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Albert v. Karnes

November 24, 2008


The opinion of the court was delivered by: Yvette Kane, Chief Judge Middle District of Pennsylvania

(Chief Judge Kane)



Plaintiff Derrick T. Albert ("Albert"), an inmate currently incarcerated at the State Correctional Institution at Smithfield, in Huntingdon, Pennsylvania ("SCI-Smithfield"), filed this civil rights complaint pursuant to 42 U.S.C. § 1983 against several prison officials from the Lebanon County Correctional Facility ("CCF-Lebanon") in Lebanon, Pennsylvania (collectively, "Defendants").*fn1 (Doc. No. 1.) On March 19, 2008, the Court granted, in part, Defendants' motion to dismiss the complaint. (Doc. No. 22.) One due process claim relating to witnesses at Albert's disciplinary hearing remains. Defendants have filed a motion for summary judgment with respect to the remaining claim. (Doc. No. 25.) For the reasons that follow, the motion for summary judgment will be granted.


Defendants seek summary judgment in part on the grounds that there existed a reasonable basis for refusing to allow Albert to call additional witnesses at his disciplinary hearing. The background is as follows.*fn2

On October 29, 2006, Defendant Hoch approached Albert in CCF-Lebanon's Restricted Housing Unit ("RHU"), where the two exchanged words.*fn3 Albert's recollection of their exchange is as follows:

He asked me, "Why did I put his own job in jeopardy." I told him, "He put his own job in jeopardy when he started talking to inmates about me." He said, "You are going to believe what an inmates [saids] I says [sic] over an officer?" I said, "Yes." He made a very disturbing comment. He stated, "Well they will believe me before they believe you." I asked him what he meant. He said, "You'll see." (Doc. No. 1 at 4.) Defendant Hoch filed a misconduct report addressing this exchange. He, however, provided another version of the exchange:

Inmate Derek Albert stated, "Other inmates are telling me that you are dropping my name as a snitch." I informed him, "I am here to do my job, and my job only. At no point did I say anything to any inmate about him." At this point, inmate Derek Albert stated, "You know what, I don't care about that f***ing badge anymore, if you are in here when my cell is open, you are getting your f***ing a** kicked. I'm tired of this f***ing bullshit." Inmate Derek Albert was informed he will receive a major misconduct for threatening an officer. He then stated, "I don't give a f*** what you f***ing do. We'll see what happens a**hole."

M.D. Pa. L.R. 56.1. In this case, Defendants have submitted a statement of material facts. (Doc. No. 26.) Albert filed a counterstatement of material facts; however, the only disputed issue of material fact set forth by Albert that can be construed as relating to the remaining claim is his statement, "Whether plaintiff was denied due process during a misconduct hearing." (Doc. No. 31.) This general assertion, however, makes no reference to the record.

(Id. at 13.) Based on this language cited in Defendant Hoch's report, Albert was charged with threatening an officer and gross disrespect towards an officer. (Id.)

After the report was filed, Albert was informed that he would be provided a disciplinary hearing before CCF-Lebanon's Disciplinary Board ("Board") to address his statements made to Defendant Hoch. The Chairman of the Board, Michael Stuckey, conducted the disciplinary hearing on November 2, 2006.*fn4 (Doc. No. 26 at ¶ 5.) Albert was read his Miranda warnings prior to the hearing, and exercised his right to remain silent after indicating he had turned over all relevant evidence to his lawyer. (Id. at ¶12.) Albert did not testify on his own behalf, (id. at ¶ 13), but was permitted to call one witness, (id. at ¶ 14.) Albert's witness, Manuel Almestica, read the following prepared statement:

My name is Manuel Almestica and I'm writing on behalf of Derrick Albert that I was standing right their [sic] when Mr. Albert call Mr. Hoch over to the gate to ask him a question. It took place around 8:00 am this morning. Mr. Albert ask Mr. Hoch why is he sending rumors about Mr. Albert writing a slip on somebody. It wasn't no problem then. And around 12:15 Mr. Hoch came back and ask Mr. Albert why are you trying to get me fired, I only come here to do my job. Mr. Albert then said doing your job doesn't give you a reason to talk to an inmate about me. And then Mr. Hoch said I didn't say anything about you to anybody. Mr. Albert then said I'm going to believe an inmate before I believe a correction officer and we will get this straight on Monday when we talk to the warden. Mr. Hoch then said they will believe an officer before they believe Mr. Albert. Mr. Hoch left and Officer Shirk return with a disciplinary report. And at the time I, Manuel Almestica, read the report. Ain't no time did Mr. Albert threatening Mr. Hoch. (Doc. No. 25-4 at 7.) Mr. Stuckey considered Mr. Almestica's statement simply a general denial that Albert had committed any misconduct, and thus found his statement lacked credibility. (Doc. No. 26 at ¶¶ 17-18.)

Albert also indicated that he wished to call additional RHU inmates as witnesses to testify on his behalf, but did not provide any reasoning for the need to call these additional witnesses, such as how their testimony would have differed from that of Mr. Almestica. (Doc. No. 26 at ¶¶ 19-20.) In fact, the Board was aware that five days had elapsed from the time of Albert's conduct in question to the time of the hearing. (Doc. No. 26 at ¶ 21.) Based on his experience with Board proceedings, Mr. Stuckey has found that when such periods of time elapse between an alleged misconduct and a disciplinary hearing, inmates discuss testimony and try to collaborate in forming a consistent story for the Board. (Id. at ¶ 22.) As a result, Mr. Stuckey reasonably believed that if he permitted Albert to call additional witnesses who would make general denials of Albert's misconduct, it would undermine the authority of the Board "while making a mockery of a serious disciplinary proceeding." (Id. at ¶ 24.) Based on this reasoning, the Board determined that additional witness ...

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