Click the back button to return to the publication.
HENRY ESPINAL, Plaintiff, - against - GLENN S. GOORD, COMMISSIONER,
DONALD SELSKY, DIRECTOR OF SPECIAL HOUSING UNIT, CHRISTOPHER ARTUZ, SUPERINTENDENT
FOR SECURITY SERVICES, GEORGE SCHNEIDER, DEPUTY SUPERINTENDENT FOR SECURITY
SERVICES, LT. QUACKENBUSH, REVIEW OFFICER, LT. HAUBERT, REVIEW OFFICER, A.
PELC, HEARING OFFICER, SGT. B. SCHALLER, D. CAREY,CORRECTIONAL OFFICER, C.
CENTANNI, CORRECTIONAL OFFICER, SGT. R. SHANLEY, jointly, severally and
individually, respectively, Defendants.
01 Civ. 6569 (NRB)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
January 17, 2002,
Decided
January 22, 2002, Filed
MEMORANDUM AND ORDER
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Henry Espinal, an inmate in the
custody of the New York State Department of Correctional Services
("DOCS") brings this § 1983 action against various prison officials asserting violations of his
rights under the Eighth and Fourteenth Amendments. Espinal moves for a
temporary restraining order or preliminary injunction that would require the
defendants to release him from punitive segregation in the Special Housing Unit
("SHU") place him in the general prison population, with restoration
of all rights and privileges, and expunge the disciplinary convictions that led
to his punitive segregation. He also moves for the appointment of counsel. For
the reasons that follow, both motions
are denied.
BACKGROUND n1
Espinal was convicted of murder and attempted assault, and sentenced to
an indeterminate sentence of twenty-six years, six months to life, beginning on
June 19, 1996. On June 30, 1998, a fight broke out in the yard area of the
Green Haven Correctional Facility, where Espinal was then incarcerated. On July
2, 1998, Espinal was served with an Inmate Misbehavior Report
("IMR"), alleging that two prison officials saw Espinal "drop a
weapon and run off into the crowd" during the fight. IMR dated June 30,
1998. Espinal was charged with violating a prison rule that prohibits the
possession of weapons by prisoners. n2
On
July 6, 1998, a "Tier III" disciplinary hearing n3 was held before
defendant George Schneider. Espinal pleaded not guilty, and testified that,
while he was present in the area, he did not possess a weapon. On the testimony
of the prison official witnesses, however, he was found guilty. Schneider
imposed a penalty of twelve months confinement to SHU and a concurrent loss of
privileges. Espinal filed an administrative appeal, but the decision was
affirmed. He then instituted an Article 78 proceeding, which was dismissed.
On
July 7, 1998, Espinal was served with a second IMR also stemming from the June
30, 1998 incident. This IMR, authored by defendant D. Carey, alleged that
Espinal assaulted and cut a fellow inmate, in violation of prison rules. n4 The
IMR [*535] stated that Espinal had been identified as the perpetrator
"through numerous interviews and
confidential informants." IMR dated July 7, 1998. Defendant A. Pelc
presided over a Tier III hearing on July 9, 1998 where Espinal pleaded not
guilty. He again testified that he was in the area, but denied that he
assaulted the victim. Fellow inmate L. Rivera (who was accused of assisting in
the assault) testified and corroborated Espinal's story. Correction Officers
Lopez and Bovair as well as defendants D. Carey and B. Schaller also testified.
Espinal requested that Pelc provide him with any part of the
confidential information, and that he interview the confidential informants
referred to in the IMR. Both requests were denied. On the basis of the documents
provided by the correction officers as and the witness testimony, Pelc found
Espinal guilty of the three charges and imposed a penalty of thirty six months
confinement to SHU, loss of various privileges, and recommended a loss of good
time credits. The confinement was to served consecutively with the twelve
months already imposed. Espinal filed an administrative appeal, but the
determination was affirmed. He then instituted an Article 78 proceeding, which
was dismissed on February 15, 2000 on procedural grounds.
Several months later, Espinal was being escorted from his cell in SHU
for a visit by defendants Shanley and Centanni. An incident occurred while they
were in the elevator. According to Espinal, who had his hands behind his back
in handcuffs, Centanni violently assaulted him without provocation, and Shanley
did nothing to stop the attack. According to the subsequent IMR drafted by
Centanni, on the other hand, what happened was that "Espinal raised his
right foot into the corner wall area, pushing us both back and then dead butted
me with the back of his head, hitting me in my upper right lip." IMR dated
Sept. 16, 1998. Centanni asserts that any physical contact with Espinal was
solely an attempt to restrain him. Id. As these events took place in the
elevator, they were apparently captured on video tape.
On
September 17, 1998, Espinal was served with a third IMR, which alleged two
violations of prison rules. n5 A third Tier III hearing was held before
Schneider on September 29, 1998. Espinal again pleaded not guilty and testified
to his version of events. He requested that Schneider view the video tape of
the events, which request was apparently granted. Based on the IMR, the video
tape, and the testimony of Espinal, Centanni, Shanley and Correction Officer
Tonasso, Schneider found Espinal guilty and imposed a penalty of an additional
twelve months confinement in SHU to be served consecutively with the other two penalties. Espinal filed an
administrative appeal, but the determination was affirmed.
As
a result of the three Tier III hearings, Espinal has been held in SHU since
June 30, 1998, and is scheduled to be released back to the general prison
population on June 30, 2003. He has already spent about three and a half years
in SHU, and has about one and a half years remaining in his term of confinement. Part of that time has been
spent in the SHU at Green Haven, Upstate, and Great Meadow Correctional
Facilities, but Espinal is presently housed in the SHU at Southport
Correctional Facility. n6
[*536] ANALYSIS
A. Showing Required for a Preliminary
Injunction
In the usual case, a party seeking a
preliminary injunction must establish that it will suffer irreparable harm in
the absence of an injunction and demonstrate either (1) a likelihood of success on the merits or (2)
sufficiently serious questions going to the merits to make them a fair ground
for litigation and a balance of hardships tipping decidedly in the movant's
favor. Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (citations and
quotation marks omitted). In certain circumstances, however, the movant is held
to a more exacting standard. Thus, where a party "challenges government
action taken in the public interest pursuant to a statutory or regulatory
scheme, . . . the moving party cannot resort to the 'fair ground for
litigation' standard, but is required to demonstrate irreparable harm and a
likelihood of success on the merits." Id. (citations and some quotation
marks omitted). Moreover, "where (1) the injunction sought will alter,
rather than maintain, the status quo . . . or (2) the injunction sought will
provide the movant with substantially all the relief sought, and that relief
cannot be undone even if the defendant prevails at a trial on the merits," the moving party must make a
"clear or substantial showing of likelihood of success on the
merits." Id. (citation and quotation marks omitted).
In the case at bar, it is clear
that Espinal is challenging "government action taken in the public
interest pursuant to a statutory or regulatory scheme" by petitioning this
Court to release him to the general prison population. Id. The prison
authorities and public have an interest in keeping prisons safe and secure, and
Espinal was confined to SHU on the basis of a hearing held pursuant to a New
York regulatory scheme intended to advance that interest. See N.Y. Comp. Codes
R. & Regs. tit. 7, § 254 (Tier III hearing procedure). Furthermore, it is
also clear that issuing the requested injunction would "alter, rather than
maintain, the status quo" in that it would release Espinal from SHU
confinement-where he has spent the last three and a half years and is expected
to spend another one and a half years-to the general prison population. Jolly,
76 F.3d at 473. As in Jolly, "an order mandating his release would require
a dramatic shift in an established DOCS policy," and therefore, "the
status quo should not lightly be overturned." Id. at 474.
Hence, for the requested
injunction to issue, Espinal must demonstrate that he will suffer
irreparable harm in the absence of the
injunction, as well as make a clear or substantial showing of likelihood of
success on the merits.
B. Substantial Likelihood of Success on the
Merits n7
1.
Threshold Sandin Showing
In order to succeed on his
claims that he was denied due process in the three Tier III hearings, Espinal
must first [*537] make a "threshold showing" that he was entitled to
the procedural due process protections of the Fourteenth Amendment. Sims v.
Artuz, 230 F.3d 14, 22 (2d Cir. 2000). This threshold showing Espinal must make
is that his SHU confinement subjected him to "atypical and significant
hardship [] in relation to the ordinary incidents of prison life." Sandin
v. Conner, 515 U.S. 472, 484, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995). Upon
consideration of the record before the court, as well as the applicable Second
Circuit precedents, it is abundantly clear that Espinal has succeeded in making
the required showing. n8
As of this date, Espinal has already
spent nearly 1,300 days in SHU confinement. The "longest confinement in
normal SHU conditions that [the Second Circuit has] ruled was not shown to meet
the Sandin standard was 101 days." Colon, 215 F.3d at 231. Furthermore,
"wherever the durational line is ultimately drawn, 305 days [in normal SHU
conditions] satisfies the [Sandin] standard." n9 Id. On this record, n10
we are convinced that Espinal has made the requisite showing under Sandin. He
was entitled to procedural due process at the three Tier III hearings.
2.
Due Process
While the "due process
requirements for a prison disciplinary hearing are in many respects less demanding than those for criminal
prosecutions," there are certain minimum rights that a prisoner must be afforded
under the Fourteenth Amendment. Edwards v. Balisok, 520 U.S. 641, 647, 137 L.
Ed. 2d 906, 117 S. Ct. 1584 (1997); see
Wolff v. McDonnell, 418 U.S. 539, 563-69, 41 L. Ed. 2d 935, 94 S. Ct.
2963 (1974) (outlining the due process rights retained by prisoners). Specifically,
with respect to a disciplinary hearing such as the Tier III hearings at issue
here, the [*538] Fourteenth Amendment
requires that (1) the inmate receive at least twenty four hours written notice
of the disciplinary charges against him; (2) the inmate be permitted to call
witnesses and present evidence "when permitting him to do so would not be
unduly hazardous to institutional safety or correctional goals," Wolff,
418 U.S. at 566; (3) the inmate be judged by a fair and impartial hearing officer;
(4) the disciplinary conviction be supported by "some evidence; and (5)
the inmate be provided with a written statement of fact findings that support
the disposition as well as the reasons for the disciplinary action taken.
See Wolff v. McDonnell, 418 U.S. at
563-69; Kalwasinski, 201 F.3d at 108 (2d Cir. 1999); McCann v. Coughlin, 698
F.2d 112, 121-22 (2d Cir. 1983). Each will be discussed seriatim.
A.
Notice
As
discussed above, Espinal was served with a written IMR before each of the three
Tier III hearings at issue. Each IMR included a statement of the prison rules
he had allegedly violated as well as a factual description of the relevant
incident. The first IMR was served on Espinal on July 2, 1998 notifying him of
a hearing which was held on July 6, 1998, the second IMR was served on Espinal
on July 7, 1998 notifying him of a hearing which was held on July 9, 1998, and
the third IMR was served on Espinal on September 17, 1998 notifying him of a
hearing which was held on September 29, 1998. Thus, in each case, he was given
more than the required twenty four hours notice.
Espinal claims, however, that the second IMR did not provide him with
adequate notice of the charges against him. Pl.'s Mem. at 16-17. He asserts
that, due to a fundamental difference between fighting (mutual violence) and
assault (unilateral violence), he should not have been charged with both, as
the facts indicated that he was accused of assault. Id. at 16. This argument is
meritless. It was reasonable of the officers who prepared the report to give
notice of both charges, as further fact finding may have been necessary to
determine whether the inmate who was assaulted by Espinal fought back against
his assailant.
Espinal also claims that the notice was defective because the IMR failed
to indicate the basis of knowledge or veracity of the confidential informants
from whom the information was obtained. Id. at 17. This argument, too, is
meritless because such information was not necessary to apprize Espinal of the
nature of the charges against him. Accordingly, Espinal was provided with
constitutionally sufficient notice.
b.
Presentation of Evidence by Prisoner
Nowhere in his thirty two page
memorandum in support of the instant motion does Espinal claim that he was
prevented from submitting evidence or calling witnesses during the three Tier
III hearings. Rather, he testified on his own behalf, called an inmate witness
to testify, and persuaded the presiding officer to view a video tape of the
events that were the subject of the third Tier III hearing. Accordingly, this
aspect of due process was satisfied in the present case.
c.
Fair and Impartial Hearing Officer
Espinal claims that defendant
Schneider, the hearing officer who presided over his first and third Tier III
hearings, was biased against him, thereby depriving him of his right to a
"fair and impartial hearing officer." Kalwasinski, 201 F.3d at 108; see Pl.'s Mem. at
12-15, 25-27. Specifically, [*539]Espinal argues that Schneider was
insufficiently impartial because he "is the supervisor of the security
staff who responded to the incident" at issue in the first Tier III
hearing. Am. Compl. P 18. He also claims that, during that hearing, Schneider
"assumed the role of a quasi-prosecutor" by asking leading and
suggestive questions to the officers and "ambiguous, misleading
questions" to Espinal and his witnesses "in an effort to solicit
inconsistent, contradictory testimonies from them thereby hindering any chance
of a successful defense from the petitioner." Pl.'s Mem. at 13.
Finally, Espinal claims that Schneider was also biased against him when he
presided over the third Tier III hearing because he "was under obvious
pressure to resolve the disciplinary dispute in favor of the officers under his
command." Id. at 27.
It is well settled that
"the degree of impartiality required of prison hearing officials does not
rise to the level of that required of judges generally." Francis v.
Coughlin, 891 F.2d 43, 46 (2d Cir. 1989). Rather, due process requires only
that the hearing officer not be "a hazard of arbitrary decision
making." Wolff, 418 U.S. at 571.
Moreover, while the Second Circuit has hinted that a prison official who
directly "participated in the investigation of acts complained of or who
has been a witness to such acts" may be insufficiently impartial to
preside over a prison disciplinary hearing, Powell v. Ward, 542 F.2d 101,
102-03 (2d Cir. 1976), the mere fact that "a decision-maker has
responsibilities to uphold standards of conduct does not inevitably mean that
he is disqualified from adjudicating allegations that those standards have been
breached." Id. at 103; see also
Allen v. Cuomo, 100 F.3d 258, 259 (2d Cir. 1996) ("the independent
hearing officer need not come from outside the prison").
In the case at bar, Espinal
argues that Schneider was "directly involved in and investigated the
incident," thus disqualifying him under Powell v. Ward. Pl.'s Mem. at 13.
This legal conclusion, however, is not supported by the undisputed facts.
According to Espinal, Schneider was merely "notified of the incident [in
question], is the supervisor of the security staff who responded to the
incident and is directly responsible for giving direction to" the prison
staff who witnessed and investigated the incident. Am. Compl. P 18. As
Schneider neither witnessed nor investigated the incident in question, he was
sufficiently impartial under the legal standards laid down in Powell v. Ward,
n11 Accordingly, Espinal fails to demonstrate that Schneider was so
insufficiently fair and impartial as to constitute a violation of due process.
d.
Evidence Supporting the Dispositions
To
comport with due process, the decision to confine Espinal in the SHU must have
been supported by "some evidence." Superintendent v. Hill, 472 U.S.
445, 455, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985). "Ascertaining whether
this standard is satisfied does not require examination of the entire record,
independent assessment of the credibility of witnesses, or weighing of the
evidence. Instead, the relevant question is whether there is any evidence in
the record that could support the conclusion reached by the disciplinary
board." Id. at 455-56.
[*540] Espinal claims that the decision rendered in the second Tier III
hearing was not based on sufficient evidence. Pl.'s Mem. at 17-22. The evidence
adduced at that hearing included testimony by officers who had conducted
interviews with confidential informants. The law in this Circuit is that
"the 'some evidence' standard may be met even where the only evidence was
supplied by a confidential informant, 'as long as there has been some
examination of indicia relevant to [the informant's] credibility.'" Gaston
v. Coughlin, 249 F.3d 156, 163 (2d Cir. 2001) (quoting Giakoumelos v. Coughlin,
88 F.3d 56, 61 (2d Cir. 1996)) (emphasis supplied).
Espinal claims that he had a due process right to have the hearing
officer "make an independent assessment of the reliability of [the]
confidential informants, and to create and preserve a record of that
assessment." Pl.'s Mem. at 19. The Second Circuit has recently noted that
whether the Fourteenth Amendment does, in fact, grant this specific right is an
open question. Gaston, 249 F.3d at 163.
The Second Circuit has, however, clearly stated that "even if due process
does require a hearing officer to conduct an independent assessment of the
informant's credibility, that 'would not entail more than some examination of
indicia relevant to credibility rather than wholesale reliance upon a third
party's evaluation of that credibility,'" Id. (quoting Russell v. Scully,
15 F.3d 219, 223 (2d Cir. 1993)). The record before us does not permit us to
determine whether Pelc, the presiding officer at the second Tier III hearing,
made the required examination of indicia relevant to the credibility of the
confidential informants, whether by an independent assessment or otherwise.
Accordingly, we cannot say, at this point, whether Espinal's punishment was
supported by constitutionally sufficient evidence.
e.
Statement of Fact Findings and Reasons for the Disposition
Espinal makes no claim that he was not provided with a written statement
of fact findings and the reasons for the disposition in any of the Tier III
hearings. He does, however, imply that such a statement exists for the second
hearing at least by referring to "Pelc's Statement of Evidence" in
his memorandum. Pl.'s Mem. at 21. Accordingly, we presume that a written
statement was, in fact, provided to Espinal following each of the three Tier
III hearings.
3.
Improbability of Success
As the preceding discussion
makes clear, it is very unlikely that Espinal
will succeed on the merits of his due process claims. Accordingly, we
deny his motion for a temporary restraining order or preliminary injunction on
this basis. n12
C. Motion for Appointment of Counsel
In
a letter dated December 2001, Espinal moves for assignment of counsel, pursuant
to 28 U.S.C. § 1915(d). n13 "The factors to be considered in ruling on a
motion for pro bono counsel are well settled and include 'the merits of
plaintiff's case, the plaintiff's ability to pay for private counsel,
[plaintiff's] efforts to obtain a lawyer, the availability of counsel, and the
plaintiff's ability to gather the facts and deal with the issues if unassisted
by counsel.'" Rangi v. St. Barnabus Hosp., 2001 U.S. Dist. Lexis 20649,
2001 WL [*541] 1590542, at *1 (S.D.N.Y. Dec. 12, 2001) (quoting Cooper v. A.
Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1986)). Of these factors, the most
important is the merits of the case. The Second Circuit has made clear that
"a threshold showing of some likelihood of merit" must be made before
a court appoints counsel. Cooper, 877
F.2d at 174. Accordingly, we decline to appoint counsel to represent Espinal
for the same reasons given above, namely, the absence of a "threshold
showing of some likelihood of merit." n14 Id.
CONCLUSION
Because Espinal has failed to make a substantial showing of likelihood of
success on the merits of his due process claims, we deny his motion for a
temporary restraining order or preliminary injunction. For substantially the
same reasons, we deny his motion for the appointment of counsel to represent
him in this action. Furthermore, in light of the above discussion, the defendants' time answer or move is adjourned
until February 22, 2002. n15
IT
IS SO ORDERED.
DATED: New York, New York
January 17, 2002
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
FOOTNOTES:
n1 The facts elucidated
herein are those presented by Espinal in his complaint, amended complaint, and
moving papers. The defendants have not challenged Espinal's version of events.
n2 Prison Rule 113.10.
n3 "Tier III hearings
are held for the most serious violations of institutional rules." Colon v.
Howard, 215 F.3d 227 (2d Cir. 2000) (quotation and citation omitted).
n4 Specifically, Espinal was
accused of violating Prison Rules 104.11 (violent conduct), 100.10 (assault on
inmate), and 100.13 (fighting).
n5 Prison Rules 100.11
(assault on staff) and 107.10 (interference with employee).
n6 In his Affidavit, Espinal states that he was confined in the
Green Haven Correctional Facility SHU from June 30, 1998 to October 3, 1999, in
the Upstate Correctional Facility SHU from October 4, 1998 to January of 1999,
in the Great Meadow SHU from January of 1999 to March 9, 2001, and returned to
the Upstate SHU on March 9, 2001. Espinal Aff. P 57. A recent letter from
Espinal to the Court included a return address and postmark from Southport
Correctional Facility. Letter dated December 2001. Therefore, we assume that he
is presently housed in the Southport SHU.
n7 As the preliminary injunction
Espinal seeks is only relevant to his Fourteenth Amendment claim, we do not
consider the merits of his Eighth Amendment claim here.
n8 Much ink has been spilled
in this Circuit discussing whether and when SHU confinement meets the
atypicality standard. See, e.g., Giano
v. Selsky, 238 F.3d 223, 226 (2d Cir. 2001); Sims, 230 F.3d at 22-24; Colon,
215 F.3d at 230-34; Kalwasinksi v.
Morse, 201 F.3d 103, 106-108 (2d Cir. 1999); Welch v. Bartlett, 196 F.3d 389,
393-95 (2d Cir. 1999); Scott v. Albury, 156 F.3d 283, 286-88 (2d Cir. 1998);
Wright v. Coughlin, 132 F.3d 133, 136-37 (2d Cir. 1998); Frazier v. Coughlin,
81 F.3d 313, 317-18 (2d Cir. 1996). The Second Circuit has rejected a
"bright-line rule that confinement in normal SHU conditions of more than
180 days meets the Sandin standard," Colon, 215 F.3d at 232, in favor of a
"fact-intensive inquiry" into the duration and nature of a given SHU
confinement. Sims, 230 F.3d at 22. Nevertheless, under any reading of Sandin,
it is obvious that Espinal's SHU confinement qualifies as an "atypical and
significant hardship [] in relation to the ordinary incidents of prison
life." Sandin, 515 U.S. at 484.
n9 Moreover, the conditions
of Espinal's confinement are substantially identical to those discussed in
Colon, and stand in stark contrast to the conditions of prisoners in the
general population. 215 F.3d at 230.
Compare Espinal Aff. PP 57-85 (describing the conditions he experiences in SHU,
including the fact that he is confined to his cell twenty three hours a day,
his property privileges are severely restricted, and he is permitted only two
or three showers per week) with id. PP 5-56 (describing the conditions of the
general prison population). Finally, we observe that Espinal is currently
housed in the SHU-only Southport Correctional Facility, "where SHU
conditions are harsher than in SHU facilities of other New York prisons."
Colon, 215 F.3d at 234 n.7; see Lee v.
Coughlin, 26 F. Supp. 2d 615, 624-33 (S.D.N.Y. 1998) (describing conditions at
Southport).
n10 The Second Circuit has
instructed the district courts to "develop a detailed factual record"
of the conditions of a given SHU confinement when the confinement duration is
"within the 101-305 day range." Sims, 230 F.3d at 24. As the duration
in the instant case is more than three times as long as the outside of that
range, we do not feel that a more detailed factual record is necessary to
determine whether Espinal's confinement satisfies the Sandin test.
n11 As to Espinal's claim
that Schneider violated his due process rights by "assuming the role of a
quasi-prosecutor" at the first Tier III hearing, Pl.'s Mem. at 13, he has
introduced no evidence of improper or misleading questioning whatsoever.
n12 Hence, we need not and
do not consider whether he will suffer irreparable harm in the absence of the
requested relief.
n13 He also purports to move
for the appointment of counsel under 18 U.S.C. § 3006. That section, however,
only applies in a criminal case.
n14 We also note that
Espinal has demonstrated an impressive ability to argue his case without the
assistance of counsel. His memorandum in support of the instant motion, for
example, is well-written and demonstrates a firm grasp of the issues that are
at the heart of his case.
n15 It would be helpful if
any motion for summary judgment on the due process claims be accompanied by a
copy of the written dispositions and transcripts of each of the three Tier III
hearings. It would also be helpful if any motion for summary judgment on the
Eighth Amendment claim be accompanied by a copy of the videotape of the events
of September 16, 1998 alluded to in Espinal's submissions.
Click the back button to
return to the publication.