Clark v. Dannheim

• Decision Date: 02 December 2008
• Docket Number: No. 02-CV-6525L.,02-CV-6525L.
• Parties: Khaliq CLARK, Plaintiff, v. A. DANNHEIM, Dennis Hardy, T. Breckon, Donald Selsky, David Matyas, Defendants.
• Court: U.S. District Court — Western District of New York

590 F.Supp.2d 426

Khaliq CLARK, Plaintiff, v. A. DANNHEIM, Dennis Hardy, T. Breckon, Donald Selsky, David Matyas, Defendants.

No. 02-CV-6525L.

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

December 2, 2008.

Mark A. Young, Law Office of Mark A. Young, Rochester, NY, for Plaintiff.

Benjamin A. Bruce, New York State Office of the Attorney General, Rochester, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

Plaintiff, Khaliq Clark, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that his constitutional rights have been violated in a number of respects in connection with an altercation between plaintiff and three guards on May 3, 2001, and a subsequent hearing on the disciplinary charges brought against plaintiff as a result of that altercation.

Defendants include the three correction officers involved in the May 3 incident—Andrew Dannheim, Dennis Hardy, and David Matyas—as well as the hearing officer on the disciplinary charges, Thomas Breckon, who found plaintiff guilty of the charges against him, and Donald Selsky, the DOCS Director of Special Housing, who denied plaintiff's appeal from Breckon's determination.

Defendants have moved for summary judgment. Plaintiff, who is represented by counsel, has filed a memorandum of law and other papers in opposition to the motion.¹ For the reasons that follow, defendants' motion is granted in part and denied in part.

BACKGROUND

The amended complaint (Dkt. # 22) alleges that on May 3, 2001, plaintiff was summoned from his cell to the office of Sgt. Szczepanowski, who wished to speak to plaintiff concerning a letter that plaintiff had recently written to the facility superintendent complaining about certain matters. According to plaintiff, as he was leaving Szczepanowski's office following this interview, he was approached by Dannheim, who made some comments about why plaintiff had "writ[ten] that bullshit," i.e., the letter to the superintendent. Dannheim then allegedly began punching plaintiff, and defendants Hardy and Matyas allegedly joined in the assault. Plaintiff was then taken to the Special Housing Unit ("SHU"), where he was treated for his injuries. Dkt. # 22 ¶¶ 10-19.

The next day, plaintiff was issued a misbehavior report charging him with assault on staff, violent conduct, and harassment. A hearing was held on May 16 and 17, 2001, before defendant Breckon.

At one point in the hearing, plaintiff raised an objection to certain matters, which Breckon overruled. Plaintiff continued to pursue the objection, and Breckon had him removed, stating, "I'm not gonna put up with inmate Clark interrupting me while I'm trying to give him instructions." Dkt. # 44 Ex. C at 10. The hearing then continued in plaintiff's absence.

At the conclusion of the hearing, Breckon found plaintiff guilty on all three charges, and sentenced him to twelve months' confinement in SHU and loss of certain privileges. Dkt. # 41 Ex. D. Selsky affirmed that disposition on appeal.

Following the hearing and disposition, plaintiff commenced an Article 78 proceeding in New York State Supreme Court, Wyoming County, seeking to annul the hearing results on a number of grounds. On March 22, 2002, Acting Supreme Court Justice Mark H. Dadd issued a decision finding that "the record does not support the Hearing Officer's decision to exclude the petitioner from the hearing," and ordering "that a new hearing be held regarding petitioner's misbehavior report ...," within fourteen days of service of the court's order. Dkt. # 41 Ex. C.

It appears, however, that no rehearing was ever held, at least to a conclusion. According to plaintiff, a rehearing was begun, but not within the fourteen days directed by Justice Dadd, and when plaintiff objected to the untimeliness of the hearing, the hearing was simply cancelled, and plaintiff was released from SHU after serving 295 days there. Dkt. # 45 Ex. L.

Based on these allegations, plaintiff asserts several claims. First, he contends that the alleged assault on May 3, 2001 violated his Eighth Amendment right to be free from excessive force, and that it was initiated in retaliation for plaintiff's having complained about certain matters, in violation of his rights under the First Amendment.

Plaintiff also contends that his procedural due process rights were violated at the hearing before defendant Breckon. Plaintiff bases this claim on Breckon's denial of plaintiff's request for Dannheim's medical records, his denial of plaintiff's request to call Sgt. Szczepanowski as a witness, and Breckon's exclusion of plaintiff from the hearing. Plaintiff's claim against Selsky is premised on Selsky's affirmance of Breckon's determination.

DISCUSSION

I. Defendants' Motion

Although on its face defendants' motion appears to seek summary judgment on the entire complaint, defendants' memorandum of law and other motion papers only address plaintiff's claims concerning Breckon's refusal to call Szczepanowski as a witness, and his denial of plaintiff's request for Dannheim's medical records.

A party seeking summary judgment bears the initial burden of demonstrating that there exist no genuine issues of material fact with respect to any of the claims at issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir.2006); McAlpin v. RLI Ins. Co., 509 F.Supp.2d 242, 245 (W.D.N.Y. 2007). Since defendants have not even addressed plaintiff's claims arising out of the alleged assault itself, or Breckon's removal of plaintiff from the disciplinary hearing, the Court construes defendants' motion as only relating to plaintiff's claims concerning the denial of plaintiff's request for Dannheim's medical records and his request to call Szczepanowski as a witness.

II. Dannheim's Medical Records

Before he was removed from the hearing, plaintiff requested that Dannheim's medical records from the aftermath of the May 3, 2001 incident be produced. Breckon responded, "You're not entitled to those," to which plaintiff replied, "[Dannheim's] saying I punched him in the mouth. He don't have no injuries or anything." Dkt. #45 Ex. C at 5. Breckon stated that he did not have Dannheim's medical records in front of him, but that Dannheim "did have some sort of injury," and he again denied plaintiff's request. Id.

In support of their summary judgment motion, defendants state that plaintiff conceded at his deposition in this action that "Dannheim's medical records would not have helped [plaintiff] at the hearing because the records showed that he had been injured." Defendants' Rule 56 Statement (Dkt. # 40) ¶ 8. In response, plaintiff argues that although the records indicate that Dannheim did suffer some injuries, those injuries were consistent with plaintiff's allegation that Dannheim had punched him.

At plaintiff's deposition, defense counsel read into the record portions of Dannheim's medical report that was taken following the May 3 incident. That report stated, inter alia, that Dannheim had superficial lacerations on his hands and on his upper right arm, and that he complained of numbness in his lower lip. Dkt. # 45 Ex. B at 27.

When asked at his deposition how he would have attempted to use this evidence if it had been produced at his disciplinary hearing (and had he not been removed from the hearing before Dannheim testified), plaintiff stated that he would have used it to corroborate his assertion that plaintiff "didn't injure [Breckon] basically." He added that he "doubt[ed] if the outcome [of the hearing] would have been different, but that doesn't justify [Breckon] kicking [plaintiff] out of the hearing." Id. at 29.

To establish a procedural due process claim in connection with a prison disciplinary hearing, an inmate must show that he was prejudiced by the alleged procedural errors, in the sense that the errors affected the outcome of the hearing. See Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir.1991) (stating that "it is entirely inappropriate to overturn the outcome of a prison disciplinary proceeding because of a procedural error without making the normal appellate assessment as to whether the error was harmless or prejudicial"); Marino v. Humphrey, Slip Copy, 2006 WL 2786182, at *5 (S.D.N.Y. Sept. 27, 2006) ("Harmless error analysis applies to prison disciplinary hearings and requires factual assessment of the prejudice, if any, to the prisoner resulting from the error. Courts may find harmless error where a prisoner fails to show that the error negatively affected the outcome of the proceeding") (footnotes omitted); see also Grossman v. Bruce, 447 F.3d 801, 805 (10th Cir.2006) ("a prisoner cannot maintain a due process claim for failure to permit witness testimony if he fails to show that the testimony would have affected the outcome of his case") (internal quotation marks omitted).

In the case at bar, I do not believe that plaintiff has demonstrated that he was prejudiced by Breckon's denial of plaintiff's request to review Dannheim's medical records. Although the references to injuries to Dannheim's hands and arm may have been consistent with plaintiff's allegation that Dannheim punched him, the report also indicated that Dannheim complained of numbness in his lower lip, which tended to rebut plaintiff's assertion that he "didn't injure" Dannheim. In any event, there was no real dispute that plaintiff and Dannheim were involved in a physical altercation; the principal issue was who threw the first punch. Thus—as plaintiff himself conceded in his deposition testimony—Dannheim's medical report was unlikely to have affected the outcome of the disciplinary hearing, and plaintiff cannot show any prejudice in this regard. See, e.g., Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir.2003) ("even if [defendant's refusal to allow inmate to call officer as a witness] was error,...