Walker v. Bates

• Decision Date: 29 April 1994
• Docket Number: D,No. 731,731
• Citation: 23 F.3d 652
• Parties: Robert WALKER, Plaintiff-Appellant, v. L. BATES, Hearing Officer, Defendant-Appellee. ocket 93-2107.
• Court: U.S. Court of Appeals — Second Circuit

Page 652

23 F.3d 652

Robert WALKER, Plaintiff-Appellant, v. L. BATES, Hearing Officer, Defendant-Appellee.

No. 731, Docket 93-2107.

United States Court of Appeals Second Circuit.

Argued Dec. 15, 1993.

Decided April 29, 1994.

Mitchel H. Ochs, New York City (Richard L. Klein, Willkie Farr & Gallagher, of counsel), for plaintiff-appellant.

Martin Hotvet, Asst. Atty. Gen., Albany (Robert Abrams, Atty. Gen. of the State of New York, New York City, of counsel), for defendant-appellee.

Before: FEINBERG, MINER and MAHONEY, Circuit Judges.

MINER, Circuit Judge:

I.

Plaintiff-appellant Robert Walker appeals from a judgment entered in the United States District Court for the Western District of New York (Larimer, J.) dismissing his complaint against defendant-appellee L. Bates, a Tier III Hearing Officer at the Southport Correctional Facility ("Facility") where Walker is an inmate. In the complaint, grounded in the provisions of 42 U.S.C. Sec. 1983, Walker alleged that his constitutional procedural due process rights were violated in the course of a disciplinary hearing that resulted in a decision to confine him to the Special Housing Unit ("SHU") at the Facility. The district court concluded that reversal of the disciplinary hearing decision on administrative appeal cured any procedural defects in the hearing and dismissed the complaint pursuant to the provisions of Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. We reverse.

II.

On December 5, 1990, during the course of his confinement at the Facility, a prison maintained by the New York State Department of Correctional Services, Walker was issued an "Inmate Misbehavior Report" by Corrections Officer P. Youmans. In the Misbehavior Report Walker was charged with violation of an institutional rule prohibiting the possession of contraband in the form of a weapon and violation of another institutional rule prohibiting the possession of state bedding in excess of authorized issue. According to Youmans, the weapon was a metal rod approximately 9 1/2 inches long, and the excess bedding consisted of an extra pillow, two extra pillow cases and two extra sheets. The items allegedly were discovered by Youmans "while doing a routine cell frisk" of Walker's cell. Walker denied the charges, contending that he had just moved into the cell and that the items found by Youmans belonged to the prior occupant.

A Tier III disciplinary hearing was convened by Hearing Officer Bates on December 10, 1990 to consider the violations alleged in the Misbehavior Report. In the New York Prison System, Tier III disciplinary hearings, also known as Superintendent's hearings, are used for the review of the most serious violations of institutional rules. See N.Y.Comp.Codes R. & Regs. tit. 7, Sec. 270.3 (1989). Walker entered a plea of not guilty at the hearing and requested that three witnesses be called: Corrections Officer Youmans, the officer who wrote the Misbehavior Report; Gallery Officer Quarnek, who was in charge of the gallery area when the items were found; and Sergeant Zarnecki, who was assigned duties related to inmate housing at the time of the incident. Bates summarily refused the requests, proceeded with the hearing, found Walker guilty of both violations and imposed a sentence of confinement for 120 days in the SHU. Walker began serving that sentence on December 10.

III.

Walker administratively appealed Bates' decision to Donald Selsky, Director of Special Housing/Inmate Discipline for the Department of Correctional Services. In a notice dated February 11, 1991, Selsky reversed the decision of Bates "as of February 8, 1991," expunged Walker's disciplinary record and authorized a rehearing "within 7 days of the notice." Although no rehearing was held within the prescribed seven-day period, Walker was not released from SHU until February 22, 1991.

On February 28, 1991, Walker filed his pro se complaint in an action to recover damages pursuant to 42 U.S.C. Sec. 1983 for due process deprivation. In the complaint Walker named Bates, Superintendent Robert McClellan and Commissioner Thomas Coughlin as defendants. The complaint later was amended to reflect the dismissal of Coughlin and McClellan as parties. Walker alleges that he improperly was denied his right to call witnesses at the hearing and that the testimony of the witnesses would have corroborated his defense and altered the outcome of the hearing. Damages are sought for the entire period of his detention in SHU. On September 21, 1992, Bates moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim, arguing that the administrative appeal cured any procedural defect in the hearing.

In a Report and Recommendation dated October 9, 1992, Magistrate Judge Fisher recommended to the district court that the motion to dismiss be denied. The Magistrate Judge concluded that Bates' refusal to permit Walker to call witnesses and Walker's subsequent confinement in the SHU stated a claim under section 1983. The Magistrate Judge further concluded that the administrative reversal did not cure the defective hearing.

By Decision and Order dated January 5, 1992, the District Judge rejected the Report and Recommendation of Magistrate Judge Fisher. The District Judge concluded that, based on his ruling in Sowell v. Ryan, 823 F.Supp. 107 (W.D.N.Y.1992), aff'd without opinion, 996 F.2d 302 (2d Cir.1993), decided subsequent to the filing of the Magistrate Judge's Report and Recommendation, the administrative reversal cured any constitutional improprieties in the hearing and dismissed the complaint with prejudice. Walker timely appealed to this Court.

IV.

According to regulations promulgated by the New York Department of Correctional Services,

[a] special housing unit (SHU), in maximum security facilities as well as in designated medium security facilities, shall consist of single-occupancy cells grouped so as to provide separation from the general population, and may be used to house inmates confined to such units pursuant to Part 301 of this Title as well as such other inmates as approved by the commissioner or his designee.

N.Y.Comp.Codes R. & Regs. tit. 7, Sec. 300.2 (1991). The regulations require SHU inmates to "be housed in an area designed to maximize facility safety and security." Id. Sec. 300.1(b). Confinement in the SHU is a form of solitary imprisonment. In addition to being separated from the general prison population, SHU inmates are limited in the prison issue items and personal belongings they may possess. Id. Sec. 302.2. Also limited are shower and exercise privileges. McCann v. Coughlin, 698 F.2d 112, 117 n. 5 (2d Cir.1983).

Admissions to the SHU are governed by Part 301 of the Regulations of the Department of Correctional Services. Part 301 provides for disciplinary admissions in consequence of the "[d]isposition of superintendent's (Tier III) hearing for a designated period of time as specified by the hearing officer (7 NYCRR 254.7)." N.Y.Comp.Codes R. & Regs. tit. 7, Sec. 301.2(a) (1991) (Section 254.7 provides a range of penalties that may be imposed by a hearing officer). Part 301 also empowers the prison authorities to admit inmates to the SHU for purposes of detention, id. Sec. 301.3, administrative segregation, id. Sec. 301.4, protective custody, id. Sec. 301.5, keeplock for reasons such as confinement to await disposition of a disciplinary hearing, id. Sec. 301.6(a) and other purposes approved by the Deputy Commissioner for Facility Operations, id. Sec. 301.7.

The disciplinary hearing procedure requires that the Misbehavior Report be served on the inmate at least 24 hours before the hearing, id. Sec. 253.6(a), and that the inmate be provided with an assistant to help him prepare for the hearing, id. Sec. 253.4. The inmate must be present at the hearing unless he refuses to attend or his exclusion is warranted for reasons related to institutional safety or correctional goals. Id., Sec. 253.6(b). The hearing must be recorded electronically, id. and the inmate, if present, is entitled to make oral or written statements and to submit documentary evidence, id. Sec. 253.6(c). The regulations provide that

[t]he inmate may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented.

Id. Sec. 253.5(a). Where there are adequate reasons to exclude a witness from the hearing, the statement of the witness may be tape recorded and made available to the inmate at the hearing. Id. Sec. 253.5(b). Before the hearing, the inmate may address his request for witnesses either to the person appointed to represent him or to the hearing officer; a request for witnesses may also be addressed to the hearing officer at the hearing. Id. Secs. 253.5(c)(1), (2).

The procedures established by the New York regulations comport with the due process procedural rights in disciplinary proceedings to which prison inmates are entitled. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). "When restrictive confinement within a prison is expressly imposed as a disciplinary sanction ... there will ordinarily be no doubt that the confinement impaired a liberty interest protected by state law and that the due process procedures specified in Wolff are therefore required." Sher v. Coughlin, 739 F.2d 77, 81 (2d Cir.1984) (footnote omitted); see also McCann, 698 F.2d at 121-22 ("[A]n inmate who is or may be sentenced to a term of confinement in a Special Housing Unit has a right to the procedural protections of the Due Process Clause," including the right to call witnesses in his defense.). The denial of an inmate's right to call witnesses under...