Grant v. Annucci

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SEP 30 2019

UNITED STATES DISTRICT COURT Wetec LOEweNGUT SS

WESTERN DISTRICT OF NEW YORK ERN DISTRICT

WILLIAM T. GRANT,

Plaintiff, DECISION AND ORDER

V. 1:16-CV-00361 EAW

ANTHONY J. ANNUCCTI, et al.,

Defendants.

INTRODUCTION

Plaintiff William T. Grant (“Plaintiff), a prisoner previously confined at Five

Points Correctional Facility (“Five Points’), filed a pro se complaint asserting claims under

42 U.S.C. § 1983 against a variety of Five Points staff members based upon alleged events

occurring at that facility in 2013. (Dkt. 1). Currently pending before the Court is a motion

for summary judgment filed by defendants Anthony J. Annucci (“Annucci’), Lt. Tad Levac

(“Levac”), C.O. J. Lalone (“Lalone”), C.O. P. Flora (“Flora”), C.O. R. Maloy (“Maloy”),

and Corr. Counselor D. Funke (“Funke”) (collectively “Defendants”). (Dkt. 71). For the

reasons that follow, the Court grants Defendants’ motion in part and denies Defendants’

motion in part.

FACTUAL BACKGROUND

The following facts are taken from Defendants’ Statement of Undisputed Facts

(Dkt. 71-2), Plaintiff's response thereto (Dkt. 75), and the evidence submitted by the

parties. Unless otherwise noted, these facts are undisputed.

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At all times relevant to the instant lawsuit, Plaintiff was an inmate in the care and

custody of the New York Department of Corrections and Community Supervision

(“DOCCS”). (Dkt. 71-2 at | 1; Dkt. 75 at 7 1). At all times relevant to the instant lawsuit,

Defendants Levac, Lalone, Flora, Maloy, and Funke were employees of DOCCS assigned

as staff at Five Points. (Dkt. 71-2 at 2-3; Dkt. 75 at 2-3). Annucci was the Acting

Commissioner of DOCCS at the relevant time period. (See Dkt. 71-9 at 99).

Plaintiff arrived at Five Points on May 13, 2013, and, while in intake, refused to

“double bunk.” (Dkt. 71-2 at § 6; Dkt. 75 at 6). As a result of his refusal, Plaintiff was

sent to the special housing unit (“SHU”). (Dkt. 71-2 at 6; Dkt. 75 at ¥ 6).

Maloy, in the presence of other officers, conducted a strip frisk of Plaintiff for

admission to the SHU. (Dkt. 71-2 at | 7; Dkt. 75 at § 7). Flora, in the presence of other

officers, then escorted Plaintiff to his newly assigned cell. (Dkt. 71-2 at 7 8; Dkt. 75 at

48). Plaintiff has submitted a sworn declaration in which he claims that on the way to his

cell in the SHU, “one of the officers made a statement about setting [him] up to fight.”

(Dkt. 77 at 1).

Prior to Plaintiff being placed in his cell in the SHU, the other inmate housed in the

cell, inmate Buel (“Buel”), was temporarily relocated. (Dkt. 71-2 at J 9; Dkt. 75 at { 9).

Plaintiff claims that when his handcuffs were removed, Flora “pulled, twisted, and yanked

[his] arm through the feeding hatch.” (Dkt. 77 at 1-2). A retention strap was applied and

Plaintiff's handcuffs were removed. (Dkt. 71-2 at ¢ 12; Dkt. 75 at ¥ 12).

Buel was returned to the cell. (Dkt. 71-2 at 4 13; Dkt. 75 at J 13). Plaintiff testified

at his deposition that the corrections officers were standing outside the cell and there was

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a “weird energy” from Buel. (Dkt. 71-9 at 118). Plaintiff claims that he asked Buel if the

officers were setting them up to fight. (Dkt. 77 at J 10). Plaintiff admitted at his deposition

that he was the one who “swung on” Buel, hitting him in the chest with a fist and causing

Buel to fall onto the bed. (Dkt. 71-9 at 120-21). Plaintiff continued to hit Buel with closed

fist punches, which Buel tried to block. (/d. at 122).

Plaintiff and Buel were ordered to stop fighting, though Plaintiff disputes having

heard the order. (Dkt. 71-2 at § 16; Dkt. 75 at 16). Lalone, Maloy, Flora, and non-

defendant Officer Dybdhal (“Dybdhal”) were ordered to enter the cell and contain the

situation. (Dkt. 71-2 at § 17; Dkt. 75 at § 17). An officer entered the cell and pushed

Plaintiff off Buel. (Dkt. 77 at ¢ 13). Buel became compliant and Lalone and Dybdhal

escorted him from the cell. (Dkt. 71-2 at § 19; Dkt. 75 at ¥ 19).

The parties sharply dispute what happened next. Defendants claim that Plaintiff

became combative, and began to swing closed fist punches at Maloy, striking him in the

face. (Dkt. 71-2 at §20). According to Defendants, Flora then shoved Plaintiff in his upper

chest towards the bed frame, causing Plaintiff to charge at Flora, who pushed Plaintiff with

both hands towards the rear of the cell. (/d. at J] 21-22). Defendants assert that Flora then

placed Plaintiff in a “bear hug hold” and forced him to the ground on his back, with Maloy

assisting. (/d. at ¢ 23). Defendants further assert that Plaintiff continued to be combative

and began to spit at the officers, so Flora and Maloy forced Plaintiff onto his stomach and

applied restraints, and Lalone applied a spit guard. (/d. at 24-30).

Plaintiff denies ever having become combative with the officers. (Dkt. 75 at § 24).

He claims that he was knocked to the ground and immediately assaulted by the officers,

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and that they beat him and then picked him up and “threw [him] into the wall head first.”

(Id. at J§ 20-21, 23-25). At his deposition, Plaintiff testified that he was flat on the ground

after having been pushed off Buel when the officers began to kick him and hit him with

batons. (Dkt. 77 at 19-20). Plaintiff further testified that after he was handcuffed, he was

placed in a chokehold and repeatedly punched in the face, “maybe 10 to 15 times.” (Zd. at

25, 28). Plaintiff denies having spit at anyone and states that he was punched in the face

before the spit guard was applied. (Dkt. 75 at ff 28-29). Plaintiff testified that after the

alleged beating, Flora and Lalone taunted him, and Lalone specifically said that he was the

one who punched Plaintiff in the face. (Dkt. 77 at 22-23). Plaintiff further testified that

Flora hit Plaintiff with his hands and that Maloy was “there” during the assault but that

Plaintiff couldn’t say “specifically” what his role had been. (Dkt. 71-9 at 138).

On May 15, 2013, Plaintiff was served with a misbehavior report for, among other

things, fighting with another inmate, assaulting an officer, unhygienic acts, creating a

disturbance, and disobeying a direct order. (Dkt. 71-2 at 7 36; Dkt. 75 at § 36). Funke was

chosen as Plaintiff's hearing assistant. (Dkt. 71-2 at ¢ 37; Dkt. 75 at 37). Plaintiff met

with Funke on May 16, 2013, to determine what documents he wanted obtained or which

potential witnesses he wanted interviewed. (Dkt. 71-2 at 38; Dkt. 75 at 738). Plaintiff

requested a copy of the video of the incident, and a request for the video was submitted.

(Dkt. 71-2 at § 40; Dkt. 75 at 440). Plaintiff also requested additional documents, including

DOCCS Directive 4933, the Unusual Incident (“UI”) Report, the Use of Force Report,

interdepartmental memos (‘““To/Froms”), medical records for the individuals involved in

the incident, photographs of the individuals involved in the incident, the DOCCS Rule

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Book, and Title 7 of the New York Code of Rules and Regulations (“NYCRR”). (Dkt.

71-2 at 9 41; Dkt. 75 at § 41). Funke has sworn under penalty of perjury that he made a

request for all these documents (Dkt. 71-2 at 43), and Plaintiff has admitted that he does

not have any personal knowledge as to whether Funke made such a request (Dkt. 75 at

q 43).

Non-defendant Cindy Medina (“Medina”) has submitted a sworn declaration stating

that assistant duties were thereafter transferred to her. (Dkt. 71-8 at § 17). Defendants

have submitted an assistance form that appears to have been signed by Medina on May 20,

2013, stating that she met with Plaintiff and informed him that the UI and Use of Force

reports, which would in turn contain any relevant To/Froms and photos and medical

reports, would be provided to him at his hearing, at the discretion of the hearing officer.

(Dkt. 71-9 at 64). The assistance form further reflects that Plaintiff was given a copy of

DOCCS Directive 4933 and the DOCCS Rule Book, and informed that the could obtain a

copy of Title 7 NYCRR from the law library. (/d.). However, the assistance form identifies

Funke as Plaintiff's assistant and is unsigned by Plaintiff. (/d.). Plaintiff denies having

met with Medina and further claims that assistant duties were never transferred to her.

(Dkt. 75 at | 45).

Plaintiff's hearing was conducted on May 23, 2013, June 8, 2013, and June 13, 2013,

with Levac serving as hearing officer. (Dkt. 71-2 at 450; Dkt. 75 at 4 50). On the first day

of the hearing, Plaintiff informed Levac that he had not received all the documents he

requested, and so Levac adjourned the hearing until the documents could be obtained.

(Dkt. 71-2 at ¢ 52; Dkt. 75 at § 52). Prior to adjournment of the hearing, Plaintiff was

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permitted to review a copy of the video footage of the incident.! (Dkt. 71-2 at ¥ 53; Dkt.

75 at § 53).

Prior to the start of the second hearing date, Defendants claim Plaintiff was provided

with copies of the Rule Book, DOCCS Directive 4933 (which contains Title 7 NYCRR),

the UI Report, and the Use of Force Report (which contains relevant To/Froms, photos,

and medical reports). (Dkt. 71-2 at 4 54). Plaintiff claims that he was given a stack of

documents mere minutes before the hearing was recommenced and that he was not

permitted time to review them or to marshal a defense before they were taken back. (Dkt.

77 at § 23). Plaintiff further claims that prior to the recommencement of the hearing, he

and Levac had a conflict wherein Levac called him an “asshole” and told him he was going

to give him between three to five years in the SHU, where he hoped Plaintiff would be

raped. (/d. at § 26). On the record at the second day of the hearing, Plaintiff stated that

Levac had told him he was “going to stick [him] in SHU for 3-5 years and all this other

stuff’ and that Plaintiff had requested someone else be appointed to conduct his hearing;

Levac denied making such a statement. (Dkt. 71-9 at 13-14).

Plaintiff requested four witnesses: Buel, corrections officer Feliciano (“Feliciano”),

corrections officer Steward (“Steward”), and the Inspector General. (Dkt. 71-2 at ff 62,

66; Dkt. 75 at 62, 66). Levac permitted Plaintiff to call Buel but denied his request to

call Feliciano, Steward, and the Inspector General. (Dkt. 71-2 at 62, 66; Dkt. 75 at

62, 66).

A copy of this video has not been provided to the Court in support of the instant

motion. Defendants have filed a copy of an audio recording of the incident.

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At the end of the disciplinary hearing, Levac read into the record a disposition, in

which he found Plaintiff guilty of all charges and imposed a penalty of 24 months in the

SHU, as well as loss of recreation, telephone, commissary, phone, and good time for 24

months. (Dkt. 71-9 at 59). The transcript reflects that Plaintiff was present when Levac

made the disposition. (/d.). Plaintiff claims not to have been present but has failed to

produce any evidence to corroborate that claim. Upon review by Five Points

Superintendent Michael Sheahan (“Sheahan”), Plaintiff's SHU sentence was reduced to 15

months, with six months suspended, on June 9, 2013. (/d. at 80). The disposition was

administratively affirmed on September 4, 2013. (/d. at 82).

Plaintiff commenced a proceeding pursuant to Article 78 of the New York Civil

Practice Law and Rules challenging the outcome of the disciplinary hearing. On October

10, 2014, the New York State Supreme Court, Albany County (the “state court”), issued a

decision favorable to Plaintiff. (Dkt. 77 at 181-87). In particular, the state court found that

Plaintiff had been denied adequate employee assistance in preparing for his hearing, had

been provided “at most, 20 minutes to review . . . documents before they were taken away,

and he was forced to proceed with the hearing,” and had been denied the right to call

witnesses (specifically, the Inspector General). (/d.).

On December 3, 2014, Donald Venettozzi (“Venettozzi”), DOCCS’ Acting Director

of Special Housing/Inmate Discipline, issued a memorandum reversing the outcome of

Plaintiff's disciplinary hearing and expunging all references thereto. (Dkt. 71-9 at 83-84).

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PROCEDURAL BACKGROUND

Plaintiff commenced this action on May 6, 2016. (Dkt. 1). Defendants filed their

Answer to the Complaint on October 17, 2016. (Dkt. 9).

Discovery in this matter closed on February 19, 2018. (Dkt. 62). Defendants filed

the instant motion for summary judgment on April 30, 2018. (Dkt. 71). Plaintiff filed his

response on July 9, 2018 (Dkt. 75; Dkt. 76; Dkt. 77), and Defendants filed their reply on

July 30, 2018 (Dkt. 81). Plaintiff filed a sur-reply on August 24, 2019. (Dkt. 82).?

DISCUSSION

1. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

should be granted if the moving party establishes “that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The Court should grant summary judgment if, after considering the evidence in

the light most favorable to the nonmoving party, the court finds that no rational jury could

find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

“The moving party bears the burden of showing the absence of a genuine dispute as

to any material fact... .” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486

2 Plaintiff did not seek the Court’s leave to file his sur-reply. Whether to permit filing

of a sur-reply is “subject to the sound discretion of the court.” Navarrete De Pedrero v.

Schweizer Aircraft Corp., 635 F. Supp. 2d 251, 258 (W.D.N.Y. 2009). In light of Plaintiffs

pro se status, the Court has considered his sur-reply notwithstanding his failure to obtain

leave to file.

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(2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the

party moving for summary judgment may meet its burden by showing the evidentiary

materials of record, if reduced to admissible evidence, would be insufficient to carry the

non-movant’s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103

(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the

moving party has met its burden, the opposing party “must do more than simply show that

there is some metaphysical doubt as to the material facts, and may not rely on conclusory

allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc.,

781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d

Cir. 2011)). Specifically, the non-moving party “must come forward with specific

evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654

F.3d at 358. Indeed, “the mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986).

Il. Plaintiff's Claims

Plaintiff asserts the following claims: (1) excessive use of force by Flora, Maloy,

and Lalone; and (2) denial of the right to due process by Funke, Levac, and Annucci. (See

Dkt. 1). The Court considers each of these claims below.

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A. Excessive Use of Force

“A claim of cruel and unusual punishment in violation of the Eighth Amendment

has two components—one subjective, focusing on the defendant’s motive for his conduct,

and the other objective, focusing on the conduct’s effect.” Wright v. Goord, 554 F.3d 255,

268 (2d Cir. 2009). In order to prove an Eighth Amendment violation based on an

excessive use of force, a plaintiff must demonstrate each of the following two elements by

a preponderance of the evidence: (1) the defendant used force against the plaintiff

maliciously and sadistically, for the very purpose of causing the plaintiff harm; and (2) the

plaintiff suffered some harm as a result of the defendant’s use of force. Hudson v.

MeMillian, 503 U.S. 1, 7-8 (1992).

The first element is considered a subjective analysis of the defendant’s state of mind

at the time of the incident. This requires a showing that the defendant had “the necessary

level of culpability, shown by actions characterized by ‘wantonness’ in light of the

particular circumstances surrounding the challenged conduct.” Goord, 554 F.3d at 268

(quoting Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)). Whether use of force

against a prison inmate is unnecessary or wanton depends on “whether force was applied

in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to

cause harm.” /d. (quoting Hudson, 503 US. at 7).

The objective component considers the “seriousness of the injury.” Jd. “In the case

of excessive use of force by prison guards, the objective component does not require any

particular ‘quantity of injury,’ for ‘[w]hen prison officials maliciously and sadistically use

force to cause harm, contemporary standards of decency are always violated.’” Warren v.

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Purcell, No. 03 Civ. 8736(GEL), 2004 WL 1970642, at *7 (S.D.N.Y. Sept. 3, 2004)

(quoting Hudson, 503 U.S. at 9). However, the Eighth Amendment “excludes from

constitutional recognition de minimis uses of physical force, provided that the use of force

is not of a sort repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9-10

(quotation omitted).

Here, the Court easily concludes that there are genuine issues of material fact as to

whether Flora, Lalone, and Maloy used excessive force against Plaintiff. Plaintiff has

consistently maintained that he immediately became compliant after being pushed off Buel,

and that he was nonetheless assaulted. Plaintiff has particularly testified that while he was

restrained and compliant, Lalone punched his face repeatedly and Flora hit him. While

Lalone and Flora have testified to the contrary, “[a]ssessments of credibility and choices

between conflicting versions of the events are matters for the jury, not for the court on

summary judgment.” Jeffreys v. City of N.Y., 426 F.3d 549, 553-54 (2d Cir. 2005) (quoting

Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)).

With respect to Maloy, it is true that Plaintiff was not able to articulate his particular

role in the claimed assault. However, Plaintiff was clear that Maloy was present while

Lalone put him in a chokehold and repeatedly punched him in the face, notwithstanding

the fact that he had been subdued and was in restraints. An individual “is personally

involved in the use of excessive force if he either (1) directly participates in an assault; or

(2) was present during the assault, but did not intervene on behalf of the victim even though

he had a reasonable opportunity to do so,” and “[a] plaintiff need not establish who among

a group of officers, directly participated in the attack and who failed to intervene.” Corley

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v. Shahid, 89 F. Supp. 3d 518, 523 (E.D.N.Y. 2015). Applying this standard, the Court

cannot conclude as a matter of law that Maloy was not personally involved in the claimed

excessive use of force.

The Court is further not persuaded by Defendants’ argument that the officers’

actions were a justified attempt to restore prison order, as opposed to a malicious and

wanton exercise of force. While it is clear that some initial use of force to separate Plaintiff

and Buel was appropriate and warranted, a jury could conclude that after the situation was

contained and Plaintiff was restrained, the officers nonetheless continued to hit him. See

Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999) (“[D]ismissal of the excessive force

claim was inappropriate because there are genuine issues of material fact concerning what

transpired after appellant was handcuffed and whether the guards maliciously used force

against him... .”); Jeanty v. Cty. of Orange, 379 F. Supp. 2d 533, 544 (S.D.N.Y. 2005)

(“[T]he issue of whether the individual defendants were justified in using force against [the

plaintiff] to restrain him after he assaulted [a corrections officer] is analytically distinct

from whether they used the appropriate amount of force in doing so, particularly where the

plaintiff alleges that the individual defendants continued to beat him after he was subdued,

face down on his bed, and even after he was handcuffed and shackled” (quotation omitted)

(denying motion for summary judgment on excessive use of force claim)).

For all these reasons, the Court denies Defendants’ motion for summary judgment

as to Plaintiffs excessive use of force claim against Flora, Maloy, and Lalone.

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B. Due Process Claims

The Fourteenth Amendment provides that no State shall “deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Although

prisoners retain some rights under the due process clause, “those rights are somewhat

muted by the institutional concerns inherent in a correctional system.” Zavaro v. Coughlin,

970 F.2d 1148, 1152 (2d Cir. 1992),

In raising a due process claim, a plaintiff must first establish that the challenged

action infringed a constitutionally protected property or liberty interest. A prison

disciplinary hearing implicates a protected liberty interest if it “imposes an atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life.”

Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004) (quoting Sandin v. Conner, 515 USS.

472, 484 (1995)). Here, Defendants have not disputed that Plaintiff's 15-month SHU

sentence satisfies this standard.

Second, a plaintiff must show that he was deprived of the protected liberty interest

without due process. Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998). It is well-

established that inmates have the right not to be deprived of a liberty interest without due

process, and that inmates have due process rights in prison disciplinary hearings. Sira v.

Morton, 380 F.3d 57, 69 (2d Cir. 2004). However, “[p]rison inmates charged with

disciplinary violations do not have ‘the full panoply of rights’ afforded to a defendant in a

criminal prosecution.” Galan v. Laird, No. 08-cv-267 (NG), 2010 WL 3780175, at *1

(E.D.N.Y. Sept. 21, 2010) (quoting Wolff v. McDonnell, 418 U.S. 539, 556 (1974)). To

comply with procedural due process, prison authorities must provide an inmate charged

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with a violation in a disciplinary hearing with: “advance written notice of the charges

against him; a hearing affording him a reasonable opportunity to call witnesses and present

documentary evidence; a fair and impartial hearing officer; and a written statement of the

disposition, including the evidence relied upon and the reasons for the disciplinary actions

taken.” Jd. (quoting Sira, 380 F.3d at 69). The requirements of due process are satisfied

if “some evidence” supports the conclusion of the disciplinary hearing. Superintendent,

Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985).

1. Claims as to Inmate Assistance

Plaintiff claims Funke did not provide him with adequate inmate assistance in

connection with his disciplinary rehearing. Although inmates are not entitled to retained

or appointed counsel in prison disciplinary hearings, “[p]rison authorities have a

constitutional obligation to provide assistance to an inmate in marshaling evidence and

presenting a defense when he is faced with disciplinary charges.” Eng v. Coughlin, 858

F.2d 889, 897 (2d Cir. 1998). New York’s regulations allow for an employee assistant to

help a prisoner in preparing for a disciplinary hearing. See 7 N.Y.C.R.R. §§ 251-4.1, 251-

4.2. The Second Circuit has also “provide[d] for an inmate to receive employee assistance

when that inmate is charged with an offense warranting SHU confinement.” Sloane v.

Borawski, 64 F. Supp. 3d 473, 485 (W.D.N.Y. 2014) (citing Silva v. Casey, 992 F.2d 20,

22 (2d Cir. 1993)). The assistant “must be assigned to the inmate to act as his surrogate—

to do what the inmate would have done were he able.” Silva, 992 F.2d at 22. “The assistant

is not obliged to go beyond the specific instructions of the inmate because if he did so he

would then be acting as counsel in a prison disciplinary proceeding, assistance to which a

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prisoner is not entitled.” Jd. The inmate assistant’s role is to interview witnesses and report

the results of his efforts to the inmate, and to assist the inmate in obtaining documentary

evidence or written statements which may be necessary. See 7 N.Y.C.R.R. § 251-4.2.

assigned assistant who does nothing to assist an inmate ‘has failed to accord the

prisoner his limited constitutional due process right of assistance.’” Gates v. Selsky, No.

02 CV 496, 2005 WL 2136914, at *6 (W.D.N.Y. Sept. 2, 2005) (citing Eng, 858 F.2d at

898).

Here, the Court finds there are genuine issues of material fact as to whether Funke

provided Plaintiff with adequate assistance. Of particular importance in the Court’s

assessment of this claim is the state court’s determination, in Plaintiff's Article 78

proceeding, that Plaintiff was denied adequate employee assistance. (See Dkt. 77 at

184-85). A state court’s determination in this regard is “persuasive evidence of defendants’

failure to provide plaintiff with meaningful assistance to prepare his defense to the charges

against him.” Lee v. Coughlin, 902 F. Supp. 424, 433 (S.D.N.Y. 1995). Moreover, as the

state court noted, there is no evidence in the record of any meaningful effort to obtain the

documents requested by Plaintiff prior to the hearing, and it is not clear from the record

whether in fact all the requested documents were provided at the hearing, which precludes

any finding that the hearing officer cured the defect in assistance. (See Dkt. 77 at 184-85).

The Court further finds that there are genuine issues of material fact as to whether

and when Medina took over assistant duties from Funke. The assistance form that

Defendants rely on in this regard is thoroughly inconclusive, inasmuch as it states that

Funke is the assigned assistant, but appears to be signed by Medina. (Dkt. 71-9 at 64).

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Moreover, at the hearing, Levac stated that Plaintiff was assisted by Funke, with no

mention of Medina. (/d. at 5). Medina and Funke have both acknowledged that they have

no personal recollection of Plaintiff or his claims. (Dkt. 71-4 at § 6; Dkt. 71-8 at | 6). On

this record, the Court cannot resolve the veracity of Plaintiff's claim that Funke served as

his assistant throughout the process. Accordingly, Defendants’ request for summary

judgment on Plaintiff's due process claim against Funke is denied.

2. Claims as to Disciplinary Hearing

Plaintiff also claims that his due process rights were violated during his disciplinary

hearing because Levac was biased against him, failed to afford him sufficient time to

review the provided documents, failed to call his requested witnesses, and issued a

determination outside Plaintiff's presence. The Court considers each of these claims

below.

a. Bias

An inmate has a due process right to “a fair and impartial hearing officer.” Sira,

380 F.3d at 69. “Although a hearing officer’s impartiality does not have to mirror that of

judges generally, the result of a disciplinary hearing cannot be arbitrarily and adversely

predetermined.” Smith v. United States, No. 9:09-CV-729 (TJM/DRH), 2011 WL 777969,

at *9 (N.D.N.Y. Feb. 3, 2011) (quotation omitted), adopted, 2011 WL 776150 (N.D.N.Y.

Mar. 1, 2011).

Here, Plaintiff claims that Levac stated before any evidence was heard that he was

going to send Plaintiff to the SHU for three to five years. On a motion for summary

judgment, the Court must assume that Plaintiff's testimony in this regard is true, and there

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is accordingly a “triable issue of fact” as to whether Levac was fair and impartial. See id.

(denying summary judgment motion where the plaintiff claimed that hearing officer had

stated that he had to find Plaintiff guilty of something, despite hearing officer “vehemently

den[ying] ever making such a statement”).

b. Denial of Adequate Time to Review Documents

“An inmate who was... denied access to documentary evidence at a disciplinary

hearing may . . . be entitled to relief.” Watson v. Annucci, No. 9:14-cv-00638-JKS, 2015

WL 5971077, at *6 (N.D.N.Y. Oct. 14, 2015). In particular, “[a]lthough the right to

documentary evidence can give way to legitimate concerns over institutional safety, an

inmate is still entitled to some explanation of the basis for a hearing officer’s denial of the

inmate’s request for items of evidence.” Jd. (quotation and original alterations omitted).

Here, there are genuine issues of material fact as to whether Levac improperly

denied Plaintiff access to documentary evidence. As the state court noted, the record amply

supports the conclusion that Plaintiff was given a stack of papers prior to recommencement

of his hearing and provided at most only 20 minutes to review them before they were taken

away again. (See Dkt. 77 at 185). Moreover, it is not even clear from the record what

precisely was included in that stack of papers, nor did Levac explain why Plaintiff was

given only 20 minutes to review it. On this record, a reasonable juror could find that Levac

unreasonably denied Plaintiff the opportunity to review the documents.

Cc. Failure to Call Witnesses

As already noted, an inmate has a right to call witnesses on his own behalf as part

of a disciplinary hearing. However, “a prisoner’s request for a witness can be denied on

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the basis of irrelevance or lack of necessity.” Kingsley v. Bureau of Prisons, 937 F.2d 26,

30 (2d Cir. 1991). “The burden is on the prison official to show the rationality of declining

to call a witness.” Gonzalez v. Chalk, No. 13 C. 5486 (PKC), 2014 WL 1316557, at *5

(S.D.N.Y. Apr. 1, 2014) (quotation omitted).

Here, Defendants acknowledge that Levac refused to call three of the four witnesses

requested by Plaintiff. (See Dkt. 71-2 at 66-69). The state court specifically found that

Levac violated Plaintiff's rights by refusing to call the Inspector General, because the

Inspector General was investigating the matter and could have provided relevant testimony,

and Levac “failed to state a good faith basis for the denial of [Plaintiff's] request” for the

Inspector General’s testimony. (Dkt. 77 at 186). The Court is similarly persuaded that, on

the instant record, a rational juror could conclude that Levac failed to provide a rational,

good faith basis for refusing to call the Inspector General, and accordingly denies

Defendants’ request for summary judgment as to this aspect of Plaintiff's due process

claim.

d. Rendering Decision Outside Plaintiff's Presence

The Court grants Defendants’ motion for summary judgment to the extent Plaintiff

asserts a due process violation based on Levac having rendered a decision outside his

presence. The transcript of the hearing indicates that Plaintiff was present when the

disposition was rendered (Dkt. 71-9 at 59), Levac has stated under penalty of perjury that

Plaintiff was present when Levac read the disposition (Dkt. 71-6 at { 33), and, importantly,

Plaintiff's own exhibits confirm that he received a written copy of the disposition (Dkt. 77

at 149). Plaintiff has failed to produce any evidence corroborating his claim that he was

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not present for the disposition of his disciplinary proceeding. See Jeffreys v. City of N.Y.,

426 F.3d 549, 554 (2d Cir. 2005) (“At the summary judgment stage, a nonmoving party

must offer some hard evidence showing that its version of the events is not wholly

fanciful.” (quotation omitted)). Thus, assuming Plaintiff had a right to be present when

the disposition was announced, see Vogelfang v. Capra, 889 F. Supp. 2d 489, 513

(S.D.N.Y. 2012) (“District courts in this circuit have expressed differing views as to

whether an inmate has a due process right to be present at a disciplinary proceeding

separate and apart from the well-established rights of inmates to call witnesses and present

documentary evidence.”), that right was satisfied.

C. Claims Against Annucci

Defendants seek summary judgment on Plaintiff’s claims against Annucci, arguing

that there is no evidence Annucci was personally involved in any claimed deprivation of

Plaintiff's rights.

“To recover damages against supervisory officials for the acts of their subordinates,

a plaintiff must show that the defendant’s personal involvement caused the constitutional

deprivation.” Beatty v. Davidson, 713 F. Supp. 2d 167, 176 (W.D.N.Y. 2010). Here, the

Court agrees with Defendants that there is no evidence that Annucci was personally

involved in the alleged denial of due process.

Plaintiff makes two arguments with respect to Annucci’s alleged involvement.

First, he claims that Annucci was informed of the violations but refused to remedy the

wrong. (Dkt. 76 at 11). However, the record does not support this conclusion. While

Plaintiff did send a letter of appeal addressed to “Commissioner, N.Y.S. D.O.C.C.S.”

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detailing his claims (see Dkt. 77 at 151), his letter of appeal was considered and decided

by Albert Prack, DOCCS’ Director of Special Housing/Inmate Disciplinary Program (id.

at 163). “A supervisory official is not deemed to have been personally involved solely by

virtue of having received a letter or complaint from a prisoner and having referred it to the

appropriate department for investigation[.]” Phillip v. Schriro, No. 12-cv-8349-RA, 2014

WL 4184816, at *5 (S.D.N.Y. Aug. 22, 2014).

Second, Plaintiff claims that Annucci failed to follow the state court’s order to

reverse the disposition, expunge all references from Plaintiff’s record, and remove all

associated sanctions. (Dkt. 76 at 11). Again, the record does not demonstrate that Annucci

had any personal involvement in the follow up from the state court’s order. Instead, it was

Venettozzi who was apparently responsible for implementing the state court’s order. (Dkt.

71-9 at 83-84). On these facts, no rational juror could conclude that Annucci was

personally involved in depriving Plaintiff of his right to due process.

D. Qualified Immunity

Finally, Defendants argue that they are entitled to qualified immunity. “Qualified

immunity insulates public officials from claims for damages where their conduct does not

violate ‘clearly established statutory or constitutional rights of which a reasonable person

would have known.’” Defore v. Premore, 86 F.3d 48, 50 (2d Cir. 1996) (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). “‘Clearly established’ means that, at the time of

the officer’s conduct, the law was ‘sufficiently clear’ that every ‘reasonable official would

understand that what he is doing’ is unlawful.” District of Columbia v. Wesby, 138 S. Ct.

577, 589 (2018).

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Here, Defendants’ qualified immunity argument must fail, because it relies upon

accepting Defendants’ version of the disputed facts. In particular, Defendants’ qualified

immunity argument is premised on their contention that Flora, Lalone, and Maloy were

responding to Plaintiff's “continued volatile and combative behavior,” that Funke was no

longer serving as inmate assistant, and that the Inspector General lacked relevant

information. (See Dkt. 71-1 at 24). However, as the Court has discussed at length above,

those facts are in dispute, and must be resolved by jury. See Tolan v. Cotton, 572 US.

650, 656 (2014) (“In resolving questions of qualified immunity at summary judgment,” the

Court “may not resolve genuine disputes of fact in favor of the party seeking summary

judgment.”). Accordingly, the Court denies Defendants’ request for summary judgment

based on qualified immunity.

CONCLUSION

For the foregoing reasons, the Court grants Defendants’ motion for summary

judgment (Dkt. 71) in part and denies it in part. In particular, the Court grants Defendants’

motion for summary judgment with respect to Plaintiff's due process claim against Levac

solely to the extent it is based on having allegedly announced the disposition of the

disciplinary hearing outside Plaintiff's presence, and with respect to Plaintiff's claims

against Annucci. The Court denies the motion in all other respects. The Clerk of Court is

directed to enter judgment in favor of Anthony J. Annucci and to terminate him as a

defendant.

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SO ORDERED.

ELIZABETH WOLFORD

United States District Judge

Dated: September 30, 2019

Rochester, New York

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