Rivera v. Wohlrab

• Decision Date: 06 November 2002
• Docket Number: No. 99 CIV. 9881(VM).,99 CIV. 9881(VM).
• Citation: 232 F.Supp.2d 117
• Parties: Roberto RIVERA, Plaintiff, v. Lieutenant J. WOHLRAB., and C.O. Richard Holmes, Defendants.
• Court: U.S. District Court — Southern District of New York

232 F.Supp.2d 117

Roberto RIVERA, Plaintiff, v. Lieutenant J. WOHLRAB., and C.O. Richard Holmes, Defendants.

No. 99 CIV. 9881(VM).

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

November 6, 2002.

Roberto Rivera, Moravia, NY, pro se.

David Camuzo, Eliot Spitzer, Attorney General, State of NY, New York City, for Defendant.

DECISION AND AMENDED ORDER

MARRERO, District Judge.

Plaintiff Roberto Rivera ("Rivera"), proceeding pro se, brings this action under 42 U.S.C. § 1983 ("§ 1983") claiming violations of his constitutional rights under the due process clause of the Fourteenth Amendment of the United States Constitution. Rivera is seeking punitive damages, as well as injunctive and declaratory relief. Defendants, James Wohlrab ("Wohlrab"), a Corrections Lieutenant employed by the Commissioner of the New York Department of Corrections ("DOCS"), and Richard Holmes ("Holmes"), a Corrections Sargent employed by DOCS (collectively, "Defendants"), have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing the claims against them. By Order dated October 31, 2002 the Court granted the motion in its entirety, and indicated that its reasons would be detailed in a subsequent decision. Accordingly, the Order of October 31, 2002 is amended to incorporate the discussion set forth below.

I. BACKGROUND¹

On August 29, 1999, Rivera, an inmate at Downstate Correctional Facility ("Downstate"), was ordered to provide a urine sample to Holmes. Another Downstate officer, identified as Capt. Many ("Many") in the Request for Urinalysis form, was informed by a confidential informant that Rivera was using a controlled substance. Many therefore ordered the urinalysis test. On August 29, 1996, Rivera's urine sample was tested twice for controlled substances. Both the initial test and the subsequent test yielded positive results for marijuana.

After obtaining the two positive readings for marijuana, Holmes, in accordance with the New York Department of Correctional Services ("DOCS") Directive 4937, issued a misbehavior report charging Rivera with violating DOCS Disciplinary Rule 133.12 (use, sale or exchange of narcotics, narcotic paraphernalia, or a controlled substance).

A tier III disciplinary hearing on the charges against Rivera commenced on September 4, 1996 and concluded on September 10, 1996. Lieutenant J. Wohlrab ("Wohlrab") presided as the hearing officer. During the proceedings, Rivera requested two witnesses, Holmes and the confidential informant. Wohlrab only permitted Rivera to question Holmes.

On September 10, 1996, Wohlrab issued a written decision finding Rivera guilty of the charge against him based upon the written report and testimony of Holmes and the two positive test results for marijuana.

Rivera was sentenced to six months keeplock confinement, as well as six months loss of packages, commissary and phone privileges. The Director of Special Housing and Inmate Disciplinary Programs, Donald Selsky, modified the sentence on November 5, 1996 to ninety days keeplock confinement.

Rivera alleges that his Fourteenth Amendment due process rights were violated by the drug testing procedure and during the course of the disciplinary hearing because: (i) Holmes performed both tests of his urine sample in violation of state regulations that mandate different testers unless a second tester is unavailable; (ii) the urinalysis Chain of Custody, the Urinalysis Check Sheet/Continuity, and the Daily Work Sheet forms were not filled out appropriately, reflecting an improper failure to freeze urine samples, as well as deficiencies in chain of custody requirements; (iii) the misbehavior report is "invalid" because "it does not substantiate or support the body of the report"; (iv) the punishment issued by Wohlrab was severe and excessive; (v) Wohlrab did not allow Rivera to question Holmes to the extent that Rivera requested; and (vi) Wohlrab denied Rivera's request to examine the confidential informant at his hearing. Defendants argue that Rivera's confinement did not deprive him of a liberty interest sufficient to warrant due process protections, or, in the alternative, that Rivera's allegations do not rise to the level due process violations as a matter of law. Finally, Defendants argue that, in any event, they are protected by the doctrine of qualified immunity from being held personally responsible from the alleged violations.

II. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

To grant summary judgment, the court must determine that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is inappropriate if, resolving all ambiguities and drawing all inferences against the moving party, the dispute about a material fact is "such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248-49, 106 S.Ct. 2505 (citing Adickes v. SH. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). To defeat the motion, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). This is particularly true for those issues on which the nonmoving party would bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Although the same standards of summary judgment apply when a pro se litigant is involved, the pro se litigant should be given special latitude in responding to a summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'") (quoting Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir.1994)).

B. LIBERTY INTEREST

Rivera claims that his due process rights were violated at his disciplinary hearing, which resulted in a sentence of 90 days of keeplock confinement, as well as the loss of various privileges, including packages, commissary and telephone. Defendants argue that the punishment issued to Rivera, as a matter of law and uncontested fact, does not constitute the deprivation of a liberty interest sufficient to entitle Rivera to bring an action under § 1983 for a constitutional due process violation. Because the parties' representations concerning the conditions surrounding Rivera's keeplock confinement are drastically different, and since under the summary judgment standard the Court must resolve questions of fact in favor of Rivera, the Court can not, at this time, determine that Rivera's punishment did not deprive him of a liberty interest.

To establish a due process violation, "it is necessary to prove that the state has created a protected liberty interest and that the process due was denied." Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir. 1998) (citing Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996)). In determining when prisoners possess a protected liberty interest entitling them to due process in prison disciplinary proceedings, the Supreme Court in Sandin v. Conner found that, although "States may under certain circumstances create liberty interests which are protected by the Due Process Clause, these interests will be generally limited to freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 515 U.S. 472, 483-484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).

Following Sandin, the Second Circuit articulated a two-part test governing due process challenges to disciplinary hearings²: "To prevail, [the plaintiff] must establish both that the confinement or restraint creates an `atypical and significant hardship' under Sandin, and that the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint." Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996). Factors bearing on the "atypical and significant" finding are: (1) the effect of disciplinary action on the length of prison confinement, (2) the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions, and (3) the duration of the disciplinary segregation imposed compared to discretionary confinements. See Sandin, 515 U.S. at 485-486, 115 S.Ct. 2293. "In other words, actions under the due process clause are reserved for prisoners enduring a hardship that is substantially more grave than hardships [inmates] would be likely to endure simply as a consequence of the ordinary administration of the prison." Welch v. Bartlett, 196 F.3d 389, 392 (1999).

In assessing the nature and duration of a prisoner's confinement, the Second Circuit did not issue a bright-line rule delineating when a deprivation rises to the level of the Sandin analysis. See Colon v. Howard, 215 F.3d 227, 231-232 (2d Cir.2000). Rather, the Second Circuit has repeatedly made clear that district courts are to undertake extensive fact-finding in determining whether a liberty interest has been affected. Jackson v. Johnson, 15 F.Supp.2d 341, 345-346 (1998) (citing Brooks v. DiFasi, 112 F.3d 46 (2d Cir. 1997) (remanding for findings on the length of the disciplinary confinement, the restrictiveness of the keeplock, and the prevailing conditions in administrative confinement and in the prison at large); Miller v. Selsky, 111 F.3d 7 (2d Cir.1997) (same); Sealey v. Giltner, 116 F.3d 47, 51-52 (2d Cir.1997) (remanding...