Bunting v. Nagy

• Decision Date: 27 September 2006
• Docket Number: No. 01 Civ. 5716(RJH)(RLE).,01 Civ. 5716(RJH)(RLE).
• Citation: 452 F.Supp.2d 447
• Parties: Johnnie BUNTING, Plaintiff, v. Michael NAGY, Defendant.
• Court: U.S. District Court — Southern District of New York

Page 447

452 F.Supp.2d 447

Johnnie BUNTING, Plaintiff, v. Michael NAGY, Defendant.

No. 01 Civ. 5716(RJH)(RLE).

United States District Court, S.D. New York.

September 27, 2006.

Johnnie Bunting, Alden, NY, pro se.

Jennifer L. Johnson, Melinda Chester-Spitzer, Attorney General of the State of New York, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

HOLWELL, District Judge.

Plaintiff Johnnie Bunting, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendant Lieutenant Michael Nagy violated his constitutional rights when he placed him in keeplock at the Green Haven Correctional Facility ("Green Haven") of the New York State Department of Correctional Services ("DOCS"). The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331. Defendant Nagy has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that plaintiff has failed to state a claim for which relief may be granted, or in the alternative, for summary judgment on the basis of qualified immunity and/or, to the extent plaintiff sues defendant in his official capacity, on the basis that he is immune from suit under the Eleventh Amendment of the Constitution. For the reasons set forth below, defendant's motion for summary judgment [34] is GRANTED.

BACKGROUND

The following background facts, unless otherwise indicated, are undisputed. Plaintiff Bunting is an inmate currently incarcerated at Wende Correctional Facility in Alden, New York. At all times relevant to his claim, plaintiff was incarcerated at Green Haven in Stormville, New York. (Bunting Dep. 33:17-21.) Defendant Nagy is a retired employee of DOCS. (Nagy Aff. ¶ 1, Johnson Decl. Ex. B, Oct. 10, 2005.) As of July 23, 1998, the date of the altercation resulting in the misbehavior report and disciplinary hearing underlying this actiOn, plaintiff was serving a disciplinary keeplock sentence for a weapons charge to which he plead guilty on May 28, 1998. (See Bunting Aff. ¶ 5; Bunting Dep. 34:08-35:12, 37:13-15; Johnson Decl. Ex. C.) Prior to the May 1998 weapons charge, plaintiff was in the general population, and not serving keeplock. (Bunting Dep. 38:08-11.) Defendant Nagy served as the hearing officer at the Tier III Superintendent's hearing ("Tier III hearing") for plaintiffs May 1998 weapons charge. (Bunting Aff. ¶ 5; Bunting Dep. 35:13-24; Johnson Decl. Ex. C.) After pleading guilty, Nagy sentenced plaintiff to a one-year sentence of keeplock confinement.¹ (Bunting Aff. ¶ 5; Johnson Decl. Ex. C.) Plaintiff sought discretionary review of the sentence; it was later modified to six months keeplock and six months suspended with the possibility of reinstatement. (Bunting Aff. ¶ 6; Bunting Dep. 37:07-09.) Therefore, from May 15, 1998² through November 15, 1998, plaintiff was serving the keeplock sentence attributable to the weapons charge he pled guilty to on May 28, 1998. (Def.'s Supp. Mem. 9 n. 6; Johnson Decl. Ex. C.) Under governing regulations, time suspended from a disciplinary sentence is subject to subsequent revocation if the inmate violates disciplinary rules within a certain amount of time after the time is suspended. See N.Y. Comp.Code R. & Reg. tit 7 §§ 253.7(a)(4) (Tier II), 254.7(a)(4) (Tier III). Plaintiff does not contest the constitutionality of this disciplinary hearing or his initial keeplock sentence.

On July 23, 1998, Officer LeClaire ("Le-Claire") charged plaintiff with disobeying a direct order, making threats, and interference with a corrections officer. (Amended Compl. ¶ 1.) According to the misbehavior report, plaintiff refused LeClaire's order to remove a sheet hung to block the view into his cell and threatened to harm Le-Claire if he removed the sheet himself. (Nagy Aff. Tab 1 at DEF 14.)

On July 24, 1998, plaintiff received an inmate misbehavior report relating to the prior day's altercation. (Id. ¶ 1; Nagy Aff. Tab 1 at DEF 14.) Within four days, on July 28, 1998, a Tier II disciplinary hearing commenced at Green Haven, with Nagy serving as the hearing officer. (Amended Compl. ¶ 2; Nagy Alf. Tab 1 at DEF 12-13.) At the very start of the hearing, Nagy said to plaintiff "You look familiar . . . . " (Hearing Transcript, Nagy Aff. Tab 2 ("Hr.") at DEF 19.) Plaintiff states that this statement was accompanied by a "knowing glare." (Bunting Aff. ¶ 8.) Defendant disputes that this statement was made with any "ulterior motive or reference to prior disciplinary proceedings." (Nagy Aff. ¶ 18.) Defendant states that if plaintiff looked familiar, it must have been because he had seen him during the course of performing his duties as a watch commander and corrections officer. (Id.)

As his defense, plaintiff argued that he was the victim of mistaken identity because he was at the hospital at the time of the July 23 incident involving LeClaire. (Amended Compl. ¶¶ 13-4; Hr. at DEF 30-31.) The altercation underlying the misbehavior report occurred at approximately 5:50 p.m. on July 23, 1998. (Nagy Aff. Tab 1 at DEF 14.) According to the log book for that day, plaintiff was escorted to the facility hospital by Officer Stetz at 5:35 p.m. for an emergency sick call. (Hr. at DEF 21; Johnson Decl. Ex. D.) Plaintiff testified that it takes about one minute to walk from his cell to the facility hospital. (Bunting Dep. 41:09-14.) According to the "ambulatory health record," plaintiff was able to see the nurse at the facility hospital at 5:40 p.m. (Johnson Decl. Ex. E.) He complained of swelling and showed the nurse a small abrasion, approximately the size of a pencil point. (Id.) The nurse told plaintiff to wash his hands with soap and water. (Id.) There is no documentation to indicate the time plaintiff returned to his cell from the facility hospital. (Hr. at DEF 22.) Notwithstanding plaintiffs argument, defendant Nagy found there was sufficient evidence to establish that plaintiff had returned to his cell in time to participate in the altercation with Le-Claire. (Nagy Aff. ¶ 16.)

Nagy also received testimony from two inmate-witnesses plaintiff identified to support his claim of mistaken identity. (Bunting Aff. ¶ 10; Bunting Dep. 47:04-11; 91:11-14.) According to plaintiff, the inmate-witnesses testified that plaintiff was not in his cell at the time the alleged altercation with LeClaire occurred. (Bunting Dep. 91:12-15.) The recordings of the inmate-witnesses' testimony were, perhaps mistakenly, not transcribed, and are therefore not part of the record before the Court. (See Ryan Aff. ¶ 3, Johnson Decl. Ex. F.)³ In any event, Nagy found the inmate-witnesses' testimony was not credible. (Nagy Aff. ¶ 17.)

Plaintiff also requested the testimony of the witnessing officer who signed Le-Claire's misbehavior report. (Hr. at DEF 23-25.) The witnessing officer's identity was undeterminable from the misbehavior" report because the officer's signature was illegible. (Id.) Because the witnessing officer was not ascertained as of August 6, 1998—which, under the applicable regulations, was the date by which a disposition ought to have been reached—Nagy submitted a request for an extension to DOCS's Central Disciplinary Office in Albany ("Albany Office"). (Nagy Aff. ¶ 9; Nagy Aff. Tab 1 at DEF 16-17.) An extension was granted to complete the disposition by August 8, 1998. (Id. at DEF 17.) On August 8, 1998, Nagy requested a second extension through August 13, 1998 due to difficulty identifying the proper witness; it appeared the proper witness was unavailable and therefore unable to appear absent an extension. (Id.) The second application for an extension was made on a Saturday, so the Sunday August 9, 1998 hearing was conducted under the assumption that the Albany Office would grant the extension on Monday. (See Hr. at DEF 29-30.) Plaintiff formally objected to the timeliness of the hearing. (Id.) On August 10, 1998, the Albany Office granted the extension to August 13, 1998, rendering the August 9, 1998 disposition date proper. (Nagy Aff. ¶¶ 11; Nagy Aff. Tab 1 at DEF 17.)

Nagy spoke with four corrections officers, including LeClaire, in an attempt to determine the witnessing officer's identity. (Nagy Aff. ¶ 13; see also Nagy Aff. Tab 1 at DEF 12.) At some point Nagy suggested that perhaps the signature might belong to Officer Stetz, and plaintiff accordingly requested that Stetz testify at the hearing. (Bunting Dep. 73:13-75:18) Nagy spoke with Stetz off the record and outside plaintiff's presence; Stetz told Nagy that he had no knowledge of the altercation between plaintiff and LeClaire. (Nagy Aff. ¶ 13; Hr. at DEF 25.) Nagy prepared the requisite paperwork, Form 2176, documenting his conversation with Stetz. (Nagy Aff. ¶ 19.) Plaintiff signed Form 2176, which indicated that Nagy was denying plaintiffs request that Stetz testify at the Tier II hearing on the ground that Stetz had "no knowledge of [the] incident." (Nagy Aff. Tab 1 at DEF 15; Bunting Aff. ¶ 12; Nagy Aff. ¶ 19; Hr. at DEF 25.) Plaintiff now contests the propriety of defendant's off-the-record conversation with Stetz, though he does not claim that Stetz in fact witnessed the July 23, 1998 incident with LeClaire. (Bunting Aff. ¶¶ 11-13.) Plaintiff instead argues that Stetz's testimony at the hearing would have been material because his defense centered around his 5:35 p.m. visit to the facility hospital, and Stetz was the officer who escorted him there. (Pl.'s Opp'n Mem. 8.) However, at no time prior to the filing of his opposition to defendant's motion for summary judgment did plaintiff ever claim that Stetz's testimony was sought with respect to the hospital visit. In fact, plaintiff sought Stetz's testimony only to the extent he believed, due to Nagy's own suggestion, that Stetz might be the reviewing officer. (See generally Hr.; Bunting Dep. 75:02-18; 76:03-18; 76:18-77:05.)

Ultimately Officer McGrath was identified as the witnessing officer, and plaintiff was given the opportunity to question him on the final day...