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June 7, 1994

WALTER R. KELLY, et al., Defendants.


The opinion of the court was delivered by: CAROL E. HECKMAN

The parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment, in accordance with 28 U.S.C. § 636(c). Pending for decision is defendants' motion for summary judgment dismissing the case against them. For the following reasons, defendants' motion is granted.


 The following facts are not in dispute. On June 21, 1992, while he was confined at the Attica Correctional Facility, plaintiff received an inmate misbehavior report written by Corrections Officer J. Orszulak charging plaintiff with violations of inmate rules No. 113.10 (weapons) and 114.10 (smuggling). According to the report, while conducting a metal detector search of "draft bags" containing plaintiff's property at the "Voc 2 property room" on that date, Officer Orszulak detected a metal object inside plaintiff's economics text book (Item 18, Ex. A to LeBaron Aff.). After confirming the presence of metal by means of an x-ray machine, Orszulak searched the book and a double-edged razor blade, approximately one and three-quarter inches by seven-eighths inch, taped to page 451 near the binding. Plaintiff acknowledged that the book belonged to him, but stated that he did not know where the razor blade come from. Orszulak removed the razor blade from the book, marked and photographed it, and turned it over to the Captain's office (id.). Plaintiff was immediately placed in his cell under "keeplock" *fn1" status (Item 18, LeBaron Aff., P 8).

 Officer Orszulak's misbehavior report was reviewed by the Watch Commander, Lieutenant Donald LeBaron, on June 22, 1992. Lieutenant LeBaron determined that a Tier III Superintendent's hearing should be held, and authorized continuation of plaintiff's keeplock status pending the outcome of the disciplinary hearing.

 Lieutenant Leroy Grant presided over the hearing, which was held on June 27, 1992. The hearing record reflects that plaintiff was served a copy of the misbehavior report by Corrections Officer B. Clark on June 22, 1992, and that plaintiff consulted inmate assistant C. Donnelly on June 25, 1992 (T. at 2). *fn2" The transcript of the hearing also reflects that plaintiff requested the appearance of Officer Clark as a witness to verify service of the misbehavior report, but Lt. Grant found it sufficient to note verification of service on the record without the need to call Officer Clark as a witness (T. at 2-3).

 In defense of the charges, plaintiff stated at the hearing that the misbehavior report was deficient because it failed to contain mandatory language regarding the inmate's right to make a prehearing statement on the need for continued prehearing confinement, as required by the state regulations governing misbehavior report procedures *fn3" (T. at 4). Plaintiff also stated that Officer Orszulak failed to comply with prison directives for maintaining a chain of custody for articles confiscated from inmates *fn4" (T. at 4-5). Addressing the substance of the charges, plaintiff stated that he did not have access to the draft bags containing his property between the time when he was transferred to Attica from the Shawangunk Correctional Facility on approximately June 10, 1992, and June 21, 1992, when the razor blade was found in his book (T. at 5-7).

 At the conclusion of the hearing, Lt. Grant found plaintiff guilty of the weapon and smuggling charges based on the information set forth in the misbehavior report and the testimony of Officer Orszulak, and imposed a penalty of 120 days keeplock with loss of telephone privileges, 60 days suspended and 120 days deferred, to commence June 21, 1992 and to end August 20, 1992, and loss of three months good time credit (T. at 14-15).

 Plaintiff appealed this determination. On August 20, 1992 (the same date that plaintiff was released from keeplock), Donald Selsky, Director of the Department of Correctional Services Special Housing/Inmate Disciplinary Program, reversed Lt. Grant's hearing disposition for "failure to give inmate proper notice which indicates ability to write about pre-hearing confinement status" (Ex. B to Selsky Aff., Item 18). Pursuant to the reversal, all references to the disciplinary hearing were expunged from plaintiff's records, his phone privileges were restored, and the hearing officer's recommendation for loss of good time credit was withdrawn (Selsky Supp. Aff., Item 23, PP 3-5).

 Plaintiff filed this action pro se on November 25, 1992 pursuant to 42 U.S.C. § 1983, alleging that he was denied due process and equal protection in violation of his rights under the fourteenth amendment, and was subjected to cruel and unusual punishment in violation of his rights under the eighth amendment, based on the following:

 1. Lt. Grant's determination of guilt despite the absence of any evidence connecting plaintiff to the razor blade;

 2. Lt. LeBaron's continuation of plaintiff's pre-hearing keeplock despite the fact that the misbehavior report did not contain the language required by 7 N.Y.C.R.R. § 251-3.1(d)(3);

 3. Failure of the misbehavior report to contain the mandatory language concerning pre-hearing confinement;

 4. Failure of the misbehavior report to follow the chain of custody requirements set forth in New York State Department of Correctional Services ...

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