Williams v. Smith, 382

• Decision Date: 15 January 1986
• Docket Number: No. 382,D,382
• Citation: 781 F.2d 319
• Parties: James WILLIAMS, Plaintiff-Appellant, v. Harold J. SMITH, Superintendent, and W. Morgan, C.O., Attica Correctional Facility, Defendants-Appellees. ocket 85-2158.
• Court: U.S. Court of Appeals — Second Circuit

Page 319

781 F.2d 319

James WILLIAMS, Plaintiff-Appellant, v. Harold J. SMITH, Superintendent, and W. Morgan, C.O., Attica Correctional Facility, Defendants-Appellees.

No. 382, Docket 85-2158.

United States Court of Appeals Second Circuit.

Argued Oct. 31, 1985.

Decided Jan. 15, 1986.

Barbara A. McCormick, New York City (Frederick T. Davis, Gregory L. Diskant, Patterson, Belknap, Webb & Tyler, New York City, of counsel), for plaintiff-appellant.

Colvin Grannum, Albany, N.Y. (Robert Abrams, Atty. Gen., Robert Hermann, Sol. Gen., William J. Kogan, Asst. Sol. Gen., Linda J. Cohen, Asst. Atty. Gen., Albany, N.Y., of counsel), for defendants-appellees.

Before MANSFIELD, MESKILL and CARDAMONE, Circuit Judges.

MANSFIELD, Circuit Judge:

James Williams, an inmate of the New York State Correctional Facility at Attica ("Attica"), appeals an order of the Western District of New York, John T. Curtin Chief Judge, granting summary judgment dismissing his action under 42 U.S.C. Sec. 1983 (1982) against defendants Harold J. Smith, Superintendent of Attica, and W. Morgan, Correctional Officer. The complaint alleged that the defendants had violated Williams' constitutional rights in the conduct of a prison disciplinary hearing. The district court found that Williams had failed to raise an issue of material fact regarding the personal involvement of Morgan and Smith in the alleged violation of his rights. We affirm as to Morgan and reverse as to Smith.

The disciplinary proceeding arose out of the alleged failure of Williams to stand in his cell as ordered during a count of prisoners. The guards at Attica count the prisoners twice daily. Since 1980, the inmates have been required to stand by their bunks and turn on their cell lights while being counted. Prisoners Legal Services of New York, Attica: A Report on Conditions 24 (1983), (reproduced at Abdul Wali v. Coughlin, 754 F.2d 1015, 1044 (2d Cir.1985) (Appendix A)). On September 22, 1983 defendant Morgan filed an Inmate Misbehavior Report accusing plaintiff Williams of failing to stand during the count, despite being ordered to do so.

Under Attica's three tiered disciplinary procedure, a hearing on Morgan's complaint was held on September 27, 1983. Prior to the hearing Corrections Counselor G. Calderon interviewed Williams. Calderon noted, on an official "Witness Request Form," that Williams requested that Inmate Johnson, however, was not called at the hearing. Instead, Lieutenant Komanecky, the Hearing Officer, read aloud to Williams the report of Morgan, who was not present, and listened while Williams denied the charges. Komanecky found Williams guilty and sentenced him to 30 days "keep lock". During keep lock a prisoner is "confined to his own cell and is deprived of almost all contact with the rest of the prison population and participation in the normal routine of the institution ..." McKinnon v. Patterson, 568 F.2d 930, 936 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978). The entire hearing, including the time it took Komanecky to consider his verdict, lasted eight minutes.

Johnson, President of the Lifers' Program, be called as a witness at the hearing.

Officer Morgan did not testify at the hearing.

Following the hearing, Williams sought a writ of habeas corpus pursuant to N.Y.Civ.Prac.Law & Rules, Art. 70, in New York Supreme Court, Wyoming County. In January, 1984, the Court entered a Partial Order of Stipulation and Judgment providing that, though Williams had already served the 30-day sentence, he was not to serve any further time in keep lock as a result of the September 27 sentence, that any good time he had lost as a result of the hearing should be restored and that the verdict should be expunged from his record. In the present suit the defendants concede that the government consented to the stipulation because the prison had failed to call the witness Williams requested.

Seven months after the decision of the New York Supreme Court, Williams, acting pro se, filed the present suit in the Western District of New York. Williams' handwritten complaint alleged that defendants Morgan and Smith had violated 42 U.S.C. Sec. 1983. He stated:

"On 9-22-83 Officer Morgan wrote me up for not standing for the count, but I did stand. For this I received 30 days, I filed an appeal, but the Superintendant [sic] affirmed the charges. Following this I went to Supreme Court and the charges were proved to be an error, and therefore illegal."

Williams requested "$5,000 for the 30 days I was held in my cell illegally as well as $2,000 for cruel and unusual punishment."

The defendants filed an answer on January 7, 1985, with supporting affidavits by Superintendent Smith and Paul F. McCarthy, Assistant Attorney General of the State of New York and counsel to the defendants, and moved for summary judgment. In the answer they denied "knowledge or information sufficient to form a belief as to the allegation that the Superintendent affirmed the charges," and advanced several affirmative defenses. The sixth defense stated "That the Defendant Harold J. Smith did not personally participate in any of the events described in the complaint". The seventh claimed that "[d]efendant Morgan's participation in the events described in the Complaint was limited to preparing and submitting an Inmate Misbehavior Report", and the eighth alleged that the defendants did not act in bad faith.

Smith's affidavit supporting the answer made no specific factual allegations. It broadly claimed, however, that Smith "did not personally participate in any of the events described in the Complaint." In his affidavit McCarthy's only comment on the defendants' involvement in the disciplinary hearing was the broad allegation "that defendants did not act in bad faith, were not intentionally, recklessly or wantonly indifferent, grossly negligent, nor did they personally know, acquiesce or participate in any deprivation of the plaintiff's constitutional rights."

Williams submitted a handwritten response to defendants' motion for summary judgment. On April 25, 1984, however, the district court granted their motion, finding that:

"Plaintiff's response does not adequately address the facts brought out in defendants' affidavits in support of the motion for summary judgment. I also find that

defendants did not act in bad faith, were not intentionally, recklessly or wantonly indifferent, grossly negligent, nor did they personally know, acquiesce or participate in any deprivation of plaintiff's constitutional rights."

DISCUSSION

I. Qualified Immunity

In actions under 42 U.S.C. Sec. 1983, good faith or qualified immunity is an affirmative defense which must be pleaded by the defendant officials. Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982); Sec. & Law Enforcement Emp. Dist. C. 82 v. Carey, 737 F.2d 187, 210 (2d Cir.1984). Once qualified immunity is pleaded, plaintiff's complaint will be dismissed unless defendant's alleged conduct, when committed, violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, supra, 457 U.S. at 818, 102 S.Ct. at 2738. See also Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984).

Because Williams was a pro se litigant, his complaint must be liberally construed. Estelle v. Gamble, 429 U.S. 97 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972); Patrick v. Le Fevre, 745 F.2d 153, 160 (2d Cir.1984). He contends that it sufficiently alleged violation of his constitutional rights in two respects. First he argues that it should be read to allege that defendants violated his due process right not to be convicted in a disciplinary hearing based only on the unsworn, written report of a prison official. Though Williams' 30-day incarceration in keep lock triggered due process protections, McCann v. Coughlin, 698 F.2d 112, 121 (2d Cir.1983); McKinnon, supra, 568 F.2d at 936-39, we cannot say that it was clearly established in 1983 that those protections barred conviction in a prison disciplinary hearing based only on a guard's unsworn, written report. Such a conviction need only be supported by "some" or "a modicum" of evidence. Superintendent, Mass. Corr. Inst. Walpole v. Hill, --- U.S. ----, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985). It is unclear whether a written, unsworn report satisfies that requirement.

Williams argues, however, that Jones v. Smith, 120 Misc.2d 445, 466 N.Y.S.2d 175 (Sup.Ct.1983), aff'd mem., 101 A.D.2d 705, 475 N.Y.S.2d 809 (4th Dept.1984), aff'd on other grounds, 64 N.Y.2d 1003, 489 N.Y.S.2d 50, 478 N.E.2d 191 (1985), clearly established that his conviction had to be supported by more than Morgan's report. Even assuming arguendo that a single decision of a state's trial court can "clearly establish" federal constitutional rights, we disagree. The decision was rendered August 3, 1983, made available in legal reporters only some time later, and eventually affirmed, on other grounds, in 1985. The hearing at issue in this case occurred on September 27, 1983, less than two months after the decision was rendered by the Wyoming County Supreme Court and while the appeal was pending. We cannot say that a reasonable prison official should on that date have known of Jones or the law it promulgated.

Plaintiff also claims, however, that his complaint alleged that the defendants violated his due process right "to call witnesses and present evidence in his defense, 'when permitting him to do so would not be unduly hazardous to institutional safety or correctional goals.' " McCann, supra, 698 F.2d at 122 (quoting Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974)). See also Ponte v. Real, --- U.S. ----, 105 S.Ct. 2192, 2195, 85 L.Ed.2d 553 (1985). The prisoner's right to call witnesses was initially recognized in ...