Ayers v. Ryan
| Decision Date | 28 July 1998 |
| Docket Number | No. 1717,D,1717 |
| Citation | 152 F.3d 77 |
| Parties | Howard AYERS, Plaintiff-Appellant, v. D. RYAN, Lt. Hearing Officer, Southport Correctional Facility and R.J. McClellan, Superintendent, Southport Correctional Facility, both above in their individual and official capacities, Defendants-Appellees. ocket 96-2996. |
| Court | U.S. Court of Appeals — Second Circuit |
C. Ian Anderson, New York City (Ogden N. Lewis, Karen E. Wagner, Davis Polk & Wardwell, of counsel), for Plaintiff-Appellant.
Patrick Barnett Mulligan, Albany, NY (Dennis C. Vacco, Attorney General of the State of New York, Nancy A. Spiegel, Lisa LeCours, Assistant Attorneys General, of counsel), for Defendants-Appellees.
Before: WINTER, Chief Judge, JACOBS, Circuit Judge, and CARMAN, Chief Judge. *
Plaintiff Howard Ayers, an inmate in the custody of the New York State Department of Correctional Services, filed suit under 42 U.S.C. § 1983, alleging that his right to due process was violated when he was sentenced to confinement in the Special Housing Unit ("SHU") without receiving assistance in preparing for his defense or being afforded an opportunity to call certain witnesses at his Tier III disciplinary hearing. Ayers appeals from a judgment of the United States District Court for the Western District of New York (Telesca, J.), dismissing the complaint on the grounds that (i) the two defendants (the hearing officer and the prison superintendent) are immune from suit under the doctrine of qualified immunity; (ii) the conduct of the disciplinary hearing did not violate plaintiff's right to due process; and (iii) plaintiff's motion for appointment of counsel was moot. The district court assumed without deciding that plaintiff's 180-day confinement in the SHU at Southport Correctional Facility implicated a protected liberty interest under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). 1
We vacate the judgment because the district court erred in concluding as a matter of law that there were no due process violations and in finding that the hearing officer was entitled to qualified immunity, and we remand for further proceedings, including a Sandin analysis.
Plaintiff Howard Ayers was an inmate at the Auburn Correctional Facility when he was served with a misbehavior report that charged him with making a statement in violation of a New York State Prison Regulation, 7 N.Y.C.R.R. 270.2(B)(5)(iii) Rule 104.12, which provides that inmates "shall not lead, organize, participate, or urge other inmates to participate, in work-stoppages, sit-ins, lock-ins, or other actions which may be detrimental to the order of the facility." In the misbehavior report, Officer Alan Secaur stated that, while making rounds on a catwalk near Ayers' cell, he overheard Ayers make the following statements about the prison's double-bunking policy:
Until we get the guidelines about T.B. an[d] [AIDS] we have to stand firm Joey. I want to do right for the guys in here for another 15 to 20 years. I am on my way out. Carmell ain't going no where he is a sneaky bastard. Tony didn't want to get moved but he did. What's Strap doing here he don't know what the fucks going on, he's just trying to smooth things over. The bottom line is I'm not going for double bunking. Alot [sic] of Dudes won't retalliate [sic], the issue is we ain't coming out. If they keeplock us they have to feed us, their [sic] not going to do that, you know Joey....
A few days after receiving this misbehavior report, Ayers was transferred to the Southport Correctional Facility ("Southport"). At Southport, Ayers completed a Tier III Assistance Form on which he listed three Southport employees as possible assistants to aid him in preparing for his disciplinary hearing. None of those employees were available to act as assistants, and Ayers did not select three others.
The disciplinary hearing began on June 30, 1995, with defendant Dennis Ryan as the designated hearing officer. At the outset, Ryan offered to assist Ayers in preparing his case rather than have Ayers look for another assistant:
RYAN: What I'm going to do, Ayers, is with you[r] approval only, if I as Hearing Officer assist you in getting you what you want, with out [sic] going through an assistant, I will do so....
Ayers accepted:
Ayers then gave Ryan a sheet he had prepared that listed the witnesses and documents he needed to prepare his defense. Ayers and Ryan discussed the contents of the sheet in some detail. During that discussion, Ayers denied making the alleged seditious remarks and said he wanted to find out who did. Among the witnesses on Ayers' list were (i) Officer Secaur, (ii) an inmate named "Jackson," and (iii) another inmate whose name Ayers did not know but whom Ayers identified by his cell number at Auburn, "E-8-23." Ayers indicated that Jackson was then being held at Southport, apparently also having been transferred from Auburn. Ryan undertook to find Jackson at Southport and tape his testimony for use at the hearing; to try to find E-8-23, noting that he should still be able ascertain the inmate's location even though he "might not still be there" at the Auburn facility; and to get the taped testimony of Officer Secaur. Ryan took possession of the sheet Ayers had prepared, and promised to return it. The hearing was adjourned to allow Ryan to locate the documents and contact the witnesses Ayers requested.
When the hearing reconvened on July 24, Ryan apologized for having failed to do any of the things he agreed to do. Ryan explained that he "got busy doing Hearings and stuff and [he] didn't do it." Nonetheless, Ryan proceeded with the hearing, during which Officer Secaur and another officer at Auburn were interviewed. Officer Secaur essentially confirmed his report.
Ryan then explained to Ayers that in order to prove he did not make the statements alleged, Ayers would need to produce a witness to contradict Officer Secaur's testimony and written report:
Ryan then gave Ayers an opportunity to state his objections on the record, at which time Ayers complained that he was denied adequate assistance in preparing his defense.
Ryan found Ayers guilty of the misconduct charged in the report and imposed a penalty that included 240 days in the SHU and loss of privileges. Ayers appealed that penalty to the State Department of Correctional Services, which reduced the sentence to 180 days in the SHU.
Several months later, Ayers filed his § 1983 pro se complaint, alleging that his due process rights were violated (i) by Ryan's failure to assist him in preparing his defense, and (ii) by a procedurally flawed Tier III hearing. As defendants, Ayers named both Ryan and R.J. McClellan, the Superintendent of Southport. Ayers also applied for appointment of counsel, which the court denied on the ground that Ayers' complaint had not yet withstood a motion to dismiss on the merits. After document requests were served and answered, Ayers moved for summary judgment; the defendants cross-moved for summary judgment; and Ayers made a second application for appointment of counsel.
The district court granted defendants' summary judgment motion and dismissed the complaint. First, it found that Ryan was immune from suit because Ayers was unable to show "that Ryan's refusal to call certain witnesses was a clearly established violation of the Due Process Clause." The court then went on to find that:
Even if [Ryan] were not immune from suit under the doctrine of qualified immunity and plaintiff possessed a liberty interest protected by the United States Constitution, the record demonstrates that the conduct of the hearing did not violate plaintiff's due process rights.
Explaining that a hearing officer may refuse to call witnesses if the hearing officer determines their testimony is irrelevant or unnecessary, the court found that Ryan properly determined that a number of Ayers' witnesses were either non-existent or irrelevant to the hearing. Specifically with regard to Jackson and E-8-23, the court remarked:
Although Ryan failed to investigate two of the eight named witnesses, inmate Jackson and the inmate housed in E-8-23, I find that Ryan reasonably determined that their testimony was irrelevant. At the conclusion of the hearing, Ayers confirmed that he had no relevant witnesses when he stated that he had no witnesses who could testify that he did not make the statement for which he was charged.
The district court also concluded that defendant McClellan, the Superintendent at Southport, was entitled to qualified immunity because Ayers presented no evidence that McClellan had any personal involvement in the violation of Ayers' due process rights (a ruling that is not challenged on appeal). Finally, the court denied Ayers' renewed application for appointment of counsel as moot. Ayers appeals.
This Court reviews de novo a district court's grant of summary judgment. Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir.1996) (per curiam ). "Summary judgment is proper if, viewing all facts of record in a light most favorable to the...
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