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SAVAGE v. SNOW

June 1, 1983

Mark E. SAVAGE, Plaintiff,
v.
Superintendent Joseph SNOW, et al., Defendants.



The opinion of the court was delivered by: MOTLEY

MOTLEY, Chief Judge.

This is an action under 42 U.S.C. § 1983 seeking damages and equitable relief for alleged violations of constitutional rights. Pro se plaintiff Mark E. Savage was incarcerated at Mid-Orange Correctional Facility at the time this action was commenced. *fn1" The defendants are prison officials at Mid-Orange Correctional Facility. *fn2" The court has jurisdiction of this action pursuant to 28 U.S.C. § 1343(a)(3).

 The case is now before the court on defendants' motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on the ground that the complaint fails to state a claim upon which relief can be granted. In the alternative, defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that no violation of plaintiff's constitutionally protected rights has been shown. *fn3" For the reasons stated below, defendants' motion for summary judgment is granted.

 The following is a summary of the pertinent facts underlying this action. Unless otherwise indicated, the facts are taken from plaintiff's complaint. On August 21, 1981, *fn4" Corrections Officer (C.O.) Cook entered plaintiff's cell and ordered plaintiff to make his bed. An argument ensued and plaintiff told C.O. Cook to leave him alone, using foul language. A few minutes later, plaintiff received a "ticket" *fn5" for abusive language and harassment.

 On Tuesday, August 25, plaintiff went before the Adjustment Committee and pleaded not guilty to the abusive language charge on the ground that, since C.O. Cook's report did not accurately quote plaintiff's statement, the charge was unwarranted. The Adjustment Committee found that the charge was warranted and punished plaintiff by dismissing him from his prison job and taking away two commissary "buys" and two phone calls. Plaintiff requested an investigation of the incident and a transfer to the prison's Special Housing Unit (S.H.U.). Both requests were denied by the prison officials. (See Exhibits A and B to Complaint).

 On August 30, plaintiff received another misbehavior report from C.O. Trainor for refusing to work and was placed in the S.H.U. On September 3, plaintiff went before the Adjustment Committee and received "seven days restriction and time served in the S.H.U." (Complaint at p. 3). Plaintiff was released from S.H.U. on September 3 and got off restriction on September 9.

 Plaintiff received another ticket on September 6 for being "out of place". Plaintiff admitted his guilt and did not contest the validity of the ticket.

 On September 9, plaintiff was told to report to "Utility #4" (a work area) to perform his work assignment.Plaintiff refused to go to Utility #4 on the ground that he was not assigned there and was not on the payroll sheet. The next day, Sergeant Wilhelm wrote up a misbehavior report. Plaintiff went before the Adjustment Committee, where Lieutenant Edwards authorized placing plaintiff in the S.H.U.

 On September 11, plaintiff received a ticket from C.O. Haynal for the same incident that was the basis of the earlier ticket from Sergeant Wilhelm. This ticket was later invalidated as duplicative. Also on this day, plaintiff went before the Adjustment Committee for the disposition of the September 6 ticket. Lieutenant Thompson authorized a total of 21 days restriction and loss of all privileges through September 30. (See Exhibits E and F to Complaint). During the hearing, Lieutenant Thompson warned plaintiff that if another ticket was issued he would see to it that plaintiff would be transferred to another prison with as much loss of good time credits as possible.

 On September 16, 1981, Sergeant Puiglulee filed a misbehavior report charging plaintiff with forgery and abuse of correspondence privileges for forging the name of another inmate on a letter to an individual who was not on plaintiff's authorized correspondence list.

 A Superintendent's proceeding was scheduled for September 22 to consider the charges against plaintiff. On September 17, plaintiff was given a copy of the Superintendent's Proceeding Formal Charges by Sergeant Wilhelm, who also offered his assistance to plaintiff. (See Exhibit I for formal charges.) Plaintiff was also charged with attempting to create a disturbance due to the allegedly inflammatory nature of the correspondence and with violating Department of Correctional Service (D.O.C.S.) Directive No. 4422, dated 3/26/79. *fn6"

 Plaintiff requested that a fellow inmate, David Casey, be his witness on the forgery charge. Inmate Casey indicated at the hearing that he had given plaintiff permission to write to his sister and to put his name on the return address.

 The Superintendent's Proceeding was held on September 22 before Deputy Superintendent of Security J. Perrin. Plaintiff, who was permitted to speak on his own behalf, pleaded not guilty to the charges except the charge of abuse of correspondence privileges. Plaintiff was found guilty on all four charges and received 90 days loss of good time credits.

 Plaintiff was transferred to the S.H.U. of Downstate Correctional Facility on September 24. Subsequently, plaintiff was transferred to the S.H.U. of Elmira Correctional Facility and was released from the S.H.U. a week earlier than the date set by Superintendent Perrin.

 In his complaint, plaintiff seeks the following relief: 1) a hearing before the court; 2) restoration of all good time credits; 3) expungement of all disciplinary reports regarding this action; and 4) damages in the amount of $150,000 for harassment, ...


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