Russell v. Scully

WINTER, Circuit Judge:

Wilbur Wright appeals from Judge Sweet’s denial of his motion for summary judgment. The motion was directed at Jerome Russell’s complaint, brought under 42 U.S.C. § 1983 (1988), that Wright violated Russell’s Fifth and Fourteenth Amendment rights. Wright, a hearing officer at the Green Haven Correctional Facility, found Russell guilty of assault and violent conduct. In reaching this conclusion, Wright failed to assess independently the credibility of confidential sources implicating Russell. This appeal invites us to decide whether a constitutional right to such an assessment was clearly established at the time of the hearing. We decline the invitation, however, because Russell’s confinement was proper as an administrative measure, and he suffered no violation of constitutional rights.

This action arises from an October 29,1989 assault on Larry Monroe, an inmate at the Green Haven Correctional Facility. While investigating the assault, Sergeant Bobbie Jo LaBoy spoke to most of the inmates in the cellblock, including the victim and three confidential informants. All three informants identified Russell as one of Monroe’s assailants. Fearing for their safety, the witnesses asked LaBoy to keep their identities confidential. LaBoy wrote a misbehavior report based on these conversations and charged Russell with violent conduct, assault, and property damage. Her report also indicated that inmates threatened a “blood bath” unless “the situation was rectified” by Russell’s punishment. Pending a hearing, Russell was placed in administrative confinement in the Special Housing Unit.

On November 15, 1989, Captain Wilbur Wright presided over Russell’s disciplinary hearing. Russell testified in his own defense and called two other inmates to corroborate his testimony. Russell also requested that Monroe, the victim of the assault, be called as a witness. Upon taking the stand, however, Monroe refused to answer any questions. Finally, Russell requested that the three confidential inmate-informers be called to testify. Wright refused this request, but questioned Sergeant LaBoy about the reliability of the confidential sources and the extent of her past experiences with the informants. LaBoy answered that she had dealt with one informant for a year, another for two years, the third for nine years, and that each had proven extremely reliable. There is evidence that Wright knew from prior experience that LaBoy’s confidential sources generally provided reliable information.

After the hearing, Wright found Russell innocent of property damage but guilty of *221assault and violent conduct, and imposed a sentence of 180 days in the Special Housing Unit, and loss of certain privileges. Russell administratively appealed this sentence on the grounds that Wright did not allow him to call certain witnesses and failed to conduct an independent in camera assessment of the confidential informants’ reliability. This administrative appeal was successful, the disciplinary record expunged, and' a second hearing ordered to be held within seven days.

Captain McGinnis held the second hearing on February 12 and 14, 1990. LaBoy was not allowed to testify about the confidential informants in Russell’s presence. Instead, McGinnis heard and recorded LaBoy’s testimony and later informed Russell of the substance of her testimony. McGinnis found Russell guilty of assault and violent conduct. Russell again successfully appealed on the grounds that the hearing officer committed procedural error. No third hearing was ordered, and Russell was returned to a general population cell.

Russell thereafter filed this action, alleging that, by imposing sentence without independently assessing the credibility of the confidential informants, Wright had violated Russell's Fifth and Fourteenth Amendment rights. Wright moved for summary judgment on the ground that he enjoyed qualified immunity. Judge Sweet denied the motion, holding that the failure to assess independently the credibility and reliability of informants breached a clearly established due process right and that the defense of qualified immunity was therefore inapplicable. 782 F.Supp. 876. This appeal followed.

Both parties argue that the instant matter turns on the question of whether or not prisoners in 1989 had a clearly established right to an independent examination of the credibility of confidential informants. We need not decide this question, however, because he was subject only to a valid administrative confinement pending his hearing and appeal and suffered no deprivation of a protected liberty interest.

Hewitt v. Helms, 459 U.S. 460, 108 S.Ct. 864, 74 L.Ed.2d 675 (1983), held that the Due Process Clause does not create “an interest in being confined to a general population cell, rather than the more austere and restrictive administrative segregation quarters.” Id. at 466-67, 103 S.Ct. at 868-69. Noting that “lawfully incarcerated persons retain only a narrow range of protected liberty interests,” id. at 467, 103 S.Ct. at 868, the Court held that the Due Process Clause alone does not protect prisoners from even a grievous change “in conditions of confinement.” Id. at 468, 103 S.Ct. at 869. Moreover, the Court stated that “administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point” because it is necessarily employed “to protect [a] prisoner’s safety, to protect other inmates from a particular prisoner, to break up potentially disruptive groups of inmates, or simply to await later classification or transfer.” Id. Many of these goals were served by the confinement at issue in this case. In short, Russell’s transfer “to less amenable and more restrictive [administrative] quarters for nonpunitive reasons” did not violate rights established under federal due process. Id.

Nevertheless, New York statutes or regulations may create a right to confinement in a general population cell that is then protected by the Due Process Clause. See Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974) (finding federally protected state-created right to good-time credits, although the federal Constitution did not create a similar right independent of state law). This, however, is not the ease here. New York’s regulatory scheme allows for Russell’s confinement: (1) from the charge to the hearing, and (2) from the hearing to the appeal. It is beyond dispute that the prison regulations authorized Russell’s prehearing administrative confinement to preserve order and to protect the safety of various prisoners. An investigating officer had spoken to three witnesses who identified him as Monroe’s assailant. There was thus good reason to believe the safety of Russell and other inmates would be more secure if Russell was in administrative confinement pending a hearing. 7 N.Y.C.R.R. §§ 301.2-301.5. Moreover, prison regulations also allowed inmates to be kept in special housing units “as a result of a *222hearing.” Id. at 301.4(a). Russell’s confinement pending appeal is such a “result of a hearing” and qualifies as administrative confinement. New York did not, nor was it required to, give Russell the right to avoid administrative confinement pending his appeal. See Hewitt, 459 U.S. at 467, 103 S.Ct. at 868.

Finally, an inmate is not deprived of due process where an administrative appeal has cured a hearing’s procedural defects. See Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir.1992) (per curiam); Williams v. Tavormina, No. 89-1247T, 1992 WL 487335, 1992 U.S.Dist. LEXIS 21170 (W.D.N.Y. Aug. 28, 1992) (due process was not violated when an appeal corrected a disciplinary hearing’s errors).

We therefore reverse.