Green v. Bauvi

• Decision Date: 25 January 1995
• Docket Number: No. 610,D,610
• Citation: 46 F.3d 189
• Parties: Anthony GREEN, Plaintiff-Appellant, v. Patrick BAUVI, Jacqueline Terpanier, Clarence Colwell, William Fenton, Thomas A. Bushek, Ted Nielsen, Ray Sanford, Lieutenant, Amy Schnellbaecher, Defendants-Appellees. ocket 92-2630.
• Court: U.S. Court of Appeals — Second Circuit

Page 189

46 F.3d 189

Anthony GREEN, Plaintiff-Appellant, v. Patrick BAUVI, Jacqueline Terpanier, Clarence Colwell William Fenton, Thomas A. Bushek, Ted Nielsen, Ray Sanford, Lieutenant, Amy Schnellbaecher Defendants-Appellees.

No. 610, Docket 92-2630.

United States Court of Appeals Second Circuit.

Argued Nov. 10, 1994.

Decided Jan. 25, 1995.

Charles D. Cole, Jr., Mineola, NY (Meyer, Suozzi, English & Klein, P.C., on the brief), for plaintiff-appellant.

Barbara K. Hathaway, Asst. Atty. Gen., New York City (G. Oliver Koppell, Atty.

Gen., State of NY, on the brief), for defendants-appellees.

Before: FEINBERG, KEARSE, and PRATT, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Anthony Green, a New York State prisoner, appeals from a final judgment of the United States District Court for the Southern District of New York, Robert P. Patterson, Jr., Judge, dismissing his complaint brought pursuant to 42 U.S.C. Sec. 1983 (1988) alleging various violations of his due process rights by correctional officers at the Green Haven Correctional Facility ("Green Haven"). On this appeal, Green challenges only the dismissal of his claims against (a) defendant Clarence Colwell and (b) Green Haven superintendent Charles Scully and deputy superintendents Charles Winch and Robert Seitz, who were among those previously named as defendants in this action, alleging that these defendants caused him to be segregated from the general prison population in March 1988 without conducting a hearing within a reasonable time. The district court (1) dismissed Green's claims against Scully, Winch, and Seitz pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that Green failed to allege their personal involvement in the deprivation of his rights, and (2) granted summary judgment in favor of Colwell principally on the grounds of qualified immunity and lack of evidence of his personal responsibility for the length of Green's confinement prior to the convening of a hearing. For the reasons discussed below, we affirm principally on the ground of qualified immunity.

I. BACKGROUND

For purposes of this appeal, the chronology of events, all of which took place in March 1988, is not in dispute. On March 7, Green Haven corrections officer Jacqueline Trepanier filed a misbehavior report against Green alleging that Green had behaved inappropriately toward her. The misbehavior report stated that Green had mouthed the words "I love you" to Trepanier as he walked past her, and, at a later time, had forced papers on her. The papers were entitled "Basic Masonic Body Signs." Green was charged with violating several specified prison regulations, N.Y.Comp.Codes R. & Regs. tit. 7 ("7 NYCRR"), including those prohibiting inmates from harassing or verbally obstructing prison employees.

Green was served with the misbehavior report during the evening of March 7 and was placed in "keeplock." Keeplock is a form of disciplinary confinement segregating an inmate from other inmates and depriving him of participation in normal prison activities; it is also used as an administrative confinement for prehearing housing of inmates facing disciplinary hearings. As to an inmate confined in keeplock pending a disciplinary hearing on account of a misbehavior report, New York regulations provide that unless an extension is authorized by the Commissioner of Corrections or his designee, the hearing must be commenced no later than 7 days after that confinement and completed no later than 14 days after the writing of the misbehavior report. See 7 NYCRR Secs. 251-5.1(a) and (b). No hearing with respect to the March 7 allegations was commenced until March 17.

In the meantime, on or about March 9, 1988, Green was transferred from keeplock to an Involuntary Protective Custody housing block ("IPC"). Assignment to IPC, a form of administrative, rather than disciplinary, segregation, is appropriate for

[a]n inmate who may be a potential victim or a witness likely to be intimidated, or who lacks the ability to live in the general facility community and who may for good cause be restricted from communication with the general inmate population, and who does not voluntarily accept admission into protective custody status.

7 NYCRR Sec. 330.2(b). A written IPC recommendation dated March 14 and served on Green that night recited the above "information received" as to Green's actions toward Trepanier and concluded as follows:

The Administration of this facility strongly believes your apparent infatuation with this officer could lead to a dangerous situation there for [sic ], for the safety of the (Involuntary Protective Custody Recommendation for Anthony Green, issued by P. Bauvi, dated March 14, 1988.)

staff member the administration feels you should be separated from this officer.

New York regulations provide that an inmate confined on IPC status "shall have a hearing, conducted within 14 days ..., to determine the need for protective custody admission." 7 NYCRR Sec. 330.3(b)(1). On March 15, Scully appointed Colwell to conduct such a hearing concerning Green, and Colwell summoned Green to appear on March 17. Colwell began the hearing by saying that it concerned the IPC recommendation filed by Bauvi on March 14 and asked Green whether he had been served with that charge. Green responded that the "original charge was served on [him] on the 6th." (Hearing Transcript March 17, 1988, at 1.) Colwell explained that because the charge was that Green had made displays of affection toward a female corrections officer, the matter was to be handled as an IPC matter rather than as a disciplinary or misbehavior matter; thus Green had been transferred from keeplock to IPC and the original misbehavior report "in essence was dismissed." (Id. at 2; see also id. ("This IPC is not a disciplinary hearing [sic]. It is not punitive in nature.").)

The hearing proceeded to a discussion of, inter alia, the scheduling of the remainder of the hearing in light of the availability of officer witnesses Green wished to call, who were off duty until Monday, March 21, and in light of medical appointments of Green himself on the morning and afternoon of March 21. Colwell stated that he might have to request that the hearing be continued to March 22 to accommodate these conflicts. Eventually, Colwell applied to Seitz for, and received, permission to extend the hearing to March 22. During the hearing, Colwell heard, inter alia, testimony on March 18 from inmate witnesses called by Green and testimony on March 22 from one officer witness called by Green. In a ruling issued on March 22, Colwell concluded that Green was a threat to the staff of the facility, and ordered that he remain in IPC until he received clearance from the facility's mental hygiene unit to the effect that he no longer posed a threat.

Green appealed Colwell's ruling. On March 31, 1988, Winch found that there was no evidence on which to hold Green in IPC and ordered him released.

In August 1988, Green, initially proceeding pro se, commenced the present Sec. 1983 action. His original complaint named as defendants Scully, Winch, Seitz, Colwell, "Terpanier [sic ]," and others, and alleged various constitutional violations arising out of the bringing and handling of the misbehavior report and IPC charges; subsequent amended complaints added and/or subtracted defendants and added claims challenging, inter alia, Green's March 1988 confinement in keeplock and IPC without completion of the hearing within a reasonable time.

Eventually, all claims asserted by Green were dismissed. To the extent pertinent to the present appeal, his claims against Scully, Winch, and Seitz were dismissed for failure to state a claim upon which relief could be granted because the court found that the complaint did not allege that these defendants were personally involved in the alleged deprivation of Green's right to a timely hearing. See Opinion and Order dated June 27, 1989. In an opinion dated September 2, 1992, published at 824 F.Supp. 1134, the district court also ruled, inter alia, that Green had failed to offer evidence that Colwell was personally responsible for delaying the initiation of the March hearing, since Colwell had not been appointed hearing officer until after the seven-day time limit for initiating a disciplinary hearing with respect to a misbehavior report had passed. Id. at 1142-44.

To the extent that Green claimed that Colwell had impermissibly delayed the completion of the March hearing, the district court granted summary judgment in favor of Colwell on the ground that he enjoyed qualified immunity. The court recognized that when an inmate is put in segregated confinement, the failure to conduct a hearing within the time allowed by state regulations may constitute a due process violation, id. at 1143-44 (citing Russell v. Coughlin, 910 F.2d 75, 78 (2d Cir.1990), and Matiyn v. Henderson, 841 F.2d 31, 36 (2d Cir.), cert.

                denied, 487 U.S. 1220, 108 S.Ct. 2876, 101 L.Ed.2d 911 (1988)), but it noted that New York regulations permit a disciplinary-type hearing to extend beyond 14 days if (a) the delay is "authorized by the commissioner or his designee," (b) the record of the hearing reflects the reasons for the delay or adjournment, and (c) the inmate is made aware of those reasons, see 7 NYCRR Sec. 251-5.1(b).  The district court held that "[w]here an extension which permits a reasonable delay in concluding a hearing is properly obtained, no violation of due process results."  824 F.Supp. at 1144.   The court concluded that it had not been objectively unreasonable for Colwell "to obtain a one day extension to allow Plaintiff to obtain medical attention and to ensure that witnesses requested by the Plaintiff could appear on his behalf."  Id
                

II. DISCUSSION

On appeal, Green challenges the dismissal of his claims against Scully, Winch, Seitz, and Colwell. These defendants defend the decisions and rationales of the district court, and argue that, alternatively,...