000

 

Attorneys for Plaintiff

 


TABLE OF CONTENTS

 

PAGE

 

TABLE OF AUTHORITIES............................................................................................................. ii

FACTS............................................................................................................................................. 1

ARGUMENT................................................................................................................................... 8

I.......... DEFENDANTS’ ACTIONS VIOLATED THE DUE PROCESS PROTECTIONS OF THE FOURTEENTH AMENDMENT.......................................................................................... 8

A........ NO COMPETENT EVIDENCE WAS PRODUCED AT THE HEARING TO SUPPORT THE RULES VIOLATIONS ALLEGED ......................................................................... 9

1......... The Finding On The Assault Charge Was Based On A Conclusory Summary Of Hearsay Declarations ............................................................................................... 10

2......... The Fighting And Disorderly Conduct Charges Were Based On Evidence That Silva Was Attacked By Another Inmate ...................................................................... 12

B......... CASEY PROCEEDED WITH THE HEARING DESPITE SILVA’S PROTEST THAT COUNSELOR MALDONADO HAD FAILED TO INVESTIGATE OR REPORT BACK TO HIM ....................................................................................................................... 13

C........ THE HEARING OFFICER UNJUSTIFIABLY RELIED ON THE WITNESS REFUSAL FORM IN DENYING THE REQUEST TO HAVE THE INMATE WITNESSES TESTIFY 16

II......... CASEY AND SELSKY ARE LIABLE FOR THE DUE PROCESS VIOLATIONS ......... 18

CONCLUSION ............................................................................................................................ 19


TABLE OF AUTHORITIES

 

CASES                                                                                                                                      PAGE

 

Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060,
1066 (2d Cir. 1989) ....................................................................................................................... 18

Matter of Barnes v. Lefevre, 69 N.Y.2d 649, 511
N.Y.S.2d 591, 503 N.E.2d 1022 (1986) ....................................................................................... 17

Eng v. Coughlin, 858 F.2d 889 (2nd Cir. 1988)........................................................................... 8, 13

Fox v. Coughlin, 893 F.2d 475 (2nd Cir. 1990) .............................................................................. 16

Francis v. Coughlin, 891 F.2d 43 (2d Cir. 1989) ............................................................................... 8

Freeman v. Rideout, 808 F.2d 949 (2nd Cir. 1987) .......................................................................... 9

Giano v. Sullivan, 709 F.2d 1209 (S.D.N.Y. 1989) ........................................................................ 13

Gittens v. Sullivan, 720 F. Supp 40 (S.D.N.Y. 1989) ...................................................................... 10

McCann v. Coughlin, 698 F.2d 112 (2nd Cir. 1983) ............................................................. 8, 17, 18

Mass. Correctional Inst. v. Hill, 472 U.S. 445, 105
S.Ct. 2768, 86 L. Ed.2d 356 (1985) ............................................................................................ 8, 9

Nurse v. Duffany, 1991 U.S. Dist. LEXIS 1940
(S.D.N.Y. 1991) ............................................................................................................................ 10

Patterson v. Coughlin, 905 F.2d 564 (2d Cir. 1990).......................................................................... 8

Pino v. Dalsheim, 605 F. Supp 1305 (S.D.N.Y. 1984).............................................................. 13, 16

Ponte v. Real, 471 U.S. 491, 497, 105 S.Ct. 2192,
2196, 85 L. Ed.2d 553 (1985) ....................................................................................................... 16

Richardson v. Coughlin, 1991 U.S. Dist. LEXIS 5287
(S.D.N.Y. 1991) ............................................................................................................................ 18

Matter of Silva v. Scully, 138 A.D.2d 717, 526
N.Y.S.2d 532 (1988) .................................................................................................. 7-8, 10,13, 18

Williams v. Smith, 781 F.2d 319 (2d Cir. 1986) .............................................................................. 18

Wolfe v. Carlson, 583 F. Supp. 977 (S.D.N.Y. 1984) ................................................................ 9-10

Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41
L. Ed.2d 935 (1974) ........................................................................................................................ 8


PAGE

STATUTES

42 U.S.C. § 1983 ................................................................................................................ 2. 18, 19

N.Y. Comp. Codes R. & Regs. tit. 7, § 270.2 .................................................................................. 2

N.Y. Comp. Codes R. & Regs. tit. 7, § 251-4.2 ......................................................................... 3, 13


UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------x

                                                                        :

GILBERTO SILVA,                                        :           89 Civ. 8584 (MBM)

                                                                        :

                                                Plaintiff,            :

                                                                        :

                        - against -                                 :

                                                                        :

THOMAS A. COUGHLIN, III, DONALD     :

SELSKY, CHARLES J. SCULLY, and           :

THOMAS L. CASEY,                                     :

                                                                        :

                                                Defendants.      :

                                                                        :

------------------------------------------------------x

 

 

MEMORANDUM OF LAN IN SUPPORT OF PLAINTIFF’S

                        MOTION FOR SUMMARY JUDGMENT                

 

Plaintiff Gilberto Silva (“Silva”), through his attorneys, Shearman & Sterling, submits this memorandum of law in support of his motion for summary judgment against defendants Thomas E. Casey (“Casey”) and Donald Selsky (“Selsky”).

At all times relevant to the motion, Casey and Selsky were officials employed by the New York State Department of Correctional Services (“DOCS”).  From June 25, 1987 to March 1988, Silva was confined in a Special Housing Unit (“SHU”) at the Green Haven Correctional Facility as a result of actions taken or approved by these officials.  The undisputed record of (i) the disciplinary hearing covened by Casey and reviewed by Selsky, (ii) subsequent state court proceedings in which the results of the disciplinary bearing were overturned, and (iii) discovery in this action shows:  that Silva was confined in the SHU in the absence of any competent evidence that he committed the rules violations charged, that Silva was denied meaningful assistance in preparing a defense to the charges, and that Silva was denied his right to call material witnesses at the disciplinary hearing on those charges.  Therefore, the actions taken or approved by these officials violated Silva’s due process rights under the Fourteenth Amendment.  Silva is entitled to judgment as a matter of law as to the liability of Casey and Selsky, under 42 U.S.C. § 1983, for the deprivation of Silva’s liberty without due process.

FACTS

 

1.         The Misbehavior Reports

On June 25, 1987, Silva was removed from the general population at the Green Haven Correctional Facility and confined to the SHU as a result of two misbehavior reports filed by corrections officers at the facility.  (Ex. B, E, F)*  The misbehavior reports accused Silva of violating various rules contained in the State Standards of Inmate Behavior.  (Id.)  See N.Y. Comp. Codes R. & Regs. tit. 7, § 270.2.  The first report, written by Correction Sergeant Michael Britton, alleged that Silva had assaulted two inmates, W. Gonzales and C. Mequita, and charged him with two counts of assault in violation of rule 100.10.  (Ex. E)  The second report, submitted by Correction Officer Stephen D. Pinchak, alleged that Silva failed to obey a direct order to stop fighting with another inmate in the prison yard, and charged him with violating rules 106.10 (disobeying a direct order), 100.11 (fighting), and 100.20 (disturbing the order of the facility).  (Ex. F)

2.         Pre-Hearing Witness Request And Assignment Of Employee Assistant

In anticipation of a Superintendent’s Tier III disciplinary hearing, Silva requested that Gonzales and Mequita be called to testify.  (Ex. B)  In addition, Silva, who speaks little or no English, was assigned a Spanish-speaking employee assistant to help him in preparing a defense to the charges contained in the misbehavior reports.  DOCS regulations require that such an assistant explain the charges to the inmate, interview witnesses and report the results of the investigation to the inmate at least 24 hours before the hearing.  N.Y. Comp. Codes R. & Regs. tit. 7, § 251-4.2; (Ex. A at 13).  The first assistant assigned to Silva received the list of witnesses, but failed to conduct an investigation of the charges or report back to Silva, as required by the regulations.  (Ex. C at 6-10)

3.         The Disciplinary Hearing

a.         Lack of Assistance

On July 2, 1587, Casey, then a Deputy Assistant Superintendent at the Green Haven Correctional Facility, convened a disciplinary hearing regarding the charges against Silva.  (Ex. C at 1, D at 1)  As the hearing commenced, Silva notified Casey that the employee assistant had failed to conduct an investigation.  (Ex. C at 7-9)  Correction Counselor Maldonado was then assigned to assist Silva in connection with the disciplinary proceeding.  (Id. at 13)  Instead of conducting an investigation of the incident based on Silva’s firm assertion that it was he who had been attacked during the incident in question, Maldonado merely collected from the Gonzales and Mequita certain forms (referred to herein as “Witness Refusal Forms”) stating that they would not testify. (Id. at 24, Ex. G, H)  Maldonado failed to report back to Silva prior to the hearing, as required by the regulations.  (Ex. C at 35)

When the disciplinary hearing recommenced on July 13, 1988, Silva objected to the fact that he had still not received any meaningful assistance in preparing his defense.  (Id. at 16)  Casey ignored Silva’s objection and proceeded to take testimony from Sergeant Britton and Correction Officer Pinchak, the officers who had filed the misbehavior reports.  (Id.)  After the testimony was concluded, Silva again objected to the lack of assistance, specifically mentioning that Maldonado failed to report to him the results of the investigation. (Id. at 35)  Casey stated in response that Silva was not entitled to such a report and proceeded to make a disposition.  (Id.)

b.         Incompetent Hearsay Officer Testimony

No competent evidence was adduced at the hearing to substantiate the rules violations alleged in the misbehavior reports.  Sergeant Britton testified that he did not witness the incident involving Silva.  (Ex. A at 26; Ex. C at 18, 22)  Rather, his misbehavior report was based upon information supplied by unidentified correction officers.  (Ex. A at 29; Ex. C at 22)  The entirety of Britton’s testimony, as described by Mr. Casey, was that he “observed the three Inmates being removed from the yard and conferred with the officers present in the yard, and through his investigation received sufficient information to write charges against Inmate Silva for rule violations dealing with the assault on these other individuals.”  (Id. at 28-29)  Sergeant Britton never provided, and Casey never inquired into, the identity or reliability of these alleged hearsay declarants.  (Id. at 33)  Sergeant Britton never provided, and Casey never inquired into the specifics of what they allegedly told Sergeant Britton.  (Id. at 29-33)

When Silva asked that these alleged hearsay declarants be identified and questioned, Casey refused, saying that Officer Pinchak was the source of Sergeant Britton’s testimony.  (Id. at 36-37; Ex. C at 22-23)  However, Officer Pinchak testified only that he saw Silva being attacked by one of the other inmates.  (Ex. C at 28-29; Ex. A at 44-46)

c.         Denial Of Request For Witnesses

At the hearing, Casey denied Silva’s request to have the other inmates involved in the incident called to testify.  (Ex. C at 24-25, 34)  Casey based his decision on a one page form (referred to herein as a “Witness Refusal Form”) completed by each of the inmate witnesses.  (Id.; Ex. A at 61-62, G, H)  The Witness Refusal Form contains three possible responses for an inmate to invoke in refusing to testify.  (Ex. G, H)  In this instance, inmates Gonzalez and Mequita both checked off two of the responses, indicating that they “[did] not want to be involved” and that they “[did] not know enough about [the] specific incident to provide relevant testimony.”  (Id.)  Despite the patent falsity of these assertions in light of the testimony of Officer Pinchak regarding the attack on Silva, no other effort was made to procure the testimony of these witnesses.  (Ex. C at 34, Ex. A at 61-62, 65)

d.         The Hearing Officer’s Disposition and Affirmance on Appeal

At the conclusion of the disciplinary hearing, Casey found Silva not guilty of disobeying a direct order, but convicted Silva on the remaining charges of fighting, assault and disturbing the order of the facility.  (Ex. B)  Casey then sentenced Silva to one year of confinement to a cell or the SHU and stripped Silva of commissary and telephone privileges concurrent with his confinement in the SHU.  (Id.)

In a letter dated July 14, 1987, Silva appealed Casey’s determination to defendant Selsky, then Director of Special Housing/Inmate Disciplinary Programs for DOCS.  (Ex. J)  In his letter of appeal, Silva specifically pointed out the absence of any meaningful assistance in the preparation of his defense, the insufficiency of the evidence presented at the disciplinary hearing, and the denial of his request that certain witnesses be called.  (Id.)  Despite these obvious deficiencies in the disciplinary hearing, each pointed out in Silva’s written appeal of the decision, Selsky affirmed Casey’s determination.  (Ex. K)

4.         Grant of Relief on Silva’s Article 78 Petition

On October 1, 1987, Silva commenced an action (the “Article 78 Proceeding”) in the New York Supreme Court for Dutchess County, pursuant to Article 78 of the New York Civil Practice Law and Rules, raising many of the issues presented in this action and seeking an order annulling the results of the disciplinary proceeding and directing that all references to the two misbehavior reports be expunged from his records.  (Ex. L)  On March 28, 1988, after Silva had spent 9 months confined in the SHU, the Appellate Division granted the relief sought the Article 78 Proceeding.  See Matter of Silva v. Scully, 138 A.D.2d 717, 526 N.Y.S.2d 532 (1988).  The court found that there was insufficient evidence to support the charges against Silva.  138 A.D.2d at 718, 526 N.Y.S.2d at 532-533.  In addition, the court held that denial of Silva’s request to call the Gonzales and Mequita as witnesses in reliance on the Witness Refusal Forms violated DOCS regulations because Casey had failed to interview the witnesses to explore their reasons for not testifying.  138 A.D.2d at 719-720, 526 N.Y.S.2d at 533-534.

ARGUMENT

 

I.          DEFENDANTS’ ACTIONS VIOLATED THE DUE PROCESS PROTECTIONS OF THE FOURTEENTH AMENDMENT.

 

The Supreme Court first delineated the Fourteenth Amendment due process procedural protections afforded an inmate in a disciplinary proceeding in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L. Ed.2d 935 (1974).  In Wolff, the court held that an inmate must be given (1) written notice of the charges against him; (2) a written statement of the reasons for the action taken and the evidence relied upon in making the decision; and (3) the opportunity to call witnesses and present evidence in his defense, “when permitting him to do so would not be unduly hazardous to institutional safety or correctional goals.”  Id. at 553-572.  Subsequent decisions have defined this broad range of due process protections to include more specifically, inter alia, the right to assistance in preparing a defense and the right to a fair and impartial decision-maker.  See, e.g., Patterson v. Coughlin, 905 F.2d 564, 569-570 (2d Cir. 1990); Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989); Eng v. Coughlin, 858 F.2d 889, 897-898 (2nd Cir. 1988); McCann v. Coughlin, 698 F.2d 112, 122 (2d Cir. 1983).  In addition, disciplinary action must be based on “some evidence” that a rules violations took place.  Mass. Correctional Inst. v. Hill, 472 U.S. 445, 455-455, 105 S.Ct. 2768, 2774, 86 L. Ed.2d 356 (1985).  The actions taken or approved by Casey and Selsky in this case violated those standards and deprived Silva of the due process protections guaranteed by the Fourteenth Amendment.

A.        NO COMPETENT EVIDENCE WAS PRODUCED AT THE HEARING TO SUPPORT THE RULES VIOLATIONS ALLEGED.

 

To prevent arbitrary and capricious decisions, due process requires that a hearing officer must have “some evidence” to support a disciplinary action.  Mass. Correctional Inst. v. Hill, 472 U.S. 445, 455-456, 105 S.Ct. 2768, 2774, 86 L. Ed.2d 356 (1985); Freeman v. Rideout, 808 F.2d at 949, 954-955 (2nd Cir. 1987).  The test is whether “there is any evidence in the record that could support the conclusion reached” by the hearing officer.  Id.  Since the disciplinary hearing at issue here produced only unsubstantiated hearsay evidence as to the assault charges and evidence on the fighting and disorderly conduct charges showing only that Silva had been attacked by another inmate, and no other evidence has been produced in this action to support the charges, the undisputed record shows such evidence was lacking with regard to all of the rules violations with which Silva was charged.

1.         The Finding On The Assault Charge Was Based On
A Conclusory Summary Of Hearsay Declarations.        

 

In Wolfe v. Carlson, the court held that a disciplinary action “based solely on the report by a prison official of what an informant claims to have witnessed with no information as to the identity or the reliability of the informant,” is arbitrary and thus constitutionally defective.  583 F. Supp. at 982.  Similarly, in Gittens v. Sullivan, 720 F. Supp 40, 43 (S.D.N.Y. 1989), the court held that a hearing officer “may only rely upon information from a confidential informant or the hearsay testimony of a corrections officer where an independent effort to establish the reliability of that information is undertaken.”  See also Nurse v. Duffany, 1991 U.S. Dist. LEXIS 1940 (S.D.N.Y. 1991) (disciplinary decision upheld where officer testified that his report was based on information provided by reliable sources, including an informant who had previously provided accurate information on prior occasions).  Thus, a hearing officer must determine the identity and reliability of hearsay declarants.  As noted by the Appellate Division in reversing the determination in this case, Casey made no such determination with regard to the report and testimony of Sergeant Britton.  Matter of Silva, 138 A.D.2d at 718, 526 N.Y.S.2d at 532-533.

With regard to the assault charge, Sergeant Britton testified that he was not present in the yard when the incident involving Silva occurred.  (Ex. A at 26, Ex. C at 18, 22)  He testified in conclusory fashion that his report was based on information provided to him by other officers in the yard at the time the incident occurred.  (Id.)  Britton did not identify who these officers were or describe specifically what they claimed to have seen.

Thus, Casey lacked any information upon which to evaluate the reliability of the accounts.  Wwhen Silva sought to question Sergeant Britton about the reliability of his testimony given the fact that it was not based on personal knowledge, Casey cut off the questioning.  For example, at one point during Sergeant Britton’s testimony the following discussion occurred:

Silva:                (The question that I have is that I, in this case, have no reason to be involved in this because I was a victim . . .]*

 

Maldonado:      [Wait a minute, tell me questions (inaudible)]

 

Silva:                [O.K., that is, he can’t say that he saw me in anything dealing with this because I — ]

 

Maldonado:      [Wait, wait, that isn’t a question, son.]

 

* * *

 

Maldonado:      So he wants to know why Sergeant Britton wrote this report without being in that place that day when he was involved in that kind of incident where he is accused of stabbing somebody.

 

Casey:              Because that’s his job, tell him.  It’s not why be did it.  Ask him what he observed, like that.  It’s not why he did it, because that’s his job.

 

(Ex. C at 17)  At another point in the testimony, Silva asked  for an opportunity to question the declarants upon whose observations Britton allegedly based his report.  (Ex. C at 22)  Casey brushed off the request and asserted that Officer Pinchak was the source of Sergeant Britton’s information.  (Ex. A at 36-37; Ex. C at 22-23)  In fact, Officer Pinchak testified only that he saw Silva being attacked by another inmate.  (Ex. C at 28-29; Ex. A at 44-46)

As a result, Casey not only usurped the role of the witness thus depriving Silva of his right to confront Britton and present his defense, Casey’s statement and rationale for precluding further inquiry was factually incorrect.  Undoubtedly, Silva’s ability to overcome these errors was limited by his inability to speak English and his reliance on the interpreter in presenting his defense.  Ultimately, Casey’s insensitivity to that fact and his failure base his decision on competent evidence deprived Silva the due process protection against arbitrary and capricious disciplinary action.

2.         The Fighting And Disorderly Conduct Charges Were Based On Evidence That Silva Was Attacked By Another Inmate.                                         

 

With regard to the charges of fighting and disturbing the order of the facility, Officer Pinchak testified only that he saw Silva being chased by another inmate carrying a broom handle, that he apprehended the inmate, and that the inmate broke out of his grasp, hit Silva with a rock and proceeded to engage Silva in a fist fight.   (Ex. A at 44-46, Ex. C at 28-29)  As the Appellate Division found, this testimony in no way supported a charge that Silva was responsible for the fight or the resulting disturbance.  Silva, 138 A.D.2d at 718, 526 N.Y.S.2d at 532-533.  Again, finding rules violations under such a record was arbitrary and capricious and deprived Silva of the due process protections of the Fourteenth Amendment.

B.         CASEY PROCEEDED WITH THE HEARING DESPITE SILVA’S PROTEST THAT COUNSELOR MALDONADO HAD FAILED TO INVESTIGATE OR REPORT BACK TO HIM.

 

“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.”  Eng v. Coughlin, 858 F.2d at 897.  The need for assistance is heightened where, as in this case, the inmate is confined in an SHU or is non-English speaking.  Id.; Giano v. Sullivan, 709 F.2d 1209, 1214-1216 (S.D.N.Y. 1989); Pino v. Dalsheim, 605 F. Supp 1305 (S.D.N.Y. 1984).  DOCS regulations recognize that fact.  N.Y. Comp. Codes R. & Regs. tit. 7. § 251-4.2.  Here, Casey proceeded with the disciplinary hearing despite a clear record that this basic level of assistance required by due process had not been provided to Silva.

Silva strenuously and repeatedly objected at the disciplinary hearing regarding the inadequacy of the assistance provided to him.  (Ex. C at 7-9, 16, 32-35)  He pointed out that no one had interviewed the two inmates that he had requested, and that no report was made to him regarding whatever investigation was made.  (Id.)  It became clear at the hearing that the assistant had merely procured the signatures of the two inmate witnesses on the Witness Refusal Form, rather than making some attempt to find out what those witnesses knew or what other witnesses might have been in the yard at the time of the occurrence.  Casey nonetheless proceeded with the hearing with full knowledge that assistance had not been provided.

The disciplinary hearing was adjourned in the first instance and Counselor Maldonado was assigned to assist Silva because the first assistant assigned had gone on vacation without doing an investigation.  (Ex. C at 7-9)  After Counselor Maldonado had been assigned to assist Silva, the hearing recommenced and Silva again objected because no investigation had been done and Maldonado had not reported back to him prior to the hearing.  (Ex. C at 16)  The following discussion occurred:

Silva:                [Apart from that I want the tape to reflect that throughout all these days there wasn’t any assistant who conducted an investigation of this case.  An investigation should have been conducted by an assistant.]

 

Maldonado:      He wants to remark on the tape that since he’s been confined in the special housing unit, no one came for assistance.

 

Silva:                [So, there hasn’t been any assistant where he brought to me an adequate investigation so that I can prepare my defense.  A hearing is being conducted without my having had that assistance from an investigator.)

 

Maldonado:      He remarks again that the lack of assistance that way, doesn’t give him any opportunity to prepare for this case against him.

 

Silva:                [O.k., — ]

 

Casey:              No, no.  Tell him, o.k. that I’m running the show.  He’s not going to sit there and ramble on.  He has Sergeant Britton here, whom he requested. . . .  What questions does Mr. Silva wish to ask Sergeant Britton pertaining to the incident that happened, period.

(Ex. C at 16)

Later in the hearing, Silva again pointed out the lack of assistance in the following discussion:

Maldonado:      He mentions that you came the first time to the hearing — Soto — you told him that Soto was on vacation.

 

Casey:              I did.

 

Maldonado:      Then I was assigned for people who were on vacation.

 

Silva:                [After that, today 18 days later, I am called.]

 

* * *

 

Silva:                [But I never saw you.  Tell him that I never saw your investigation.  That you had it, if you had it, I was not aware of it.  I didn’t have an opportunity to prepare my case, my defense.]

 

Maldonado:      He’s mentioning now he was not able to see me.

 

Casey:              He had the opportunity to see you right there and not afterwards.  For the record, let’s get this thing going. . . .

 

(Ex. C at 35)

 

Thus, Silva was repeatedly rebuffed in his attempts to get the assistance that was required, and Casey proceeded with the hearing with full knowledge that Silva had not been given the assistance that he needed in order to present a defense.  Given Silva’s confinement in the SHU and his inability to speak English, the failure to provide such minimal assistance deprived Silva of his ability to marshal and present a defense to the charges.  See Dalsheim, 605 F. Supp. at 1318 (“If . . . the employee assistant fails without justification to carry out the most basic, reasonable, and non-disruptive requests of the inmate, the inmate is effectively denied an opportunity to marshal facts for his defense, in direct contravention of the minimum procedural requirements recognized in Wolff”).

C.        THE HEARING OFFICER UNJUSTIFIABLY RELIED ON THE WITNESS REFUSAL FORM IN DENYING THE REQUEST TO HAVE THE INMATE WITNESSES TESTIFY

 

Where a hearing officer refuses to call a witness at a disciplinary hearing, the refusal must be “logically related to preventing undue hazard to ‘institutional safety or correctional goals.’“  In Ponte v. Real, 471 U.S. 491, 497, 105 S.Ct. 2192, 2196, 85 L. Ed.2d 553 (1985).  This discretion is a narrow exception to the right to call witnesses and should be exercised “only the unusual situation where allowing an inmate to call a witness would jeopardize institutional safety.”  McCann v. Coughlin, 698 F.2d 112, 123 (2nd Cir. 1983).  “The burden is not upon the inmate to prove that the decision was arbitrary and capricious, but upon the hearing officer to prove the rationality of his position.”  Fox v. Coughlin, 893 F.2d 475, 478 (2nd Cir. 1990).  Because the only justification ever offered by Casey for failing to call Gonzalez and Mequita at the hearing was the existence of a cursory form containing baldly false assertions, Casey’s actions at the hearing and his subsequent testimony failed to meet that standard.

Casey cannot reasonably have relied on the reasons for not testifying proffered by inmates Gonzales and Mequita in checking off the responses provided on the Witness Refusal Forms.  These were the two inmates whom Silva was accused of assaulting.  (Ex. E.; Ex. F)  Officer Pinchak testified that Gonzales had attacked Silva.  (Ex. C at 28-29)  The assertion that they did not have any information to offer was clearly specious so that the refusal to further inquire into their reasons for not testifying violated Silva’s right to call witnesses in his defense.

Moreover, DOCS had continued to use and rely on the Witness Refusal Form in the face of a December 1986 decision of the New York Court of Appeals in Matter of Barnes v. Lefevre, 69 N.Y.2d 649, 511 N.Y.S.2d 591, 503 N.E.2d 1022 (1986), holding that DOCS regulations require that a hearing officer communicate with prospective witnesses to verify a refusal to testify.  As the Appellate Division noted in overruling Casey’s determination in Silva’s hearing, it was incumbent upon Casey to interview the proposed witnesses to explore their reasons for not testifying rather than accepting the cavalier response that they did not want to get involved.  Silva, 526 N.Y.S.2d at 534.  Indeed, the Appellate Division found that “mere use of this form, under the circumstances, facilitated circumvention of the petitioner’s right to call witnesses as provided in the regulations.”  Id.

II.         CASEY AND SELSKY ARE LIABLE FOR THE DUE PROCESS VIOLATIONS

Under 42 U.S.C. § 1983, an official acting under color of state law who subjects any person to a deprivation of rights secured by the Constitution is liable to the person injured in an action at law.  An inmate can recover against a supervisory official if he can show “knowledge that unconstitutional practices were taking place, and . . . failure to act on the basis of this information.”  McCann, 698 F.2d at 125.  The required personal involvement can be proved by showing that the supervisor failed to remedy the wrong after learning of it through a report or appeal.  Richardson v. Coughlin, 1991 U.S. dist. LEXIS 5287 (S.D.N.Y. 1991) (citing Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1066 (2d Cir. 1989); Williams v. Smith, 781 F.2d 319, 323-324 (2d Cir. 1986)).

All of the constitutional violations described above were committed directly by Casey, or made known to Casey or Selsky.  The insufficiency of the evidence presented in support of the rules violations alleged, including the unjustified reliance on hearsay information. was clear from the hearing record and pointed out in the appeal.  (Ex. J; Ex. C at 18, 22-23, 28-29)  Silva repeatedly objected to proceeding in light of the assigned assistant’s failure to investigate and report back prior to the hearing, and raised the issue again in his letter of appeal.  (Ex. C at 7-9, 16, 32-35; Ex. J)  Finally, Casey had continued to rely on a witness refusal form declared to be defective by the courts, and rebuffed Silva’s attempts to call material witnesses, which was clear from the record that Selsky reviewed on appeal.  (Ex. J).

This masquerade of due process made Silva’s nine month confinement in the SHU clearly unlawful.  As the actions taken or approved by Casey and Selsky caused this unlawful confinement in the absence of protections afforded by the Fourteenth Amendment, Casey and Selsky should be held liable under 42 U.S.C. § 1983.

CONCLUSION

Therefore, Silva is entitled to summary judgment against Casey and Selsky as to their liability, under 42 U.S.C. § 1983, for the unconstitutional deprivation visited upon Silva in the absence of sufficient evidence as to the rules violations charged, in the absence of adequate assistance in preparing a defense to the charges and in violation of his right to call witnesses in his defense.

Respectfully submitted,

 

SHEARMAN & STERLING

 

 

By:                                                                  

            John L. Sullivan

            I.D. No. JS0314

 

153 East 53rd Street

New York, New York 10022

(212) 841-4000

 

Attorneys for Plaintiff

 



*           “Ex.” refers to Exhibits to the affidavit of John L. Sullivan, dated August 30, 1991, accompanying the motion.

*           Material contained in brackets “[   ]” was spoken in Spanish and translated in the transcript by Shearman & Sterling, prepared from an audio tape produced by the New York State Department of Law.

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