Young v. Selsky
| Decision Date | 21 November 1994 |
| Docket Number | D,No. 1117,1117 |
| Citation | 41 F.3d 47 |
| Parties | 41 Fed. R. Evid. Serv. 559 Jerry YOUNG a/k/a Ramadan, Plaintiff-Appellant, v. Donald SELSKY, P. Orengo, R. Althouse, R.J. Cunningham, D. Schaller, L. Jewett, Defendants-Appellees. ocket 93-2567. . Originally |
| Court | U.S. Court of Appeals — Second Circuit |
Stephen M. Latimer, New York City, Prisoners' Legal Services of New York, Inc., David C. Leven, of counsel, Laila Ghabrial, Law Student, on the brief, for plaintiff-appellant.
G. Oliver Koppell, Albany, NY Atty. Gen. of the State of N.Y. , for appellees.
Before: FEINBERG, VAN GRAAFEILAND and WINTER, Circuit Judges.
Jerry Young, also known as Ramadan, appeals from an order entered in July 1993 in the United States District Court for the Northern District of New York, Neal P. McCurn, J. The order approved the Report-Recommendation (the Report) of Magistrate Judge Gustave J. DiBianco filed in June 1993 and dismissed plaintiff Young's complaint under 42 U.S.C. Sec. 1983 against defendant-appellee Selsky. The court held that plaintiff could not press his claim against defendant because of defendant's absolute immunity from suit. For reasons set forth below, we reverse the decision of the district court and remand for further proceedings.
In February through May 1992, plaintiff was a prisoner in the Eastern Correctional Facility in Napanoch, New York, which is operated by the New York State Department of Correctional Services (DOCS). He brought this action, pro se, to challenge disciplinary proceedings conducted in that facility. Defendant Selsky is the Director of the Office of Special Housing and Inmate Disciplinary Programs for DOCS. He has been designated by the Commissioner of DOCS as the sole designee to hear prisoners' appeals of decisions rendered by DOCS disciplinary hearing officers in cases involving the most serious disciplinary offenses, so-called Tier III superintendent's hearings. 7 N.Y.Comp.Codes R. & Regs. (7 NYCRR) Sec. 254.8; Moye v. Selsky, 826 F.Supp. 712, 714 (S.D.N.Y.1993). Selsky held this position at the time of Young's disciplinary proceedings and continues to serve in this capacity as of the writing of this opinion.
This litigation stems from disciplinary actions taken against plaintiff Young in the first half of 1992. In five separate hearings, prison hearing officers found plaintiff guilty of violating various Misbehavior Rules. Plaintiff was sentenced to punitive segregation in the prison's Special Housing Unit (SHU) and was deprived of inmate privileges. SHU prisoners are confined in "single-occupancy cells grouped so as to provide separation from the general population." Walker v. Bates, 23 F.3d 652, 655 (2d Cir.1994), petition for cert. filed, 63 USLW 3092 (July 25, 1994). SHU prisoners may possess only limited personal belongings and prison issue items. Their privileges to use the telephone or receive packages are limited as well.
Young appealed each decision to Selsky, who affirmed in each case. Over the course of the hearings, Young had asked to call 31 inmates and two staff officers as witnesses. He contends that the hearing officers in each case denied his requests, thus violating his due process rights.
Plaintiff filed his original complaint in July 1992, naming only Selsky as defendant. Plaintiff sued under 42 U.S.C. Sec. 1983, claiming that defendant had violated his due process rights by affirming the results of each of his allegedly unfair hearings. Plaintiff's complaint sought "release from SHU and restoration of his privileges and rights, etc., and expungement of all misbehavior reports from his files, and declaratory relief by way of order to show cause for a T.R.O. and/or P.I.," as well as "$200 dollars in punitive damages and $200 dollars in compensatory damages and $200 exemplary damages for each day of confinement."
In September 1992, plaintiff filed a second complaint against the four hearing officers who had presided over his disciplinary hearings, and against the prison-appointed employee assistant who had helped plaintiff at one of his hearings. Plaintiff alleged that this last defendant had failed to provide him with adequate assistance and that the hearing officer defendants were responsible for violations of plaintiff's rights during the hearings.
The district court referred plaintiff's complaints to Magistrate Judge DiBianco. Thereafter, defendant Selsky moved to dismiss the complaint against him, arguing, among other things, that he was absolutely immune from suit. An accompanying affidavit of Assistant Attorney General Sue H.R. Adler pointed out that administrative appeals from disciplinary determinations in over 60 prisons in New York are directed to defendant's office, and that he works in the central office of the Department of Correctional Services, completely separate from any correctional facility. She asserted that his position is functionally comparable to that of an appellate judge. Plaintiff apparently filed an answering affidavit, pro se.
In his Report, the magistrate judge recommended that the first complaint be dismissed because Selsky was absolutely immune from suit and that the second complaint be dismissed because proper service had not been made on those defendants. The magistrate judge relied not only on the Adler affidavit but also on the magistrate's own Report-Recommendation in an earlier case involving Selsky, Dawes v. Selsky, No. 91-DV-0479 (N.D.N.Y.), and on the record there made. In that case, according to the magistrate judge, Selsky had furnished the court with an affidavit filed in still a third case, Codrington v. Selsky, No. 90-CV-868 (N.D.N.Y.), which stated that Selsky had administratively reviewed over 15,000 Tier III disciplinary determinations between 1988 and 1990 and that hundreds of civil suits had been brought against him by dissatisfied inmates. Also, apparently relying on the expanded record the magistrate judge found that "Selsky is insulated from political influence."
In June 1993, plaintiff Young filed objections to the magistrate's Report, contesting its finding that defendant Selsky was entitled to absolute immunity. In July 1993, Judge McCurn approved the Report and dismissed both complaints. Plaintiff appeals only from dismissal of his complaint against Selsky.
This case comes before us in an unusual procedural posture. When plaintiff appealed from the adverse decision of the district court, he represented himself. Because of the importance and complexity of the issue presented in this case, on which district courts in this circuit are divided, 1 we appointed counsel and requested rebriefing. In the subsequent brief filed by his counsel, plaintiff complains that the magistrate's Report relied on documents that were not before the court, at least one of which plaintiff had never seen. These included the magistrate judge's earlier Report-Recommendation in Dawes v. Selsky and Selsky's affidavit in Codrington v. Selsky.
Further complicating the record before us on appeal, plaintiff has supplied us with an additional appendix, which contains portions of defendant Selsky's depositions and trial testimony in still other actions that challenged his alleged immunity to suit. Plaintiff also seeks to have us consider portions of defendant's sworn testimony that were quoted by the district court in Moye v. Selsky, 826 F.Supp. 712, 722-23 n. 11 (S.D.N.Y.1993). Apparently, none of this was before the district court when it ruled on the motion to dismiss. However, the New York State Attorney General's office, which represents defendant in this case, presumably is familiar with these other proceedings because it represented defendant in all of them as well. These excerpts from defendant's prior testimony contain several important statements. Defendant said that he has telephone conversations approximately three times per week with hearing officers in which he gives advice on how to conduct the disciplinary hearings. Sometimes the hearing officers phone him to ask his advice during the course of a hearing. Also, defendant stated that "it is likely" that he would be called upon to review on appeal the very issues upon which he had offered advice. Moreover, he said that as part of his performance evaluations his supervisor conveys to him the objections of superintendents to his adverse rulings.
Although the use by plaintiff's counsel of prior testimony in other cases is somewhat unorthodox, the answering brief filed by the Attorney General for defendant raises no objection and does not contest the accuracy of the statements. To the contrary, defendant relies on some of this material to support his contention that he is subject to harassing litigation by inmates and is therefore entitled to absolute immunity. Since plaintiff asks us to take judicial notice of these transcripts and since defendant's brief in response does not object to this procedure, we believe that defendant has had an adequate opportunity to object to or otherwise comment on that proposed course of action. Cf. Fed.R.Evid. 201(b) & (e). While we could simply remand to the district court for a fuller development of the record, we believe that in view of the factual material already brought to our attention by both sides and relied upon by them, it is preferable to resolve the basic issue before us regarding absolute immunity. Under the unusual circumstances of this case, therefore, we take judicial notice of this testimony and we accept it as part of the record on appeal. Cf. Shuttlesworth v. Birmingham, 394 U.S. 147, 157, 89 S.Ct. 935, 942, 22 L.Ed.2d 162 (1969); Jacques v. United States R.R. Retirement Bd., 736 F.2d 34, 40 (2d Cir.1984); First...
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