Giano v. Goord, Docket No. 98-2619
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Citation | 250 F.3d 146 |
| Docket Number | Docket No. 98-2619 |
| Parties | (2nd Cir. 2001) JULIO F. GIANO, Plaintiff-Appellant, v. GLENN GOORD, Commissioner, Department of Correctional Services, DONALD SELSKY, Director, Special Housing Programs, FRANK IRVIN, Superintendent, Wende Correctional Facility, ROY HENNEBERG, Deputy Superintendent of Security, JEFFREY SKINNER, Captain, Wende Correctional Facility, WALTER SHANNON, Lieutenant, Wende Correctional Facility, JAMES BURKE, Sergeant, Wende Correctional Facility, TIMOTHY JEZIORSKI, Sergeant, Wende Correctional Facility, THOMAS LAMB, MICHAEL BISHOP, GARY KEOHANE, E. McEVOY, HOWARD BRENNAN, JOHN BARBERA, JOHN DOE, Correctional Officers, Wende Correctional Facility, Defendants Appellees |
| Decision Date | 01 August 1999 |
Page 146
v.
GLENN GOORD, Commissioner, Department of Correctional Services, DONALD SELSKY, Director, Special Housing Programs, FRANK IRVIN, Superintendent, Wende Correctional Facility, ROY HENNEBERG, Deputy Superintendent of Security, JEFFREY SKINNER, Captain, Wende Correctional Facility, WALTER SHANNON, Lieutenant, Wende Correctional Facility, JAMES BURKE, Sergeant, Wende Correctional Facility, TIMOTHY JEZIORSKI, Sergeant, Wende Correctional Facility, THOMAS LAMB, MICHAEL BISHOP, GARY KEOHANE, E. McEVOY, HOWARD BRENNAN, JOHN BARBERA, JOHN DOE, Correctional Officers, Wende Correctional Facility, Defendants Appellees.
August Term, 1999
FOR THE SECOND CIRCUIT
Final submission October 27, 2000
Decided May 16, 2001
Appeal from a judgment of the United States District Court for the Western District of New York (Charles J. Siragusa, Judge) dismissing sua sponte incarcerated plaintiff's 42U.S.C.§1983 claims pursuant to 28U.S.C. §1915(e) and 42 U.S.C. § 1997e(a).
Affirmed in part; vacated and remanded in part.
Page 147
PETER A. SULLIVAN, Hughes, Hubbard & Reed LLP, New York, NY, and Julio F. Giano, Comstock, NY, pro se, for Plaintiff-Appellant.
MARTIN A. HOTVET, Assistant Solicitor General, State of New York, Albany, NY for "Defendants-Appellees."*
Before: FEINBERG, KEARSE, and SACK, Circuit Judges.
SACK, Circuit Judge:
Plaintiff-appellant Julio F. Giano appeals from a judgment of the United States District Court for the Western District of New York (Charles A. Siragusa, Judge) that, inter alia, dismissed without prejudice plaintiff's claims under 42 U.S.C. §1983 regarding allegations of retaliation and faulty prison drug-testing procedures, and dismissed with prejudice plaintiff's 42 U.S.C. §1983 claims regarding allegations that Giano was deprived of privacy rights
Page 148
under the Fourth Amendment of the United States Constitution as applied to the States under the Fourteenth Amendment, and due process rights under the Fourteenth Amendment. See Giano v. Goord, 9F.Supp.2d 235 (W.D.N.Y. 1998). We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.
The allegations in Giano's complaint are described in some detail in Giano, 9 F. Supp. 2d at 236-39. For purposes of our disposition of this appeal, the following outline of those allegations will suffice.
In June 1995, Giano, then an inmate at the Auburn Correctional Facility in New York, led a protest against actions taken by the New York Department of Correctional Services there. Shortly thereafter, Giano was transferred to another prison, apparently the Wende Correctional Facility. In November 1995, while incarcerated at Wende, Giano filed a lawsuit unrelated to the present action alleging that Wende officials had retaliated against him for the actions Giano had taken while at Auburn.
In September 1996, one of the defendants, a correctional officer at Wende, received what he said was a confidential report about Giano, which falsely asserted that Giano had been using marijuana. Giano was therefore given a urine test, which he failed. The procedures for taking and testing urine samples were not secure, enabling several of the defendants deliberately to contaminate Giano's sample in order to produce the false positive result.
Giano further alleges that a false misbehavior report charging marijuana use by Giano, based on the rigged results of the urine test, was then filed by two of the defendants. The resulting disciplinary hearing, rife with violations of Giano's procedural due process rights, resulted in his serving thirty-five days in keeplock with loss of privileges, although the charges against him were eventually dismissed.
In November of the same year, after Giano visited with his mother as part of a "family reunion" program, he was asked to give another urine sample. In order to further retaliate against Giano, the persons named as defendants in the complaint contaminated this sample so that it too would test positive for marijuana. Another false misbehavior report followed. At the ensuing disciplinary hearing, Giano was found guilty of marijuana use, and was sentenced to, among other things, thirty days of keeplock, loss of privileges and suspension for one year from the family reunion program.
In May 1997, Giano filed a complaint in the United States District Court for the Western District of New York making the foregoing allegations against the defendants and asserting ten causes of action under 42U.S.C.§1983 against them. Count one alleges a violation of Giano's Fourth Amendment rights in the course of procurement of his urine samples. Counts two, three, four, and five set forth claims of retaliation alleging that samples of his urine were not kept in tamper-proof bottles and were not stored in a secure room, thus allowing the conspiring persons named as defendants to contaminate them with marijuana in retaliation against the plaintiff for filing the earlier §1983 action. Counts six, seven, eight, and nine allege various due process violations in connection with Giano's disciplinary hearings. Count ten challenges the constitutionality of the drug testing procedures at Wende.
Before Giano could cause his complaint to be served, the district court, sua sponte, dismissed it in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 42 U.S.C. §1997e(a). See Giano, 9 F. Supp. 2d at
Page 149
239. The district court dismissed counts one, six, seven, eight, and nine with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. See Giano, 9 F. Supp. 2d at 240-42. The district court dismissed the remainder of Giano's complaint-- counts two, three, four, five, and ten-- without prejudice because the court found that Giano had failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). See Giano, 9 F. Supp. 2d at 239-40. Giano appealed.
The appeal was submitted to this Court on January 4, 2000. We subsequently ordered that counsel be appointed for Giano and that supplemental briefs be submitted by such counsel and by the Attorney General of the State of New York addressing:
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