Swift v. Tweddell

• Decision Date: 17 October 2008
• Docket Number: No. 05-CV-6233L.,05-CV-6233L.
• Citation: 582 F.Supp.2d 437
• Parties: Mark A. SWIFT, Plaintiff, v. Sheriff Richard C. TWEDDELL, et al., Defendants.
• Court: U.S. District Court — Western District of New York

582 F.Supp.2d 437

Mark A. SWIFT, Plaintiff, v. Sheriff Richard C. TWEDDELL, et al., Defendants.

No. 05-CV-6233L.

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

October 17, 2008.

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Mark A. Swift, Attica, NY, pro se.

Donald S. Thomson, Davidson & O'Mara, P.C., Elmira, NY, for Defendant.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

Plaintiff, Mark Swift, appearing pro se, commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS") alleges that defendants violated his rights under the United States Constitution in a number of respects during 2004 and 2005, while plaintiff was a pretrial detainee confined at the Steuben County Jail ("jail"). Defendants include a number of sheriff's deputies and jail employees.

Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has not responded to the motion. For the reasons that follow, the motion is granted.

DISCUSSION

I. Plaintiff's Failure to Respond to the Summary Judgment Motion

Rule 56(e) of the Federal Rules of Civil Procedure provides that

[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party's pleading, but the adverse party's response by affidavits or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

In addition, Local Rule of Civil Procedure 56(c) provides that "[a]ll material facts set forth in the statement [of undisputed material facts] required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party."

The Court of Appeals for the Second Circuit has held that when a party moves for summary judgment against a pro se litigant, either the movant or the district court must provide the pro se litigant with notice of the consequences of failing to respond to the motion. Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir.1999); see also Irby v. New York City Transit Auth., 262 F.3d 412, 413 (2d Cir.2001).

In the instant case, defendants' notice of motion clearly gave plaintiff notice of the requirements of Rule 56 and the consequences of failing to respond properly to a motion of summary judgment. See Dkt. # 45-2. The notice stated, inter alia, "THE CLAIMS PLAINTIFF ASSERTS IN HIS COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF HE DOES NOT RESPOND TO THIS MOTION by filing his own sworn affidavits or other papers as required by Rule 56(e)." The notice went on to explain in some detail the types of materials that plaintiff could submit in opposition to the motion, and warned that if plaintiff did not respond, the Court would accept the truth of defendants' statement of material facts not in dispute. Id.

It is also clear that plaintiff received a copy of defendants' motion; in a motion dated June 25, 2007, and filed with the Court on June 27, 2007, plaintiff asked for an extension of time to respond to defendants' motion. Dkt. #46. The Court granted plaintiff's request on July 5, 2007, and gave plaintiff until July 30, 2007 to submit a response, which, as stated, he failed to do. Dkt. # 47.

There is no question, then, that plaintiff has been adequately advised of the pendency of the summary judgment motion, of the need for him to respond and the form in which he should do so, and of the consequences of not responding to defendants' arguments and factual allegations. Since plaintiff has not done so, the Court may accept the truth of defendants' factual allegations, and determine whether, based on those undisputed facts, defendants are entitled to summary judgment. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (fact that there has been no response to a summary judgment motion does not mean that the motion is to be granted automatically; "Such a motion may properly be granted only if the facts as to which there is no genuine dispute `show that the moving party is entitled to a judgment as a matter of law'") (citing Fed.R.Civ.P. 56(c)).

II. Merits of Plaintiff's Claims

A. First Claim

On January 15, 2005, defendant Deputy Fanzo issued an incident report (Dkt. # 1-2 at 22) charging plaintiff with five infractions arising out of an altercation between plaintiff and another inmate, including disruptive conduct, fighting, and other charges. A hearing was held before New York State Correction Officer Scott Rodbourn, who found plaintiff not guilty of fighting, but guilty of the other four charges. Plaintiff, who at that point had served nine days in disciplinary segregation (which involves a loss of certain privileges and which in the jail was commonly referred to as "double lock") on the charges, was sentenced by Rodbourn to an additional twelve days. See Defendants' Rule 56 Statement (Dkt. # 45-4).

Plaintiff's first claim in this action alleges a due process violation in connection with the hearing before Rodbourn. Specifically, he alleges that Rodbourn "did not ask [plaintiff] what happened" in the incident with the other inmate, and that Rodbourn denied plaintiff's request to call a witness (who is not identified in the complaint). Complaint (Dkt.# 1-1) at 10.

At his deposition, plaintiff testified that virtually as soon as plaintiff walked into the hearing room, Rodbourn stated that he "was going to give [plaintiff] the same thing [i.e., the same sentence] that he gave" to the other inmate. Plaintiff's Deposition Transcript ("Tr."), Dkt. #45-10, at 39.¹ Plaintiff also testified, "He didn't ask me. I had witnesses. I had two witnesses to call to verify . . . what happened there and [Rodbourn said] it wasn't relevant." Id. at 39.

This claim must be dismissed on a number of grounds. First, the punishment imposed—twenty-one days of "double lock," including the nine days that plaintiff spend in double lock prior to the hearing—was not of sufficient length to implicate due process concerns, and there are no allegations, nor is there any evidence, that the conditions under which plaintiff served that sentence were unusually harsh. See Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418(1995); Livingston v. Kelly, 561 F.Supp.2d 329, 332 (W.D.N.Y.2008); see also Pettus v. McGinnis, 533 F.Supp.2d 337, 341 (W.D.N.Y.2008) (thirty days in keeplock, absent unusual or severe living conditions, did not give rise to due process claim based on issuance of allegedly false misbehavior report).

Furthermore, plaintiff's allegations about what happened at the hearing are not supported by the evidence. Defendants assert in their Rule 56 statement (the truth of which the Court accepts, as explained above) that plaintiff "was given an opportunity to explain his behavior and mitigating circumstances," that plaintiff admitted being involved in the altercation, and that plaintiff did not ask for any witnesses. Dkt. # 45-4 ¶¶ 5, 9. The hearing log likewise reflects that plaintiff gave his explanation of the charges against him, to the effect that Fanzo overreacted to what was nothing more than an argument between plaintiff and the other inmate. Dkt. # 45-23 at 4. Rodbourn also states in his unrebutted affidavit that he gave plaintiff an opportunity to testify, and that although plaintiff indicated that there were eyewitnesses to the incident, he did not ask to call anyone in particular as a witness. Dkt. # 45-16 ¶ 8.

It appears, then, that plaintiff did testify. If, as plaintiff alleges, Rodbourn summarily reached his decision on the charges without even hearing plaintiff's side of the story, it is certainly difficult to see why Rodbourn would have found plaintiff not guilty of the fighting charge.

With respect to the alleged denial of plaintiff's request to call one or more witnesses, again, plaintiff has not submitted any response to defendants' evidence that plaintiff did not in fact request that any witnesses be called. The Court therefore accepts the truth of defendants' assertion in that regard. In any event, plaintiff has not identified in this lawsuit any individuals whom he sought to call, nor has he provided any basis for knowing what their testimony was likely to have been. See Grossman v. Bruce, 447 F.3d 801, 804 n. 1 (10th Cir.2006) (stating that inmate plaintiff "makes conclusory statements that he was improperly denied the right to present evidence and that one or more other witnesses were not called at his disciplinary hearing," but that "[h]e does not identify any of these other witnesses in his appellate brief, nor does he explain what evidence he was unable to introduce, making it impossible to review this claim").

In addition, in his complaint and at his deposition, plaintiff has alleged that Rodbourn declined to call plaintiff's requested witnesses on the ground that they were "not relevant," Dkt. # 1-1 at 10, Tr. at 39. Even assuming that plaintiff did request that witnesses be called, there has been no showing that Rodbourn's decision in that regard was unreasonable, much less that it violated plaintiff's due process rights. See Feliciano v. Selsky, 205 F.3d 568, 570 (2d Cir.2000) (referring to "the general rule in this circuit that prison hearing officers have the discretion to keep disciplinary hearings within reasonable limits and that this discretion includes the power to refuse to call witnesses whose testimony may reasonably be regarded as non-probative or duplicative"); Walker v. McClellan, 126 F.3d 127, 130 (2d Cir.1997) (where inmate plaintiff "refus[ed] to explain the relevance of the requested witnesses' testimony, . . . [t]he hearing officer had no obligation to guess at Walker's purpose in...