Breazil v. Bartlett, 95-CV-1016T (H).

• Decision Date: 29 September 1997
• Docket Number: No. 95-CV-1016T (H).,95-CV-1016T (H).
• Citation: 998 F.Supp. 236
• Parties: Aaron BREAZIL, Plaintiff, v. George J. BARTLETT, Michael Rabideau, DSA, and John Burge, Deputy Superintendent of Security, Defendants.
• Court: U.S. District Court — Western District of New York

998 F.Supp. 236

Aaron BREAZIL, Plaintiff, v. George J. BARTLETT, Michael Rabideau, DSA, and John Burge, Deputy Superintendent of Security, Defendants.

No. 95-CV-1016T (H).

United States District Court, W.D. New York.

September 29, 1997.

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ORDER

TELESCA, District Judge.

Plaintiff, Aaron Breazil, a prisoner proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 alleging that his civil rights were violated by defendants, George Bartlett, Michael Rabideau, and John Burge. By motion dated November 15, 1996, defendants moved for summary judgment against the plaintiff. By motion dated November 27, 1996, plaintiff cross-moved to amend the complaint and for appointment of counsel. On April 22, 1997, this case was referred to United States Magistrate Judge Carol E. Heckman, for all proceedings necessary to determine the merits of the factual and legal issues presented by the action.

Pursuant to that order, on May 1, 1997, Magistrate Judge Heckman issued a Report and Recommendation recommending that defendants' motion for summary judgment be granted, and plaintiff's motion to amend and for appointment of counsel be denied. By order dated May 7, 1997, and pursuant to plaintiff's letter request, plaintiff's time to object to the Report and Recommendation was extended until May 30, 1997. Plaintiff, however, has failed to object to the Report and Recommendation.

There being no objection to the May 1, 1997 Report and Recommendation of Magistrate Judge Heckman, I hereby adopt the Magistrate Judge's findings and conclusions, and grant defendants' motion for summary judgment, and deny plaintiff's motion to amend and for appointment of counsel. Accordingly, this case is dismissed with prejudice.

ALL OF THE ABOVE IS SO ORDERED.

HECKMAN, United States Magistrate Judge.

REPORT AND RECOMMENDATION AND ORDER

This case has been referred to the undersigned by Hon. Michael A. Telesca, pursuant to 28 U.S.C. § 636(b)(1), for pretrial matters and to hear and report on dispositive motions. Defendants have filed a motion for summary judgment (Item 22) pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has responded to this motion, and has filed a motion for leave to amend or supplement his complaint (Item 30) and a motion for appointment of counsel (Item 45). For the reasons that follow, it is recommended that defendants' motion for summary judgment be granted. Plaintiff's motions to amend/supplement and for appointment of counsel are denied.

BACKGROUND

On June 27, 1995, J.C. Sullivan, a Corrections Officer at the Elmira Correctional Facility maintained by the New York State Department of Correctional Services ("NYSDOCS"), issued an Inmate Misbehavior Report charging plaintiff with throwing a cup full of feces and urine on Sullivan and Corrections Counselor Christine Jussaume, in violation of Rules 100.11¹ and 118.22² of the NYSDOCS Institutional Rules of Conduct/Standards of Inmate Behavior (Item 23, Ex. 20). At the time, plaintiff was confined in the Elmira facility's Special Housing Unit ("SHU").³ As a result of this incident, plaintiff was moved to a cell with a plexiglas shield and placed on a restricted diet, in accordance with NYSDOCS regulations and directives. See 7 N.Y.C.R.R. §§ 304.2 (restrictive diet), 305.6 (cell shield); NYSDOCS Directive No. 4933(VII)(A) (restricted diet), & (VIII)(F) (cell shield). The cell shield order was signed by Sgt. R.N. Latterell (Item 23, Ex. 168) and authorized by acting Deputy Superintendent John Burge (id., Ex. 167). The pre-hearing restricted diet order was signed by both Burge and Superintendent George Bartlett (id., Ex. 29). Plaintiff remained on the restricted diet, consisting of a one-pound "Nutriloaf" (whole wheat flour, sugar, carrots, potatoes, whole and packaged milk and yeast) and one cup of raw cabbage served three times a day (see id., Ex. O; see also Trammell v. Coombe, 170 Misc.2d 471, 649 N.Y.S.2d 964, 967 (N.Y.Sup.1996)), until July 4, 1995 (Item 23, Ex. 29; Item 38, ¶ 6).

A disciplinary hearing was held on July 13, 1995 before Hearing Officer Michael Rabideau. Plaintiff was found guilty of the charges in the misbehavior report, and was assessed a penalty of 45 days restricted diet, an additional 36 months SHU confinement and loss of recreational, package, commissary and telephone privileges, and 24 months loss of good time credits (Item 43, Exs. 14-15). During the period from July 31, 1995, to September 25, 1995, plaintiff was served a restricted diet for seven consecutive days followed by two days of regular meals (Item 39, Ex. S).

On September 14, 1995, NYSDOCS Director of Special Housing/Inmate Discipline Donald Selsky reversed the July 13, 1995 hearing determination and ordered a rehearing, based on the hearing officer's "[f]ailure to provide written reason for denial of requested witness" (Item 43, Ex. 13). Plaintiff's rehearing was held on September 28, 1995 before Hearing Officer Larry Bates. Plaintiff refused to attend the hearing (Item 39, Ex. 1(B)). Relying on the June 27, 1995 misbehavior report, photographs of plaintiff's cell, and other documentary evidence, and considering plaintiff's refusal to present evidence or witnesses in his defense. Hearing Officer Bates found plaintiff guilty of the charges in the misbehavior report. He imposed a penalty of 365 days SHU confinement and loss of recreational, package, commissary and telephone privileges, 12 months loss of good time credits, and 35 days restricted diet (Item 23, Exs. 17-19). On October 3, 1995, Captain G.D. Aidala amended the hearing officer's disposition to give plaintiff credit for time already served on restricted diet (Item 23, Ex. 24).

On October 10, 1995, plaintiff filed this action pro se in the Northern District of New York, pursuant to 42 U.S.C. § 1983. In his complaint, plaintiff claims that Bartlett and Burge violated his rights under the equal protection clause and the eighth amendment to the United States Constitution by ordering his pre-hearing cell shield confinement and restricted diet. Plaintiff also claims that Rabideau's conduct of the hearing on July 13 1995, and the disciplinary penalty that resulted, violated his fourteenth amendment due process rights, and that the conditions of his confinement (including inadequate ventilation in the shielded cell and a nutritionally deficient restricted diet) violated his eight amendment right to be free from cruel and unusual punishment.

On November 13, 1995, Magistrate Judge Ralph Smith entered an order transferring the case to this district (Item 6). On February 27, 1996, Judge David G. Larimer granted plaintiff's application to proceed in forma pauperis, and dismissed the complaint to the extent that it stated a claim against Corrections Officer Mark Taylor for lack of personal involvement in the alleged constitutional violations (Item 7).

Defendants Bartlett, Burge and Rabideau now move for summary judgment. Plaintiff has moved for leave to file an amended or supplemental complaint to challenge the constitutionality of the September 28, 1995 hearing and the resulting disciplinary penalty, and for appointment of counsel to assist him in litigating his claims. Each of these motions is discussed in turn below.

DISCUSSION

I. Defendants' Motion for Summary Judgment.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 166-67 (2d Cir.1991), and must give extra latitude to a pro se plaintiff. McDonald v. Doe, 650 F.Supp. 858, 861 (S.D.N.Y.1986).

Defendants Bartlett, Burge and Rabideau move for summary judgment on the following grounds:

1. That plaintiff's cell shield confinement and restricted diet, both prehearing and post-hearing, did not violate his eighth amendment right to be free from cruel and unusual punishment;

2. That plaintiff has no protected liberty interest in remaining free from cell shield confinement;

3. That the administrative reversal of his July 13, 1995 hearing cured any due process violations which may have occurred at that hearing; and,

4. That the defendants are entitled to qualified immunity.

Each of these grounds is now discussed in turn.

A. Eighth Amendment.

The eighth amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials. Romano v. Howarth, 998 F.2d 101, 104 (2d Cir.1993)(citing Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), and Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). The core inquiry for the court in assessing a prisoner's claim that prison officials subjected him or her to cruel and unusual punishment is whether the prison officials acted "in a good-faith effort to maintain or restore prison discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).

An inmate claiming that prison officials subjected him or her to cruel and unusual punishment has the burden of establishing both an objective and a subjective component. Romano v. Howarth, supra, 998 F.2d at 105. Objectively, the plaintiff must establish that the deprivation alleged is sufficiently serious or harmful enough to reach constitutional dimensions. Id.; see also Wilson v. Seiter, supra. Subjectively, the...