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FARINARO v. COUGHLIN

August 6, 1986

JOHN FARINARO, Plaintiff,
v.
THOMAS COUGHLIN, et al., Defendants



The opinion of the court was delivered by: KRAM

MEMORANDUM OPINION AND ORDER

SHIRLEY WOHL KRAM, U.S.D.J.

 Plaintiff John Farinaro brings this action pro se pursuant to 42 U.S.C. § 1983 claiming that officials at Green Haven Correctional Facility (Green Haven) have violated his constitutional rights. He also makes various claims under New York State law. Named as defendants are Thomas Coughlin, Commissioner of the New York State Department of Correctional Services, Charles Scully, Superintendent of Green Haven and a Mr. Gallagher, the program assignment coordinator at Green Haven.

 This case is presently before this Court on defendants' motion for summary judgment pursuant to F. R. Civ. P. 56 (b). The defendants have thus far apparently refused to answer plaintiff's interrogatories. Neither have they sought any relief from plaintiff's interrogatory requests. In deciding the motion the Court will consider whether the failure to provide discovery has prejudiced the plaintiff and if so, whether to deny the motion on that basis.

 In his complaint, Farinaro raises eight nominal claims for relief. These nominal claims essentially reduce to three causes of action. First, in his first and second claims for relief, Farinaro alleges Green Haven required him to participate in its industrial labor programs without consideration of his health in violation of N.Y. Correct. Law Art. 4, § 70(2)(c) (McKinney's Supp. 1986), the New York State Constitution, the United States Constitution, and 42 U.S.C. § 3750(b). Second, in his third claim for relief, Farinaro alleges that he was transferred from Green Haven to Attica without a hearing in violation of his due process rights. Third, Farinaro's fourth, fifth and sixth claims allege that the defendants inserted incorrect information in his file about his participation in Green Haven's work program in violation of his due process and equal protection rights. Finally, Farinaro's seventh and eighth claims do not add any substantive causes of action as he only alleges that defendants Coughlin and Scully breached their duty to him and that all defendants acted in concert and under color of official right.

 Farinaro also alleged in his complaint that Mr. Gallagher said he would be placed in keep lock status for complaining about performing industrial labor. *fn1" Farinaro stated in his affidavit in opposition to defendants' summary judgment motion that he was placed in keep lock without a hearing. He most clearly claimed that these facts created a cause of action in a traverse to defendant's answer, where he asserted that placement in keep lock violated his due process rights. Although a traverse is not listed as a pleading in the Federal Rules of Civil Procedure, the Court is under an obligation to construe a pro se plaintiff's complaint broadly. The Court will thus consider Farinaro as asserting a fourth cause of action for being placed in keep lock in violation of his due process rights.

 A motion for summary judgment lies only when there is no genuine issue of material fact. This Court's role is to determine whether there are issues to be tried. Heyman v. Commerce and Ind. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). The burden is on the moving party to show that no such issues exist. Adickes v. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). In testing whether the movant has met this burden, the Court must resolve all ambiguities against the movant. Heyman, 524 F.2d at 1320. Nonetheless, "the mere possibility that a factual dispute may exist, without more, is not sufficient to overcome a convincing presentation by the moving party." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (emphasis in original). Speculation, conclusory allegations, and mere denials are not enough to raise genuine. issues of fact.

 Based on the Court's consideration of the parties' submissions, the Court finds there is no genuine issue as to the following material facts. Plaintiff was transferred to Green Haven in January, 1983. Within ten days of his arrival at Green Haven, plaintiff attended a meeting conducted by defendant Gallagher at which Gallagher told him that Green Haven policy requires all new inmates to perform industrial work for at least ninety days. Plaintiff informed Gallagher that he did not want to do industrial work, but preferred to work in the prison bakery or mess hall. For the next two

 months plaintiff did not work, although he submitted numerous requests to defendant Gallagher for bakery or mess hall work. On April 12, 1983, defendant was assigned to industrial work in the furniture factory. He began work sometime thereafter. He worked until June 3, when he was put on hold, awaiting transfer to Attica, which occurred on June 6.

 A number of facts are at issue. First, there is an issue as to the extent of Farinaro's illness and whether Farinaro informed defendant Gallagher that his health would be threatened if he were forced to do industrial work. Farinaro claims he has medical problems which preclude him from doing industrial work, although he does not clearly describe his condition. He does claim he was told in 1971 that he possibly had liver cancer. These assertions are not rebutted by any evidence submitted by the defendants. Second, there is an issue as to whether Farinaro actually refused to accept industrial work or whether he simply strongly requested another assignment. He asserts in his complaint that he did not refuse to do industrial work, and that once he was assigned to a particular industrial job, he took it. These assertions are not contradicted by the State. Third, there is an issue as to the reason Farinaro was transferred from Green Haven. He submits evidence that he was transferred because he refused to accept a suitable work assignment, which, he claims, was erroneous because he was working at his assigned job when transferred. Finally, the state offers no evidence to rebut plaintiff's claim that he was placed in keep lock status without a hearing, and plaintiff's contentions put that fact in issue.

 THE MANDATORY WORK PROGRAM

 Farinaro claims that the work program constitutes cruel and unusual punishment and violates his due process rights in violation of the first, fifth, eighth, ninth, thirteenth, and fourteenth amendments to the United States Constitution. The only amendment applicable to the facts of this case is the eighth amendment.

 The eighth amendment prohibits deliberate indifference to a prison inmate's serious medical needs. See Dean v. Coughlin, 623 F. Supp. 392, 401 (S.D.N.Y. 1985). Farinaro, however, does not assert any serious medical needs. He merely states that a number of years ago he was told he might have liver cancer. Such a vague claim does not rise to the level of. a serious medical need, which requires a specific showing of pain, discomfort, or risk to health. See id. at 401.

 The eighth amendment also protects prisoners from work programs if the work is medically prohibited, causes great physical hardship, or is a threat to life or health. Woodall v. Partilla, 581 F. Supp. 1066, 1077 (N.D. Ill. 1984); Talley v. Stephens, 247 F. Supp. 683, 687 (E.D. Ark. 1965). Farinaro's vague assertions that his health would be endangered by industrial work do not state such a claim. He does not assert any specific injuries or other damages to his general health, Fidtler v. Rundle, 316 F. Supp. 535, 536 (E.D. Pa. 1970) ...


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