The opinion of the court was delivered by: WILLIAM M. SKRETNY
Plaintiff Ronald Winston, an inmate at Wende Correctional Facility ("Wende"), has brought this action pro se pursuant to 42 U.S.C. § 1983 against defendants Thomas Coughlin, Commissioner of the Department of Correctional Services ("DOCS"), Dominic Mantello, Superintendent of Wende, Acting Captain C. Walker, Lieutenant Sheldon, Sergeant R. Cooks and Corrections Officer J. Zink. Defendants Coughlin and Walker have filed answers. Defendants Mantello, Sheldon, Cooks and Zink have moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6).
For the reasons set forth below, the motion to dismiss of defendants Mantello and Sheldon is granted and the motion to dismiss of defendants Cooks and Zink is denied.
On this motion to dismiss, the factual allegations set forth in plaintiff's complaint are deemed to be true. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972).
On May 18, 1990, while plaintiff was being housed in Wende's Hospital Infirmary, inmates on his floor protested the violent treatment of a fellow prisoner by prison officers. Defendant Cooks and others ordered in the "Riot Squad" to "put down the protest" (Complaint, P5), whereupon the riot squad ". . . moved in and started to beat everyone in sight indiscriminately causing serious injury to several inmates." (Complaint, P7). Two unnamed corrections officers then took plaintiff from the hospital floor to the Special Housing Unit ("SHU") where he was placed in a shower stall for three and one half hours before being strip searched and taken to a cell. (Complaint, P9).
Plaintiff further alleges that defendants Zink and Cooks subsequently filed misbehavior reports charging plaintiff with assault on staff, disobeying a direct order, rioting and threats. (Complaint, P10). Plaintiff alleges that the reports were "false and misleading" and ". . . were fabricated with malice and specific intent to cause harm to me and to gloss over and cover-up the gross misconduct, unprofessionalism and indifference demonstrated by . . ." defendants Cooks and Zink. (Complaint, PP19-20). Defendant Sheldon reviewed the reports, and on May 26, 1990, defendant Walker conducted a disciplinary hearing. (Complaint, PP12-13). Plaintiff alleges that he was denied his due process rights at this hearing because the defendant Walker denied plaintiff the opportunity to interview witnesses and declined to view video tape evidence of the disturbance which would have exonerated him. (Complaint, P14-15). Defendant Walker found plaintiff guilty on all the charges and rendered a disposition of five years in SHU, five years loss of good time and five years loss of all privileges. (Complaint, PP21-23). On appeal, all charges were dismissed, except for the charge of disobeying a direct order, for which plaintiff was ordered to serve 90 days in SHU. (Complaint, P24-26).
Plaintiff seeks $ 150.00 in damages for each of the 93 days he spent in the SHU and further damages for mental anguish and loss of wages. He further seeks that all reference to the charges, including the charge of disobeying a direct order which remained after his administrative appeal, be expunged from his records.
A motion to dismiss brought pursuant to Fed.R.Civ.P. 12(b)(6) should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986). Further, pro se a complaint must be read liberally and should not be dismissed without granting leave to amend "when a liberal reading of the complaint gives any indication that a valid claim might be stated." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
Defendants Mantello and Sheldon
Plaintiff predicates his claim against defendant Mantello on Mantello's status as an agent of DOCS, responsible for supervising the hearing officer. (Complaint, PP40-42). As to defendant Sheldon, plaintiff alleges that Sheldon failed ". . . to properly investigate the incident before officially endorsing same and . . . his endorsement gives legitimacy to a fabricated and misleading Report. . . ." (Complaint, P32). However, in this Circuit, "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [42 U.S.C.] § 1983." Williams v. Smith 781 F.2d 319, 323 (2d Cir. 1986), citing McKinnon v. Patterson, 568 F.2d 930 (2d Cir. 1977) cert. denied, 434 U.S. 1087, 55 L. Ed. 2d 792, 98 S. Ct. 1282 (1978). Although direct participation in the violation need not be established if it is shown that a defendant had "actual or constructive notice of unconstitutional practices," Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989), the complaint does not allege that defendants Mantello or Sheldon
were either directly or indirectly involved in the conduct at issue in this case. Accordingly, the complaint against them must be dismissed for failure to state a claim.
Defendants Cooks and Zink
Plaintiff alleges that defendants Cooks and Zink deprived him of Due Process by filing fabricated misbehavior reports. The Second Circuit ruled in Freeman v. Rideout, 808 F.2d 949, 953 (2d Cir. 1986), reh'g denied, 826 F.2d 194 (2d Cir. 1987), cert. denied, 485 U.S. 982, 99 L. Ed. 2d 484, 108 S. Ct. 1273 (1988), that a prison guard's filing of unfounded charges against a prison inmate does ". . . not give rise to a per se constitutional violation actionable under section 1983." The court reasoned that ". . . plaintiff suffered as a result of the finding of guilty by the prison disciplinary committee hearing, and not merely because of the filing of unfounded charges by the defendant." Id., 808 F.2d at 953. Because the hearing had met minimum ...