Moss v. Ward, 76 Civ. 131.

• Decision Date: 18 July 1977
• Docket Number: No. 76 Civ. 131.,76 Civ. 131.
• Citation: Moss v. Ward, 434 F.Supp. 69 (S.D. N.Y. 1977)
• Parties: Alfred Lee MOSS, Plaintiff, v. Benjamin WARD, Commissioner of Correctional Services, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

434 F. Supp. 69

Alfred Lee MOSS, Plaintiff, v.Benjamin WARD, Commissioner of Correctional Services, et al., Defendants.

No. 76 Civ. 131.

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

July 18, 1977.

Alfred Lee Moss pro se.

Louis J. Lefkowitz, Atty. Gen., State of N. Y., David L. Birch, Asst. Atty. Gen., New York City, for defendants.

POLLACK, District Judge.

This is an action for monetary, injunctive and declaratory relief brought under 42 U.S.C. Section 1983 by a state prisoner acting pro se.

The complaint and amended complaint concern plaintiff's assignment to a special housing unit for disciplinary reasons following imposition of prison discipline on June 18th and July 19th, 1975.

The amended complaint alleges that the defendant prison officials and administrators deprived him of due process, discriminated against him and inflicted cruel and unusual punishment.

Read liberally, the plaintiff's complaint seeks damages for the failure of the defendants to afford him the procedural safeguards he claims he is entitled to in a disciplinary proceeding.He claims the penalties imposed herein approximate the level of those in Wolff v. McDonnell,418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935(1974).

Suffice it to say, Wolff is not applicable to this case in any aspect of it.

On June 18, 1975, plaintiff created a disturbance in the mess hall at the Greenhaven Correctional Facility, was disrespectful to a sergeant and threatened a correction officer.He was removed to the Special Housing Unit on the order of Captain Roden.

On June 20, 1975, plaintiff appeared before an Adjustment Committee pursuant to 7 NYCRR Part 252.He was held for a Superintendent's Hearing pursuant to 7 NYCRR Part 253.

On June 20, 1975, Correctional Counselor Splain delivered formal charges to plaintiff, and on June 22, 1975, a Superintendent's Hearing was commenced, but not completed at that time.

On June 25, 1975, the plaintiff requested assistance of a staff member, and Correctional Counselor Hutchinson was assigned, and at the joint request of the plaintiff and his counselor, the hearing was adjourned.

On June 29, 1975, a Superintendent's Hearing was commenced.Apparently, the plaintiff decided to walk out of the hearing room before the completion of that hearing.

On July 1, 1975 an investigative report was written by Mr. Hutchinson, addressed to Mr. Fogg, the acting superintendent, on the subject of Alfred Moss' Superintendent's proceeding and regarding the incident of June 18, 1975.That report shows that on June25th Mr. Hutchinson visited Mr. Moss in the Special Housing Unit, was requested by Mr. Moss to represent him in this matter, and requested that the Superintendent's Hearing be postponed for one week's time.Such request was made in writing and is on file in the Adjustment Committee's records and in the Service Unit records.

Thereafter, on June 30, 1975, Mr. Hutchinson completed his investigation, using the reports referred to in his investigative statement, and including an identification of those who were interviewed.

Mr. Hutchinson's report in review of the four charges, suggested that ChargeNo. 1 be dismissed, that Moss pleads guilty to ChargeNo. 2, that Charge 3 be dismissed (although Moss showed disrespect by his own admission since Moss was not guilty of all the specifications therein) and that Moss pleads guilty to ChargeNo. 4.

This report, submitted in writing by Mr. Hutchinson, was endorsed by the plaintiff, Alfred Moss, with the statement that Mr. Hutchinson's report was true and in order, and, furthermore, that it was not necessary to proceed with him in the proceeding, and requesting a decision thereon.

On July 6, 1975, a Superintendent's Hearing was held.The plaintiff pleaded not guilty, and he was held for a second hearing.On July 14th plaintiff pleaded guilty and received a disposition of 30 days keep-lock, plus a disposition of 30 days confined to the Special Housing Unit suspended.He was referred to the Classification Committee for a job change.

Thereafter, on July 19, 1975, the plaintiff created a new disturbance, in which it was charged that he had assaulted a sergeant and a corrections officer.In this connection, on July 21, 1975, the plaintiff appeared before the Adjustment Committee and was referred to a Superintendent's Hearing.He appeared at such hearing on July 27, 1975, and denied all the charges.He was held for a second hearing.

On August 3, 1975, a Superintendent's Hearing was held by Deputy Superintendent Curry at which the plaintiff refused to appear, and in his absence was found guilty.His alleged reason for not appearing was that his due process rights were in some way violated.The previous suspended sentence of 30 days confinement to the Special Housing Unit was imposed, as was an additional 60 days confinement to the Special Housing Unit, with 30 days suspended.

During the period of confinement to the Special Housing Unit, according to the records, the plaintiff received one visit by his parents, on July 13, 1975.

Plaintiff asserts six basic grievances in his pleadings.First, he complains that when he was placed in the Special Housing Unit he was not told what his status was; second, that while in the Special Housing Unit he was denied access to the general population visiting area; third, that he should have been brought before a court of law on the charges that led to his confinement in the Special Housing Unit, instead of being...