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May 4, 1978

Alfred L. MOSS, Plaintiff,
Hon. Benjamin WARD and Harold J. Smith, Defendants

The opinion of the court was delivered by: ELFVIN


 ELFVIN, District Judge.

 This suit was instituted pursuant to 42 U.S.C. § 1983 by plaintiff who claims that defendant Smith violated his Eighth Amendment rights. *fn1" Defendant, the Superintendent at the Attica Correctional Facility ("Attica"), moves for summary judgment. Both parties have submitted affidavits and defendant has submitted copies of reports and letters he feels are pertinent to this suit.

 Moss was confined to the special housing unit at Attica. He alleges that he was deprived of food for four days because he refused to turn in a plastic drinking cup. According to defendant's affidavit, the special housing unit is designed for inmates who pose disciplinary problems while among the general population. Unfortunately, however, being placed in the special housing unit does not deter many of such inmates from engaging in prohibited conduct. The guards in the special housing unit are often the object of the prisoner's frustrations. Defendant states in his affidavit that many prisoners have been fashioning crude weapons from plastic eating utensils and some prisoners have used the plastic utensils to collect urine and feces to throw at the guards. Because of this, defendant promulgated a rule which he thought would help to alleviate the problem -- to wit, prisoners in the special housing unit must turn in all of their eating utensils from one meal before they will be fed their next scheduled meal. This rule is orally explained to prisoners when they are transferred to the special housing unit and plaintiff does not deny that he was informed of this rule at the time he entered the special housing unit. *fn2"

 According to the records submitted by defendant, plaintiff refused to turn in a plastic cup *fn3" after his morning meal on March 23, 1975. He persisted in his refusal, claiming that he needed the cup for his dentures. (Plaintiff's affidavit at page 2.) This situation continued for four and one-half days, until March 27, 1975, when plaintiff was taken out for recreation and a guard removed the cup in his absence. Plaintiff was fed his noon meal March 27, 1975 but refused to turn in a cup, and therefore was not given his evening meal. The records do not indicate whether or not the plaintiff turned in his cup but he was fed breakfast March 28th. However, plaintiff retained one of the bowls from that meal and was not fed at noon or in the evening. Moss did not receive breakfast or a noon meal March 29th; he then turned in his bowl and was fed an evening meal. There is a notation in the records that Moss did not return a cup on April 14th, but the records do not show what action, if any, was taken as a result of this. In sum, Moss did not receive any meals for four consecutive days and was only given one meal during each of the next three days.

 On April 13, 1975, Moss ripped a piece of electrical conduit from the ceiling of one of the cells and refused to hand it over to the corrections guards. The guards asked Moss several times to turn over the item. When it became clear that he would not heed their requests, the guards asked for and received permission to use the "federal duster" (a device for gassing inmates). After receiving the required authorization, they proceeded to administer a one-second burst of gas. Moss was then taken to a shower area, decontaminated and checked by a nurse. According to Moss, he wished to use the conduit as evidence and had explained to the guards that he would give it to them if he were to get a receipt for it. *fn4"

 Moss claims that both the denial of food and the gassing amounted to cruel and unusual punishment. He argues that defendant is responsible for these actions because defendant promulgated the rules governing each situation and oversaw the enforcement of such rules. Plaintiff has requested injunctive and declaratory relief, as well as monetary damages. Defendant has moved for summary judgment on both grounds, claiming that his actions and the conduct of the guards did not deprive Moss of any constitutional rights. Plaintiff has not cross-moved, but opposes the motion.

 A motion for summary judgment should be granted only when the pleadings, affidavits and other papers on file show that there is no genuine issue as to any material fact and that the movant is entitled to summary judgment as a matter of law. Poller v. Columbia Broadcasting, 368 U.S. 464, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962); Gladstone v. Fireman's Fund Insurance Co., 536 F.2d 1403 (2d Cir. 1976); Egelston v. State University College at Geneseo, 535 F.2d 752 (2d Cir. 1976); National Life Insurance Co. v. Solomon, 529 F.2d 59 (2d Cir. 1975). In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. Judge v. City of Buffalo, 524 F.2d 1321 (2d Cir. 1975); Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975). Although the parties to a law suit may give different versions of the facts, summary judgment is not precluded unless the differences are material to the outcome of the litigation. Kiess v. Eason, 442 F.2d 712 (7th Cir. 1971). Summary judgment may be entered against the moving party, even if his opponent has not cross-moved. 6 Moore's Fed.Prac., P 56.12 (2d ed. 1976). There is no point in insisting on procedural niceties when the proof shows that a party does not have a case. Local 33, International Hod Carriers Building and Common Laborers' Union of America v. Mason Tenders District Council of Greater New York, 291 F.2d 496 (2d Cir. 1961). Partial summary judgment may be issued with respect to one of several claims. 6 Moore's Federal Practice, P 56.20 (2d ed. 1974). A declaratory judgment action is to be treated as any other action, and if there is no genuine issue as to any material fact, summary judgment may be issued. 6 Moore's Federal Practice, P 56.17[19] (2d ed. 1974). "The existence of another adequate remedy does not preclude a judgment for declaratory relief . . .." Fed.R.Civ.P. rule 57.

 The administration of a state's correctional system is the task of its executive branch. Federal courts should not interfere in the internal operations of the prisons, unless there has been an abuse of discretion amounting to a clear violation of a prisoner's constitutional or statutory rights. Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971); Haggerty v. Wainwright, 427 F.2d 1137 (5th Cir. 1970); Beishir v. Swenson, 331 F. Supp. 1227 (W.D.Mo.1971). "The right to be free from cruel and unusual punishment is one of the rights that a prisoner may, in a proper case, enforce under section 1983 but what constitutes such punishment has not been precisely defined." Beishir v. Swenson, supra, at 1233. "The Eighth Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630 (1957). In determining whether or not a particular punishment is cruel and unusual, the court should consider all the circumstances in question. Schmitt v. Crist, 333 F. Supp. 820 (E.D.Wis.1971).

 The imposition of punishment would violate a prisoner's Eighth Amendment rights if (1), in light of developing concepts of elemental decency, the punishment is of such a character as to shock the conscience or be intolerable to fundamental fairness or (2) it was greatly disproportionate to the offense for which it is being imposed or (3) it goes beyond what is necessary to achieve a legitimate aim -- to wit, that it is unnecessarily cruel in view of the purpose for which it was used. Jordan v. Fitzharris, 257 F. Supp. 674 (N.D.Cal.1966). See, also, Schmitt v. Crist, supra at 822; Landman v. Royster, 333 F. Supp. 621 (E.D.Va.1971). Several courts have reached the determination that an Eighth Amendment violation exists when corrections officials impose penalties of greater severity than warranted in the circumstances of the particular case. Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972); Wright v. McMann, 321 F. Supp. 127 (N.D.N.Y.), aff'd in part, rev'd in part, 460 F.2d 126 (2d Cir. 1970); Landman v. Royster, supra; Jordan v. Fitzharris, supra. In Wright v. McMann, the Second Circuit Court of Appeals reversed a district court order dismissing the civil rights complaints of several prisoners, many of which alleged violations of their Eighth Amendment rights. The Court of Appeals stated that, although the prison officials were in a better position to determine what punishment might or might not be appropriate for a particular offense committed by a particular inmate, the discretion of prison officials was not limitless and that there should be some justification for severe punishment. 460 F.2d at 133. After the remand of the Wright case, the district court held a hearing to determine the merits of the plaintiffs' claims. One of the plaintiffs (Mosher) alleged that his Eighth Amendment rights had been violated due to his placement in segregation for refusing to sign a safety sheet. The district court upheld his claim, stating that the penalty imposed on Mosher was grossly disproportionate to the offense committed by him. Mosher had refused to sign the safety sheet because he believed he would be waiving his right to sue the state for negligence if he should be injured at his job.

 The fact that a particular punishment may be routine procedure does not excuse the conduct of corrections officials. A number of the complaints in the Wright case contained allegations of Eighth Amendment violations as a result of the prison's practice of depriving inmates placed in strip cells of their clothing and toilet articles. In a footnote, in its first opinion in the Wright case (Wright v. McMann, 387 F.2d 519 (1967)), the Court discussed the warden's answer to these allegations, which in effect stated that strip cells were necessary to prison discipline and that depriving prisoners of these items was routine procedure. The justification for this procedure was that prisoners who were placed in strip cells were usually violent and often tried to harm themselves or the guards. The court stated that routine practice was not a sufficient reason for depriving prisoners of these items; the prison officials should have made a determination that the individual prisoner "was or would become violent". 387 F.2d 519, 526 (fn. 15).

 The Tenth Circuit Court of Appeals held that it was improper for a judge to take judicial notice of events at a prison and use such events as a justification for action taken by prison officials when there was no general public knowledge of the plaintiff's particular situation. Dearman v. Woodson, 429 F.2d 1288 (10th Cir. 1970). The prison officials had deprived the plaintiff of food and the court stated that it was necessary to know the facts surrounding the withdrawal of food before reaching a decision on the merits of the claim. During its discussion of the case, the court noted that actions which go beyond what is necessary for achieving legitimate state goals would be tantamount to cruel and unusual punishment.

 In its recent decisions concerning the death penalty, the Supreme Court of the United States has held state laws mandating the death penalty for certain enumerated crimes violative of an offender's Eighth Amendment rights. The Court stated that the judge or jury must be able to take into account the circumstances of the crime when imposing punishment. See Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976).

 No court has explicitly held that denial of food is a per se violation of a prisoner's Eighth Amendment rights. However, it has been noted that depriving a prisoner of food is a disfavored punishment. Landman v. Royster, supra at 647, relying on the American Correctional Association Manual of Correctional ...

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