McGriff v. Keyser

DEWITT McGRIFF, Plaintiff, v. SUPERINTENDENT KEYSER; HEARING OFFICER POLIZZI;DIRECTOR OF SHU VENNETOZZI, in their official and individual capacities,and INVESTIGATOR STEPHEN KEYSER, Defendants.

17-cv-7307 (NSR)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

November 13, 2019

OPINION & ORDER

NELSON S. ROMÁN, United States District Judge

Plaintiff Dewitt McGriff ("Plaintiff" or "McGriff"), proceeding pro se, commenced the instant action on September 22, 2017. (See Complaint, ECF No. 2; Amended Complaint ("AC"), ECF No. 32.) In this action, Plaintiff alleges claims pursuant to 42 U.S.C. § 1983 sounding in the First, Eighth, and Fourteenth Amendments to the United States Constitution against Defendants Superintendent Keyser, Hearing Officer Polizzi, Director of SHU Venettozzi, and Investigator Stephen Keyser (together, "Defendants"). Specifically, Plaintiff alleges that Defendants denied him due process in relation to an administrative hearing, violated his First Amendment right to petition the courts, violated his Fourteenth Amendment right to equal protection, and subjected him to cruel and unusual punishment in violation of his Eighth Amendment rights.

Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), Defendants have moved to dismiss the Amended Complaint. (See ECF No. 54.) For the following reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part.

BACKGROUND

I. Factual Allegations

The following facts are derived from the Amended Complaint and are taken as true and constructed in the light most favorable to pro se Plaintiff for the purposes of this motion.

a. Misbehavior Report

Plaintiff is an inmate at the Sullivan Correctional Facility. (AC ¶ 3.) On October 17, 2015, Defendant Inv. Keyser ("Inv. Keyser") wrote a misbehavior report that alleged that three individuals—Plaintiff, another inmate named Aramas ("Inmate Aramas"), and Inmate Aramas's wife—conspired to bring drugs into the facility. (Id. ¶ 8.) As a result, at approximately 10:05 a.m. that same day, Plaintiff was placed in a Special Housing cell ("SHU"). (Id. ¶ 9.)

While Plaintiff was in the SHU, Inv. Keyser visited him to question him about whether he brought drugs into the prison and stated that they "had plaintiff on a phone making moves to get drugs in the prison" and "we got the drugs and the girl and we know you are behind it." (Id. ¶ 10.) Though Plaintiff denied any knowledge of or participation in the drug smuggling, Plaintiff nevertheless was charged two days later with "soliciting to smuggle contraband, abuse of telephone privileges, visiting procedure violations and conspiring." (Id. ¶¶ 11-12.)

b. Administrative Hearing and Sentence

Subsequently, Plaintiff participated in a Tier III hearing before Hearing Officer Polizzi ("HO Polizzi"). (Id. ¶¶ 5, 13.) At the hearing, Inv. Keyser failed to produce the two pieces of evidence that he had relied upon in Plaintiff's misbehavior report. (Id. ¶ 4.) First, while Inv. Keyser testified that Plaintiff used "coded language" on the phone call to attempt to purchase and smuggle drugs, Inv. Keyser did not identify such language while a recording of the call was played at the hearing. (Id. ¶¶ 15-16.) Plaintiff instead testified that the voices heard on the recordingwere not his. (Id. ¶ 17.) This testimony went undisputed by both Inv. Keyser and HO Polizzi. (Id.)

Second, Inv. Keyser stated that a woman arrested in the same matter, Inmate Aramas's wife, had implicated the Plaintiff, however, Inv. Keyser did not supply any signed statements from her, nor did he read the statements she allegedly made into the record. (Id. ¶ 18.) Instead, the investigator who had arrested Inmate Aramas's wife testified that Inmate Aramas's wife stated that she did not know Plaintiff and that she had not made any incriminating statements against him. (Id. ¶ 19.) Additionally, Plaintiff's assistant at the hearing interviewed both Inmate Aramas and his wife and confirmed that they denied Plaintiff's involvement in the alleged event. (Id. ¶ 20.)

During the hearings, both Inv. Keyser and HO Polizzi initially indicated that there was no confidential informant ("CI") involved in the matter. (Id. ¶¶ 21-22.) This changed on or about the thirty-fifth day of Plaintiff's Tier III hearing, when HO Polizzi announced that there was a CI. (Id. ¶ 24.) At no point did HO Polizzi indicate that he or Inv. Keyser had interviewed the CI to determine the reliability of the testimony. (Id. ¶¶ 25-26.) HO Polizzi stated that: (1) Inv. Keyser made him aware of the CI at the start of the hearing; (2) Defendant Keyser had testified during a separate, confidential interview; (3) Plaintiff would not be allowed to know the contents of the "in camera" testimony; and (4) Plaintiff would not be allowed to know the testimony of the CI or submit questions to the CI. (Id. ¶ 24.) The record does not include any other evidence of a CI: The witness interview notice did not mention the CI's alleged testimony and did not list the CI as a witness who was requested by Plaintiff and denied by HO Polizzi. (Id. ¶ 27.)¹

Plaintiff was found guilty of the misbehavior charges and sentenced to forty-five days of keeplock confinement and loss of privileges. (Id. ¶ 33.)

c. Plaintiff's SHU Placement

While the Tier III proceedings were ongoing, Plaintiff spent thirty-eight days in the SHU. (Id. ¶ 41.) While in the SHU, Plaintiff was visited by Defendant Superintendent Keyser ("Sup. Keyser") and informed him about his concerns regarding the investigation, conditions of the SHU, and his administrative hearing. (Id. ¶¶ 42-47.) Sup. Keyser stated he would look into the investigation and the conduct of hearing. (Id. ¶ 48.) Moreover, Plaintiff informed Sup. Keyser of poor conditions in the SHU, including food that was contaminated with hair and construction-related debris, as well as disturbances caused by loud construction noises, for which inmates were not provided any earplugs. (Id. ¶¶ 49-53.) As a result of the construction noises, Plaintiff could not pray, review or prepare for his hearing, study, or sleep. (Id. ¶ 53.) Lastly, Plaintiff informed Sup. Keyser that he was concerned about his ability to defend himself at the hearing because: (1) HO Polizzi was not adhering to proper procedure; (2) Plaintiff was unaware of any reliable evidence against him; and (3) Plaintiff could only receive law materials if an officer delivered them, and Plaintiff felt misled regarding the existence of a CI. (Id. ¶ 54.) Despite his promises to do so, Sup. Keyser did not follow up with Plaintiff regarding his complaints. (Id. ¶ 56-58.)

d. Plaintiff's Administrative Appeal

Plaintiff filed an administrative appeal and received an affirmation of the disposition from Defendant Venettozzi, the Director of the Special Housing Unit ("SHU Dir. Venettozzi"), who was responsible for reviewing administrative appeals and correcting any violations. (Id. ¶¶ 34-35.) There is no record of SHU Dir. Venettozzi requesting any documents other than those submitted by Plaintiff, and there is no indication that SHU Dir. Venettozzi meaningfully reviewedPlaintiff's appeal. (Id. ¶¶ 36-39.) Instead, SHU Dir. Venettozzi merely "rubber stamped" the denial of the appeal. (Id. ¶ 39.)

In total, Plaintiff served approximately eighty-three days confined in the SHU and keeplock even though he was only sentenced to forty-five days. (Id. ¶ 59.) Plaintiff spent thirty-eight days in the SHU prior to the disposition of his misbehavior report appeal, which was not credited towards the keeplock punishment period of forty-five days. (Id. ¶ 61.) During his confinement, Plaintiff was prohibited from utilizing the law library, gathering evidence, and laying the foundation for appeal. (Id. ¶ 67.)

Plaintiff's alleged co-conspirator, Inmate Aramas, also filed an Article 78 petition. (Id.) Instead of litigating the petition, as they had in Plaintiff's case, Defendants conceded the petition and Inmate Aramas's misbehavior report was expunged and his privileges restored. (Id. ¶ 68-69.) HO Polizzi and Inv. Keyser informed Inmate Aramas of the CI on the third day of his hearing. (Id. ¶¶ 71.)

II. Procedural History

Prior to the commencement of this suit, Plaintiff filed petition in state court pursuant to N.Y. C.P.L.R. Article 78 to review SHU Dir. Venettozzi's determination that Plaintiff was guilty of the misbehavior charges. On January 26, 2017, the New York State Appellate Division, Third Department ruled in Plaintiff's favor. The Appellate Division annulled the determination that Plaintiff was guilty of smuggling and conspiring to introduce drugs into the correctional facilityand ordered SHU Dir. Venettozzi to expunge all references to those charges from Plaintiff's institutional record. See McGriff v. Venettozzi, 146 A.D.3d 1269 (3rd Dep't 2017).

Specifically, the Appellate Division found that the determination regarding smuggling and conspiring to introduce drugs into the facility was "not supported by substantial evidence," because:

The tape-recorded conversation that was read into the record during the hearing is replete with inaudible portions rendering it impossible to ascertain if . . . petitioner was a participant in the smuggling plan. . . .

[T]he investigator who authored the misbehavior report did not identify the coded language allegedly used during the telephone conversation that led him to believe that petitioner was involved in such a plan. . . .

The confidential information considered by the Hearing Officer in camera—which only calls the accuracy of the conversation read into the record at the hearing into further doubt—does not remedy these deficiencies. Thus, the determination must be partially annulled.

McGriff, 146 A.D.3d at 1269-70.

LEGAL STANDARD

I. 12(b)(6)

To survive a 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell...