IRENAS, District Judge:
Defendants move for summary judgment under Fed. R. Civ. P. 56(b) dismissing plaintiff's § 1983 complaint. This motion will be granted, although not for the reasons urged by the defendants.
When plaintiff was a prisoner at Bayside State Prison ("Bayside"), he was charged and found guilty of possessing a knife in violation of applicable prison regulations. He was found guilty at a disciplinary hearing on January 15, 1992, and sanctioned with fifteen days detention, three hundred sixty-five days administrative segregation and three hundred thirty days loss of commutation time.
After losing an administrative appeal to the superintendent of Bayside, plaintiff appealed further to William H. Fauver, Commissioner of the New Jersey Department of Corrections. As a result of this appeal, a lie detector test was administered, and on June 12, 1992, the guilty finding was reversed and all sanctions expunged, at which time plaintiff was restored to the general prison population.
When this case started, there was some confusion as to whether New Jersey had restored the lost commutation time, but that issue now seems to be resolved in plaintiff's favor. Thus, the only issue in this action under 42 U.S.C. § 1983 is whether plaintiff is entitled to monetary damages against the defendants
because plaintiff spent five months in detention and administrative segregation as the result of disciplinary proceedings which are alleged to have violated his due process rights under the fourteenth amendment.
Because, as will hereafter be discussed, we cannot find at this stage in the proceedings that the original hearing comported with the minimal due process requirements of Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974) and its numerous progeny,
the only issue to be decided on this motion for summary judgment is whether the plaintiff's success at an administrative level in reversing the results of the disciplinary hearing forecloses a § 1983 damage action for events which occurred before this success.
Although there are literally hundreds of cases dealing with the constitutional requirements of prison disciplinary proceedings, these cases almost invariable are brought when plaintiff's appeals to higher levels within the prison administration to reverse the sanction imposed are unsuccessful. There appear to be very few in which a prisoner who was successful at the administrative level still sought damages for what happened to him between the leveling of the charge and its ultimate dismissal after administrative appeal.
Apparently motivated by concerns that contraband was illegally entering Bayside, its internal affairs department conducted an undercover operation to determine the source of the contraband. Defendant Lonergan was involved in this investigation during which he spoke on a confidential basis to two prisoners who identified plaintiff having possessed an 8 1/2 inch lock blade knife. Quite remarkably one of the informants actually turned over the knife in question to prison authorities.
Plaintiff was charged with violating N.J.A.C. 10A:4-4.1(a)(*.202) - possession or introduction of a gun, firearm, weapon, sharpened instrument, knife or unauthorized tool.
Prison officials invoked the disciplinary procedures set forth in N.J.A.C.:4-9.1 et seq., and, after several postponements, a hearing took place on January 15, 1992.
Lonergan prepared written reports of his conversations with the two informants, but neither the names of the informants nor these reports were ever turned over to the plaintiff. The hearing officer, defendant Joseph A. Knowles, did review the Lonergan reports,
but never actually spoke with the informants. Thus, the only "evidence" at plaintiff's disciplinary hearing was a photograph of the offending knife and Knowles' in camera evaluation of Lonergan's reports.
Although N.J.A.C. 10A:4-9.14(a) does provide for confrontation and cross examination when the "Disciplinary Hearing Officer deems it necessary for an adequate presentation of the evidence, particularly when serious issues of credibility are involved," such confrontation was denied pursuant to 9.14(b) which permits the hearing officer to bar cross examination if it "would be unduly hazardous to correctional facility safety or goals."
Without revealing anything which might identify the informants, it suffices to say that neither informant had a prior history of providing reliable information, and both informants had a substantial self-interest in being perceived helpful by the authorities. Although Knowles noted in his written evaluation that "the information provided cannot be verified with certainty," he found the informants to be credible because "the informants were developed independent from each other and are not believed to be associates of each other . . . [and] the focus of their information was not the same, while still being corroborative of each other."
After evaluating the confidential information Knowles concluded that plaintiff would have to "provide overwhelming evidence" to overcome the informants accusations. As is probably not surprising, the evidence was not forthcoming. Although plaintiff was provided with a "counsel substitute" and given the opportunity to present evidence or call witnesses, he did neither and was found guilty.
Plaintiff was found guilty as charged and sanctioned with fifteen days of disciplinary detention, three hundred sixty-five days administrative segregation and three hundred thirty days of lost commutation time. N.J.A.C. 10A:4-5.1(a); N.J.A.C. 10A:4-10.1 et seq.; and N.J.A.C. 10A:5-3.1 et seq.
Following the procedure set forth in N.J.A.C. 10A:4-11.1 et seq., plaintiff appealed the finding of guilt and sanction to the superintendent of Bayside, defendant E. Calvin Neubert. This appeal was promptly denied.
Although the regulations do not specifically provide for a further administrative appeal, plaintiff wrote to Commissioner of Corrections, William H. Fauver, on May 16, 1992, protesting the result of the disciplinary proceedings. Something in the letter attracted Fauver's attention because on June 5, 1992, plaintiff was contacted by a prison official who arranged a polygraph test four days later. The outcome of this test apparently convinced officials that there was insufficient proof of plaintiff's guilt and the sanctions imposed at the disciplinary hearing were reversed, the records of the infraction were expunged from his file and plaintiff was released from administrative segregation.
Disciplinary Due Process
In Wolff v. McDonnell the court considered whether a prisoner who faced the possible loss of good time credits in a disciplinary proceeding had a constitutionally protected liberty interest which would impose procedural due process requirements on the conduct of that hearing. The answer was yes:
But the State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner's interest has real substance and is sufficiently embraced within Fourteenth Amendment "liberty" to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.