The opinion of the court was delivered by: GOETTEL
GERARD L. GOETTEL, U.S.D.J.
The plaintiff, a former prisoner at the Bronx House of Detention for Men, brought this action, pursuant to 42 U.S.C. § 1983 (1982), alleging that the defendants deprived him of his civil rights in denying him good time credit against his term of incarceration for contempt of court. Following this Court's order of March 20, 1985, denying the defendants' motion for summary judgment, the parties engaged in discovery. They now cross-move for summary judgment.
The defendants have somewhat altered their position as to the facts giving rise to this case. However, the defendants' 3(g) statement has not been contraverted by the plaintiff and, consequently, must be accepted by the Court. Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). Indeed, the facts set forth therein all appear undisputed. These facts are as follows:
1. On October 27, 1983, the Honorable Jawn A. Sandifer, Justice of the Supreme Court of New York, New York County, signed a Warrant of Commitment declaring the plaintiff in contempt of court for wilfully interfering with the duties of a court-appointed receiver and for disobeying a prior order of the Honorable Robert E. White of the Supreme Court of the State of New York, New York County, which directed plaintiff to pay a fine of $20,362.81.
2. On March 12, 1984, the plaintiff appeared before Justice White. Following a hearing at which both the plaintiff and his attorney were present, Justice White found that, although the plaintiff was financially capable of paying the fine imposed upon him by the Court, the plaintiff had nevertheless failed to do so. Justice White ordered that pursuant to the Warrant of Commitment dated October 27, 1983, the plaintiff be "committed to the custody of the Sheriff of the City of New York to be remanded to the Department of Correction until he pays the fine of $20,362.81 . . . or pursuant to statute, for 180 days, or until further Order of this Court."
3. On March 12, 1984, the plaintiff was incarcerated at the Bronx House of Detention for Men as a civil prisoner.
4. On June 7, 1984, a hearing was held before Justice White for the purposes of reviewing the plaintiff's confinement. At the conclusion of the hearing, which was attended by the plaintiff, Justice White ordered that the plaintiff once again be remanded to the custody of the Department of Correction until such time as he fully complied with the Court's prior order directing that he pay the fine imposed upon him or was otherwise discharged according to law.
5. On or about July 12, 1984, the plaintiff petitioned the Supreme Court of New York, Bronx County, for a writ of habeas corpus. In his petition, the plaintiff claimed that his contempt commitment constituted a definite sentence of 180 days and that pursuant to §§ 803 and 804 of the New York State Correction Law, he was entitled to have one-third of his sentence, or 60 days, subtracted from this sentence based upon his good behavior. Plaintiff further claimed that, having served 120 days of his sentence, he was entitled to be discharged.
6. On or about July 25, 1984, the defendants produced the plaintiff before justice Nardelli of the Supreme Court of New York, Bronx County in connection with his petition for a writ of habeas corpus. In a decision, dated July 27, 1984, Justice Nardelli dismissed the plaintiff's petition in its entirety.
7. On or about July 29, 1984, the plaintiff filed a grievance with the New York City Board of Correction's Inmate Grievance Resolution Program, alleging that the Department of Correction had wrongfully denied him credit against his sentence for good behavior. On July 12, 1984, the petitioner's grievance was denied. This decision was subsequently appealed to the Board of Correction. In a written decision dated August 8, 1984, the Board of Correction again denied the plaintiff's grievance on the ground that the Department of Correction was bound by the Court's rulings to retain custody of the plaintiff for the 180-day statutory period unless the plaintiff chose, by his own action, to purge himself of his contempt of court.
8. On September 7, 1984, after having been imprisoned for 180 days, the plaintiff was discharged from the Bronx House of Detention for Men.
9. During the period of his incarceration, the plaintiff did not pay the fine ordered by the Supreme Court of New York, New York County and thus did not purge himself of his contempt.
10. The Department of Correction granted an allowance for good behavior to approximately eleven contemnors who were imprisoned during the period of the plaintiff's incarceration. Each of the eleven contemnors who received good time credit had been committed pursuant to a court order which provided for a definite term of imprisonment.
11. The Department denied good time credit to the plaintiff and to one other contempt prisoner who, like the plaintiff, had been imprisoned pursuant to a court order which provided that the contemnor could purge his contempt by performing a specified act during ...