Parris v. Coughlin, 1993 WL 328199 at *3 (N.D.N.Y. 1993). Plaintiff has not established that Defendant Coughlin was aware of any violation of Plaintiff's constitutional rights, or that Coughlin promulgated any policies designed to violate an inmate's constitutional rights. Accordingly, Plaintiff's claims against Defendant Coughlin must fail. Defendant's motion for summary judgment as to Defendant Coughlin is GRANTED.
(4) Plaintiff's Transfer to Attica
Plaintiff has raised a cause of action alleging that he was transferred from Auburn to Attica because of his race. Defendants assert that Plaintiff was transferred to Attica solely because of the allegation that Plaintiff was the "ringleader" behind the food strike at Auburn on May 19, 1990.
Prisoners do not have a constitutional right to remain in or to be transferred to a correctional facility of their own choosing. Meachum v. Fano, 427 U.S. 215, 224-225 (1976); Raffone v. Robinson, 607 F.2d 1058, 1061 (2d Cir. 1979) (inter-prison transfers within a state do not trigger due process requirements).
Further, a prisoner who asserts an equal protection claim must prove the existence of purposeful discrimination. McCleskey v. Kemp, 481 U.S. 279, 292 (1987). In Martin v. Groose, 1994 WL 75784 (8th Cir. 1994), an inmate was unsuccessful in his contention that he was transferred to a different facility because of his race. The inmate did not present evidence to rebut the defendant's assertion than the inmate was transferred because of a "serious security concern," not because of his race, and the court found that, on that basis, the defendant was entitled to summary judgment. See also Jones v. Brown, 1986 WL 6032 (6th Cir. 1986) (inmate plaintiff failed to show racial animus behind prison transfer).
In this case, Plaintiff has presented no evidence to rebut Defendants' contention that Plaintiff was transferred to Attica from Auburn because of Defendants' belief that Plaintiff had been the chief organizer of a food strike. Defendant Irvin submitted an affidavit stating that the purpose of transferring Plaintiff to Attica was to "remove a disruptive influence from the correctional facility," as Plaintiff had been implicated as the "ringleader" of a food strike, and that other inmate industries were possibly planned to be targeted for strike purposes. Affidavit of Frank Irvin, dated March 6, 1993, at P 4, 5, 8. In reply, Plaintiff denies Irvin's allegation, stating that, if such a danger was present, why was he not keeplocked immediately. Affidavit of Patricia Priestley, Exhibit W, at pp. 4-5. However, Plaintiff's statement does not raise any issue of material disputed fact. There is no evidence on this record that Plaintiff's transfer was made because of Plaintiff's race. Accordingly, Defendants' motion for summary judgment on the Third Cause of Action is GRANTED.
(5) Eighth Amendment Claim
Plaintiff also raises a claim that his eighth amendment right to be free from cruel and inhumane treatment was violated by the unsanitary conditions present at the Attica SHU, along with Plaintiff having to witness the attempted suicide of the prisoner in the next cell. Defendants claim that the conditions of which Plaintiff complain do not rise to the level of a violation of the Eighth Amendment.
Punishment is cruel and unusual if it "deprives inmates of the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Although the Constitution, "does not mandate comfortable prisons," Wilson v. Seiter, 501 U.S. 294, 298 (1991), "inmates are entitled to reasonably adequate sanitation, personal hygiene, and laundry privileges, particularly over a lengthy course of time." Howard v. Adkison, 887 F.2d 134, 137 (8th Cir 1989). Conditions of confinement, however, constitute cruel and unusual punishment "only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise." Wilson, supra, at 304. "Nothing so amorphous as 'overall conditions' can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists." Wilson, supra, at 305. Conditions, such as a filthy cell, may "be tolerable for a few days and intolerably cruel for weeks or months." Hutto v. Finney, 437 U.S. 678, 687 (1978).
In this case, Plaintiff asserts that, when he arrived at his cell in the Attica SHU, the cell was dirty and needed cleaning. (G. 21). Plaintiff acknowledged that cleaning supplies were given to him, and that he cleaned the entire cell. (G. 21-22). Plaintiff further stated that, as a result of other inmates' conduct, the area in front of Plaintiff's cell was filled with human feces, urine, and sewage water for a three day period. (G. 22). After three days, the correction officers brought an inmate porter to the area to clean. (G. 24). Plaintiff also complained of broken windows, and filed a grievance with the Attica prison authorities, of which the outcome is not known. (G. 26). Finally, Plaintiff stated that he was subjected to emotional anguish because of the attempted suicide of the inmate in the cell next door to his, although Plaintiff did not seek counseling or other medical treatment. (G. 27).
The court finds that Plaintiff has not established that he was subjected to cruel and unusual punishment in violation of his constitutional rights. Courts have found that certain conditions are not cruel and unusual where the inmate was subjected to the condition only for a short period of time. See, e.g., White v. Nix, 7 F.3d 120, 121 (8th Cir. 1993) (no Eighth Amendment violation where prisoner was confined to allegedly unsanitary cell for eleven days, particularly where cleaning supplies were made available); Harris v. Fleming, 839 F.2d 1232, 1235-36 (10th Cir. 1991) (plaintiff "experienced considerable unpleasantness" for five days due to "filthy, roach-infested cell," but constitutional rights not violated).
In this case, Plaintiff was allegedly subjected to unsanitary conditions for a three day period, after which time the area was cleaned. This alleged fact, along with the incident involving the attempted suicide of another inmate, do not rise to the level of a constitutional violation under the Eighth Amendment. Accordingly, Defendant's motion for summary judgment on the Second Cause of Action is GRANTED.
(6) Claim Under 42 U.S.C. § 1985(3) and § 1986
Finally, Plaintiff claims that Defendant Walker, Irvin, Dann, and John Doe conspired to deprive Plaintiff of his constitutional rights under the Eighth and Fourteenth Amendments, and that Defendants Walker, Irvin, and Dann acted with racially and class-based discriminatory animus against him.
In order to establish a cause of action under 42 U.S.C. § 1985, a plaintiff must show that a defendant conspired with another person to deprive the plaintiff, or a class of which plaintiff was a member, of equal protection of the laws or of equal privileges and immunities under the law. Sorlucco v. New York City Police Department, 888 F.2d 4, 8 (2d Cir. 1989). Section 1985 provides no substantive rights itself, but merely "provides a remedy for violation of the rights it designates." Great American Federal Savings and Loan Association v. Novotny, 442 U.S. 366, 372 (1979).
In order to state a claim under 42 U.S.C. § 1985(3), a complaint must allege that the defendants who allegedly conspired sought, with discriminatory intent, to deprive the plaintiff of a right covered by the Constitution or other laws. See Spencer v. Caravilla, 903 F.2d 171, 174 (2d Cir. 1990).
In this case, Plaintiff has not alleged any discriminatory intent by the Defendants against him. Rather, he only makes a conclusory statement that Defendants, acting with "racially and class-based, invidiously discriminatory animus," see Plaintiff's Complaint, at p. 15, P 79, conspired to deprive him of his constitutional rights by fabricating evidence linking Plaintiff to the food strike. When directly asked if he had any evidence of such a conspiracy, Plaintiff conceded that he did not. (G. 28-29).
A conclusory allegation is not enough to state a valid claim under 42 U.S.C. § 1985(3). See Temple of the Lost Sheep, Inc. v. Abrams, 930 F.2d 178, 185 (2d Cir. 1991) (claim under 42 U.S.C. § 1985(3) dismissed as the complaint was "couched in terms of conclusory allegations and failed to demonstrate 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action as required by § 1985) (quoting New York State National Organization for Women v. Terry, 886 F.2d 1339, 1358 (2d Cir. 1989), cert. denied, 495 U.S. 947 (1990)). Since Plaintiff's complaint does not assert that the alleged conspiracy was formed "for the purpose of depriving" Plaintiff "of the equal protection of the laws, or of equal privileges or immunities under the laws," see 42 U.S.C. § 1985, the Complaint fails to state a claim under 42 U.S.C. § 1985 for which relief can be granted. See Dubois v. Connecticut State Board of Education, 727 F.2d 44, 47 n.3 (2d Cir. 1984). Accordingly, Defendants' motion for summary judgment on this issue is GRANTED.
42 U.S.C. § 1986 imposes liability on an individual how has knowledge of wrongs prohibited under 42 U.S.C. § 1985, yet fails to prevent them. However, without a violation of Section 1985, there can be no violation of Section 1986. Hahn v. Sargent, 523 F.2d 461, 469-70 (1st Cir. 1975), cert. denied, 425 U.S. 904 (1976). A claim under 42 U.S.C. § 1986 is contingent upon a valid § 1985 claim. See Seguin v. City of Sterling Heights, 968 F.2d 584, 590 (6th Cir. 1992); Trerice v. Federsen, 769 F.2d 1398, 1403 (9th Cir. 1985).
Since Plaintiff's claim under 42 U.S.C. § 1985 is being dismissed, Plaintiff's claim under 42 U.S.C. § 1986 should also be dismissed. Therefore, Defendant's motion for summary judgment on the First Cause of Action is also GRANTED.
Based on the foregoing discussion, Plaintiff's motion for partial summary judgment is DENIED. Defendants' motion for summary judgment as to all causes of action against all Defendants is GRANTED, and this action is hereby dismissed.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: August 12, 1994
Buffalo, New York