Colon v. Coughlin, 972

Decision Date28 June 1995
Docket NumberNo. 972,D,972
Citation58 F.3d 865
PartiesArmando COLON, Plaintiff-Appellant, v. Thomas A. COUGHLIN, Individually, and in his official capacity as Commissioner of the NYS Department of Correctional Services, Daniel Senkowski, Individually, and in his official capacity as the Superintendent of Clinton Correctional Facility, Thomas Howard, Individually, and in his official capacity as Hearing Officer at Clinton Correctional Facility, Gary R. Bezio, Individually, and in his official capacity, Michael Carter, Individually, and in his official capacity as a Corrections Officer, Donald Selsky, Director of Special Housing & Inmate Discipline for New York State Department of Correctional Services, Joseph Costello, Deputy Superintendent of Clinton Correctional Facility, Bruce McCormick, Correctional Official, Corrections Captain at Clinton Correctional Facility, Lieutenant Case, Review Officer at Clinton Correctional Facility, Jeff White, Corrections Officer at Clinton Correctional Facility, Mark Carter, Corrections Officer at Clinton Correctional Facility, Defendants-Appellees. ocket 94-2297.
CourtU.S. Court of Appeals — Second Circuit

Jeffrey S. Tolk, New York City (Fried, Frank, Harris, Shriver & Jacobson, on the brief), for plaintiff-appellant.

Denise A. Hartman, Asst. Atty. Gen., Albany, N.Y. (G. Oliver Koppell, Atty. Gen., Peter H. Schiff, Deputy Sol. Gen., Peter G. Crary, Asst. Atty. Gen., Albany, NY, on the brief), for defendants-appellees.

Before MAHONEY, WALKER and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge:

Armando Colon, an inmate in the custody of the New York Department of Correctional Services, claims that the defendant prison officials, angered by two prior lawsuits brought by him, retaliated by concocting a scheme to plant contraband in his cell and to subject him to disproportionate disciplinary action. The district court (Neil P. McCurn, J., of the Northern District of New York) cast a skeptical eye on Colon's claims and granted the defendants' motion for summary judgment. We too have doubts about the ultimate merits of Colon's claims, and we readily acknowledge that the actions of litigious inmates cause frustrations both for the courts, whose dockets are crowded with prisoners' complaints, and for prison officials, who must defend their actions against myriad challenges. But sometimes such challenges have merit. Because we conclude, contrary to the district court, that Colon's action is not barred by the doctrine of issue preclusion and that, as to all but two defendants, genuine issues of material fact appear in the record, we affirm in part and vacate in part the district court's entry of judgment in favor of the defendants and remand for further proceedings.

I. BACKGROUND

Armando Colon has been in the custody of the New York State Department of Correctional Services since 1977. He alleges that, prior to 1990, his incarceration was uneventful, and that the only incidents of note were the filing of the two aforementioned lawsuits. The first, initiated in April 1987 as a class action, alleged that the law library at the Clinton Correctional Facility ("CCF") was inadequate. Daniel Senkowski, the superintendent of CCF and a defendant in the present case, was among the named defendants in that action. The second lawsuit, filed in April 1989, challenged a decision denying Colon's application to participate with his common law wife in the prison system's Family Reunion Program. Among the various defendants named in that suit was Joseph Costello, then the acting Superintendent of the Auburn Correctional Facility and, like Senkowski, a defendant in the present case. The record does not tell us the outcome of the 1987 and 1989 lawsuits. We do learn, however, that subsequently Colon married or remarried his wife, in a ceremony that the prison officials were willing to recognize, and that in February 1990 he was about to have his first conjugal visit under the Family Reunion Program.

That visit was precluded by the events that led to this lawsuit. On February 1, 1990, at a time when Colon was absent from his cell, defendant Mark Carter, a corrections officer at CCF, conducted a search of the cell. Carter reported that he found a crude prison-made knife, or "shank," as well as two marijuana cigarettes. Colon was charged with two disciplinary violations for possession of contraband. On February 5, a Tier III disciplinary proceeding was begun, at which defendant Thomas Howard presided as hearing officer.

At the Tier III hearing, Colon maintained that he was innocent of the charges and attempted to show that Carter or another corrections officer had planted the contraband in his cell. Colon argued that he had never been found previously in possession of either a weapon or drugs, and that it was implausible that he would have marijuana cigarettes since, as an asthmatic, he could not smoke. Colon also called witnesses in an attempt to prove his claim. One witness, a fellow inmate, testified that he had observed Colon's cell after the search allegedly had taken place, and that it did not look as if the cell had been searched. Another inmate testified that he had seen Carter before Carter supposedly searched Colon's cell, and that Carter at that time had been carrying a shank in his pocket.

Carter testified at the hearing, and Colon attempted to cross-examine him. Hearing Officer Howard, however, cut short Colon's questioning on several occasions. First, Howard refused to allow Colon to question Carter about why the search had been conducted. Second, Howard cut off as irrelevant Colon's attempt to ask Carter whether Carter had intentionally fabricated the charges against him. And, when Colon asked Howard whether Howard believed that a corrections officer was capable of concocting charges against a prisoner, Howard responded, "I believe the staff here is professional and I don't think anyone would deal along those lines. I know I wouldn't." Howard then stated that he would still have to consider whether the contraband was put in Colon's cell "by someone else," effectively reaffirming that he would not consider the possibility that corrections officers had played the role Colon attributed to them. At the conclusion of the hearing, Howard found Colon guilty of both charges and imposed a penalty of 360 days of special housing confinement. Colon's administrative appeal was denied by defendant Donald Selsky on April 16, 1990.

In August 1990, Colon was transferred from CCF to the Attica Correctional Facility's special housing unit. Colon alleges that during the processing that accompanied this transfer, defendant Gary Bezio, the individual who had authorized the search of Colon's cell, told Colon that he had been framed in retaliation for his lawsuit against Senkowski.

In July 1990, prior to his transfer, Colon filed a petition in state court pursuant to Article 78 of the New York State Civil Procedure Law and Rules, challenging the imposition of discipline. Colon initially raised two claims in that proceeding. First, he contended that his Fourteenth Amendment right to due process had been violated when Howard refused to allow him to ask Carter why his cell had been searched. Second, he claimed that Howard's response to his question about whether Howard believed a corrections officer was capable of fabricating charges against a prisoner demonstrated that Howard had predetermined Colon's case, thus depriving Colon of his due process right to a fair hearing before an impartial officer. Colon did not contend in his Article 78 proceeding that these alleged violations of his constitutional rights were related to his two prior lawsuits. Before the New York Supreme Court could rule on his petition, Colon withdrew his second claim.

The New York trial court rejected Colon's remaining claim, concluding that Howard had properly barred inquiry into the basis for the search of Colon's cell because Colon was being punished for what was found in the cell, and not for anything that might have led up to the discovery of the contraband. Colon appealed to the Appellate Division, which affirmed. See Colon v. Coughlin, 178 A.D.2d 746, 577 N.Y.S.2d 184 (1991).

Colon, proceeding pro se, 1 then initiated the present action pursuant to 42 U.S.C. Sec. 1983, alleging that the defendants conspired to concoct false charges, to deprive him of a fair hearing, and to subject him to disciplinary action in retaliation for his 1987 and 1989 lawsuits. Colon's complaint and the defendants' ensuing motion for summary judgment were referred to Magistrate Judge Ralph W. Smith, Jr., for the preparation of a report and recommendation. In March 1994, the magistrate judge recommended that the defendants' motion for summary judgment be granted. Over Colon's objections, the district court adopted the magistrate judge's report and recommendation in its entirety, and this appeal followed.

II. DISCUSSION
A. Issue Preclusion

The district court, relying on the magistrate judge's report and recommendation, concluded that Colon's claim of retaliation was barred by the doctrine of issue preclusion, or collateral estoppel, which bars a party from relitigating an issue that has been resolved in a prior proceeding. The magistrate judge focused on the following language in the Appellate Division's decision rejecting Colon's Article 78 petition:

[Colon] claims [the search of his cell] was probably based on an informant's tip.... Here ... the charges were not imposed upon receipt of confidential information but rather were filed only after the prohibited items were found in petitioner's cell. Any confidential information or reason why the cell was searched played no part in the filing of the charges or the determination of guilt.

Colon, 178 A.D.2d at 747, 577 N.Y.S.2d at 184. The magistrate judge interpreted this passage "to mean that the Appellate Division concluded that retaliation played no part in the...

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