Zamakshari v. Dvoskin

• Citation: 899 F. Supp. 1097
• Decision Date: 08 September 1995
• Docket Number: No. 90 Civ. 6286 (SS) (AJP).,90 Civ. 6286 (SS) (AJP).
• Parties: Zamadhi ZAMAKSHARI a/k/a Juan Sanchez, Plaintiff, v. Joel DVOSKIN, Associate Commissioner of O.M.H., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

899 F. Supp. 1097

Zamadhi ZAMAKSHARI a/k/a Juan Sanchez, Plaintiff, v. Joel DVOSKIN, Associate Commissioner of O.M.H., et al., Defendants.

No. 90 Civ. 6286 (SS) (AJP).

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

September 8, 1995.

COPYRIGHT MATERIAL OMITTED

William D. Gibney, Prisoner's Legal Services of New York, New York City, for plaintiff.

William K. Sanders, Assistant Attorney General, New York City, for defendants.

ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

SOTOMAYOR, District Judge.

Magistrate Judge Andrew J. Peck has issued a Report dated August 16, 1995 (the "Report") recommending that I grant summary judgment in favor of all defendants in this § 1983 action on the ground that defendants are entitled to qualified immunity.

Magistrate Judge Peck advised the parties of their obligation to file timely objections to the Report under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). In addition, as required by Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992), and Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir. 1989), he cautioned the parties that their failure to object would preclude appellate review.

By letter dated September 6, 1995, plaintiff's counsel advised me that plaintiff would not object to the Report and defendants submitted no timely objections. I "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985) (citations omitted).

I have found no errors in the thorough and careful analysis submitted by the Magistrate Judge in his Report. Accordingly, for the reasons set forth in the Report which I attach hereto and incorporate by reference, I order the Complaint dismissed in its entirety against all defendants. The Clerk of the Court is directed to enter judgment in accordance with this Order.

SO ORDERED.

REPORT AND RECOMMENDATION

PECK, United States Magistrate Judge.

In this civil rights action brought pursuant to 42 U.S.C. § 1983, plaintiff Zamadhi Zamakshari is suing several officials affiliated with the New York State Office of Mental Health ("OMH") and the Department of Correctional Services ("DOCS") for alleged due process violations in connection with two prison disciplinary proceedings. As a result of the first (1988) hearing, Zamakshari was placed in the prison's Special Housing Unit for two years and lost good time credits, and as a result of the second (1990) hearing, he was placed in the Special Housing Unit for 60 days. The parties have cross-moved for summary judgment pursuant to Fed.Rule Civ.P. 56(c). For the reasons set forth below, I recommend that the Court grant defendants' summary judgment motion.

FACTS

In his complaint, Zamakshari seeks damages for the alleged denial of procedural due process stemming from two prison disciplinary hearings. The first hearing took place on January 8, 1988 at Sing Sing Correctional Facility ("the 1988 hearing") and the second hearing took place on May 4 and May 7, 1990 at the Greenhaven Correctional Facility ("the 1990 hearing"). Zamakshari alleges that his procedural due process rights were violated in the 1988 disciplinary hearing because defendants (1) denied him a gallery listing of potential witnesses, and (2) failed to consider documentary evidence of his psychiatric records. Zamakshari alleges that his procedural due process rights were violated in the 1990 hearing when defendants (1) failed to consider his psychiatric records or psychiatric testimony, and (2) failed to contact eye-witness Nurse Debbie Reilly.

Zamakshari was found guilty of the disciplinary charges, and placed in the Special Housing Unit ("SHU") for two years in 1988 and recommended for loss of certain good time credits, and placed in the SHU for 60 days in 1990. Zamakshari alleges that as a result, he suffered withdrawal and depression.

Zamakshari further alleges that he wrote a letter to defendant Thomas Coughlin, Commissioner of Corrections, advising Coughlin of the alleged deprivation of Zamakshari's rights during these hearings. (Cplt. at ¶ 27.)

Zamakshari is represented by counsel from the Prisoners' Legal Services of New York.

Defendants

Defendants are: Peter Horan, the hearing officer at Zamakshari's 1988 hearing; Joel Dvoskin, the OMH Associate Commissioner at the time of the 1990 hearing; Thomas Coughlin, Commissioner of DOCS; Paul Kimmelman, an Assistant Deputy Superintendent at Greenhaven and the hearing officer for the 1990 hearing; and Robert Jacques, OMH Unit Chief at Greenhaven Facility in May 1990.

Plaintiff's History of Mental Illness

Zamakshari's OMH records reveal that he has a long history of mental illness. (See Plaintiff's Rule 3(g) Statement "Plf's 3(g)", ¶ 1.) In March 1982, Zamakshari was diagnosed with "Undifferentiated Schizophrenia" and prescribed Mellaril, a potent anti-psychotic medication. (Id., ¶ 1(A).) In a 1985 psychological profile, Zamakshari's condition was described as "paranoid schizophrenia, in remission ... Schizoid Personality Disorder with Paranoid and explosive characteristics" with prognosis "extremely guarded." (Id.) Since 1988, Zamakshari has been prescribed various anti-depressants and anti-psychotic medications including Elavil, Mellaril and Navane. Many of these prescriptions were discontinued after a short period of time because Zamakshari refused to take them. (Id., ¶ 1(B).) Zamakshari was admitted to Central New York Psychiatric Center in 1992 in a state of psychotic regression which included ingesting feces and auditory hallucinations. (See Declaration of William Gibney "Gibney Dec.", Zamakshari's attorney, ¶ 3(I).)

The 1988 Hearing

On January 2, 1988, Zamakshari was involved in four separate instances leading to disciplinary charges. Specifically, Zamakshari was charged with: (1) refusal to obey a direct order and making threats, stemming from an incident in which Zamakshari refused to fasten his jacket when directed by a correction officer and threatened to fight him; (2) assault, refusal to obey a direct order and creating a disturbance, stemming from an incident in which Zamakshari refused an order to sit down, struck a correction officer, and caused other inmates to rise from their seats to help; (3) making threats, stemming from an incident in which Zamakshari threatened to have a correction officer killed; and (4) damaging state property and starting a fire, stemming from Zamakshari's removal of the stuffing from a mattress and setting it on fire. (Defendants' Rule 3(g) Statement "Defs' 3(g)", ¶¶ 2-5.)

These charges were consolidated into one Tier III hearing, which was commenced before defendant Peter Horan on January 8, 1988. (Id., ¶ 6.)¹ Prior to the hearing, Zamakshari had requested that his inmate assistant obtain a gallery listing of "M" gallery, "A" block, but was told that the listing was unavailable. (1988 Hearing Transcript "1988 Tr." at 37.) At the hearing, Zamakshari plead "not guilty" to all offenses, and claimed that his actions were a product of "auditory hallucinations, I was hearing voices." (Id. at 3, 21-22.) Further, Zamakshari requested that defendant Horan review his psychiatric record and that psychiatrist Dr. Gross testify. (Id. at 28.) Dr. Gross testified that he had reviewed Zamakshari's record and evaluated him, and concluded that his mental status was "essentially normal except for a feeling that the institution and people in the institution are out to get him which would go along with a paranoid nature." (Id. at 70-71.) Dr. Gross further testified that Zamakshari understood the consequences of his acts. (Id. at 72.) A second doctor requested by Zamakshari, Dr. Vener, also testified that Zamakshari was competent, although he admitted that he was not very familiar with Zamakshari's psychiatric record. (Id. at 75-76.)

Zamakshari called five inmate witnesses, only three of whom had witnessed the events, and none of whom disputed that Zamakshari committed the offenses in question. (Id. at 40-64.) Horan called four corrections officers who corroborated the charges against Zamakshari. (Id. at 64-68, 77-93.)

At the conclusion of the hearing, defendant Horan found Zamakshari guilty of all charges, based on the oral testimony of four correction officers and the written report of a fifth, and imposed a penalty of, among other things, two years' confinement to the Special Housing Unit ("SHU"), two years loss of phones, commissary and packages, and a recommendation of 30 months loss of good time. (1988 Tr. at 110-11.)

The 1990 Hearing

On April 24, 1990, while incarcerated in the Special Housing Unit at Greenhaven, Zamakshari was charged with interfering with an employee stemming from an incident in which he threw a cup of orange juice containing medication at a nurse. (Defs.' 3(g) at ¶ 14.)

Defendant Hearing Officer Paul Kimmelman conducted a Tier III hearing on May 4 and 7, 1990. (See Ex. B. to Plf's 3(g): Transcript of May 4 and 7, 1990 Hearing "1990 Tr.".) At the hearing, Zamakshari plead not guilty, claiming that he accidentally "sprinkled" the nurse with the orange juice and that he was not responsible for his actions because of his mental state. (1990 Tr. at 10.) Zamakshari made several requests for witnesses, including a social worker, a psychiatrist, Nurse Reilly (the nurse involved in the incident), and another night nurse, Nurse Cardinale. (1990 Tr. at 5-7.)

Warren Skov, a psychiatric satellite unit chief, appeared at the 1990 hearing but refused to testify regarding Zamakshari's mental condition stating, "I'm under strict guidelines to what I can and cannot attest to inaudible mental health ... But the only thing I can testify to is to what...