Brooks v. Piecuch

245 F.Supp.3d 431

Michael BROOKS, Plaintiff,

v.Steven J. PIECUCH, Corrections Counselor, and James Esgrow, Commissioner's Hearing Officer, Defendants.

6:13–CV–06338 EAW

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

Signed March 27, 2017

Filed March 28, 2017

Michael Brooks, Ossining, NY, pro se.

Bernard F. Sheehan, NYS Attorney General's Office Department of Law, Rochester, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Pro se Plaintiff Michael Brooks ("Plaintiff"), a prisoner housed at Sing Sing Correctional Facility, filed this action seeking relief under 42 U.S.C. § 1983. (Dkt. 1). Presently before the Court is Defendant Piecuch's and Defendant Esgrow's (collectively, "Defendants") motion for summary judgment. (Dkt. 30). For the following reasons, Defendants' motion is granted.

FACTUAL BACKGROUND

I. Standard for Determining Undisputed Facts

Defendants served Plaintiff with the present motion for summary judgment, which included a "Local Rule 56 Notice to Pro Se Litigant" to alert Plaintiff to the procedural requirements of summary judgment and the repercussions of not responding to the motion. (Dkt. 30–2). The Court clearly and specifically reiterated the warning to Plaintiff of the consequences of not responding in its motion scheduling order. (Dkt. 31). Pursuant to the Local Rules of Civil Procedure, Defendants appended a Rule 56 statement of undisputed facts to their motion for summary judgment. (Dkt. 30–1).

Despite the warnings afforded Plaintiff, he has failed to file an opposing statement contesting the facts presented by Defendants or otherwise respond to Defendants' motion. Thus, the Court may accept as undisputed Defendants' Rule 56 statement as long as the Court is satisfied that the statement's citations to the evidence in the record support the assertions made. See Vt. Teddy Bear Co., Inc v. 1–800 Beargram Co., 373 F.3d 241, 244, 246 (2d Cir. 2004) ("[T]he failure to respond may allow the district court to accept the movant's factual assertions as true."); Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998) ("We accept as true the material facts contained in [the] defendants' [Rule 56 material facts] statement because [the] plaintiff failed to file a response."); see also L.R. Civ. P. 56(a)(2) ("Each numbered paragraph in the moving party's statement of material facts may be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement."). Accordingly, the Court deems admitted those facts in Defendants' Rule 56 statement to the extent that they are supported by admissible evidence and are not controverted by the record.

II. Undisputed Facts

While Plaintiff was located at Clinton Correctional Facility, he was issued a misbehavior report on July 28, 2008, charging him with assault on staff, refusing a direct order, lock-in directions, and insolent language. (Dkt. 1 at ¶ 8; Dkt. 30–5 at 147). The report was written by Officer R. Harnden, who reported that Plaintiff "grabbed the feed-up cart and began charging [him] with [the] cart," "slammed the feed-up cart into [him], striking [his] arms, then ... [striking him] with what [he] believe[s] was [Plaintiff's] right fist to [Officer Harnden's] right forehead." (Dkt. 30–5 at 147; see also Dkt. 1 at ¶ 9). A struggle reportedly ensued during which other officers arrived and assisted in bringing Plaintiff into compliance with direct orders to stop resisting and struggling. (See Dkt. 30–5 at 147–48). The report indicates that Plaintiff was then escorted to a hospital exam room, (See id. at 148).

By way of background to the instant matter, Plaintiff alleges that a "tier 3 superintendent's hearing"¹ was held on August 8, 2008, at which he was found guilty and punished with 20 months in solitary confinement, loss of privileges for 20 months, and loss of 20 months' good time. (See Dkt. 1 at ¶¶ 10–11). Plaintiff and his attorney, Michael Cassidy, Esq., filed an administrative appeal in which the original disposition was affirmed, except that the recommended loss of good time was reduced from 20 months to 12 months. (Id. at ¶¶ 12–13). Plaintiff and his attorney filed a proceeding under Article 78 of the New York Civil Practice Law and Rules on May 27, 2008, pursuant to which it was adjudicated, on January 8, 2010, that Plaintiff should receive a new hearing. (Id. at ¶¶ 14–15). Plaintiff alleges numerous Fourteenth Amendment due process deprivations pursuant to 42 U.S.C. § 1983 relating to the ensuing rehearing. (See generally Dkt. 1). The claims remaining after this Court's previous decision on the motion to dismiss (Dkt. 15) include allegations of deprivation due to insufficient inmate assistance by his assistant, Defendant Steven Piechuch ("Piecuch"),² denial by Defendant Hearing Officer Esgrow ("Esgrow") of Plaintiff's right to submit evidence at his rehearing, and the recommencement of the hearing outside of Plaintiff's presence.³ (Id. at 33).

The undisputed facts in this case establish that on March 5, 2010, Plaintiff was reserved the misbehavior report relating to the July 28, 2008, incident described above that took place at Clinton Correctional Facility. (Dkt. 30–1 at ¶ 5). At the time of the reserving, Plaintiff was housed at Southport Correctional Facility. (Id. at ¶ 6). Prior to the Tier III re-hearing, Plaintiff selected three potential assistants to help him prepare for the hearing. (Id. at 7). His first choice was Piecuch. (Id. ). Piecuch met with Plaintiff on March 5, 2010, in order to act as Plaintiff's assistant. (Id. at ¶ 8). During the meeting, as noted on the Assistant Form, Plaintiff requested:

(1) All inmates and all porters on E–7 be interviewed as potential witnesses;

(2) A list of all E–7 inmates and a list of E–7 porters;

(3) Chapter 5 (DOCCS Directive No. 4932) and Chapter 7;

(4) Log book entries for E–7 and watch commander log book entries;

(5) Unusual Incident Report and Use of Force paperwork;

(6) List of officers and nurses involved;

(7) Rehearing procedures;

(8) To/from memoranda; and

(9) Photographs.

(Id. at ¶ 9; Dkt. 30–3 at 9). On March 9, 2010, Piecuch returned to complete Plaintiff's assistance. (Dkt. 30–1 at ¶ 10; Dkt. 30–3 at 9).⁴

When Piecuch returned, he informed Plaintiff that he requested witnesses be asked to testify at the hearing and that Plaintiff could request a complete list of former E–7 inmates and their current locations from the hearing officer, who would determine if the request was appropriate. (Dkt. 30–1 at ¶¶ 11–12). Piecuch provided Plaintiff with Chapter 5 and told Plaintiff that he could request Chapter 7 from the library. (Id. at ¶ 13). Similarly, Piecuch informed Plaintiff that he could request the complete hearing officer's manual from the law library through the Freedom of Information Law ("FOIL"). (Id. at ¶ 19). Piecuch requested the log book entries for the E–7 Gallery and the watch commander log book entries; however, the watch commander log book entries were unavailable. (Id. at ¶ 14). The log book entry was obtained over telephone from Clinton Correctional Facility's discipline office and provided to Plaintiff. (Id. at ¶¶ 15–16). Plaintiff was provided the Unusual Incident Report and Use of Force Report, which were complete to the best of Piecuch's knowledge, and all the To/From memoranda that accompanied the Unusual Incident Report. (Id. at ¶¶ 17, 20). He also told Plaintiff that all of the nurses and officers involved in the incident were identified in the Unusual Incident Report. (Id. at ¶ 18). Finally, Piecuch informed Plaintiff that he could view photographs of the officers at the hearing and that the hearing officer would determine if such a request was appropriate. (Id. at ¶ 21). Piecuch noted all of the information that he provided to Plaintiff on the Assistant Form, but Plaintiff refused to sign the Assistant Form. (Id. at ¶¶ 23–24; Dkt. 30–3 at 9).

While Plaintiff denies receiving some of this information from Piecuch, he admits that he received or was allowed to view these documents at some point, and that he received at least some documents from Piecuch. (Id. at ¶ 22).⁵ Though Plaintiff alleges to the contrary in his complaint, the undisputed facts show that Plaintiff did not request from Piecuch a videotape of the incident, nor did he request that Piecuch ask the requested witnesses any specific questions, and never provided Piecuch with a list of questions to ask prospective witnesses. (Id. at ¶¶ 25–27). Additionally, there is no evidence on the Assistant Form that Plaintiff provided Piecuch with such a list. (Id. at ¶ 29). Further, Plaintiff never requested for Piecuch to obtain written statements from any prospective witnesses. (Id. at ¶ 31). Additionally, Plaintiff was provided an opportunity to question witnesses at his hearing, but chose not to do so. (Id. at ¶ 30).

Piecuch never told Plaintiff that witnesses could not be located or probably went home, or told Plaintiff that witnesses agreed or refused to testify because Piecuch did not know whether witnesses had agreed or refused to testify. (Id. at ¶¶ 32–33). Nor did Piecuch fail to provide Plaintiff with witness refusal forms because the status of Plaintiff's requests for witnesses were unknown at the time of the conclusion of the tier assistance on March 9, 2010. (Id. at ¶ 34). Piecuch never represented to Plaintiff that Plaintiff would not receive witness refusal forms because it would represent a threat to institutional safety or that interviewing prospective witnesses would have represented a threat to institutional safety and correctional goals, or that any interviews would be redundant. (Id. at ¶¶ 38–39).

On the contrary, Piecuch ascertained the locations of all inmates in the E–7 Gallery and contacted the facilities that housed those inmates. (Id. at ¶¶ 35–36; Dkt. 30–3 at 11, 13). Some of the located inmates had been released, some refused to testify, and two inmates agreed to testify. (Dkt. 30–1 at...