18-3050
Williams v. Korines

                                   In the
                       United States Court of Appeals
                          For the Second Circuit

                                       August Term 2019

                                    Argued: March 4, 2020
                                    Decided: July 20, 2020

                                      Docket No. 18-3050



                DANIEL WILLIAMS,
                                                     Plaintiff–Appellant,

                                                V.


                N. K ORINES, CORRECTIONAL SERGEANT, SHAWANGUNK
                CORRECTIONAL FACILITY; J.T. SMITH, SUPERINTENDENT,
                SHAWANGUNK CORRECTIONAL FACILITY; S. K OBER, O FFENDER
                REHABILITATION COORDINATOR, SHAWANGUNK CORRECTIONAL
                FACILITY; L. PINGOTTI, DEPUTY SUPERINTENDENT FOR SECURITY,
                SHAWANGUNK CORRECTIONAL FACILITY; A. RODRIGUEZ,
                ACTING DIRECTOR OF DISCIPLINARY PROGRAM ; D. UHLER,
                SUPERINTENDENT , UPSTATE CORRECTIONAL FACILITY; ANTHONY
                J. ANNUCCI, ACTING COMMISSIONER; M. LIBERTY,
                COMMISSIONER’S HEARING OFFICER,
                                                 Defendants–Appellees. *



                        Appeal from the United States District Court
                            for the Northern District of New York
                        No. 16-cv-1157 – Frederick J. Scullin, Jr., Judge.




*
    The Clerk of Court is respectfully requested to amend the caption as set forth above.
                                                                                 18-3050
                                                                      Williams v. Korines


Before:      LEVAL, HALL, and LYNCH, Circuit Judges.

      Daniel Williams, a state prisoner, brought an action against various
corrections officials alleging that (1) New York DOCCS Rule 105.13 banning gang
insignia or materials is unconstitutionally vague as applied to his photographs
depicting family and friends wearing blue and making hand signs and (2) his
placement in a special housing unit for six months following a prison disciplinary
hearing determination that he had violated Rule 105.13 by possessing those
photographs violated his due process rights. The district court (Scullin, J.) granted
summary judgment to the defendants on both issues. We agree that summary
judgment was proper. Accordingly, the judgment of the district court is
AFFIRMED.


                                 KATHERINE ANNE BOY SKIPSEY † (Michael Martin,
                                 Ian Weinstein, on the brief), Fordham Law School,
                                 Lincoln Square Legal Services, Inc., New York,
                                 NY, for Plaintiff-Appellant.

                                 BRIAN D. GINSBERG, Assistant Solicitor General
                                 (Barbara D. Underwood, Solicitor General, Victor
                                 Paladino, Senior Assistant Solicitor General, on the
                                 brief), for Letitia James, Attorney General for the
                                 State of New York, Albany, NY, for Defendants-
                                 Appellees.




†
 Katherine Anne Boy Skipsey, a law student, argued the case for Plaintiff-Appellant
Williams under the supervision of an attorney of Lincoln Square Legal Services, Inc. of
Fordham Law School pursuant to Local Rule 46.1(e).


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                                                                    Williams v. Korines

HALL, Circuit Judge:

      Plaintiff-Appellant Daniel Williams, who is presently incarcerated by the

State of New York, filed this action pursuant to 42 U.S.C. § 1983 against

Defendants N. Korines, J.T. Smith, S. Kober, L. Pingotti, A. Rodriguez, D. Uhler,

Anthony J. Annucci, and M. Liberty—all state corrections officials at Shawangunk

Correctional Facility, Upstate Correctional Facility, or the New York State

Department of Corrections and Community Supervision (“DOCCS”)—for

infringement of his due process and free speech rights under the United States

Constitution. The claims stem from prison disciplinary charges brought against

Williams for the possession of photographs depicting perceived signs of gang

affiliation. The charges resulted in Williams’s serving a six-month term in solitary

confinement and the confiscation of his photographs of family and friends wearing

blue and allegedly making gang-related hand signals.

      Defendants moved for summary judgment and the United States District

Court for the Northern District of New York (Scullin, J.), acting on the

recommendation of the magistrate judge (Dancks, M.J.), granted the motion.

Williams timely appealed. The questions presented on appeal are (1) whether New

York DOCCS Rule 105.13, banning possession of gang insignia or material, is




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unconstitutionally vague as applied to Williams’s photographs, and (2) whether

various actions of the hearing officers conducting his disciplinary hearings denied

him procedural due process.

                                  BACKGROUND

      Williams’s personal property was searched on September 11, 2014. 1 While

searching   Williams’s    possessions,    Defendant    Korines    identified    sixteen

photographs that he believed violated DOCCS Rule 105.13, which prohibits

inmates from possessing “gang insignia or materials,” because some of the

photographs depicted individuals wearing blue and making hand signs.

Defendant Korines issued Williams a misbehavior report for violating Rule 105.13.

In the report, Korines explained that Defendant Kober had also reviewed the

photographs. Kober “advised [Korines] that Williams, D. goes by the nickname

‘Cike Bike’ and has previously been identified as a Crip” and further advised that

the photographs appear to be “pictures related to a gang known as the Crips, in

violation of rule 105.13.” Misbehavior Report at 1.

      Defendant Hearing Officer Pingotti conducted a disciplinary hearing on

Williams’s misbehavior report over multiple days in September 2014. During the


1
  The general sequence of events is not seriously disputed; this description, except as
indicated, reflects that sequence viewed in the light most favorable to Williams.


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hearing, Williams’s sixteen original photographs, misbehavior report, contraband

receipt, and various clippings from magazines were made part of the

administrative record. Defendant Kober testified that he had received training in

gang identification. He explained that a hand forming a “C” is a Crip gang sign.

Kober identified individuals, some wearing the color blue, making the “C” sign in

eight of Williams’s photographs (photos 1, 2, 4, 6, 9, 11, 14, and 16).

      Williams disputed that the individuals in the pictures were making gang

signs. Rather than forming a “C,” he argued that their hands were “just down,”

Hearing Tr., Sept. 18, 2014, at 30 (photo 1); “just up,” id. at 39 (photo 14); making a

“B,” id. (photo 2); giving the middle finger, id. at 32, 35 (photos 6 and 11); holding

a cup, id. at 34 (photo 9); or forming closed fists, id. at 40 (photo 16). Kober rejected

most of these suggestions but agreed that it was possible that in one of the

photographs the individual’s hand was unintentionally forming a “C” (photo 4).

Kober explained that he and Korines confiscated the other eight photographs

because they contained names or images that Kober believed were related to the

Crips, but he was not certain. Hearing Officer Pingotti found no issues with those

photographs, but confiscated one anyway, explaining: “You claim it is a birthday

cake[], birthday candles in this, which there is clearly not.” Id. at 37. Pingotti later




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                                                                      Williams v. Korines

clarified that he confiscated this picture “to display that this inmate was less th[a]n

truthful at times during this hearing.” Superintendent Hearing Disposition at 2.

      In support of his argument that the hands in his photographs were not

intentionally forming “C” signs and instead making natural gestures, Williams

presented images from magazines of celebrities making hand gestures that

arguably, and presumably unintentionally, resembled “C” signs. In addition,

Williams testified that he had had the confiscated photographs in his possession

for at least a decade, and they were reviewed by guards at numerous prisons, and

were never before determined to be gang related. See e.g., Hearing Tr., Sept. 18,

2014, at 46 (“They scrutinize everything I have and not a time did they ever state

that those pictures [were gang material].”). Williams sought witness testimony

from Sergeant Cochran and Offender Rehabilitation Coordinator McCarthy,

guards at other prisons who had searched his pictures and had not concluded that

they were gang material, but Pingotti declined to allow Williams to call witnesses

at the hearing.

      Pingotti found Williams guilty of violating Rule 105.13 for possessing the

eight photographs that Kober identified as having “C” hand signs. On September

25, 2014, Pingotti imposed the following punishment: (1) six months in the Special




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                                                                  Williams v. Korines

Housing Unit (SHU); (2) loss of packages, commissary, and telephone privileges

during that time; and (3) confiscation of the photographs deemed to be

contraband. Williams appealed the hearing disposition to the DOCCS

Commissioner.

      Williams began serving six months in the SHU on September 25, 2014. On

December 5, 2014, on behalf of the Commissioner, Donald Venettozzi, Acting

Director of Special Housing and Inmate Disciplinary Program for DOCCS at the

time, affirmed Pingotti’s disciplinary decision. Williams completed his six months

in the SHU on March 25, 2015.

      Proceeding pro se, Williams filed an Article 78 proceeding in the New York

State Supreme Court, Appellate Division. The Appellate Division vacated and

remanded Pingotti’s disciplinary decision because Williams was not allowed to

call witnesses at the hearing. Williams v. Annucci, 137 A.D.3d 1355 (App. Div. 3d

Dep’t 2016).

      Williams, at this point incarcerated at Upstate Correctional Facility, was

afforded a second hearing beginning on April 4, 2016. At the second hearing,

conducted by Defendant Hearing Officer Liberty, Williams again argued that the

“C” signs in his photographs were common gestures and presented magazine




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                                                                       Williams v. Korines

clippings of celebrities unintentionally making similar gestures. This time the

administrative record included copies of the nine photographs deemed to be

contraband during the first hearing (renumbered photos 1–9) rather than the

original photographs. Williams requested to see his actual confiscated

photographs and complained that the copies were poor, but Liberty could not

locate the originals.

      During the second hearing, Williams was allowed to identify and request

the testimony of witnesses from other prison facilities to be called at the hearing,

but he could not speak to them before the hearing and could only question them

through Liberty. Officer Heely, who had training in identifying gang related

material, testified: “The C hand symbol is usually for the [C]rips.” Hearing Tr.,

Apr. 8, 2016, at 38. He reviewed the nine copies of Williams’s photographs and

identified “C” hand signs in two photographs (photos 4 and 5). In three other

photographs, Heely identified miscellaneous hand gestures that he did not know

the meaning of but believed were gang related, including “the pinky controlled

and the 3 fingers out,” id. at 35 (photo 1), and “finger spelling,” id. at 36 (photo 2);

see also id. at 38 (photo 3). Officer Heely did not identify gang material in two of

the photographs of people (photos 7 and 8), but noted in one picture that “[he]




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                                                                    Williams v. Korines

c[ould] see where that would be interpreted for a ‘C.’” Id. at 42–43. Heely also did

not identify gang material in the picture of the cake (photo 6). Whether Heely

identified a gang sign in the final photograph is unclear on the record before us:

the hearing transcript states “inaudible.” Id. at 43.

      During his questioning of Heely, Williams again argued that the hands were

not intentionally making gang signs. He claimed the individuals were gesturing

for a phone (photo 1), just open (photo 3), or giving the middle finger (photo 4).

And again, he provided pictures from magazines where individuals’ hands were

in positions that resemble a “C” sign. Heely believed that one of the magazine

clippings appeared to be a gang sign, but agreed the others were unintentional

gestures or waves and were not gang signs.

      Defendant Kober testified, explaining the significance of the “C” hand sign

and suggesting that blue clothing is another sign of the Crips. Hearing Tr., Apr.

19, 2016, at 101, 107. He added that the hand sign “Cs over Bs” means Crips over

Bloods. Id. at 101. He identified individuals, some wearing blue, gesturing “C” or

“Cs over Bs” in seven photographs. As to two photographs, Kober was not

confident enough to identify gang hand signs. When Williams asked about the

clippings from magazines, Kober agreed that he believed some of the individuals




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                                                                     Williams v. Korines

were making a “C” sign and explained that the magazine The Source was banned

from his department because it was “consistently having hand signs flashed in it.”

Id., at 23. Williams argued that Kober was biased against him and the misbehavior

report was a result of personal prejudice. Kober testified that he was not biased.

      Williams called prison teacher Todd Isabella, who had training in

identifying gang related material. Liberty provided Isabella with color and black

and white copies of Williams photographs which had circles around the hand

gestures. Williams objected, saying that the circles on his photographs as well as

Officer Liberty’s questioning prejudiced his witness. Isabella responded that “it’s

pretty self-evident [] regardless of any being circled that [] they are in fact gang

signs.” Hearing Tr., May 9, 2016, at 99.

      Like Kober and Heely, Isabella explained that the color blue and the hand

sign “C” are associated with the Crips. Isabella identified a “C” sign in one of

Williams’s photographs (photo 7). Isabella also stated that the hand signs “3 over

2, Crips over Bloods,” “six pointed star,” and “Crips rule” are associated with the

Crips. While noting that the photos were difficult to interpret because of the poor

quality, he identified Crips hand signs in three photographs. Hearing Tr., May 9,

2016, at 99 (photo 1: “3 over 2, Crips over Bloods”); 93 (photo 2: “six pointed star”;




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                                                                  Williams v. Korines

photo 4: “Crips rule”). In the middle of Isabella’s testimony, Officer Liberty

removed Williams from the hearing because he was repeatedly interrupting her.

Outside Williams’s presence, Liberty asked Isabella if he could identify gang

material in Williams’s magazine clippings and Isabella stated that he did not

believe they were gang related because “the difference is the intent . . . . [T]he

pictures that were confiscated from Mr. Williams indicate that these are in fact

members of a gang. [T]he intent’s obviously there. Where as these ads, I don’t see

it.” Id. at 100.

       In sum, the witnesses who reviewed Williams’s photographs agreed that at

least some of them depicted individuals making “C” hand signs: photo 4 (Heely

and Kober), photo 5 (Heely and Kober), photo 7 (Isabella, and possibly Heely and

Kober), photo 8 (possibly Heely and Kober). None of the witnesses identified gang

material in the photograph of the cake (photo 6). Only Kober identified C’s in

photos 1, 2, and 3. In some of these photographs, Isabella and Heely identified

different signs that they believed were associated with the Crips. The witnesses’

discrepancy could be explained by the quality of the copies of the photographs.

Kober is the only witness who had viewed the original photographs at the first

hearing. Heely and Isabella acknowledged their copies were of poor quality.




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                                                                       Williams v. Korines

Hearing Tr., Apr. 19, 2016, at 112 (“Officer Heely: [M]aybe [Kober’s] copy is

cleaner than mine is.”); Hearing Tr., May 9, 2016, at 93 (“Isabella: Some of them,

. . . they’re very difficult to make out with the [] quality of the photos.”).

      On May 9, 2016, at the end of the hearing, Defendant Liberty found Williams

guilty of violating Rule 105.13 and levied the punishment that Williams had

already completed after the first hearing. Williams again appealed, and Defendant

Rodriguez, Acting Director of Special Housing and Inmate Disciplinary Program,

affirmed the decision. On August 22, 2016, Williams requested that Rodriguez

reconsider his determination. Williams also sent a letter to the DOCCS Deputy

Commissioner stating that he had been found guilty of violating an

unconstitutionally vague rule.

      On September 22, 2016, Williams filed a § 1983 claim against Defendants for

violations of due process and argued that Rule 105.13 is unconstitutionally vague

as applied to his photographs. He asserted that he had possessed the photographs

at other facilities, they had been reviewed numerous times, and they had never

before been considered contraband. Williams sought declaratory and injunctive

relief, including the return of his confiscated photographs, and monetary

damages. Defendants moved for summary judgment, arguing that Williams had




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received adequate process at the disciplinary hearings and that Rule 105.13 is not

unconstitutionally vague.

      On August 1, 2018—nearly two years after Williams asked for

reconsideration from DOCCS—Donald Venettozzi, Director of Special Housing

and Inmate Disciplinary Program, administratively reversed the second finding of

Williams’s guilt because “circumstances surrounding the incident raise questions

to [sic] inmate’s culpability.” Venettozzi Memorandum, Aug. 1, 2018, at 1.

Williams had long since served the six months in the SHU, but the infraction was

expunged from his record, and Williams states that his original photographs were

returned to him.

      On August 31, 2018, reviewing Williams’s § 1983 claim, the magistrate judge

recommended granting summary judgment to the Defendants. The magistrate

judge found that Williams received adequate process at his second hearing

because he had notice of the charges, was able to call witnesses and present

evidence, had a neutral hearing officer, and received a written copy of the decision.

In addition, the magistrate judge found that Rule 105.13 was not vague because it

gave persons of ordinary intelligence fair notice of what conduct was prohibited.

The district court granted summary judgment against Williams, adopting the




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recommendations of the magistrate judge, upholding the constitutionality of the

Rule, and finding no due process violation.

      Williams timely appealed the district court’s decision.

                                    DISCUSSION

      “We review a district court’s decision to grant summary judgment de

novo, resolving all ambiguities and drawing all permissible factual inferences in

favor of the party against whom summary judgment is sought.” Burg v. Gosselin,

591 F.3d 95, 97 (2d Cir. 2010) (quoting Wright v. Goord, 554 F.3d 255, 266 (2d Cir.

2009) and citing Fed. R. Civ. P. 56(c)). “Summary judgment is appropriate only

when ‘the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.’” Fed. Trade Comm’n v.

Moses, 913 F.3d 297, 305 (2d Cir. 2019) (quoting Fed. R. Civ. P. 56(a)).

I. Vagueness Challenge

      We first consider whether Rule 105.13 is unconstitutionally vague as applied

to Williams’s photographs of individuals wearing blue2 and making “C” signs



2
 We note that none of the photographs that the hearing officer found to be gang-related
were identified as such solely because someone in the photo was wearing an item of blue
clothing. We therefore need not address the circumstances, if any, in which such a photo
could be held to violate the rule. Here, the focus of the proceeding was on the hand
gestures, and the references to blue clothing were at most corroborative of the witnesses’
conclusion that the hand gestures were gang insignia or materials.


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with their hands. We agree with the district court that it is not. “We examine as-

applied vagueness claims in two steps: . . . first [we] determine whether the statute

gives the person of ordinary intelligence a reasonable opportunity to know what

is prohibited,” and second we “consider whether the law provides explicit

standards for those who apply it.” Rubin v. Garvin, 544 F.3d 461, 468 (2d Cir. 2008)

(internal quotation marks omitted); see also Chatin v. Coombe, 186 F.3d 82, 87 (2d

Cir. 1999) (applying the test to determine if a DOCCS Rule of Inmate Behavior is

unconstitutionally vague as applied). “Limitations inherent in the English

language often prevent the drafting of statutes ‘both general enough to take into

account a variety of human conduct and sufficiently specific to provide fair

warning that certain kinds of conduct are prohibited.’” Perez v. Hoblock, 368 F.3d

166, 175 (2d Cir. 2004) (quoting Arnett v. Kennedy, 416 U.S. 134, 159–60 (1974)). We

have acknowledged, therefore, that “a statute or regulation is not required to

specify every prohibited act.” Id. (internal citation omitted).

      Williams argues that Rule 105.13 is unconstitutionally vague as applied to

him because the definitions of “gang” and “gang material” are too broad to (1)

provide adequate notice that photographs of people making hand signs violate the




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Rule and (2) cabin adequately the discretion of prison officials enforcing the Rule.

Rule 105.13 and the accompanying note provide:

      An inmate shall not engage in or encourage others to engage in gang
      activities or meetings, or display, wear, possess, distribute or use gang
      insignia or materials including, but not limited to, printed or
      handwritten gang or gang related material.

      Note: For purposes of this rule, a gang is a group of individuals,
      having a common identifying name, sign, symbol or colors, who have
      individually or collectively engaged in a pattern of lawlessness (e.g.,
      violence, property destruction, threats of harm, intimidation,
      extortion, or drug smuggling) in one or more correctional facilities or
      that are generally recognized as having engaged in a pattern of
      lawlessness in the community as a whole. For purposes of this rule,
      printed or handwritten gang or gang related material is written
      material that, if observed in the inmate’s possession, could result in
      an inference being drawn about the inmate’s gang affiliation, but
      excludes published material that that the inmate has obtained
      through the facility library or that has been approved for the inmate
      to possess through the media review process.

Rule 105.13, N.Y. Comp. Codes R. & Regs. tit. 7, § 270.2 (2008); see also Dist. Ct. Dk.

No. 16 at 27.

      To be sure, the language of the Rule is broad, but we are tasked with

examining the application of the Rule to Williams’s photographs. Perez, 368 F.3d

at 175 (“The evaluation of whether [the regulation] is vague as applied to Perez

must be made with respect to Perez’s actual conduct and not with respect to

hypothetical situations at the periphery of the regulation’s scope . . . .” (internal



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quotation marks and brackets omitted)). With respect to the definition of “gang,”

therefore, we need not consider whether hypothetical groups who commit minor

crimes could fall under the definition. The definition clearly covers the Crips, who

are identified by distinctive tattoos, blue clothing and blue bandanas, and are well

known for their acts of violence. See, e.g., Arizona v. Johnson, 555 U.S. 323, 328 (2009)

(blue bandanas); Samuel v. LaValley, 551 F. App’x 614, 618 (2d Cir. 2014) (summary

order) (blue clothing, violence); McTier v. People of New York, No. 07-CV-870 (DLI),

2009 WL 792087, at *1 (E.D.N.Y. Mar. 23, 2009) (blue clothing and bandanas,

violence); Dodge v. Cty. of Orange, 282 F. Supp. 2d 41, 48 (S.D.N.Y. 2003) (tattoos,

violence). Moreover, Williams was surely aware that the Rule covered material

associated with the Crips: he spent six months in the SHU in 2012 for possessing a

birthday card that said “bluetiful” (ostensibly a reference to the Crips’ identifying

color).

      We next consider the definition of “gang insignia or materials” as applied

to Williams’s photographs. The Rule explains that gang insignia or materials

“includ[e], but [are] not limited to, printed or handwritten gang or gang related

material.” Rule 105.13.




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      Considering both the Rule and the accompanying note, Defendant Liberty

provided the following interpretation: “For the purposes of Rule 105.13 printed

gang related material is the type of material that ‘if observed in the inmate’s

possession, could result in an inference being drawn about the inmate’s gang

affiliation.’” Superintendent Hearing Disposition at 4. Magistrate Judge Dancks

cited with approval the following similar interpretation of the Rule:

      It is quite clear, according to the rule, that a gang sign is something
      that another inmate would recognize as creating an inference of a
      particular gang affiliation. More specificity in the prison context
      would be impossible because . . . individuals could change the signs
      to avoid detection, interfering with the security and order of the
      facility.

App. at 211 (quoting Booker v. Maly, No. 9:12-CV-246 NAM/ATB, 2014 WL 1289579,

at *12 (N.D.N.Y. Mar. 31, 2014)). Williams argued to the district court that the

application of the note’s definition of “gang related material” to photographs was

erroneous because the note and the Rule clearly limit the ban on gang related

material to material that is written. The district court disagreed, citing the Rule’s

catch all provision “which includes but is not limited to.”

      It would be obvious to a person of average intelligence that the
      inclusion of the phrase “is not limited to printed or handwritten gang
      or gang related material” indicates that the Rule proscribes conduct
      involving items other than “written material.” In addition, a person
      of average intelligence would understand that the term “materials”



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          also includes photographs, among other things, as long as those items
          are “gang or gang related.” Photographs of hand gestures that gang
          members use to identify their membership in a gang could reasonably
          be considered to be “gang or gang-related” materials and, thus,
          possession of such photographs would be a violation of Rule 105.13.

App. at 226–27.

          In the same vein, Defendants offer the following “broad, but . . .

straightforward” interpretation: Rule 105.13 prohibits “‘Gang or gang related

material’ [which] is ‘material that, if observed in the inmate’s possession, could

result in an inference being drawn about the inmate’s gang affiliation.” Appellees’

Br. 25.

          According to these interpretations, Rule 105.13 prohibits not just “gang

insignia or materials,” but all gang related material. This requires that the note’s

inclusion of the word “written” be ignored, which violates a canon of construction

as “courts should disfavor interpretations of statutes that render language

superfluous . . . .” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253 (1992).

Although the note clarifies that “printed or handwritten gang or gang related

material” is “written material that . . . could result in an inference . . . about the

inmate’s gang affiliation,” nothing in the Rule or note prohibits possessing all

“gang related material.” Nor does the Rule or note suggest that nonwritten items




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that could result in an inference of gang affiliation automatically qualify as “gang

insignia or materials.”

      We are thus skeptical of the interpretations advanced by Defendant Liberty,

the magistrate judge, and the district court. But to prevail on an as-

applied challenge, Williams must have lacked notice that the particular materials

that he was punished for possessing were proscribed. We need not decide the full

scope of the Rule. Again, we must consider the Rule’s clarity in the context of how

it was enforced against Williams. Although Kober, Heely, and Isabella sometimes

had divergent interpretations of the same hand sign, all agreed that the “C” hand

sign is a symbol of the Crips, and all agreed that at least one of Williams’s

photographs included individuals wearing blue and making that sign.

      An individual of ordinary intelligence in Williams’s position would have

reason to believe that gang insignia or materials includes the gang’s “common

identifying name, sign, symbol or colors.” Photographs of individuals wearing

blue and intentionally making “C” signs, therefore, fit within any reasonable

understanding of the Rule.3 We hold that Williams had adequate notice that his



3
 Although one might conceivably read the explanatory note to the Rule as clarifying that
“printed . . . gang . . . material” is prohibited only when it is “written,” this does not
disturb our conclusion that an individual of ordinary intelligence had reasonable
opportunity to know that Williams’s photographs were prohibited. Even if the note so


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photographs were prohibited by Rule 105.13 and that the provision prohibiting

gang material was not vague under the first prong of our as-applied vagueness

analysis.

       Having held that Rule 105.13 provides adequate notice to Williams that his

photographs are prohibited, we turn to the second prong: whether the

Rule adequately cabins the discretion of those who apply it. See Farid v. Ellen, 593

F.3d 233, 243 (2d Cir. 2010). As a preliminary matter, it is hard to imagine a rule

with a catch-all provision that adequately cabins discretion. See id. (finding a rule

did not adequately cabin discretion when “the catch-all contraband rule allowed

prison officials to determine in their unbounded discretion what was and was not

‘specifically authorized’ in the facility.”).

       In an as-applied vagueness challenge where the statute does not provide

sufficiently clear standards to eliminate the risk of arbitrary enforcement, the

challenge may nonetheless fail when “even in the absence of such standards, the




limits the ban on “printed . . . gang . . . material,” it does not apply to “gang insignia.”
Any reasonable interpretation of “gang insignia” would include Williams’s photographs
depicting the identifying hand signs of the Crips. And, in any event, the formation of the
letter “C” in a printed photograph renders that photograph “written” material. See Write,
Merriam-Webster                                Online                           Dictionary,
https://www.merriamwebster.com/dictionary/write (last visited June 20, 2020) (defining
“write” as “to form (characters, symbols, etc.) on a surface with an instrument”).


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conduct at issue falls within the core of the statute’s prohibition, so that

the enforcement before the court was not the result of the unfettered latitude that

law enforcement officers and factfinders might have in other, hypothetical

applications of the statute.” Farrell v. Burke, 449 F.3d 470, 494 (2d Cir. 2006).

      We hold that Rule 105.13 provides adequate standards for prison guards to

determine whether pictures of people wearing blue and intentionally making “C”

hand signs are prohibited. For the same reasons that Williams had notice that the

Rule covered his photographs, so too did Korines and Kober. No reasonable

prison guard could have doubted that Williams’s possession of photographs of

people wearing blue and making “C” hand signs violated Rule 105.13 and,

therefore, there was no danger that the Rule’s enforcement would be arbitrary

with regard to Williams’s photographs.

II. Due Process Claim

      For the purpose of summary judgment, Defendants concede that Williams’s

punishment implicates a liberty interest. See Palmer v. Richards, 364 F.3d 60, 64 (2d

Cir. 2004) (“Palmer had no right to due process at his hearing unless a liberty

interest was infringed as a result.” (internal quotation marks and brackets

omitted)). In a prison disciplinary hearing, due process rights provide that “at a




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minimum, a prisoner is entitled to be confronted with the accusation, informed of

the evidence against him and afforded a reasonable opportunity to explain his

actions.” Francis v. Coughlin, 891 F.2d 43, 47 (2d Cir. 1989) (internal quotation

marks and ellipsis omitted). More specifically, an inmate must receive “advance

written notice of the charges against him; a hearing affording him a reasonable

opportunity to call witnesses and present documentary evidence; a fair and

impartial hearing officer; and a written statement of the disposition, including the

evidence relied upon and the reasons for the disciplinary actions taken.” Sira v.

Morton, 380 F.3d 57, 69 (2d Cir. 2004).

      Williams alleges procedural due process violations in his first disciplinary

hearing, including refusal to call witnesses. We agree with the district court that

all claims relating to the first hearing are moot given that the Article 78 proceeding

vacated the first guilty finding and remanded for a new hearing and that when

Williams was found guilty the second time, the hearing officer gave him credit for

the prior punishment. That is, Williams’s confinement was attributable to the

second hearing and his first hearing did not deprive him of due process. Horne v.

Coughlin, 155 F.3d 26, 31 (2d Cir. 1998) (“We need not discuss [the plaintiff’s]

contention that his rights were violated at the first hearing, because it became a




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                                                                    Williams v. Korines

nullity. All findings and penalties imposed at the first hearing were vacated, and

all the penalties [the plaintiff] suffered were imposed at the second hearing.”).

      Williams’s pro se brief (filed before he was appointed pro bono counsel)

alleges additional due process violations during his second hearing, including

insufficiency of the evidence, denial of notice, failure to present untainted

documentary evidence and verbal testimony, hearing officer bias, and removal

from the hearing. Assuming arguendo that these claims survive, they are either

unsupported by evidence or were harmless, and therefore summary judgment

was appropriate.

      Williams argues that none of his pictures are gang material—and therefore

there is insufficient evidence to support Liberty’s guilty determination—because

Director Venettozzi reversed the second disciplinary ruling and the prison

returned Williams’s original photographs. Reversal of the disciplinary ruling does

not, however, automatically establish Williams’s federal claim because New

York’s “sufficiently relevant and probative information to constitute substantial

evidence” standard is more stringent than the “some evidence standard necessary

to afford due process.” Sira, 380 F.3d at 76 n.9 (internal quotation marks omitted).

The documentary evidence and testimony of three witnesses with training in gang




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identification provide “some reliable evidence” that some of Williams’s

photographs depicted individuals wearing blue and gesturing “C,” and that those

are symbols of the Crips. See Superintendent, Massachusetts Corr. Inst., Walpole v.

Hill, 472 U.S. 445, 455–56 (1985) (“[T]he relevant question is whether there is any

evidence in the record that could support the conclusion reached by the

disciplinary board.”); see also Sira, 380 F.3d at 69 (“[T]he ‘some evidence’ standard

requires some ‘reliable evidence.’”).

      With respect to notice of the accusation, it is undisputed that Williams

received the misbehavior report with the names of the guards who conducted the

search, the date and time of the search, and an explanation that the guards

determined that sixteen of Williams’s photographs depicted hand signs that were

associated with the Crips. These facts provide sufficient detail to allow Williams

to prepare a defense. Cf. Taylor v. Rodriguez, 238 F.3d 188, 192–93 (2d Cir. 2001)

(finding that a misbehavior report with “vague or conclusory” allegations from

confidential informants did not provide notice).

      Regarding Williams’s claim that the documentary evidence shown to

Isabella was tainted, Williams agreed that the color prints presented at the second

hearing were accurate copies of his photographs. The circles on photographs,




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while suggestive, were harmless because Isabella reviewed unmarked copies of

the photographs before the hearing and explained that it was “self-evident” that

people in the photographs were making gang signs. See, e.g., Powell v. Coughlin,

953 F.2d 744, 750 (2d Cir. 1991) (applying harmless error analysis to prison

disciplinary proceeding).

      In addition, Williams presents no evidence that Officer Liberty prejudged

the evidence, see e.g., Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir. 1990), or

otherwise demonstrated bias. “[A] plaintiff-inmate armed with nothing more than

conclusory allegations of bias and prejudgment should not be able to defeat a well-

supported motion for summary judgment.” Francis, 891 F.2d at 47. Our review of

the record reveals no evidence of bias to support Williams’s claim. At the second

hearing, Liberty allowed Williams to call witnesses, raise objections, and testify. In

addition, Liberty recalled witnesses for further questioning in response to

Williams’s claims of bias. Moreover, Liberty explained that her guilty

determination was supported by the testimony of Kober, Heely, and Isabella who

had training in identifying gang related materials and all agreed that some of the

hand signs in Williams’s photographs were a symbol of the Crips.




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      Finally, with respect to Williams’s removal from the hearing, there was no

due process violation. In a criminal trial, a defendant who continues disruptive

behavior after repeated warnings can lose his right to be present in the courtroom.

See Illinois v. Allen, 397 U.S. 337, 343 (1970) (noting that the behavior must be “so

disorderly, disruptive, and disrespectful of the court that [the defendant’s] trial

cannot be carried on with him in the courtroom”). Here, Williams continued to

talk over Officer Liberty and wag his finger at her after she gave him multiple

warnings and told him that he would be removed if he continued to interrupt her.

Whatever the extent of a prisoner’s due process rights in a prison disciplinary

hearing, they are surely no greater than those accorded a defendant in a criminal

trial. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Whatever right Williams had

to be present at his disciplinary proceeding was lost when he continued the

disruptive and disrespectful behavior after Liberty’s multiple warnings.

      In sum, we agree with the district court that Williams received a hearing

that provided the minimal requirements of procedural due process. We have

considered Williams’s remaining arguments and find them to be without merit.




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                              CONCLUSION

    For the foregoing reasons, the district court’s grant of summary judgment is

AFFIRMED.




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