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SCHUMATE v. NEW YORK

April 12, 1974

Richard SCHUMATE, Plaintiff,
v.
The PEOPLE OF the STATE OF NEW YORK and its agents, namely, Comm. Peter Preiser, et al., Defendants


Lasker, District Judge.


The opinion of the court was delivered by: LASKER

LASKER, District Judge.

Plaintiff, a state prisoner, presently incarcerated in the Clinton Correctional Facility in Dannemora, New York, brings this action against the State Commissioner of Correctional Services and several correctional officers, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3).

 Plaintiff alleges that, while incarcerated in Green Haven Correctional Facility in Stormville, New York, he was a member of the work-release program, and as such, permitted to attend church services off prison grounds. On one occasion, two members of the program (but not himself, as was apparently claimed by prison officials) were observed by correctional officers in the company of a woman on church grounds. Plaintiff claims that following a visit from his wife on the same day, during which he and his wife were allegedly insulted by prison officers, he was summarily placed "in the box", (a form of punitive segregation) for a week, as punishment for the incident on church grounds; that he then was permitted a seven day furlough, but replaced in segregation upon his return for another five days, and then transferred to Clinton. Plaintiff further alleges that certain personal effects (chiefly clothing) valued at $500. were seized upon his return to Green Haven from furlough, and have not been forwarded to him at Clinton despite his efforts to locate them.

 I.

 Plaintiff's first claim is that his transfer to Clinton was a reprisal for the incident on church grounds and that he was entitled to a hearing prior to the transfer. The claim lacks merit. The New York Commissioner of Corrections, through his agents, is empowered to transfer inmates from one facility to another. Correction Law, § 23 McKinney's Consol. Laws, c. 43, 1973-4 Supp. A transfer between two correctional institutions of similar character and security classification is within the administrative discretion of state correctional officials. Wells v. McGinnis, 344 F. Supp. 594, 596 (S.D.N.Y. 1972); Bundy v. Cannon, 328 F. Supp. 165, 173 (D. Md. 1971); United States ex rel. Verde v. Case, 326 F. Supp. 701, 704 (E.D. Pa. 1971). The only situation in which allegations that no hearing was held prior to transfer state a § 1983 claim is where the character of the confinement is substantially changed, raising the inference that the transfer is punitive, rather than purely administrative. See Newkirk v. Butler, 364 F. Supp. 497 (S.D.N.Y. 1973) (transfer from medium to maximum security institution as alleged punishment for assertion of first amendment rights). United States ex rel. Schuster v. Herold, 410 F.2d 1071 (2d Cir.) cert. denied, 396 U.S. 847, 90 S. Ct. 81, 24 L. Ed. 2d 96 (1969) (due process safeguards required in transfer from prison to a prison mental hospital). However, plaintiff's case does not fall within this exception, since he was transferred from one maximum security facility to another, and he does not allege that any punitive measures were imposed upon his arrival at Clinton, cf. Bundy v. Cannon, supra. Consequently, the motion to dismiss as to plaintiff's first claim is granted.

 II.

 Plaintiff's second claim, that he and his wife were defamed by correctional officers following the incident on church grounds must also be dismissed. A claim of defamation is not encompassed within 42 U.S.C. § 1983, since defamation involves no infringement of a constitutional right. Rosenberg v. Martin, 478 F.2d 520 (2d Cir.) cert. denied, 414 U.S. 872, 94 S. Ct. 102, 38 L. Ed. 2d 90 (1973); Heller v. Roberts, 386 F.2d 832 (2d Cir. 1967). Accepting plaintiff's allegations as true, and in no way minimizing his possible humiliation, "not every push or shove . . . violates a prisoner's constitutional rights." Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973).

 III.

 Plaintiff's third claim relates to his being placed "in the box", then released for furlough, and, on his return, being put back "in the box" until his transfer to Clinton five days later.

 The facts alleged by plaintiff as to the circumstances of his segregation are unclear. He raises no objections as to the hygienic conditions of his confinement or their pallatability, Wright v. McMann, 387 F.2d 519 (2d Cir. 1967); LaReau v. MacDougall, 473 F.2d 974 (2d Cir. 1973), and the complaint does not indicate whether plaintiff was placed in punitive segregation or mere disciplinary keep-lock.

 Because the defendants have not filed affidavits relating to the incidents in question, we must rely solely upon plaintiff's affidavit. See, e.g., Baynes v. Ossakow, 336 F. Supp. 386, 389-390 (E.D.N.Y. 1972). Accepting the truth of plaintiff's allegations, he was placed in segregation, removed from it when his wife arrived a week later and given what appears to be a modified Superintendent's Hearing. As a result of the hearing, at which correction officers testified against him, he was released on furlough. Not every disciplinary lock-up or keep-lock constitutes a deprivation of constitutional rights. Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740 (1972). Sczerbaty v. Oswald, 341 F. Supp. 571, 573 (S.D.N.Y. 1972). Although allegations of unnecessarily restrictive, protracted security not reasonably related to prison discipline state a claim under § 1983, Walker v. Mancusi, 338 F. Supp. 311 (W.D.N.Y. 1971), aff'd, 467 F.2d 51 (2d Cir. 1972), Smoake v. Fritz, 320 F. Supp. 609 (S.D.N.Y. 1969), even given the liberality with which pro se pleadings are to be construed, Haines v. Kerner, 404 U.S. 519, 521, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1971), plaintiff's allegations are not sufficiently particularized to state a deprivation of due process. Indeed, it is difficult to understand what deprivation of due process he intends to state.

 Consequently, defendants' motion to dismiss is granted as to this claim unless within thirty days of the entry of this order, plaintiff amends his complaint with regard to his claims as to segregation and due process with greater specificity.

 IV.

 Plaintiff alleges his summary removal from the work-release program constitutes a denial of due process, citing Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), which held that a hearing was required before revocation of parole. By statute, Correction Law, § 851 et seq., the work-release program enables inmates of state correctional facilities to spend several working days per week off the prison grounds in gainful employment, returning to prison each evening. Various ancillary privileges, such as church attendance off the grounds, are allowed inmates involved in the program. Clearly, this program ...


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