Malik v. Tanner

• Decision Date: 07 October 1988
• Docket Number: 87 CIV. 5740 (SWK).
• Citation: 697 F. Supp. 1294
• Parties: Abdel-Jabbor MALIK, Plaintiff, v. Captain TANNER, Defendant.
• Court: U.S. District Court — Southern District of New York

697 F. Supp. 1294

Abdel-Jabbor MALIK, Plaintiff, v.Captain TANNER, Defendant.

87 CIV. 5740 (SWK).

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

October 7, 1988.

COPYRIGHT MATERIAL OMITTED

Abdel-Jabbor Malik, Attica, N.Y., pro se.

Robert Abrams, Atty. Gen. of the State of N.Y., New York City by Douglas D. Aronin, Asst. Atty. Gen., for defendant.

MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

Plaintiff, a state prisoner, brings this civil rights action pursuant to 42 U.S.C. § 1983 and seeks compensatory and punitive damages.Plaintiff has, at various times over the past year, filed applications for injunctive relief against officers at Green Haven Correctional Facility, where he is incarcerated, though these officers are not named as defendants.This Court referred the matter to Magistrate Naomi Reice Buchwald for all purposes on September 15, 1987.The Magistrate denied a request for appointment of counsel, but granted plaintiff's request to amend his complaint.Malik subsequently filed an amended complaint adding factual details.

At approximately the same time, the Magistrate issued a Report and Recommendation which recommended the dismissal of plaintiff's application for preliminary injunctive relief against Green Haven correctional officers who allegedly were intimidating plaintiff and poisoning his food.The Court adopted the Magistrate's opinion, dismissing the application as moot since plaintiff had been moved to another correctional facility.Thereafter, plaintiff notified the Court that he had been transferred back to Green Haven and that the food contamination by prison officers had resumed.By Order dated March 18, 1988, the Court remanded the application for injunctive relief to the Magistrate for reconsideration.

In the meantime, each party moved for summary judgment pursuant to Fed.R.Civ. P. 56.On April 15, 1988, Magistrate Buchwald issued a Report and Recommendation in which she recommended that summary judgment be granted defendant on all claims.She also recommended that plaintiff's application for injunctive relief be denied.Plaintiff filed objections to aspects of the Report pursuant to Fed.R.Civ.P. 72and28 U.S.C. § 636, and the Court will consider de novo the aspects of the Report to which plaintiff has objected.Plaintiff has also submitted another request for injunctive relief against various correction officers at Green Haven.

BACKGROUND

Plaintiff's complaint makes two general allegations.First, plaintiff claims that Captain Tanner violated his due process rights under the Fourteenth Amendment to the United States Constitution by holding a disciplinary hearing in his absence and by failing to make any effort to obtain plaintiff's testimony.Second, plaintiff claims that the imposition of a restricted diet comprised of a special bread loaf and raw cabbage violated his constitutional rights.¹

The undisputed facts appear to be the following, except as noted.DefendantJoseph Tanner is a captain of correction officers for the New York State Department of Correctional Services and is assigned to the Green Haven Correction Facility.Plaintiff was incarcerated at the prison in the spring and summer of 1987, and is currently incarcerated there.On February 26, 1987, plaintiff was served with an "Inmate Misbehavior Report" for allegedly violating prison rules on that date.Plaintiff was accused of making threats, refusing to obey a direct order and committing an unhygienic act.The Report states that at approximately 11:15 A.M. on February 26, 1987, plaintiff ordered corrections officer D. Pickett to tell the sergeant that plaintiff wanted to see him "or I will get physical".See Exh.A to Affidavit of Joseph Tanner("Tanner Aff.").Malik allegedly continued to shout as officer Pickett went to talk to Sergeant Juckacwicz.Id.While talking with the sergeant, one of the monitors called and said that Malik had put a sheet over the bars to his cell, completely blocking the view into the cell.The sergeant then instructed officer Pickett and officer Boulanger to have Malik remove the sheet.Id.The two officers went to Malik's cell and told him to remove the sheet.Malik allegedly responded: "Try and take it down mother fucker."Id.As the officers attempted to pull the sheet down, Malik allegedly grabbed the sheet, became irate and began spitting at the officers.The sergeant then arrived and apparently was able to resolve the situation.Id.

On March 3, 1987, defendant conducted a Tier III Superintendent's Proceeding for the purpose of considering the charges brought against Malik in the February 26th Inmate Misbehavior Report.TannerAff. at ¶ 4.Tanner states that formal charges were prepared and served on plaintiff more than 24 hours prior to the hearing and that plaintiff was provided the opportunity to choose an employee assistant pursuant to New York correctional rules and regulations.Plaintiff appears to have refused the help of the assistant, a Sergeant Lowery.Id.; see Exh. C to Tanner Aff. Tanner prepared a "Witness Interview" form, which is apparently used to notify an inmate that "the calling of a witness or the review of a witness's testimony would jeopardize Institutional safety or Correctional goals", in which he stated: "Inmate Malik's behavior precluded him being present at Hearing (sic) therefore he could not listen To Testimony (sic) of the witnesses called".See Exh. D to Tanner Aff. Tanner signed the form, which was dated March 3, 1987, in the space designated "Hearing Officer" and wrote "Inmate not at hearing to sign" in the space designated "Inmate Signature".Id.In the "Hearing Record Sheet", Tanner noted the date and time of the incident, the name of the person serving the formal charges, and the date and time served.Id.He noted that the inmate refused assistance, listed the charges and indicated in the space for the inmate's signature that inmate Malik was not at the hearing due to his behavior in the Special Housing Unit.The sheet indicates that no witnesses were called by the inmate, and notes in the margin that the inmate was not present due to his behavior.Id.Although plaintiff was not allowed to attend the disciplinary hearing, which was electronically recorded, plaintiff did receive a written copy of the disposition of the hearing.TannerAff. at ¶ 7.This "Superintendent's Hearing Disposition Rendered" listed the evidence relied upon—the testimony of officers Pickett and Boulanger— and reasons for the penalty imposed— plaintiff's long record of misbehavior.See Exh. F to Tanner Aff.

Plaintiff states that he did not know the hearing was to be conducted in his absence until after it was completed.Objections to Report and Recommendation ("Objections")at p. 11.²Plaintiff claims that he intended to inform Tanner, the hearing officer, that he wanted to call inmate witnesses in his own defense.Id. at p. 10.He also planned to ask defendant to review a videotape of the incident that plaintiff claims would have exonerated him.Id. at p. 11.Finally, plaintiff states that he either did prepare or intended to prepare a written testimonial concerning the incident and the charges.³Id.Plaintiff suggests that neither defendant or any other officer attempted to obtain information regarding the incident from plaintiff.⁴

Plaintiff appealed the disposition to the Departmental Review Board, which affirmed the defendant's decision.See Exh. B to Affidavit of Ronald Turbin("Turbin Aff.").Plaintiff subsequently filed an Article 78 proceeding in New York Supreme Court in response to which Donald Selsky, Director of the Special Housing/Inmate Disciplinary Program, annulled the Superintendent's Proceeding and expunged it from plaintiff's record.⁵

Tanner imposed a penalty of fifteen days on a restricted diet of special loaf and raw cabbage.Charles Scully, superintendent of the prison, approved the diet on March 4, 1987, in a memorandum to Dr. S. Rosenbloom, Chief of Medical Services at Green Haven.See Exh. C to Tanner Aff. Tanner asserts in his affidavit that the prison followed each of the administrative regulations concerning restricted diets in Malik's case.TannerAff. at ¶ 10.Tanner states that a physician, nurse or physician's assistant examined plaintiff each day during the duration of the restricted diet, and pertinent information was recorded in a log book maintained at the prison.⁶Id.

DISCUSSION

Magistrate Buchwald's Conclusions

The Magistrate determined that plaintiff's claim for monetary damages against Captain Tanner for violations of due process was in effect an action against the state for retroactive monetary damages, an action prohibited by the Eleventh Amendment and case law interpreting it.The Magistrate reasoned that since defendant acted in accordance with New York state regulations and Corrections Department directives, the action could only be against him in his official capacity, and as such would require that any judgment be paid out of state funds.SeeJones v. Smith,784 F.2d 149, 152(2d Cir.1986)(suit against prison superintendent barred by Eleventh Amendment since defendant acted in accordance with state policy, thus making the action one against the state);Dwyer v. Regan,777 F.2d 825, 835(2d Cir.1985)(suits for monetary awards out of state funds are barred by Eleventh Amendment), modified on other grounds,793 F.2d 457(2d Cir.1986).The Magistrate also concluded that while material issues of fact remained in dispute regarding the Eighth Amendment claim, summary judgment was appropriate since defendant had qualified immunity for his actions.

Plaintiff objects first that the Eleventh Amendment does not preclude the recovery of punitive damages against the state.This assertion is simply incorrect since any retrospective claims against the state for monetary award are barred by the Eleventh Amendment, and punitive damages like compensatory damages would be recovered from the state treasury.Plaintiff also...