Richardson v. Selsky

• Decision Date: 22 September 1993
• Docket Number: No. 987,D,987
• Citation: 5 F.3d 616
• Parties: Kevin RICHARDSON, Plaintiff-Appellant, v. Donald SELSKY, Clement Capuano, William Fenton, Bernard Lonczak, Defendants-Appellees. ocket 92-2681.
• Court: U.S. Court of Appeals — Second Circuit

Page 616

5 F.3d 616

Kevin RICHARDSON, Plaintiff-Appellant, v. Donald SELSKY, Clement Capuano, William Fenton, Bernard Lonczak, Defendants-Appellees.

No. 987, Docket 92-2681.

United States Court of Appeals Second Circuit.

Argued Feb. 11, 1993.

Decided Sept. 22, 1993.

Paul J. Mahoney, New York City (Elizabeth S. Ferguson, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, of counsel), for plaintiff-appellant.

Dvora Wolff Rabino, Asst. Atty. Gen., New York City (Robert Abrams, Attorney General of the State of N.Y., of counsel), for defendants-appellees Donald Selsky, Clement Capuano and William Fenton.

Before: KEARSE, CARDAMONE and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

Kevin Richardson appeals from a judgment of the United States District Court for the Southern District of New York (Vincent L. Broderick, Judge), entered in his suit brought pursuant to 42 U.S.C. Sec. 1983 (1988), granting the defendants-appellees' motion for summary judgment, and denying appellant's cross-motion for summary judgment. We affirm on the ground of qualified immunity.

BACKGROUND

At all times pertinent to this action, Kevin Richardson was an inmate at Green Haven Correctional Facility ("Green Haven"). Donald Selsky was the Director of Special Housing and the Coordinator of the Inmate Disciplinary Program for the New York State Department of Correctional Services; Clement Capuano was a deputy superintendent at Green Haven, where William Fenton was a lieutenant and Bernard Lonczak was a correction officer.

On February 2, 1985, James Caroline, an inmate, was stabbed in the "G & H yard" at Green Haven Correctional Facility. As a result of the assault, Caroline was hospitalized for at least one week. Fenton was assigned to investigate the assault. He received a written note dated February 5, 1985, from Correction Officer Gary Brooking, in which Brooking stated that, based upon information he had received from two confidential sources, he believed that Richardson stabbed Caroline or instructed someone else to do so. On February 8, 1985, Richardson was placed in involuntary protective status and a misbehavior report was issued against him. The misbehavior report stated that the prison administrators had received information that Richardson was responsible for Caroline's stabbing and that Richardson was being placed in involuntary protection for the safety of Caroline and the security of the facility. On February 21, 1985, a hearing was held to determine whether there was sufficient evidence to show that protective custody was necessary for him. At the conclusion of the hearing, the presiding officer found that there was not sufficient evidence to warrant placing Richardson in protective custody.

On February 25, 1985, a second misbehavior report was issued against Richardson, and he was transferred to a special housing unit pending a hearing. The misbehavior report stated that the prison administrators had received information that Richardson had assaulted Caroline on February 2, 1985. A superintendent's proceeding began on March 1, 1985, with Capuano as the presiding officer. After the charges were read to him, Richardson pleaded not guilty and requested that Caroline be called as a witness. He also presented a note from Caroline that stated: "I James Caroline is [sic] stating that me and Richardson 80-A3080 are friends, and he's not the one who stabbed me." Capuano agreed to interview Caroline and any other available witnesses. Capuano, however, declined to interview Caroline in Richardson's presence, due to concerns regarding prison security, whereupon the hearing was adjourned.

On March 7, 1985, Capuano, again acting as the presiding officer, reconvened the hearing. Caroline sent a note that read: "I[,] James Caroline 82A3323 did [sic] not desire to testify at Kevin Richardson['s] 80A3080 hearing." Capuano interviewed Lieutenant Fenton in Richardson's presence. Fenton stated that he had received information from "some sources that I know who they are and I'd rather not tell and there are some sources that I do not know who they are because they did not identify themselves." All of these sources, he stated, identified Richardson as the person who stabbed Caroline. With regard to the confidential sources, Fenton asserted that they had "proven reliable," that in his previous dealings with them he had had "positive results," and that he was "certain that the information [he] had received [was] accurate." Fenton said that, according to the confidential sources, Richardson had retaliated against Caroline for refusing to be a witness on his behalf in a separate proceeding. Capuano directed that Richardson be escorted from the hearing room, whereupon Capuano interviewed Fenton outside of Richardson's presence.

Upon Richardson's return to the hearing room, Capuano stated that he would not disclose to him the confidential sources whom Fenton had revealed in camera. Finally, Capuano informed Richardson that he had been found guilty of assaulting Caroline, and he explained that in making this determination he had relied upon "testimony as presented by Lt. Fenton who stated that through facility records[,] reports, and confidential witnesses that reliable officers received[,] as well as through his confidential interviews received identified Richardson as the person who attacked inmate Caroline...." Capuano stated that he found these sources more credible than Richardson's denial and Caroline's written statement. A penalty of 365 days of confinement in the Special Housing Unit, with a corresponding loss of various privileges, and 365 days loss of "good time" credits was imposed upon Richardson, who then filed administrative appeals. In April 1985, all aspects of the hearing were affirmed by Selsky in his capacity as Coordinator of the Inmate Disciplinary Program.

Richardson thereafter sought a writ of habeas corpus in the Supreme Court of the State of New York, Dutchess County. The court converted the matter into an Article 78 proceeding and, in an order dated August 15, 1985, it ruled that: "The hearing officer had no independent basis for making any evaluation of the credibility of Lt. Fenton's 'confidential informants,' since he did not communicate with any of them. He improperly relied upon Lt. Fenton's unsupported conclusory opinions and hearsay statements concerning their reliability and credibility." Accordingly the court ordered the vacatur of the hearing officer's disposition and the expungement of the matter from Richardson's records.

On June 23, 1986, Richardson, proceeding pro se and in forma pauperis, commenced this Sec. 1983 suit in the United States District Court for the Southern District of New York, seeking damages, attorneys fees and costs from the defendants for their alleged violation of his constitutional rights. The complaint asserted that Correction Officer Lonczak had prepared the misbehavior report that resulted in the superintendent's proceeding; that Lieutenant Fenton was the sole witness called against him at the proceeding; that Deputy Superintendent Capuano conducted the hearing; and that Director Selsky had affirmed the hearing officer's disposition. In their answer, the defendants, although denying they violated his constitutional and civil rights, made admissions to the basic facts alleged in the complaint but pleaded, inter alia, qualified immunity as an affirmative defense. The matter was subsequently assigned by Judge Broderick to Magistrate Judge Grubin for pre-trial supervision, and later counsel was appointed for Richardson.

On October 5, 1988, the defendants moved for summary judgment, claiming, inter alia, that Richardson's constitutional rights had not been violated, and that they were entitled to qualified immunity for their actions. They submitted affidavits in support of their motion. Fenton stated in his affidavit that he had been informed by Lonczak that two proven, reliable sources said that Richardson had stabbed Caroline, that Officer Brooking had said that two inmates had told him that Richardson had stabbed Caroline, and that several anonymous notes from inmates indicated that Richardson had stabbed Caroline. Lonczak stated in his affidavit that he had been assigned to assist Fenton in the investigation of the assault and to guard Caroline in the hospital. Lonczak stated that on separate occasions, two proven, reliable sources had informed him that Richardson was Caroline's assailant, that he saw an anonymous note written by an inmate, which stated that Richardson had stabbed Caroline, and that one informant stated that the stabbing was a reprisal by Richardson for Caroline's refusal to testify on his behalf in another proceeding. Capuano, in his affidavit, asserted that he interviewed Fenton and Lonczak outside of Richardson's presence and that both officers "provided me with the names of the informants, their reliability and the information provided by the informants." He claimed that his interviews with Fenton and Lonczak were electronically recorded. On April 18, 1990, Richardson cross-moved for partial summary judgment and stipulated to the dismissal of his claims against Correction Officer Lonczak.

In reply to Richardson's cross-motion for summary judgment, Lonczak, Fenton and Capuano filed supplemental affidavits in which they stated that, when interviewed outside of Richardson's presence, Fenton and Lonczak informed Capuano that they had been personally told by Caroline that Richardson had stabbed him. ¹ Capuano stated that this testimony was the "main factor" in making his finding that Richardson had stabbed Caroline. A senior stenographer at Green Haven submitted an affidavit dated May 4, 1990, stating that, despite a thorough search, neither the tape nor a transcript of the confidential portion of the March 7, 1985 hearing presided over by Capuano, could be located. The stenographer asserted that it was departmental policy to recycle old tapes. She...