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May 8, 1992


The opinion of the court was delivered by: ROBERT P. PATTERSON


 This is an action brought under 42 U.S.C. § 1983 for a declaratory judgment and damages alleging violations of Plaintiff's rights under the Eighth and Fourteenth Amendments to the United States Constitution. Defendants move jointly pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief can be granted. For the reasons set forth below, Defendants' motion is granted in part and denied in part.



 In 1988, Plaintiff Anthony Green was an inmate at Green Haven Correctional Facility ("Green Haven") in Stormville, New York. Defendants, who are all being sued in their official and individual capacities, were at all relevant times employed at Green Haven: Patrick Bauvi, Ted Nielsen, and Jacqueline Trepanier as Corrections Officers; Clarence Colwell, William Fenton, and Ray Sanford as Lieutenants; Thomas A. Bushek as a Deputy Superintendent; and Amy Schnellbaecher as a physical therapist assistant.

 Plaintiff filed his original pro se complaint in this action on August 1, 1988, alleging constitutional violations arising from events that took place in March, 1988. That complaint sought damages from Colwell, Fenton, Bauvi, and Trepanier and also named as defendants Charles J. Scully, Charles R. Winch, and Robert Seitz. In an Amended Complaint filed on December 29, 1988, Plaintiff added two new claims against the original defendants and named as additional defendants Bushek, Nielsen, Sanford, and Schnellbaecher. The new claims related to events that took place in September, 1988 and October, 1988.

 By Opinion and Order of June 27, 1989, this Court dismissed the claims against Scully and Seitz in the original complaint and the claims against Scully, Seitz, Winch, and Fenton in the Amended Complaint. The Court did not pass on the merits of the claims against Bushek, Nielsen, Sanford, and Schnellbaecher because Plaintiff had failed to serve them with the Amended Complaint. Green v. Scully, No 88 Civ. 5329, 1989 U.S. Dist. LEXIS 7141 (S.D.N.Y. June 27, 1989).

 Represented by pro bono counsel, Plaintiff filed a Second Amended Complaint on November 15, 1991. Defendant's joint motion to dismiss that complaint is the subject of this opinion.


 The Second Amended Complaint alleges the following.

 A. Events of March, 1988

 On March 7, 1988, Trepanier issued a misbehavior report ("MR-1") charging that on March 6, 1988:

Inmate Green was standing in the corridor talking to another inmate. When he finished talking, he stepped inside D-block door and handed me these papers and said, "these are the papers I said I would give you." He rapidly disappeared down the corridor before I could refuse the papers or say anything at all. This is not the first time I have been approached by this inmate. He past me, while walking with his company and made gestures with his lips to say, "I love you." I feel inmate Green may be obsessed with me. I did not do anything to warrant this type of behavior from inmate Green.

 Second Amended Complaint, Exh. A. In MR-1, Trepanier charged Green with violating the following rules set forth in N.Y. Comp. Codes R. & Regs. tit. 7 ("7 NYCRR"), § 270.1: Rule 107.10 (Inmates shall not physically or verbally obstruct or interfere with an employee at any time), Rule 107.11 (Inmates shall not verbally harass employees), and Rule 109.10 (Inmates shall not be out of place in any area of the facility). Green was served with a copy of MR-1 on March 7, 1988 and was placed in keeplock confinement *fn1" on March 9, 1988.

 On March 14, 1988, Bauvi, authorized by Fenton, issued a recommendation that Green be placed in Involuntary Protective Custody ("IPC"). *fn2" In the IPC recommendation, Fenton stated:

From information received it appears that you developed an infatuation for a member of this facility. On one occasion, you had passed C.O. Trepanier in the hallway while you were walking with your company. You made motions with your lips and muttered the words "I LOVE YOU". On March 6, 1988 you approached C.O. Trepanier and gave her some papers. The Administration of this facility strongly believes your apparent infatuation with this Officer could lead to a dangerous situation there for, for the safety of the staff member the administration feels you should be separated from this officer.

 Second Amended Complaint, Exh. B. Based on this recommendation, Green was transferred to a Special Housing Unit ("SHU"). *fn3"

 On March 17, 1988, Green was summoned for a Tier III hearing *fn4" before Colwell, as hearing officer, regarding the rule violations alleged in MR-1. Because the hearing was not commenced within seven days of Green's confinement in keeplock, and because no extension of time was approved by the Commissioner of Correctional Services, Colwell dismissed the charges as untimely under 7 NYCRR § 251-5.1(a). *fn5"

 Despite the dismissal of the charges in MR-1, the next day Colwell reinstated the same allegations for a hearing based on Bauvi's IPC recommendation. At the IPC hearing, Green denied handing any papers to Trepanier and questioned how Trepanier could have picked him out of a group of 60 inmates and read his lips as saying "I love you." The hearing resumed on March 18, 1988, and two witnesses testified for Green. The hearing was adjourned until March 22, 1988, at which time Green denied all charges and objected to facing the same charges which had been dismissed as time-barred on March 17, 1988. Bauvi was not called to appear on March 22, 1988. After the IPC hearing concluded, Colwell completed a written "IPC Hearing Determination" in which he concluded:

Based on this incident and your prior disciplinary record where you were charged with making threats in a letter to persons on jury during your trial and on 2/8/87 with writing threats to 3 nurses at Auburn CF, it is this hearing officer belief that you need to be isolated from having the freedom of free movement that you would have as a general population inmate.

 Second Amended Complaint, Exh. C. Accordingly, Colwell determined, "that you are a threat to the staff of this facility, and that you are to remain in IPC until you receive a clearance from the Mental Hygiene unit, that you are not a threat." Id.

 Green appealed Colwell's determination. On March 31, 1988, First Deputy Superintendent Charles Winch concluded, "After a review of your Tier III hearing of 3/22/88 I have found no evidence to hold you in IPC, therefore, the hearing is dismissed and you are released this date - 3/31/88." Second Amended Complaint, Exh. D.

 B. Events of September and October, 1988

 On September 15, 1988, Nielsen issued a misbehavior report ("MR-2"), charging that on September 15, 1988:

Green grabbed Physical Therapy Assistant Amy Schnellbaecher's hand and said, "I love long fingernails, I'd love to have you rake these up and down my back." Inmate Green had previously made personal remarks about Ms. Schnellbaecher in her presence. To include, how tight her pants are and how much he loves her fingernails.

 Second Amended Complaint, Exh. H. Plaintiff alleges that MR-2 charged three separate rule violations. However, an examination of MR-2, which is appended to Plaintiff's complaint, indicates that Green was charged only with the violation of Rule 101.10. That rule provides, "Inmates shall not engage in, encourage, solicit, or attempt to force others to engage in sexual acts."

 At approximately 3:05 p.m. on September 16, 1988, Green received a copy of MR-2 and was placed in keeplock. Green charges that MR-2 violated 7 NYCRR § 251-1.4(b) because Nielsen issued the report without personal knowledge of the facts, and MR-2 was not signed or endorsed by Schnellbaecher.

 On September 21, 1988, Nielsen, authorized by Bushek, issued another misbehavior report ("MR-3"), based on a letter which Green sent to Schnellbaecher. *fn6" MR-3 charged Green with violations of Rule 107.11, supra, and Rule 102.10, which provides, "Inmates shall not make threats of any kind." Thereafter, Green was served with a copy of MR-3 and transferred from keeplock to an SHU. On September 23, 1988, Bushek commenced a Tier III hearing with regard to MR-2, and Sanford commenced a Tier III hearing with regard to MR-3.

 At the MR-2 hearing before Bushek, Bushek failed to explain why the hearing was not commenced until eight days after Plaintiff's initial keeplock confinement and did not produce written authorization for the delay. The hearing continued on September 30, 1988, 15 days after Plaintiff's initial keeplock confinement, at which time: Bushek refused to show Plaintiff an authorization for the delay in completing the hearing; Bushek refused to permit Green to call any of his witnesses to testify on his behalf; Bushek did not indicate to Green that Green's witnesses were not present at Green Haven before making his final determination and did not show any proof that he had tried to locate those witnesses; and the employee assistant selected by Green never appeared, failed to provide reports of any investigations, did not make any effort to interview Green's witnesses or otherwise to assist Green while Green was confined in keeplock. At the conclusion of the MR-2 hearing on September 30, 1988, Bushek found Green guilty and imposed a penalty of 90 days in keeplock and an additional 90 days deferred.

 At the MR-3 hearing before Sanford on September 23, 1988: Sanford failed to explain why the hearing was not commenced until eight days after Green's confinement in keeplock and failed to produce written authorization for the delay; and Green admitted sending a letter to Schnellbaecher, but denied the alleged rule violations, and requested that he be given employee assistance as is allegedly required by 7 NYCRR § 251-4.1(a). The hearing was adjourned so that Green could assemble witnesses.

 When the MR-3 hearing continued on October 3, 1988, Green complained that no employee assistant ever came to see him, but Sanford purportedly "waived" Green's rights to employee assistance and proceeded with the hearing. Because Green had no employee assistance, no witnesses on his behalf, and because no investigation of the charges had been conducted, on October 3, 1988 Green changed his plea from not guilty to guilty. Sanford found Green guilty as charged and imposed sanctions of 90 days confinement in his cell and loss of access to the commissary, to packages, and to the new visiting room.

 Green appealed Sanford's finding and sanctions. On October 3, 1988, the same day the MR-3 hearing concluded, First Deputy Winch found, "I have reviewed your Tier III hearing held on 10/3/88 in accordance with your appeal and do not find substantial evidence to affirm the charges, therefore I am dismissing the hearing." Second Amended Complaint, Exh. I. Green, however, remained in keeplock on the MR-2 charge until December 15, 1988 when the 90 day sentence imposed by Bushek expired.


 Plaintiff alleges the following 12 causes ...

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