Johnson v. Goord

• Decision Date: 28 March 2007
• Docket Number: No. 04 Civ. 5919(RJH).,04 Civ. 5919(RJH).
• Citation: 487 F.Supp.2d 377
• Parties: John JOHNSON, Plaintiff, v. Glenn S. GOORD, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

487 F.Supp.2d 377

John JOHNSON, Plaintiff, v. Glenn S. GOORD, et al., Defendants.

No. 04 Civ. 5919(RJH).

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

March 28, 2007.

COPYRIGHT MATERIAL OMITTED

John Johnson, Naponoch, NY, pro se.

John M. Schwartz, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

HOLWELL, District Judge.

Plaintiff John Johnson brings this § 1983 action alleging that defendants violated his procedural due process rights in conducting and reviewing a disciplinary hearing for possession of contraband in prison. Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing plaintiffs complaint. In a Report and Recommendation ("Report") dated October 19, 2006, Magistrate Judge Gabriel W. Gorenstein recommended that defendants' motion be granted in its entirety. See Johnson v. Goord, No, 04 Civ. 5919(RJH)(GWG), 2006 U.S. Dist. LEXIS 76075, 2006 WL 2990029 (S.D.N.Y. Oct. 19, 2006). Plaintiff sought and obtained an extension of time in which to file his objections, and submitted them on December 14, 2006. Defendants sought and obtained an extension of time in which to file a response to plaintiffs objections, and submitted the response on February 2, 2006. The facts underlying plaintiffs action and relevant to defendants' motion are set forth in detail in Judge Gorenstein's thorough report, familiarity with which is presumed, and which is attached herewith for ease of reference.

STANDARD OF REVIEW

A district court may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). The district court adopts a magistrate judge's report and recommendation when no clear error appears on the face of the record. See Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). However, the court is required to make a de novo determination of those portions of a report to which objection is made, 28 U.S.C. § 636(b)(1)(C), by reviewing "the Report, the record, applicable legal authorities, along with Plaintiffs and Defendant's objections and replies." Bandhan v. Lab. Corp. of Am., 234 F.Supp.2d 313, 316 (S.D.N.Y.2002). The court may then accept, reject, or modify in whole or in part recommendations of the magistrate judge. See Nelson, 618 F.Supp. at 1189. If, however, the party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Sanchez v. Dankert, No. 03 Civ. 2276(LTS), 2004 U.S. Dist. LEXIS 3716, 2004 WL 439502, at *1 (S.D.N.Y. Mar.9, 2004); accord Johnson v. City Univ. of New York, No. 00 CV 4964(WK), 2003 U.S. Dist. LEXIS 10615, 2003 WL 21435469, at *1 (S.D.N.Y. June 19, 2003); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997). "If no objections are filed, or where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition, reviewing courts should review a report and recommendation for clear error." Edwards v. Fischer, 414 F.Supp.2d 342, 346-47 (S.D.N.Y.2006) (internal quotation marks and citations omitted).

Plaintiff has submitted eighty-two pages of objections, requiring a good deal of parsing and interpretation. Plaintiff's arguments are repeated numerous times throughout the objections, and are repetitive of the original arguments made in his opposition brief and sur-reply filed before Judge Gorenstein, with one additional argument not addressed in the Report. With the exception of that additional argument, the Court finds that the objections are merely a rehashing of the arguments addressed by Judge Gorenstein. The Court therefore need only review Judge Gorenstein's Report for clear error, while addressing plaintiff's additional argument de novo. Nonetheless, the Court will still respond directly to plaintiffs voluminous objections to Judge Gorenstein's Report.

DISCUSSION

In his objections, plaintiff argues: (1) that the inconsistency between his copy and the official copy of the misbehavior report, with the latter containing an additional sentence, denied him due process; (2) that there was insufficient evidence showing that the contraband belonged to him because other inmates had access to the pilaster in which it was found; (3) that defendants are not entitled to qualified immunity because the law governing the sufficiency of the evidence was clearly established; and (4) that the alleged failure of the corrections officer to follow state chain-of-custody regulations violated his due process rights. Additionally, plaintiff argues that defendant Selsky's review of his disciplinary ruling using a poor audio recording of the hearing violates his procedural due process rights.

I. Sufficiency of the Misbehavior Report

Plaintiff repeatedly contends that the late addition of a sentence to his misbehavior report stating that the contraband had tested positive as being marijuana was a due process violation. (See, e.g., Objections 3-5, 8-11, 20-24.) In doing so, he incorrectly focuses on the discrepancy between the official copy of the misbehavior report and the one he was given. Instead, the due process analysis concerning notice properly focuses on whether the inmate was adequately apprised of the charges against him so as to be able to prepare a defense. The Second Circuit has explained the function of notice as follows: "[N]otice serves to `compel the charging officer to be [sufficiently] specific as to the misconduct with which the inmate is charged to inform the inmate of what he is accused of doing so that he can prepare a defense to those charges and not be made to explain away vague charges set out in a misbehavior report.'" Sira v. Morton, 380 F.3d 57, 70 (2d Cir.2004) (quoting Taylor v. Rodriguez, 238 F.3d 188, 192-93 (2d Cir.2001)); see also Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (advanced written notice allows inmate "to marshal the facts in his defense"). The court continued: "Toward this end, due process requires more than a conclusory charge; an inmate must receive notice of at least some `specific facts' underlying the accusation." Sira, 380 F.3d at 70; see also id. at 73 ("due process requires a modicum of factual specificity" in the written notice). Thus, the critical question is not whether plaintiffs copy of the misbehavior report was identical to the official version or contained every piece of evidence available to the factfinder; rather, it is whether there was sufficient factual specificity to allow plaintiff to prepare his defense.

As noted by Judge Gorenstein, the misbehavior report indicated the date and time of the discovery of the contraband, its location, that the substance found was marijuana, packaged in nineteen bags, and the number and the approximate wording of the rule that was violated. (Report 15.) The only omission in the notice claimed by plaintiff is its failure to state that the contraband was tested and tested positive as being marijuana. Plaintiff makes no plausible argument for why the failure to mention the testing of the substance prevented him from preparing a defense. His principal defense at the hearing was that he had no knowledge that the contraband was hidden in the, pilaster next to his cell and that it did not belong to him. The omission of the fact that the substance was tested is entirely irrelevant to that defense. Plaintiff did not present a defense that the substance was not marijuana, and indeed such a defense would have undermined his actual defense. Plaintiffs focus on the discrepancy between the two reports is to no avail where he can not demonstrate that an omission in his copy of the report prevented him from preparing a defense.

Plaintiff relies heavily on Grillo v. Coughlin, 31 F.3d 53 (2d Cir.1994), in arguing that his notice was insufficient, but for a number of reasons, that case is inapplicable. First, Grillo involved discrepancies between the official copies of urinalysis forms and those provided to the inmate. Grillo's entire defense was based on deficiencies and inconsistencies in the forms he was provided with, which had unbeknownst to him been corrected in the official version. Thus, he had chosen and pursued a defense that was "compromised when the evidence he [was] shown differ[ed] from the evidence shown to the factfinder." Id. at 56. Plaintiff, in contrast, neither chose a defense that was undermined by the additional sentence concerning testing, nor would have had an additional defense had he been made aware of the fact that the substance was tested. If plaintiff had presented a defense that the substance was not marijuana, arguing that the substance had never been tested, then the discrepancy would have compromised his defense and Grillo would be applicable. He did not.

Second, in Grillo the discrepancy was discovered on the last day of the proceeding, and the hearing officer made "no attempt to explore how, when, and why the official forms were altered." Id. at 55. Here, in contrast, the discrepancy was discovered almost immediately, and the hearing officer on his own initiative called an additional witness in an attempt to explain it. While the Supreme Court has stated that advanced notice of twenty-four hours is required, it is far from obvious that a defect in notice, if immediately discovered and investigated, will give rise to a due process violation even if it impacts the inmate's anticipated (but not yet presented) defense. Regardless, plaintiffs defense was entirely unrelated to the fact of testing so the Court need not address that question. Grillo is inapposite. Plaintiffs advanced written notice satisfied the requirements of procedural due process.

II. Sufficiency of Evidence at the Hearing

Plaintiff argues throughout his objections that...