The opinion of the court was delivered by: LEWIS A. KAPLAN
Plaintiff, a prisoner at the Great Meadow Correctional Facility ("GMCF") operated by the New York State Department of Correctional Services ("DOCS") at the time of the events relevant here, brings this action pursuant to 42 U.S.C. § 1983. Plaintiff seeks damages for the alleged filing of false weapon possession charges against him and for alleged procedural deficiencies in the hearing on those charges. Plaintiff claims these violations led to his confinement in a Special Housing Unit ("SHU"). Furthermore, plaintiff seeks damages for the alleged unsanitary conditions in SHU and the allegedly inadequate medical care he received while there.
This action was commenced in October 1990 against then Commissioner of Health David Axelrod, then DOCS Commissioner Thomas Coughlin, Great Meadow Superintendent Leonardo, Hearing Officer ("HO") Patterson, Sergeant Smith, Correction Officer ("CO") White and CO Young. By judgment dated October 30, 1991, the action was dismissed against defendant Axelrod. Sergeant Smith has not been served and has not appeared.
Defendants now move for summary judgment dismissing the complaint. Plaintiff cross moves for partial summary judgment "as to issue of Prison Disciplinary Disposition."
The September 21, 1989 Fire
On September 21, 1989 a small fire broke out in cell number B8-14. The cell was not plaintiff's. (Cpt P 14; Stinson Aff. P 11) Plaintiff claims, however, that he witnessed the incident, that the fire was set by CO Telesky, and that plaintiff reported the incident to prison authorities.
(Cpt PP 14-15) Defendants, he contends, have retaliated against him in consequence. (Id. P 14)
The November 9, 1989 Cell Search
On November 9, 1989, two officers, CO White and Sgt. Smith, searched plaintiff's cell. (Cpt PP 16-18 Stinson Aff. 12) There is a dispute as to what then occurred.
According to plaintiff, Sgt. Smith dragged a bag from storage to plaintiff's cell. CO White then claimed to have found a razor blade in the bag. Plaintiff maintains that this bag did not belong to him and, in any event, that the razor was of a sort routinely issued to Great Meadow inmates by prison authorities. (Cpt PP 18-19; See Opp. to Def. Summary Judgment [docket item 44] PP 13-15) Plaintiff claims that this permissible item was used as a pretext for trumped up disciplinary charges.
According to defendants, Officer White found a single edge razor blade concealed in an envelope in a box of envelopes contained in a draft bag in plaintiff's cell. (Stinson Aff. P 12 & Ex. 12) Great Meadow rules provide that inmates are permitted to possess only disposable razors. (Stinson Aff. Ex. 13) The implication is that the razor blade was contraband.
Officer White filed a misbehavior report against plaintiff on November 9, 1989, charging him with possessing a weapon. (Id. Ex. 13; (misbehavior report)) Defendants claim, and plaintiff denies, that on November 10, 1989 at 7:54 p.m., Officer Young attempted to serve plaintiff with the misbehavior report and ascertain whether plaintiff wanted assistance in preparing a defense to the charges. (Def. Mem. 7)
The hearing began on November 14, 1989 before John Patterson, an attorney hearing officer employed out of the DOCS central office. Patterson read the misbehavior report to plaintiff and showed him a picture of the razor blade. (Stinson Aff. Ex. 14 at 1) In response to Patterson's questioning, plaintiff said that he never had been served with the misbehavior report or offered an assistant, although he had received an evidence tag stating that a razor blade had been taken from plaintiff's cell on November 9, 1989 at 7:45 a.m. (Id. at 1-3) Plaintiff said the tag was signed by Officer "Whik" and that he wanted this officer as a witness. (O'Connor Aff. P 2) Patterson informed plaintiff that the officer's name was "White" and that Officer White could be brought to the hearing to determine if he was the officer involved. (Stinson Aff. Ex. 14 at 2-3)