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November 12, 1981

Asa KING, # 62324, Plaintiff, pro se,
Gary J. HILTON, as an individual and in his official capacity as the Warden at Trenton State Prison, and Robert Balicki, as an individual and in his official capacity as Hearing Officer at Trenton State Prison, Defendants

The opinion of the court was delivered by: DEBEVOISE

Plaintiff, Asa King, an inmate at the New Jersey State Prison at Trenton, brings this action under 42 U.S.C. ยง 1983 alleging that he was confined in disciplinary detention and Administrative Segregation, as punishment for a disciplinary violation, without the minimal procedures required by the Due Process Clause of the Fourteenth Amendment. *fn1" Defendants in the suit are Robert Balicki, a disciplinary hearing officer, and Gary J. Hilton, Superintendent of Trenton State Prison. As relief, plaintiff seeks compensatory damages, punitive damages, and the costs of suit.

The matter is now before the Court on defendants' motion for summary judgment. The motion has been considered on the papers, without oral argument, pursuant to Rule 78 of the Federal Rules of Civil Procedure.

 In order to prevail on a motion for summary judgment, defendants must make an affirmative showing, based upon the pleadings, answers to interrogatories, affidavits and uncontested exhibits on file, that "there is no genuine issue of material fact and that (they) are entitled to judgment as a matter of law". Rule 56, Federal Rules of Civil Procedure. Once such a showing has been made, plaintiff "may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in (Rule 56) must set forth specific facts showing that there is a genuine issue for trial". DeLong Corp. v. Raymond International, Inc., 622 F.2d 1135 (3d Cir. 1980). In evaluating the evidence the Court must view the facts in the light most favorable to plaintiff. Adickes v. Kress & Co., 398 U.S. 144, 147, 90 S. Ct. 1598, 1603, 26 L. Ed. 2d 142 (1970); Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980).

 Defendants have submitted comprehensive documentation of the circumstances giving rise to this action, including sworn affidavits by defendant Balicki and Corrections Officer Jimmie L. Williams; records compiled during the disciplinary proceedings; and statements submitted by plaintiff and his representative during the disciplinary proceedings and on appeal to the prison superintendent. Plaintiff has not submitted any evidence countering defendants' version of the facts, despite ample opportunity to do so. I therefore conclude that the following facts are not in dispute.

 On the afternoon of July 17, 1980, a Thursday, plaintiff became involved in a fracas in one of Trenton State Prison's mess halls, where he was employed as a food server behind the cafeteria line. The trouble began when a corrections officer supervising the mess hall accused an inmate of entering the serving line for a second helping of food. The inmate reacted violently. Several corrections officers converged upon him and began to wrestle him to the ground. Soon pandemonium broke loose in the mess hall. After order was restored, plaintiff was issued a disciplinary charge for "encouraging others to riot", in violation of Division of Correction and Parole Standard 251.4.252.

 At the time he was charged, plaintiff named five witnesses whom he wished to testify in his behalf, and requested the appointment of counsel-substitute to represent him at his disciplinary hearing. He was then placed in pre-hearing detention, pursuant to Divisional Standard 255.271. *fn2"

 On Monday, July 21, 1980, four days later, Disciplinary Hearing Officer Robert Balicki convened a hearing to adjudicate the charges against plaintiff. Plaintiff, through his chosen counsel-substitute, requested at the outset that the charges against him be dismissed on the ground that the hearing had not commenced within three days of his confinement in pre-hearing detention, as required by Divisional Standard 254.270. *fn3" The request, however, was denied.

 Hearing Officer Balicki then read into the record statements by three prison officials which had been compiled in support of the charges by the investigating officer, Sergeant W. Nunn. Among them was a statement by Institutional Training Instructor Frank Grillo that he had witnessed plaintiff throwing food trays at the corrections officers as they grappled on the floor with the offending inmate during the mess hall fracas. (Defts. Exh. 11a.) Plaintiff objected to the statement on the ground that it alleged a disciplinary infraction, assault upon a corrections officer, with which he had not been charged. Hearing Officer Balicki agreed that he would not consider the statement for that purpose. *fn4"

 Hearing Officer Balicki next read into the record statements by three of the five witnesses whose testimony plaintiff had initially requested. He informed plaintiff, however, that the investigating officer had not yet interviewed the remaining two defense witnesses and consequently their testimony was unavailable. Plaintiff requested a continuance of the hearing until the missing witness statements could be obtained. Officer Balicki agreed; the hearing was adjourned to the following day and plaintiff was returned to pre-hearing detention.

 On Tuesday, July 22, 1980, the hearing was reconvened but the missing witness statements still had not been obtained. Officer Balicki informed plaintiff that, under the circumstances, he would be willing either to proceed to an adjudication of the charges on the evidence then available or to postpone the hearing for an additional period of time. He warned plaintiff, however, that a postponement would entail additional time in pre-hearing detention. Plaintiff objected to a postponement and requested again that the charges against him be dismissed. Balicki denied the request and adjourned the hearing a second time.

 The hearing resumed on July 24, 1980, two days later, and all remaining witness statements sought by plaintiff were made part of the record. Hearing Officer Balicki then closed the record, considered the evidence, found plaintiff guilty as charged, and imposed a sanction of 10 days of "lockup" and referral to the Prison Classification Committee for 90 days of Administrative Segregation. In his adjudication report, Officer Balicki stated that the evidence upon which he relied in finding plaintiff guilty included statements made by both the charging officer and Institutional Training Instructor Grillo. He also gave the following explanation of the sanction imposed:

Seriousness of offense was considered in the sanction. However since he had to wait several days in P.H.D. (pre-hearing detention) for witness statements he asked for originally I feel he is entitled to a lesser sanction as a result. I feel it is the Prisons (sic) responsibility to get statements from witnesses that are requested by the inmate. Especially in this case where the witness was requested at the outset of the investigation & was not contacted for a week. 15 days in lockup and 180 days in Ad Seg at the Vroom Readjustment Unit and loss of 180 days commutation time would have been the sanction for this offense. I have reduced it to 10 days lockup and 90 days Ad Seg at TSP (Trenton State Prison) due to holdup in getting statements.
(Defts. Exh. 10a.)

 On July 25, 1980 plaintiff appealed the hearing officer's decision to defendant Hilton, Superintendent of Trenton State Prison, pursuant to Divisional Standard 254.288. *fn5" (Pltff."s Exh. D, appended to Complaint.) Defendant Hilton denied the appeal on August 14, 1980. (Pltff."s Exh. E.) Plaintiff alleges in his complaint that Hilton's three-week delay in deciding his appeal violated "a procedure here at Trenton State to decide all appeals within three days ...

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