Fox v. Coughlin

893 F.2d 475, 1990 WL 997
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 4, 1990
DocketNo. 415, Docket 89-2260
StatusPublished
Cited by36 cases

This text of 893 F.2d 475 (Fox v. Coughlin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fox v. Coughlin, 893 F.2d 475, 1990 WL 997 (2d Cir. 1990).

Opinion

PER CURIAM:

This appeal considers the Due Process Clause as it relates to one aspect of a prison disciplinary hearing. The district court held that a prison official’s failure to assist an inmate in preparing a defense to disciplinary charges and a prison hearing officer’s failure to grant an inmate’s request to produce two correctional officers at the disciplinary hearing did not violate 42 U.S.C. § 1983 (1982). The district court stated that Fox had no clearly established right to assistance in preparing his defense or to the interview of two additional witnesses. Hence, it concluded that his claim was barred by the doctrine of qualified immunity. Fox v. Coughlin, No. 84 Civ. 7450 (S.D.N.Y. May 30, 1989). We affirm.

FACTS

Ronald Fox, an inmate at Downstate Correctional Facility (Downstate), was involved on November 9, 1983 in an alleged incident that resulted in a written “Inmate Misbehavior Report” (Report) and charges that he violated several prison rules. According to the Report, Fox was asked to assume the position for a frisk search and responded by pushing an attending officer, Sergeant Suter, in the chest. Appellant maintained that he had been attacked by the guards from behind after he turned and faced the wall. At the conclusion of the altercation Fox was subdued by officers Spreer, Lawlor and McCaffrey, and placed in the Special Housing Unit (SHU). The Report was signed by Sergeant Suter and endorsed by the other three officers present. Appellee Guerino DiLoreto was assigned as counsel to assist Fox in preparing for a Tier III Disciplinary Hearing. Fox requested that seven witnesses be in[477]*477terviewed — three inmates and the four correctional officers who were present. DiLo-reto failed to interview any of them.

On November 14 and 17, 1983 appellee Capt. Wayne J. Wilhelm conducted the disciplinary hearing. Fox appeared, offered his explanation of the incident and requested that Wilhelm interview the above seven witnesses. Wilhelm interviewed the first five, but refused to interview the remaining two officers, McCaffrey and Spreer, because he believed their testimony would be “redundant.” He also indicated that officer McCaffrey was away from Downstate that day. Wilhelm found Fox guilty of the charges and imposed a penalty of 180 days confinement to SHU (credited with time served), 180 days loss of packages and commissary privileges, and 12 months loss of good time. The disciplinary proceeding was reviewed and affirmed by Downstate’s Deputy Superintendent for Security and the Department of Correctional Services Central Office.

Fox commenced an Article 78 proceeding in New York State Supreme Court to review the Superintendent’s decision. Special Term found that Wilhelm’s failure to call the additional two officers was an abuse of discretion, and ordered the hearing annulled, the charges dismissed, and all references to the incident expunged from Fox’s record. Special Term’s holding was affirmed on appeal. Fox v. Dalsheim, 112 A.D.2d 368, 491 N.Y.S.2d 820 (2d Dep’t 1985).

Appellant then commenced this § 1983 action pro se in the United States District Court for the Southern District of New York (Knapp, J.), against appellees, the Commissioner of the Department of Correctional Services, the Superintendent of Downstate, Wilhelm and DiLoreto. The four correctional officers present at the incident were also named as defendants. Summary judgment was granted dismissing the complaint as to the officers, but denied as to the present appellees on the basis that there was a genuine issue as to whether Fox’s due process rights were violated and whether the defense of qualified immunity applied. Fox v. Coughlin, No. 84 Civ. 7450 (S.D.N.Y. Oct. 31, 1986). After this ruling, Fox acquired a pro bono attorney who conducted further discovery and moved for summary judgment. The district court denied Fox’s motion and granted the appellees’ cross motion for summary judgment on the grounds that they were protected by qualified immunity because Fox did not have a “clearly established” right to assistance from DiLoreto in preparing his defense or in having the two additional officers interviewed by Wilhelm. Fox v. Coughlin, No. 84 Civ. 7450 (S.D. N.Y. May 30, 1989). This appeal follows that judgment.

DISCUSSION

Prison officials may be protected from personal liability under § 1983 when their “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). That defense may be overcome only where a plaintiff establishes that the “contours” of the right have been reasonably cemented. See Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987); Eng v. Coughlin, 858 F.2d 889, 895 (2d Cir.1988) (“the boundaries of the supposed ‘right’ must be sufficiently definite so that the official understood that his actions violated it or ... the unlawfulness of his actions was evident.”).

Here we are asked whether it was clear at the time of the November 1983 disciplinary hearing that the plaintiff had a due process right to assistance in preparing his defense or to have the hearing officer interview the two additional officers. Turning the constitutional clock back, we see that an inmate did not have a “clearly established” right to assistance in preparing for a disciplinary hearing. Eng, 858 F.2d at 897.

With respect to the right to call additional witnesses, a reasonable prison official would not have had forewarning that refusing to interview all of the witnesses requested by the inmate would tread upon plaintiff’s constitutional rights. It was [478]*478well established at the time of the hearing that an inmate at a disciplinary hearing should be permitted to call witnesses and present documentary evidence in his defense when it would not be unduly hazardous to “institutional safety or correctional goals.” See Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974). Wolff established a flexible standard that balanced the prisoner’s interest in adequate due process against the institutional needs of the prison. We applied this standard several months prior to the instant hearing in McCann v. Coughlin, 698 F.2d 112, 120-25 (2d Cir.1983), and there held that prison officials were liable under § 1983 for failing to allow an inmate to call any witnesses at a disciplinary hearing.

Based upon Wolff and McCann — the two most relevant decisions at the time of the hearing — Wilhelm did not violate a “clearly established” right by failing to interview the two additional witnesses. He interviewed three inmates and two of the officers Fox requested. This hearing stands in stark contrast to the hearing in McCann where none of the witnesses requested by the inmate were interviewed.

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Bluebook (online)
893 F.2d 475, 1990 WL 997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fox-v-coughlin-ca2-1990.