Gilbert v. Selsky, 91 Civ. 8489 (JES).

• Decision Date: 29 September 1994
• Docket Number: No. 91 Civ. 8489 (JES).,91 Civ. 8489 (JES).
• Citation: 867 F. Supp. 159
• Parties: Frederick GILBERT, Plaintiff, v. Donald SELSKY, Director of Special Housing, New York State Department of Correctional Services, Robert Smith, Captain, Eastern Correctional Facility, and W.J. Wilhelm, Deputy Superintendent, Sullivan Correctional Facility, Defendants.
• Court: U.S. District Court — Southern District of New York

867 F. Supp. 159

Frederick GILBERT, Plaintiff, v. Donald SELSKY, Director of Special Housing, New York State Department of Correctional Services, Robert Smith, Captain, Eastern Correctional Facility, and W.J. Wilhelm, Deputy Superintendent, Sullivan Correctional Facility, Defendants.

No. 91 Civ. 8489 (JES).

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

September 9, 1994.

As Amended Nunc Pro Tunc September 29, 1994.

Kaye, Scholer, Fierman, Hays & Handler, New York City, for plaintiff; John J.P. Howley, Jennifer Tafet, of counsel.

Robert Abrams, New York City, Atty. Gen. of the State of N.Y. (Ellen J. Fried, Marilyn T. Trautfield, Asst. Attys. Gen., of counsel), for Donald Selsky.

OPINION AND ORDER

SPRIZZO, District Judge.

Pursuant to 42 U.S.C. § 1983, plaintiff Frederick Gilbert brings this action claiming that his prison disciplinary hearing, held at Eastern Correctional Facility ("Eastern"), was conducted in violation of his rights under the Due Process Clause of the Fourteenth Amendment. The defendants are Donald Selsky, the Director of Special Housing and the Coordinator of the Inmate Disciplinary Program for the New York State Department of Correctional Services ("NY DOCS"), W.J. Wilhelm, a deputy superintendent at Eastern, and Robert Smith, a captain at Eastern.¹ Plaintiff claims, inter alia, that Smith failed to independently assess the credibility of two confidential informants, that Smith failed to call certain requested witnesses, that Smith's determination was not supported by some evidence, and that Wilhelm and Selsky were personally involved in these constitutional violations. The case was tried before the Court upon stipulated facts. For the reasons that follow, judgment is hereby granted to the plaintiff.

BACKGROUND

By virtue of the joint Pre-Trial Order submitted by the parties, the following facts are undisputed.²

At all times pertinent to this action, plaintiff Frederick Gilbert was an inmate in the custody of the NYDOCS, confined at Eastern. Joint Pre-Trial Order ("PTO") ¶ 1. During the period of July 21 through July 30, 1989, the Alcohol and Substance Abuse Training ("ASAT") Program at Eastern was closed. Id. ¶ 17. On or about July 21, 1989, Marilyn Demorest, the civilian coordinator of the ASAT Program, had accounted for the program inventory, including cassette players and A/C adapters. Id. ¶¶ 15, 17. When the ASAT Program reopened on July 31, 1989, Demorest discovered that 25 cassette players and 37 A/C adapters were missing from the ASAT Program room. Id. ¶ 13.

On August 17, 1989, Gilbert was served with an Inmate Misbehavior Report ("IMR") prepared by Sergeant Joseph Beatty. PTO ¶ 3. The IMR, based entirely on confidential sources, alleged that Gilbert had stolen the cassette players and adapters from the ASAT Program room.³ See Defendant's Notice of Motion to Dismiss ("Def.Mtn.") Exh. B; PTO ¶¶ 3-4. Gilbert pleaded not guilty to all charges. PTO ¶ 6. However, as a result of the allegations contained in the IMR, Gilbert was transferred to the Sullivan Correctional Facility ("Sullivan"). Id. ¶ 2. On August 23, 1989, defendant Robert Smith commenced a Tier III Superintendent's Hearing at Sullivan.⁴ Id. ¶ 5. At the hearing, Smith heard testimony from Beatty, Demorest and Gilbert. See Def.Mtn.Exh. A. While neither Beatty nor Demorest possessed any personal knowledge concerning the theft, they testified that two confidential informants had implicated Gilbert in the incident.⁵ PTO ¶¶ 35, 38-40.

According to both Beatty and Demorest, the first informant had provided reliable information in the past.⁶ PTO ¶¶ 41, 47. According to Beatty, the first informant was caught with one of the stolen cassette players. Id. ¶ 42. When questioned by Beatty, the first informant stated that an unidentified prison staff member had provided the stolen goods. Id. At that point, the first informant offered to "find out who is behind all of this." Id. ¶ 43. Beatty did not pursue this issue any further, and the first informant was never charged with possession of the stolen property. Id. ¶¶ 42, 46. In any event, the first informant lacked personal knowledge regarding the theft, and based his allegation entirely on a conversation with the second informant. Id. ¶¶ 43-44, 48-49.

According to the second informant, Gilbert said that an unidentified correction officer had allowed him into the ASAT Program room during the ten-day period that it was closed. PTO ¶ 54. Due to inconsistent testimony provided by Beatty, it is unclear whether the second informant claimed to have observed Gilbert steal the goods.⁷ Id. ¶¶ 55-58. However, even assuming arguendo that Gilbert's statements to that informant, since they constituted admissions, were an adequate substitute for personal knowledge, the fact remains that the second informant had never provided Beatty or Demorest with reliable information in the past. Id. ¶¶ 51-52. In fact, although the second informant appeared to be "straightforward and quite sincere," he was "virtually unknown" to Beatty. Id. ¶¶ 50-51.

At the conclusion of the hearing, Smith found Gilbert guilty. PTO ¶ 26. In a Hearing Disposition Rendered Form, Smith indicated that his determination was based upon the IMR, and testimony provided by Beatty and Demorest. See Def.Mtn.Exh. E; PTO ¶ 27. Smith sentenced Gilbert to 90 days in keeplock, 90 days loss of good time, 90 days loss of all privileges, and ordered payment of restitution in the amount of $800.00.⁸ PTO ¶¶ 95-96. On August 30, 1989, Gilbert filed an appeal, but defendant Donald Selsky affirmed Smith's determination. Id. ¶¶ 136-39. On October 23, 1989, Gilbert filed a discretionary appeal, but defendant W.J. Wilhelm also affirmed Smith's determination. Id. ¶¶ 141-42. However, after Gilbert commenced an Article 78 proceeding to challenge the hearing disposition, the matter was settled. PTO ¶¶ 143-44. Pursuant to such settlement, the State agreed to expunge the disciplinary charges from Gilbert's record and to return the garnished funds to his inmate account. Id. ¶ 144.

On December 18, 1991, Gilbert commenced the instant action, pursuant to 42 U.S.C. § 1983, alleging that the defendants violated his rights under the Due Process Clause of the Fourteenth Amendment. Gilbert claims that Smith failed to independently assess the credibility of the two confidential informants,⁹ that Smith failed to call certain witnesses, and that Smith's determination was not supported by some evidence. Gilbert further claims that Selsky and Wilhelm ratified these constitutional violations, and that Selsky otherwise negligently trained and supervised Smith. In response, defendants contest the merits of these due process claims, and assert defenses of absolute immunity, qualified immunity and administrative reversal.¹⁰

DISCUSSION

I. ABSOLUTE IMMUNITY

Defendant Selsky contends that he is entitled to absolute immunity in his capacity as an appellate officer. Absolute quasi-judicial immunity has been extended to members of the executive branch "who perform functions closely associated with the judicial process." Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S.Ct. 496, 500, 88 L.Ed.2d 507 (1985). In general, the Supreme Court has been "quite sparing" in its recognition of absolute immunity, Burns v. Reed, 500 U.S. 478, 487, 111 S.Ct. 1934, 1939, 114 L.Ed.2d 547 (1991), and qualified immunity remains the standard by which executive branch officers are normally measured. See Buckley v. Fitzsimmons, ___ U.S. ____, ____, 113 S.Ct. 2606, 2621, 125 L.Ed.2d 209 (1993). Thus, while the Supreme Court has afforded absolute immunity to federal hearing officers and administrative law judges, see Butz v. Economou, 438 U.S. 478, 513-14, 98 S.Ct. 2894, 2914-15, 57 L.Ed.2d 895 (1978), it has declined to extend such protection to a prison disciplinary board. See Cleavinger, 474 U.S. at 203-05, 106 S.Ct. at 501-03; see also Zavaro v. Coughlin, 970 F.2d 1148, 1153 n. 2 (2d Cir.1992) ("absolute immunity does not extend to officers presiding at prison disciplinary hearings, in the absence of the procedural safeguards identified by the Supreme Court in Butz").

In seeking absolute immunity, a government official, like Selsky, bears a heavy burden of demonstrating that overriding public policy considerations warrant such exceptional protection. See Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542, 98 L.Ed.2d 555 (1988). As a practical matter, because Selsky is responsible for the training of hearing officers, such as Smith, a particularly strong showing is needed in this case. Nonetheless, Selsky has failed to demonstrate that any of the factors set forth in Butz require that he be afforded absolute immunity in this case.¹¹ See also United States ex rel. Larkins v. Oswald, 510 F.2d 583, 588-89 (2d Cir.1975); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986).

The Court therefore concludes that Selsky is not entitled to absolute immunity. See Moye v. Selsky, 826 F.Supp. 712, 718-23 (S.D.N.Y.1993); but see Bolanos v. Coughlin, No. 91-5330, slip op. at 46-53 (S.D.N.Y. Oct. 15, 1993); Parkinson v. Employee Assistant, DCF, No. 91-7401, 1993 WL 118451, at *2-5 (S.D.N.Y. Apr. 12, 1993); Pacheco v. Kihl, No. 90-549, 1991 WL 629846, at *3-4 (S.D.N.Y. Dec. 17, 1991).

II. QUALIFIED IMMUNITY

Under the doctrine of qualified immunity, government officials are shielded from liability provided that their actions are discretionary in nature and do not violate a clearly established statutory or constitutional right of which a reasonable official comparably placed would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Yalkut v. Gemignani, 873 F.2d 31, 35 (2d Cir.1989). Thus, in determining whether the rights at issue were clearly established in July of 1989, the Court must consider three factors:

(1) whether the right in question was defined with "reasonable specificity"; (2) whether the decisional law of the Supreme Court and the

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