Creech v. SCHOELLKOPH

• Decision Date: 20 January 2010
• Docket Number: No. 05-CV-6017.,05-CV-6017.
• Parties: Timothy CREECH, Plaintiff, v. Thomas SCHOELLKOPH, Defendant.
• Court: U.S. District Court — Western District of New York

688 F.Supp.2d 205

Timothy CREECH, Plaintiff, v. Thomas SCHOELLKOPH, Defendant.

No. 05-CV-6017.

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

January 20, 2010.

Timothy Creech, Auburn, NY, pro se.

J. Richard Benitez, NYS Attorney General's Office, Rochester, NY, for Defendant.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

Plaintiff, a former inmate in the New York State Department of Correctional Services ("DOCS") at Wende Correctional Facility ("Wende"), is suing DOCS employee Hearing Officer Thomas Schoellkopf, alleging a violation of his Due Process rights as a result of a Tier III disciplinary hearing. Now before the Court is Defendant's motion for summary judgment (Docket No. 13) and Plaintiff's cross-motion for summary judgment (Docket No. 21). For the reasons stated below, Plaintiff's application is denied, and Defendant's is granted.

BACKGROUND

Unless otherwise noted, the following are the undisputed facts viewed in the light most favorable to Plaintiff. On March 16, 2004, during a routine cell inspection, Plaintiff was ordered to exit his cell so that Corrections Officer Costanza ("Costanza") could perform a search. When he left his cell, Plaintiff brought a potato chip bag with him. Upon exiting the cell, Plaintiff was ordered to put his hands against the wall and wait to be frisked by Costanza. Plaintiff did not comply and, instead, moved toward the front of the gallery, claiming that he needed to throw out the potato chip bag. He was ordered to stop, but again refused to comply. Costanza observed Plaintiff hand the potato chip bag to an inmate in another cell, inmate Saez¹ ("Saez"). The bag was subsequently confiscated from Saez. Costanza inspected the bag and found that it contained three flat pieces of metal, one of which was sharpened to a point at one end. In the Unusual Incident Report he prepared, Costanza described the contents of the bag as including "a weapon and material to make more weapons." (Defendants' sic Appendix to Local Rule 56.1 Statement of Material Facts, attached as Ex. A to Ex. 2, at 1.)

The pieces of metal were confiscated, and Plaintiff was immediately taken to the Special Housing Unit ("SHU"). He was charged with disobeying a direct order, possessing a weapon, and violating movement and frisk procedures.

On or about March 24, 2004, in connection with these charges, Plaintiff attended a Tier III disciplinary hearing at Wende, presided over by Defendant. Plaintiff requested two inmate witnesses to provide testimony. Defendant informed Plaintiff that both inmates had refused to testify, and produced two witness refusal forms, one of which was signed by one of the inmate witnesses, and the other of which was unsigned. Plaintiff inquired as to the reasons for the witnesses' refusal, but did not otherwise object during the hearing itself. Plaintiff speculated at his deposition that if Defendant had,

allowed ... other evidence, such as maybe the testimony of Officer Costanza to be adduced sic at that time, maybe he would have had a different perspective or a different light on the situation that was going on. Also ..., had he independently looked into the fact that there was no signature or stated reason on one of those Inmate Refusal—Witness forms—um, maybe it would have came sic to light that the witness did want to testify. But maybe the officer who was sent to get this inmate, maybe he never contacted him, and—uh, if that was the case—if that was the case, then maybe that prisoner could have introduced some evidence that would have— uh, maybe perhaps vindicated me of those charges.

(Creech Dep. at 27-28, attached as Ex. A to Benitez Decl., attached as Ex. 1 to Defendants' sic Appendix to Local Rule 56.1 Statement of Material Facts.)

In making his decision, Defendant considered Plaintiff's testimony as well as other official reports, including a weapon recovery data sheet, to-from memoranda, and Costanza's written misbehavior report regarding the March 16, 2004, incident. Costanza was not called as a witness by either party. Although Plaintiff did deny the charges, the evidence before the Court does not suggest that Costanza, or any other corrections officer, submitted a false instrument, or falsified in any other manner the official reports. The March 24, 2004, hearing transcript was not produced during discovery. With regard to the one witness who did not sign the witness form, Defendant stated in a declaration that, "Corrections Officer Williams who sought the witnesses reported to me that the inmate refused to be involved." (Schoellkopf Decl. ¶ 7, attached as Ex. 2 to Benitez Decl., attached as Ex. 1 to Defendants' sic Appendix to Local Rule 56.1 Statement of Material Facts.)

Defendant found Plaintiff guilty on one of the charges against him, possession of a weapon, and sentenced Plaintiff to a term of six months in SHU. Plaintiff's disciplinary time was recorded as beginning on March 16, 2004.

On June 24, 2004, upon review of the case, SHU Director Donald Selsky ("Selsky") reversed and expunged both the result of the March 24, 2004, hearing and the penalty imposed, on grounds that Defendant made insufficient efforts to comply with Plaintiff's request for the two witnesses, and that Defendant did not give reasons for his 105 days in total.

Plaintiff alleges that during his time spent in SHU, he suffered degradation, loss of liberty, damage to his health and family bonds, inferior hygiene conditions, as well as other damages not typically suffered by the general population of the prison in daily life. He states in his Response in Opposition to Defendant's Motion for Summary Judgment (Docket No. 21) that he was confined to his cell for 23 hours a day and lost over 40 pounds due to the inferior quality and portions of the food provided to him. He states that these and other conditions in SHU confinement constituted a significant and atypical burden.

In his complaint (Docket No. 1), Plaintiff also states that Defendant did not protect his right to call inmate witnesses and present evidence, alleging that Defendant made insufficient efforts to contact or secure testimony from Plaintiff's two requested inmate witnesses, and also failed to ascertain or provide a written record of the reasons for said witnesses' refusal to testify. Accordingly, Plaintiff claims that Defendant's disciplinary determination was not supported by a sufficient amount of evidence or testimony, and therefore exhibited bias and violated Plaintiff's due process rights. Plaintiff seeks $100,000.00 in compensatory damages and $100,000.00 in punitive damages against Defendant in his individual capacity.

STANDARDS OF LAW

Summary Judgment Standard

The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). "The movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 Moore's Federal Practice, § 56.111a (Matthew Bender 3d ed.). Where the non-moving party will bear the burden of proof at trial, "the burden on the moving party may be discharged by `showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Once that burden has been met, the burden then shifts to the non-moving party to demonstrate that, as to a material fact, a genuine issue exists. Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993); Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir.2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir.1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir.1986). Rather, evidentiary proof in admissible form is required. Fed.R.Civ.P. 56(e).

Additionally, when a plaintiff is moving pro se, his pleadings must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However, the pro se plaintiff must still establish the existence of genuine issues of material fact to survive a motion for summary judgment; the pro se party's "bald assertion," when unsupported by evidence, is insufficient. Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y.1995).

Irby notice

Under Irby v. New York City Transit Authority, 262 F.3d 412 (2d Cir.2001), the Court is obligated to inform a pro se plaintiff that his failure to respond to a motion for summary...