Giano v. Sullivan

• Decision Date: 13 March 1989
• Docket Number: No. 88 Civ. 6201(CES).,88 Civ. 6201(CES).
• Citation: 709 F. Supp. 1209
• Parties: Julio GIANO, Petitioner, v. James SULLIVAN, Superintendent, Sing Sing Correctional Facility, et al., Respondents.
• Court: U.S. District Court — Southern District of New York

709 F. Supp. 1209

Julio GIANO, Petitioner, v. James SULLIVAN, Superintendent, Sing Sing Correctional Facility, et al., Respondents.

No. 88 Civ. 6201(CES).

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

January 10, 1989.

On Motion to Alter or Amend March 13, 1989.

Julio Giano, Attica, N.Y., pro se.

Robert Abrams, Atty. Gen. of State of N.Y. by Charles G. Davis, Jr., Jay B. Damashek, New York City, for respondents.

MEMORANDUM DECISION PRO SE

STEWART, District Judge:

In a disciplinary proceeding conducted at the Sing Sing Correctional Facility ("Sing Sing") on December 14, 1986, petitioner pro se Julio Giano was found guilty of escape from a prison facility, leaving an assigned area, and setting a fire. The penalty imposed was confinement in the Special Housing Unit ("SHU") for a period of five years, with no phone, packages, or commissary privileges during the entire period. Petitioner claims that his disciplinary hearing was conducted in violation of his constitutional due process rights, and seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ordering that he be released from SHU into the general prison population, and that all references to the disciplinary hearing be expunged from his record. For the reasons set forth below, the petition is granted.

BACKGROUND AND PRIOR PROCEEDINGS

The following facts are undisputed. On December 10, 1986, an inmate misbehavior report was signed by a Lieutenant Wilkerson of Sing Sing, and was supplemented by respondent James E. Sullivan, Sing Sing's Superintendent, on December 11, 1986. The report charges petitioner with three rule violations: (1) escape from the prison facility, (2) leaving an assigned area, and (3) setting a fire.

According to the report, petitioner and two other inmates, Darius Gittens and Thomas Linz, escaped from Sing Sing on December 9, 1986 by exiting from a second floor bathroom window, and by using incendiary devices to cause sparks, explosive sounds, and smoke as a diversion allowing them to cut through the fence surrounding the facility. As supplemented by respondent Sullivan, the misbehavior report further sets forth that petitioner was captured in North Tarrytown, New York the following day, and returned to Sing Sing on December 11, 1986.

Petitioner was placed in special confinement upon his return to the facility, and was shortly thereafter served with the misbehavior report. Petitioner requested an employee assistant to aid him in preparing his defense to the charges. Petitioner met with the assistant on Friday, December 12, 1986, and requested that the assistant seek to obtain certain documentary evidence, including, among other things, all reports submitted by corrections officers in the immediate area of the December 9, 1986 incident.

Petitioner's disciplinary hearing was commenced in the morning of Sunday, December 14, 1986. The hearing officer in petitioner's case, Brant Kehn, had conducted the disciplinary hearings of Gittens and Linz, the other two alleged escapees, during the three days prior to petitioner's hearing.¹ The petitioner was unaccompanied by the assigned assistant during his hearing, and repeatedly asserted his unreadiness to proceed.

Despite these protests, and despite petitioner's repeated requests for the documents that he had previously asked the assistant to obtain, the hearing officer proceeded with the hearing. Lieutenant Wilkerson, who was apparently present in the hearing room throughout the hearing, testified about the information he learned during his investigation of the December 9 incident, and which he recorded in petitioner's misbehavior report. Corrections Officer Harrison, also present throughout the hearing, testified about his observance of petitioner being escorted back to the Sing Sing facility on December 11, 1986. Petitioner called no witnesses at the hearing and presented no defense.

Fifteen minutes after the hearing began, petitioner was asked to leave the hearing room so that the hearing officer could write up the disposition of the case. Fifteen minutes later, the disposition was announced: the petitioner was found guilty of all three rule violations and was ordered confined in SHU for a period of five years, with no packages, telephone, or commissary privileges during that entire period of confinement. Petitioner thereafter appealed to the Commissioner of Corrections, who summarily affirmed the disciplinary hearing disposition on February 17, 1987. Appendix to Brief for Respondent-Appellant before the Appellate Division, Second Department, at A18 hereinafter Appendix to Brief for Respondent-Appellant.

Petitioner then commenced an action pursuant to Article 78 of the New York Civil Practice Law and Rules, alleging that his disciplinary hearing was conducted in violation of his constitutional due process rights, and that the penalty imposed was excessive. By decision dated June 26, 1987, the New York State Supreme Court, Westchester County, held that petitioner was denied his right to submit relevant documentary evidence, but concluded that such error was applicable only to the charges of setting a fire and leaving an assigned area. In re Giano v. Sullivan, No. 3542/87, slip op. at 3-4 (N.Y.Sup.Ct., Westchester Co., June 26, 1987). The court sustained the escape charge. Id. at 4. The court further concluded, however, that petitioner's five year confinement to SHU was excessive, and reduced the penalty to one year. Id. at 4-5.

Petitioner appealed to the Appellate Division, Second Department, from that part of the judgment affirming the escape charge. Respondents cross-appealed from that part of the judgment dismissing the leaving-assigned-area and fire charges, and from the reduction of petitioner's penalty. In a decision dated February 1, 1988, the Appellate Division reversed the State Supreme Court's dismissal of the leaving-assigned-area and fire charges, finding that petitioner was not prevented from submitting relevant documentary evidence and that those charges were supported by substantial evidence. In re Giano v. Sullivan, 137 A.D. 2d 529, 524 N.Y.S.2d 270 (2d Dept.1988). The Appellate Division also reinstated the original penalty of confinement to SHU and loss of privileges for a five-year period. 524 N.Y.S.2d at 272. Petitioner was denied leave to appeal to the New York Court of Appeals on July 12, 1988. In re Giano v. Sullivan, 72 N.Y.2d 804, 532 N.Y.S.2d 755, 528 N.E.2d 1228 (1988).

Alleging due process violations at his disciplinary hearing, petitioner now seeks a writ of habeas corpus to be released from SHU into the general prison population, and to expunge from his record any reference to the disciplinary hearing.

DISCUSSION

We hold as an initial matter that a habeas petition is the appropriate vehicle through which to pursue the relief requested by petitioner. See Boudin v. Thomas, 732 F.2d 1107, 1111-12 (2d Cir.) (appropriate to treat complaint seeking transfer to general prison population as petition for writ of habeas corpus), reh'g denied, 737 F.2d 261, 262 (2d Cir.1984) (Newman, J., concurring) (habeas is appropriate remedy for challenging lawfulness of restrictive confinement within prison custody); see also Krist v. Ricketts, 504 F.2d 887, 887-88 (5th Cir.1974) (per curiam) (habeas corpus available to persons who seek release from solitary confinement within context of general incarceration). We further find, and respondents do not dispute, that petitioner has exhausted his state remedies. 28 U.S.C. § 2254(b) and (c).

Petitioner alleges that his disciplinary hearing was conducted in violation of the Due Process Clause of the fourteenth amendment. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court recognized that prisoners retain a liberty interest, even within the context of incarceration, that may not be deprived without due process of law. 418 U.S. at 556, 94 S.Ct. at 2974. The Court held that an inmate facing disciplinary charges that could result in punitive segregation is entitled, at a minimum, to advance written notice of the charges against him and of the evidence available to the factfinder. Id. at 563-64, 94 S.Ct. at 2978-79. The purpose of this notice is to give the inmate an opportunity to marshal the facts and prepare his defense. Id. at 564, 94 S.Ct. at 2978. Moreover, a written record of the proceedings must be kept, with a written statement by the factfinder as to the evidence relied on and reasons for the disciplinary action. Id.; see Patterson v. Coughlin, 761 F.2d 886, 890 (2d Cir. 1985). In addition, the inmate must be allowed to call witnesses and present documentary evidence in his defense "when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." 418 U.S. at 566, 94 S.Ct. at 2980; see McCann v. Coughlin, 698 F.2d 112, 122 (2d Cir.1983).

Following Wolff, courts have elaborated on the minimum due process to which an inmate facing disciplinary charges is entitled. For example, the Second Circuit in McCann v. Coughlin, supra, recognized that the factfinder presiding over the disciplinary hearing must be fair and impartial. 698 F.2d at 122 (citing Crooks v. Warne, 516 F.2d 837 (2d Cir.1975)). And in Eng v. Coughlin, 858 F.2d 889 (2d Cir.1988), the Second Circuit recently held that "prison authorities have a constitutional obligation to provide assistance to an inmate in marshaling evidence and presenting a defense when he is faced with disciplinary charges." 858 F.2d at 897.

To codify inmates' recognized due process rights in connection with the prison disciplinary process, New York State has enacted a comprehensive set of regulations under the heading, "Procedures for Implementing Standards of Inmate Behavior," 7 NYCRR 250.1—254.9. Among the procedural rights codified in the regulations which are relevant to the instant case are the right to an assistant to interview witnesses and obtain documentary evidence on behalf of the inmate (7...