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stating that “[h]armless error analysis applies to prison disciplinary hearings” and that “[c]ourts may find harmless error where a prisoner fails to show that the error negatively affected the outcome of the proceeding”
Summary of this case from Colantuono v. HockebornOpinion
No. 05 Civ. 6571 (SAS).
September 26, 2006
Leo A. Marino, Collins Correctional Facility, Collins, N.Y., Plaintiff (Pro Se).
Brian J. Schmidt, Assistant Attorney General, Office of the Attorney General of the State of New York, New York, N.Y., for Defendants.
OPINION AND ORDER
I. INTRODUCTION
Leo A. Marino, a prisoner at the Sing Sing Correctional Facility in Ossining, New York ("Sing Sing"), is suing Captain T. Humphrey, a New York State Department of Corrections ("DOCS") disciplinary hearing officer. Marino was found guilty of and disciplined for violating a DOCS rule prohibiting drug use by inmates. Marino is seeking damages under section 1983 of Title 42 of the United States Code for alleged violations of his due process rights during a disciplinary hearing conducted by Humphrey. He also seeks relief for two state law tort claims. The defendant now moves for summary judgment with respect to all claims.
See Complaint ("Compl.") at 1.
See id. ¶¶ 42-43. In his first tort claim, Marino alleges that C.O. Bosse failed to endorse the Inmate Misbehavior Report ("Misbehavior Report") that was issued after Marino failed his drug test. The second claim alleges that C.O. Ortiz failed to mention in the Misbehavior Report that the two inmates who were observed smoking with Marino passed their drug tests. These claims appear to have been abandoned because they were not addressed either in Marino's affidavit or his opposition memorandum.
II. BACKGROUND
On October 3, 2003, while monitoring Sing Sing's exercise yard, Corrections Officer ("C.O.") Bosse observed Marino with two other inmates, Joseph Coyle and Joshua Jones. C.O. Bosse observed the three inmates sharing ("puffing and passing") a cigarette. C.O. Bosse became suspicious that the cigarette contained marijuana, and directed the yard officer to identify the inmates and collect their ID cards. She then filled out a Request for Urinalysis Test form ("Request Form") to obtain urine samples from Marino, Coyle, and Jones, which were tested for the presence of drugs.
See 6/20/05 Affidavit of Leo A. Marino in Opposition to Defendant's Motion for Summary Judgment ("Pl. Aff.") ¶ 15.
See id.
See Request Form, Ex. A to 5/9/06 Declaration of Brian Schmidt [counsel for defendant] in Support of Defendant's Motion for Summary Judgment ("Schmidt Decl."); Pl. Aff. ¶¶ 13-14.
When Marino submitted his sample on October 7, 2003, the collecting officer, C.O. Cheeks, documented his collection of the sample in the space provided on the Request Form. The Form contains the following question: "Has inmate taken medication recently?" Next to this question, C.O. Cheeks circled "No." Marino contends that he told C.O. Cheeks that he was taking Motrin or Advil, and that C.O. Cheeks incorrectly circled "No" instead of "Yes."
See Request Form.
Id.
The parties refer to the drug in question interchangeably as "Motrin" and "Advil." Both drugs contain the same active ingredient: Ibuprofen.
See Pl. Aff. ¶ 18.
C.O. Cheeks immediately transferred the sample to the custody of C.O. Ortiz for testing at Sing Sing's on-site laboratory. The sample's chain of custody was recorded on the Request Form in accordance with DOCS directives. Within fifteen minutes of receipt, C.O. Ortiz tested Marino's urine sample for the presence of cannabinoids using a Syva-ETS Plus urinalysis machine. Marino's urine sample tested positive for cannabinoids. Approximately twenty minutes later, C.O. Ortiz recalibrated the machine and tested Marino's sample a second time, in accordance with the procedures set forth in DOCS directives. This second test also indicated the presence of cannabinoids.
See Request Form.
See id.; DOCS Directive # 4937(IV)(E)(1)(a), Ex. A to Pl. Aff.
See Request Form.
See Request Form; Urinalysis Procedure Form (Test 1), Ex. A to Schmidt Decl.
See Urinalysis Procedure Form (Test 2), Ex. A to Schmidt Decl.; DOCS Directive # 4937(IV)(E)(1)(d).
See Urinalysis Procedure Form (Test 2).
C.O. Ortiz documented these test results on two Urinalysis Procedure Forms (one for each test), the Request Form, the Syva machine print-outs, and the laboratory Daily Worksheets. Prior to his disciplinary hearing, Marino received all of this documentation with the exception of the Daily Worksheet.
See id.; Urinalysis Procedure Form (Test 1).
See Request Form.
See Syva-ETS Test Tapes, Ex. A to Schmidt Decl.
See 10/7/03 Daily Worksheet, Ex. B to Schmidt Decl. The Daily Worksheet is maintained by correctional facility drug testing laboratories pursuant to section 1020.6 of title 7 of the New York Codes, Rules Regulations for the purposes of statistical analysis of aggregated drug test results. The Daily Worksheet of October 7, 2003, recorded the results of Marino's urinalysis test, along with the results of other tests conducted on that day.
See Misbehavior Report, Ex. C to Schmidt Decl. (containing notation by C.O. Sharp that the misbehavior report was served on Marino on October 8, 2003); 10/7/03 Untitled Document Recording Marino's Acknowledgment of Service of Certain Documents ("Acknowledgment"), Ex. C to Schmidt Decl.
C.O. Ortiz completed an Misbehavior Report, again recording the positive results of Marino's urine tests. A copy of the form was served on Marino by C.O. Sharp on October 8, 2003. Marino also received a document entitled "Principles of Operation" (which has not been provided to the court by either party), and Appendix C of DOCS Directive # 4937 ("Appendix C").
See Misbehavior Report.
See id.; Pl. Aff. ¶ 2.
See Acknowledgment; Defendant's Statement Pursuant to Local Rule 56.1 ¶ 10; Pl. Aff. ¶ 2. Appendix C describes procedures for operating the Syva testing machine and also provides statistical information regarding the machine's accuracy, including the results of an independent laboratory study of the machine's accuracy in detecting the presence of marijuana: "Analyzing 100 urine samples . . . [the Syva analyzer] did not give a single false positive result." Appendix C of DOCS Directive #4937, Apr. 8, 2003 ("Appendix C").
In preparation for the disciplinary hearing, Marino was permitted to select an assistant, and through his assistant he requested several witnesses and documents. Marino requested a copy of the "drug test manual," which is a technical manual describing the operation of the Syva machine. Marino also requested four witnesses to testify at his hearing: inmates Coyle and Jones, C.O. Bosse, and a representative of the Syva company.
See N.Y. Codes, R. Regs. tit. 7, §§ 251-4.1 4.2; Pl. Aff. ¶¶ 3-4.
See Pl. Aff. ¶ 4. Neither party has submitted this manual.
See Assistant Form, Ex. C. to Schmidt Decl.
The day before his hearing, Marino's assistant told him that a witness from the Syva company would be called and noted on the Assistant Form: "Call Syva Comp. as witness. Will be called." Marino was told that his request for a copy of the drug test manual had been denied.
See id.
See Pl. Aff. ¶ 5.
Marino's disciplinary hearing began on October 15, 2003. The hearing officer was Captain T. Humphrey. The hearing was adjourned twice, reconvening on October 16, 2003, and concluding on October 20, 2003. Humphrey decided the case on October 20, 2003.
See Transcript, Tier III Disciplinary Hearing, Sing Sing Correctional Facility, Oct. 15, 2003 — Oct. 20, 2003 ("Tr."), Ex. D to Schmidt Decl., Cover Page.
See id. at 2, 8, 21, 27.
See id. at 27. The full transcript of the proceedings has been submitted to the Court and reveals that the hearing lasted just over an hour.
At the first session of the hearing, Marino pled not guilty to the charge of using an illegal substance. Marino also requested a copy of the Daily Worksheet but Humphrey denied that request. Humphrey asked Marino if he had any procedural objections to make. Marino responded that he had met his assistant less than twenty-four hours earlier, and that he was entitled to at least one full day between that meeting and the disciplinary hearing. Finally, Marino stated that at the time he gave his urine sample, he had told C.O. Cheeks that he took Advil, and added that he "called a nurse . . . to document . . . that I take Advil."
See id. at 4-5.
See id. at 4.
See id. at 6.
Id. at 6-7.
Humphrey adjourned the hearing until the following day in response to Marino's objection. At the resumption of the hearing the next day, Marino's witnesses, Coyle, Jones, and C.O. Bosse testified concerning the October 3rd incident. Humphrey then raised the issue of Marino's earlier statement that he took Advil:
See id. at 8.
See id. at 9-21.
Humphrey: The only other thing that you eluded [sic] to earlier in your testimony was that you were taking Motrin for your back pain.
Inmate Marino: Right.
Humphrey: So what we will do at this time, it's now 4:15 PM. I'm going to adjourn this hearing until I can get a nurse to pull your medical record, and I'll read it and I'll ask her if there is cross-reactivity between testing positive for cannabinoids and Motrin, and probably reconvene this tomorrow . . . and we won't have her testify in person, we'll do it by speaker phone.
Id. at 30.
When the hearing resumed on October 20, 2003, Humphrey called C.O. Thorpe, a certified operator of the testing machine, to testify as to whether or not Motrin could cause a false positive result for cannabinoids. C.O. Thorpe testified that this was not possible. Marino then stated that he had a bad liver. Shortly thereafter, Humphrey introduced the subject of cough syrup, stating that the cough syrup provided by the prison pharmacy would not cause a false positive for cannabinoids. This part of the transcript is a confused exchange between Humphrey and Marino, some of which was inaudible and was simply described as "cross-talk" by the transcriber. During the exchange, Humphrey dismissed Thorpe. Following this exchange, Humphrey asked Marino if there was anything he would like to add before proceeding with the hearing. Marino responded: "I don't know, what else is there to hear?"
See id. at 22.
See id.
See id. at 23.
See id.
Id. at 24.
See id. at 23-24.
Id. at 24.
The hearing continued with a discussion in which Humphrey confirmed Marino's testimony concerning the October 3rd incident in the exercise yard. Marino testified that because he drank a great deal of coffee the night before he gave his urine sample, a positive result would have been impossible, even if he had smoked marijuana. Humphrey asked Marino if he had anything further to submit in his defense. Marino answered: "No, I just figured I would enter the fact that I drank coffee."
See id. at 24-26.
See id. at 26-27.
Id. at 26.
Humphrey found Marino guilty of drug use. He was sentenced, inter alia, to ninety days in the Special Housing Unit ("SHU") at Sing Sing, and began his sentence there on October 20, 2003. On November 29, 2003, Marino was transferred to the SHU at the Cayuga Correctional Facility. Because Marino's sentence was reduced by thirteen days for good behavior, he ultimately served seventy-seven days in the SHU.
See id. at 27; 10/20/03 N.Y.S. Dept. of Corr. Superintendent Hearing Disposition Rendered ("Disposition"), Ex. C to Schmidt Decl.
See Disposition.
See 3/17/06 Deposition of Leo A. Marino ("Marino Dep.") Ex. J to Pl. Aff., at 14.
See Marino Dep., Ex. K to Pl. Aff., at 29.
After his administrative appeal was denied, Marino filed an Article 78 petition, which was transferred to the Appellate Division, Third Department. The Attorney General informed the court that the State did not intend to file a brief. On October 28, 2004, the administrative determination was reversed and expunged by Donald Selsky, Director of the Inmate Disciplinary Program. The court then dismissed Marino's petition as moot. By that time, Marino had already completed his sentence. The reversal did, however, restore six months of good time credit that Marino had lost as part of his sentence.
See Pl. Aff. ¶¶ 24-27.
See 11/2/04 Letter from Peter H. Schiff, Senior Counsel, Office of the Attorney General of the State of New York, to Michael J. Novak, Clerk, Appellate Division, Third Department, Ex. G to Pl. Aff.; Memorandum from Donald Selsky to Marino, "Review of Superintendent's Hearing" (undated), Ex. G to Pl. Aff., at 2.
See In the Matter of Marino v. New York State Dep't of Corr. Servs., No. 873-04 (3rd Dep't Feb. 2, 2005) (Memorandum and Judgment), Ex. H to Pl. Aff.
See Pl. Aff. ¶ 23.
III. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is only appropriate where the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." An issue of fact is genuine if `"the evidence is such that a reasonable jury could return a verdict for the nonmoving party,'" while a fact will be deemed material where it "`might affect the outcome of the suit under the governing law.'"
Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (quoting Stuart v. American Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998)).
Bouboulis v. Transport Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)).
The moving party bears the burden of demonstrating that there exists no genuine issue of material fact. In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact that does "`not rely on conclusory allegations or unsubstantiated speculation.'" To do so, it must do more than show that there is "`some metaphysical doubt as to the material facts.'" In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in that party's favor.
See, e.g., Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005).
Jeffreys, 426 F.3d at 554 (quoting Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2002)).
McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
See id. (citing Anderson, 477 U.S. at 255).
Pro se pleadings are to be read liberally and interpreted to "raise the strongest arguments they suggest." Nevertheless, "pro se status does not exempt [plaintiff] from the usual requirements of summary judgment." "[A]t some point in a lawsuit even pro se litigants must make clear to the court their claims and the facts that they believe entitle them to specific relief. The summary judgment stage is an appropriate juncture to identify the real issues in a case."
McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).
Smith v. Planas, 975 F. Supp. 303, 305 (S.D.N.Y. 1997).
Salahuddin v. Coughlin, 781 F.2d 24, 29 (2d Cir. 1986).
B. Due Process and Prison Disciplinary Proceedings
Where a disciplinary hearing results in a prisoner's confinement in the SHU under such conditions and for such duration that the prisoner's liberty interest is implicated, the prisoner is entitled to due process. Due process is this context requires, inter alia, "an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence, in his defense." Due process also requires that the hearing officer be impartial. Furthermore, any factual finding that results in punishment must be supported by a "modicum of evidence," which is satisfied if there is "any evidence in the record that could support the conclusion reached" by the factfinder. However, inmates do not receive the full panolpy of due process rights in such proceedings, and do not have a full right to confrontation or to be present during the testimony of all witnesses. Finally, it should be noted that "[s]tate statutes do not create federally protected due process entitlements to specific state-mandated procedures." Instead, the relevant question is simply whether "the process actually provided . . . is permissible under the Constitution."
See Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004).
Kalwasinksi v. Morse, 201 F.3d 103, 108 (2d Cir. 1999) (citing Wolff v. McDonnell, 418 U.S. 539, 563-64 (1974)).
See id. (citing McCann v. Coughlin, 698 F.2d 112, 121-22 (2d Cir. 1983)).
Superintendent Mass. Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 455-56 (1985).
See Wolff, 418 U.S. at 556.
See Kalwasinksi, 201 F.3d at 109.
Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir. 2003). See also Shakur v. Selsky, 391 F.3d 106, 119 (2d Cir. 2004); Moore v. Selsky, 900 F. Supp. 670, 675 (S.D.N.Y. 1995).
Moore, 900 F. Supp. at 675.
C. Discretionary Power of Prison Disciplinary Hearing Officers
Hearing officers have considerable discretion in conducting disciplinary hearings. A hearing officer retains the discretion to exclude witness testimony where the exclusion is "justifiable." Legitimate correctional goals include the need to limit the duration of disciplinary hearings, provide swift correction to inmate misbehavior, maintain efficiency of the disciplinary hearing system, and deter manipulation of the hearing process by inmates.
See Scott v. Kelly, 962 F.2d 145, 147 n. 2 (2d Cir. 1992) ("We must defer to the judgment of prison officials in balancing prisoners' rights against penological interests, absent a showing of abuse of discretion.")
Id. at 146.
See Wolff, 418 U.S. at 566. ("[T]he unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution. . . . Prison officials must have the necessary discretion to keep the hearing within reasonable limits. . . .").
See Moye v. Selsky, 826 F. Supp. 712, 716 (S.D.N.Y. 1993) (citing Wolff, 418 U.S. at 566; Ponte v. Real, 471 U.S. 491, 495 (1985)).
See Mendoza v. Miller, 779 F.2d 1287 (7th Cir. 1985) ("Prison officials are given broad discretion when balancing the inmate's due process interests against the government's interests in institutional safety and an efficient disciplinary system").
See Hill, 472 U.S. at 454-55 ("[I]n identifying the safeguards required by due process, the Court has recognized the legitimate institutional needs of assuring the safety of inmates and prisoners, avoiding burdensome administrative requirements that might be susceptible to manipulation, and preserving the disciplinary process as a means of rehabilitation").
Hearing officers may exercise their discretion to exclude witness testimony or other evidence which is "irrelevant or unnecessary." A hearing officer who does so bears the burden to explain, either during the proceedings or "later," the rationale for the exclusion. The hearing officer also bears the burden to "prove the rationality of the position [excluding evidence]." Nevertheless, a hearing officer has discretion to exclude witness testimony when a prisoner does not advise the officer of how the testimony might be relevant. Finally, while a hearing officer is required to explain his decision to refuse to call a witness, he may do so at any time, including in defense of a lawsuit. A hearing officer is vested with similar discretion concerning the admission of documents.
Kalwasinksi, 201 F.3d at 109; Moore, 900 F. Supp. at 674.
Ponte, 471 U.S. at 497 ("[P]rison officials may choose to explain their decision at the hearing, or they may choose to explain it `later.'")
Kingsley v. Bureau of Prisons, 937 F.2d 26, 31 (2d Cir. 1991) (citing Ponte, 471 U.S. at 499).
See Walker v. McClellan, 126 F.3d 127, 129-30 (2d Cir. 1997); Scott, 962 F.2d at 147.
See Ponte, 471 U.S. at 497-98; Scott, 962 F.2d at 147.
See Wolff, 418 U.S. at 566-67.
D. Waiver
Prisoners may request witnesses either before or during a disciplinary hearing. However, a prisoner can waive his right to call witnesses or offer other evidence by failing to make or reiterate a request for such evidence. For example, a prisoner must object to the hearing officer's failure to call a requested witness before the close of the hearing, or he is deemed to have waived that request. This is true regardless of whether the prisoner requested the witness before or during the hearing, so long as the request was not specifically denied. In Bedoya v. Coughlin, the Second Circuit held that a prisoner's silent acquiescence at the conclusion of his hearing constituted a waiver of his right to call a requested witness, even where the prisoner had previously requested the testimony of the witness both before and during the hearing.
See N.Y. Codes, R. Regs. tit. 7 § 253.5.
See Bedoya v. Coughlin, 91 F.3d 349 (2d Cir. 1996); Cox v. Malone, 199 F. Supp. 2d 135 (S.D.N.Y. 2002).
Bedoya, 91 F.3d at 352; Cox, 199 F. Supp. 2d at 144.
See Bedoya, 91 F.3d at 350-52 ("an inmate's silence can constitute a waiver of his due process right to request witness testimony at a disciplinary hearing"); McCann, 698 F.2d 112 at 123 (blanket policy denying inmates the right to call witnesses precluded a finding of waiver). But see McCormack v. Cheers, 818 F. Supp. 584 (S.D.N.Y. 1993) (where a prisoner requested a witness three times during the course of the hearing, lack of further objection to the hearing officer's failure to call the witness was not waiver); Johnson v. Coombe, No. 01 CV 0191, 2003 U.S. Dist. LEXIS 4849, at * 16 (S.D.N.Y. Mar. 25, 2003) (waiver not found where prisoner clearly "objected to the proceedings as a whole").
See Bedoya, 91 F.3d at 350-52.
E. Harmless Error
Harmless error analysis applies to prison disciplinary hearings and requires factual assessment of the prejudice, if any, to the prisoner resulting from the error. Courts may find harmless error where a prisoner fails to show that the error negatively affected the outcome of the proceeding, or that it impaired the prisoner's ability to prepare a defense. At the summary judgment stage, the relevant question is whether there are genuine issues of material fact concerning the prejudice suffered by the prisoner as a result of the error.
See Powell v. Coughlin, 953 F.2d 744 (2d Cir. 1991) ("If a person may be convicted and obliged to serve a substantial prison sentence notwithstanding a constitutional error determined to be harmless, surely the conditions of confinement of a sentenced prisoner may be made temporarily more severe as discipline for a prison rules infraction despite a harmless error in adjudicating the violation.") (citing Arizona v. Fulminante, 499 U.S. 279 (1991), and Chapman v. California, 386 U.S. 18 (1967)).
See Louis v. Ricks, No. 01 Civ. 9368, 2002 WL 31051633 (S.D.N.Y Sept. 13, 2002); McCarthy v. Yost, No. 01 Civ. 9590, 2004 U.S. Dist. LEXIS 12345 (S.D.N.Y. June 21, 2004); Johnson, 2003 U.S.Dist. LEXIS 4849.
See Grossman v. Bruce, 477 F.3d 801, 805 (10th Cir. 2006) ("[A] prisoner cannot maintain a due process claim for failure to permit witness testimony if he fails to show that the testimony would have affected the outcome of his case.") (citation omitted); Louis, 2002 WL 31051633, at *52-53; Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1111 (S.D.N.Y. 1995).
See Johnson, 2003 U.S.Dist. LEXIS 4849, at * 18-19.
IV. DISCUSSION
A. Marino's Claims
Marino alleges that his due process rights were violated at his disciplinary hearing because he was convicted without substantial evidence and was denied the opportunity to present his defense. Marino generally complains that the evidence adduced at the hearing was insufficient to support his conviction. He then complains that Humphrey wrongfully denied him access to witnesses and documents relating to the Syva urinalysis testing machine and the testing procedures followed in testing his urine. Marino next claims that Humphrey wrongfully failed to allow him to introduce medical evidence. Finally, Marino complains of Humphrey's behavior during the hearing.
See Compl. at 1.
B. The Evidence Introduced at the Hearing Was Constitutionally Sufficient to Support a Finding of Guilt
As noted earlier, a prisoner's right to due process is satisfied if there is "any evidence in the record that could support the conclusion reached" by the factfinder. The record at the hearing included Marino's positive urinalysis test result. The test and the procedures followed were confirmed, fully documented, and scientifically proven to be highly reliable. Based on this evidence, coupled with the observations of C.O. Bosse, there was sufficient evidence in the record to support Humphrey's finding of guilt.
Hill, 472 U.S. at 455-56.
C. Denial of Access to Witnesses and Documents Relating to Urinalysis Testing Procedures
Marino alleges that he was wrongfully denied access to two witnesses: a representative of Syva, the manufacturer of the urinalysis machine, and C.O. Ortiz, who performed the urinalysis test. Marino also alleges that he was wrongfully denied access to two documents: the testing laboratory Daily Worksheet, and the manual for the Syva testing machine.
See Compl. ¶ 26; Pl. Aff. ¶ 32.
See Compl. ¶ 7; Pl. Aff. ¶¶ 8-10.
See Pl. Aff. ¶ 5.
There is no dispute that prior to the hearing, Marino requested that a Syva representative be called as a witness, and that no such witness was produced. Humphrey alleges that Marino never mentioned the Syva witness during the hearing and did not object to his failure to call that witness. The hearing record confirms these allegations. Thus, the question is whether Marino's silence on the matter of the Syva witness amounts to a waiver of his right to call that witness.
See Memorandum of Law in Support of Defendant's Motion for Summary Judgment ("Def. Mem.") at 10.
A prisoner's failure to object when a requested witness is not produced waives his right to call that witness, and with it any due process claim arising from the hearing officer's failure to call the witness. Without unambiguous notice of objection on the part of the prisoner, a hearing officer cannot be held liable for failing to call a witness that he might reasonably have believed was no longer wanted. Marino neither mentioned the Syva witness to Humphrey, nor provided any statement as to the relevance of this witness's testimony. In the absence of such a statement, it is within the hearing officer's discretion to refuse to call the witness. Humphrey's failure to call a Syva representative was not a violation of Marino's due process rights.
See Bedoya, 91 F.3d at 352.
See Walker, 126 F.3d at 129.
For similar reasons, Humphrey's failure to call C.O. Ortiz, who tested Marino's urine, does not rise to the level of a constitutional violation. Marino never asked for C.O. Ortiz to be called as a witness, either before or during the hearing. Humphrey never refused to call this witness, he was simply never asked to do so.
With regard to the requested documents, Humphrey concedes that he refused to provide Marino with the Daily Worksheet. Instead, he argues that it was irrelevant because it merely duplicates information that was provided to Marino in other documents. A hearing officer has discretion to exclude irrelevant evidence and to refuse to provide redundant documents. Marino has failed to show that there is a genuine question of fact as to whether Humphrey properly exercised this discretion. Marino argues that if the test results on the Daily Worksheet had failed to match the results on the documents provided to him, this would have shown that his results were transposed with those of another inmate. While this may be true as a hypothetical matter, in fact the results match in every detail. Marino's argument concerning the Daily Worksheet test results is based on facts that simply do not exist. Because the test results recorded in the Daily Worksheet were already in the record, the Daily Worksheet itself was redundant.
See Reply Memorandum of Law in Further Support of Defendant's Motion for Summary Judgment at 10.
See Kalwasinksi, 201 F.3d at 109; Amaker v. Coombe, No. 96 Civ. 1622, 2002 WL 523388, at *10 (S.D.N.Y. Mar. 29, 2002) ("inmate's right to present documentary evidence in his defense does not entail an obligation on the part of prison officials to retrieve every document that an inmate requests for his case") (citing Wolff, 418 U.S. at 566).
See Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl. Mem.") at 64.
See Request Form; Urinalysis Procedure Form (Test 1); Urinalysis Procedure Form (Test 2); Daily Worksheet.
Some of the information on the Daily Worksheet, however, is not duplicated in the documents provided to Marino. This consists primarily of notations of the reagent batches that were used in the testing of the samples. Marino argues that this technical data would have enabled him to question C.O. Ortiz about the testing procedures he followed. However, because Marino never asked C.O. Ortiz to testify, this again is a hypothetical argument, which does not raise a material issue of fact concerning Humphrey's exercise of discretion.
Urinalysis Procedure Form (Test 1); Urinalysis Procedure Form (Test 2); Daily Worksheet.
See Pl. Mem. at 65.
Nor were Marino's due process rights violated by Humphrey's failure to provide him with the Syva manual. Marino was provided with Appendix C of DOCS Directive # 4937, which describes how the Syva machine operates, the scientific principle on which its assays are based, and the procedures that must be followed to achieve reliable results. Appendix C provides detailed information concerning requirements for ambient temperature, temperature of reagents, machine calibration, and machine warm-up. Several of the requirements identified in Appendix C correspond to entries on the Urinalysis Procedure Forms completed by C.O. Ortiz, which were provided to Marino, recording the results of the tests of Marino's urine. Appendix C also provides data concerning the accuracy of the machine's readings (which approaches 100%) when it is used properly. Appendix C provided Marino with a basis to assess whether the required procedures were followed, and to attack, to the extent that it would not have been futile, the reliability of the machine's findings. Marino did not make use of any of this information and has not shown how he might have done so. Any error in Humphrey's failure to provide the manual did not prejudice Marino's defense, and was therefore harmless.
See Appendix C.
See id.
See Urinalysis Procedure Forms.
See Appendix C.
Marino was given the opportunity to obtain the manual during discovery, although it is not clear whether or not he ever did so. Marino has not referenced the manual to explain how he was prejudiced by Humphrey's failure to produce it at the hearing.
D. Medical Evidence
Marino next argues that Humphrey prohibited him from introducing medical evidence supporting the possibility that his test result was a false positive. Specifically, he alleges that Humphrey wrongfully refused to call a nurse as a witness, and that he refused to allow C.O. Thorpe to respond to questions concerning the possible effect of Marino's liver condition and use of cough syrup on the test results.
See Pl. Aff. ¶ 31.
See id. ¶ 20.
Marino states that he "never argued during his disciplinary hearing that his medication caused a false positive; he merely noted a procedural objection against C.O. Cheek [sic] for writing `No' for plaintiff's response to whether he was taking medications." Marino admits that he did not intend to make such evidence part of his defense against the charges. Any error Humphrey may have made in excluding this evidence is therefore harmless.
See Pl. Mem. at 71 (emphasis in original).
A brief discussion of Marino's "procedural objection" is warranted. State regulations provide: "The inmate shall also be asked if he has been taking any medication in the past month, and the inmate's response shall be noted on the request for urinalysis test form. If the inmate's response is `yes' and the subsequent test results are positive, an inquiry shall be made to medical personnel as to what medications the inmate has received in the past month which may lead to a positive result." Marino repeatedly complains that this procedure was not followed. But because Marino elected not to call C.O. Cheeks to challenge the accuracy of that notation, Humphrey was entitled to conclude that Marino had denied taking medication. In addition, Humphrey ensured that Marino's alleged use of cough syrup and Advil was considered at the hearing. Thus, any procedural error was harmless.
N.Y. Codes, R. Regs., tit 7, § 1020.4(d)(2).
See Pl. Mem. at 52, 77.
I further conclude that Marino has failed to raise a material issue of fact as to whether Humphrey improperly excluded medical evidence. Once evidence has been excluded, a prisoner may challenge the "rationality of the position" taken by the hearing officer, and the officer bears the burden of proof on this point. Once the hearing officer provides evidence supporting the exclusion, the prisoner must produce opposing evidence in order to raise a genuine issue of material fact.
Kingsley, 937 F.2d at 30-31.
See Russell v. Selsky, 35 F.3d 55, 58 (2d Cir. 1995) (where a hearing officer's explanation for an evidentiary exclusion is logical and unchallenged, no genuine issue remains for trial regarding the exclusion); see also Jeffreys, 426 F.3d at 554 ("the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff") (citing Anderson, 477 U.S. at 252).
In support of his exclusion of medical testimony, Humphrey produced a sworn affidavit from Dr. John Perilli, a licensed physician and Facility Health Services Director at Sing Sing since 1999. Dr. Perilli states that he is familiar with the scientific principles of urinalysis testing as it is performed at Sing Sing, including familiarity with possible causes of cross-reactivity in such tests. Dr. Perilli's affidavit states that neither the non-prescription medications provided at Sing Sing nor impaired liver function could cause an inmate's urine to test positive for cannabinoids.
See 4/7/06 Affidavit of Dr. John Perilli, Ex. F to Schmidt Decl., ¶¶ 1-2.
See id. ¶¶ 9-10.
Marino has produced no evidence to call Dr. Perilli's statements or qualifications into doubt. Humphrey has provided sufficient evidence to support the rationality of his conclusion that further medical testimony would have been irrelevant, and has fully justified his limitation of medical testimony at the hearing. Marino has failed to raise a material issue of fact as to Humphrey's exercise of discretion.
E. Humphrey's Conduct of the Disciplinary Hearing
Marino finally complains that Humphrey was biased, that Humphrey improperly testified at the hearing concerning the cross-reactivity of Marino's medications, and that Humphrey improperly conducted his own investigation as to Marino's guilt.
See Pl. Aff. ¶ 1.
See id. ¶ 25.
See Compl. ¶¶ 16; 37, 38, 40; Pl. Aff. ¶ 30.
Marino contends that Humphrey violated his due process rights by "investigating" the charges against him outside the hearing. Humphrey admits that he spoke to C.O. Thorpe outside the hearing and before her testimony. He admits that he asked her whether Advil cross-reacts with cannabinoids, but he denies undertaking a more extensive investigation. C.O. Thorpe testified at the hearing that there is no such cross-reaction. Marino makes vague allegations that something more occurred in Humphrey's contact with Thorpe prior to the hearing, but has produced no evidence to support these allegations. The question, then, is whether it was a violation of due process for Humphrey to ask C.O. Thorpe before the hearing if Advil and cannabinoids cross-react. I conclude, as a matter of law, that this contact caused no such violation.
Answer ¶ 17.
New York State regulations provide that: "No person who has participated in any investigation of the acts shall be a hearing officer at a hearing relating to those acts. . . ." As an initial matter, it is not clear that the regulation applies to Humphrey's actions. Humphrey did not question C.O. Thorpe about Marino's "acts." Instead, he asked her a single question about an objective scientific fact. Indeed, it strains the language of this regulation to call a single question an "investigation."
N.Y. Code, R. Regs., tit. 7, § 253.1.
Assuming, nonetheless, that Humphrey violated this regulation, it does not follow that Marino's due process rights were violated, because "[f]ederal constitutional standards rather than state statutes define the requirements of procedural due process." Marino's right to confrontation, if any, was not implicated because C.O. Thorpe testified about the subject of Humphrey's question. In short, Humphrey's action did not violate federal standards.
See Russell, 35 F.3d at 61.
See Carlisle v. Snyder, No. 02-CV-6662, 2004 WL 1588209 (W.D.N.Y. July 14, 2004) (in nearly identical circumstances, the court found no right to confrontation).
Marino also claims that Humphrey improperly acted as a witness at the hearing when he stated, on the record, that the cough syrup provided by the prison pharmacy did not cause false positives for cannabinoids. Humphrey has submitted evidence, which has not been challenged by Marino, that the cough syrup in question does not cross-react with cannabinoids. The only question is whether Humphrey's statement was proper, and if not, whether it rises to the level of a constitutional violation.
Humphrey maintains that in his role as a hearing officer, he is permitted to take "judicial notice" of certain facts commonly known in his "jurisdiction," i.e., the correctional facility. Under the circumstances of this case, this seems reasonable. In any event, Marino's claim fails on other grounds.
Def. Mem. at 14.
Appendix C contains information about cross-reactions with medicines. Thus, the information that Humphrey spoke about was already part of the record and had been provided to Marino in advance of the hearing. The fact that Humphrey described information that was already in the record is not a due process violation. The same considerations compel the conclusion that even if Humphrey's statement was error, such error was harmless.
See Appendix C.
Cf. Moore, 900 F. Supp. at 674 (a hearing officer did not violate a prisoner's due process rights by introducing into the record a letter previously received from the Syva company concerning cross-reactivity).
Finally, Marino has failed to raise a triable issue of fact on his claim that Humphrey was generally biased. "[T]he bare assertion of claims of bias and prejudgment, merely because they implicate issues involving the defendant's state of mind, should not preclude summary disposition of a case." Marino claims that Humphrey's bias can be inferred from his conduct of the hearing. Marino places particular emphasis on Humphrey's statement about cough syrup, and his pre-hearing inquiry to C.O. Thorpe, to buttress this claim. However, in the context of a prison disciplinary hearing, such contact is not evidence of bias. Because Humphrey's conduct was not improper, there is no evidence of bias.
Allen v. Cuomo, 100 F.3d 253, 260 (2d Cir. 1996) (citing Francis, 891 F.2d at 47).
See Pl. Mem. at 91.
See Carlisle, 2004 WL 1588209, at *6; see also Allen, 100 F.3d at 259; Francis, 891 F.2d at 46 ("the degree of impartiality required of prison hearing officials does not rise to the level of that required of judges generally").
V. CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is granted. The Clerk of the Court is directed to close this motion [number 27 on the docket sheet] and this case.
SO ORDERED.