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July 6, 1984

R. SMALLWOOD-EL, et al., Plaintiff, v THOMAS A. COUGHLIN III, Individually and in his official capacity as Commissioner of New York State Department of Correctional Services, STEPHEN DALSHEIM, Individually and in his official capacity as Superintendent of Downstate Correctional Facility, and HYLAND SPERBECK, Individually and in his official capacity as Deputy Superintendent For Security of Downstate Correctional Facility, Defendants.

The opinion of the court was delivered by: POLLACK

MILTON POLLACK, Senior District Judge

Plaintiff R. Smallwood-El is a prisoner presently confined at New York State's Long Island Correctional Facility pursuant to a New York criminal conviction. He brought this pro se civil rights action, pursuant to 42 U.S.C. § 1983, to recover damages for alleged violations of several constitutional rights which he claims resulted from his segregated confinement to a Special Housing Unit ("SHU") at the New York Downstate Correctional Facility in Fishkill, New York, from November 11, 1980 to March 23, 1981.

 Plaintiff named as defendants Thomas A. Coughlin III, the Commissioner of the New York Department of Correctional Services, Stephen Dalsheim, the Superintendent of the Downstate Correctional Facility, and Hyland Sperbeck, a Deputy Superintendent at the Downstate Correctional Facility.

 Defendants have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P. For the reasons which follow, the motion is granted.


 Uncontroverted facts set forth in the pleadings and papers filed in connection with the summary judgment motion establish the following:

 On November 14, 1980, plaintiff was brought to the "draft processing area" of the Downstate Correctional Facility (hereinafter "Downstate") for admission to that facility. While waiting to undergo admissions procedures, plaintiff was involved in a disturbance during which, according to reports on the incident, plaintiff refused to obey a guard's order to go to an identification room, used boisterous and obscene language, became violent, and swung a closed fist at a guard.

 As a result, and upon the approval of a corrections lieutenant, plaintiff was immediately confined on a 24-hour-per-day basis to the prison's SHU. According to state regulations, a SHU is:

 A cell, group of cells or housing space within a facility, maintained separate and apart from cells or housing space used by inmates in the general population, for confinement of inmates who are not in a program that permits them to commingle with each other.

 7 N.Y. Codes, Rules and Regulations § 300.2(b).

 Plaintiff received on November 14, 1980 a Notice of Misbehavior Report regarding the disturbance. On November 17, a proceeding relating to the Misbehavior Report was held before the prison's Adjustment Committee, during which a disciplinary hearing, known as a Superintendent's Proceeding, was scheduled and it was determined that plaintiff's confinement in the SHU would continue.

 On November 20, a written formal charge was issued to plaintiff concerning the November 14 disturbance. This charged plaintiff with attempted assualt, creating a disturbance, disobeying a direct order, making threats, and using abusive and obscene language. The charge stated that a Superintendent's Proceeding would be held the next day and explained that plaintiff could make any statement he wished at the hearing, that he could remain silent, and that he could call witnesses on his own behalf.

 On November 21, a tape-recorded Superintendent's Proceeding was conducted before defendant Sperbeck. Plaintiff was present but declined to enter any plea to the charges. Plaintiff protested that his confinement in the SHU and the procedures being accorded to him were unlawful. Sperbeck made no disposition of the charges at this time, and plaintiff was returned to the SHU for segregated confinement on a 23-hour-per-day basis.

 At the same time that these disciplinary proceedings were taking place, but apparently unrelated thereto, prison medical officials asked plaintiff to provide information concerning his medical history. A medical history form dated November 17, 1980 indicates that plaintiff stted he had had gonorrhea in 1972. Pursuant to the instruction of a doctor at the prison, medical personnel sought to obtain a blood specimen from plaintiff in order to determine if he was then suffering from veneral disease.

 Plaintiff refused to have his blood drawn for religious reasons. As stated in the complaint, "[p]laintiff sincerely believes it would have been sinful to allow doctors to perform an unwarranted operation on his person, however minor, as a Muslem under the Divine Laws of the Holy Koran of Mecca."

 A "refusal form" dated November 19, 1980 indicates that prison medical personnel, confronted with plaintiff's refusal to undergo a blood test, explained to him he would be kept in isolation until "cleared by Public Health to go to population." A memorandum dated November 20, 1980 and signed by Ruth Kellogg, Nurse Administrator, stated:

 Refused bloodwork for public health screening. Until a VDRL is obtained, this man must remain isolated (in quarantine). Not allowed out of cell.

 The status of plaintiff's 23-hour-per-day confinement in the SHU remained unchanged until January 19, 1981. Prior to that date, no further dispostion was made regarding the incident or misconduct, nor did plaintiff consent to a blood test. *fn1"

 On January 19, 1981, sixty-six days after he was first confined to the SHU, plaintiff was brought before defendant Sperbeck. At this time, Sperbeck issued a Superintendent's Proceeding Report which found that plaintiff was to be confined to the SHU for 66 days as discipline for the misbehavior incident. The report recognized that plaintiff had already served this time, but concluded that plaintiff, having "refused to cooperate with medical department in having a physical", should be "continued in S.H.U. until released by the medical department."

 An internal memorandum from Sperbeck to Superintendent Dalsheim explained Sperbeck's action concerning plaintiff's continued SHU confinement:

 I feel that we have exhausted every administrative effort to convince this man that he should have a physical. He has been seen by the medical staff, psychologists, ministerial staff and counseling staff.

 Yesterday (January 19, 1981), I had an informal interview with this inmate. He still is going into his "Its against my religion and I am not ...

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