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January 30, 1995

SEAN WILLIAMS, Plaintiff, -vs- THOMAS A. COUGHLIN III, DONALD SELSKY, R. J. McCLELLAN, M. L. HOLLINS, BURGE, R. C. MORSE, TOWNLEY, P. DAVIS, R. MURPHY, L. JOYCE, All sued individually and in their official capacities for violations of Plaintiff's Constitutional Rights, Defendants.

The opinion of the court was delivered by: JOHN T. CURTIN

 CURTIN, District Judge

 This case raises the question of whether, and the extent to which, state prison authorities may constitutionally employ food deprivation as a disciplinary measure.

 On August 5, 1992, plaintiff Sean Williams, acting pro se, brought suit under the Civil Rights Act, 42 U.S.C. § 1983, against defendants Thomas A. Coughlin, Commissioner of the New York State Department of Correctional Services ("DOCS"), Donald Selsky, Director of the DOCS Special Housing Program, Robert J. McClellan, Superintendent of Southport Correctional Facility ("Southport"), and seven other defendants. Williams alleges that in November 1991, while an inmate at Southport, he was deprived of food for a period of approximately two days, and that as a result he lost consciousness and required medical attention. He claims that thereafter he suffered digestive problems, stomach pains, chest pains, and dizziness. He maintains that the defendants' actions in depriving him of food represented cruel and unusual punishment in violation of the Eighth Amendment, and that imposition of such punishment without a prior hearing denied him due process in violation of the Fourteenth Amendment.

 On August 27, 1992, the complaint was dismissed as to defendants Coughlin and Selsky. Item 5. Now before the court are Williams' motion for summary judgment against the remaining eight defendants, Item 26, and the defendants' cross-motions for summary judgment, Items 30 and 33.

 The facts in this case are very similar to those in Moss v. Ward, 450 F. Supp. 591 (W.D.N.Y. 1978), in which Judge Elfvin held that the withholding of food from an inmate at the Attica Correctional Facility for a period of four consecutive days was unconstitutionally disproportionate punishment for the inmate's refusal to return a plastic cup to prison guards.


 Southport is a Special Housing Unit ("SHU") facility for about 640 prisoners transferred from other New York State prisons due to acts of misconduct considered serious enough to merit punitive segregation in an SHU disciplinary environment for a period of not less than 120 days. Item 29, P 3. All of the inmates at Southport are confined to their cells. Item 31, P 5. At any given time, approximately sixty of the inmates are regarded as presenting chronic disciplinary problems, and are housed in a special area. Id. at P 6. In this area, a few of the inmates are held in "shielded" cells with plexiglass cell-front coverings. Id. Inmates who have a history of assaulting or reaching out at staff, or of throwing feces, urine, food, or other substances or objects from their cells, are placed in these shielded cells. Id. at P 7 and Ex. 6, p. 20; Item 29, P 6.

 All disciplinary SHU prisoners are fed meals in their cells. Item 29, P 5. At Southport, meals are provided three times a day. Id. at P 7. Food is delivered to inmates in shielded cells through special food hatches in the fronts of the cells. Id. at P 6. For some time prior to late November 1991, the staff at Southport had been experiencing problems with inmates in shielded cells retaining food containers between meals, and using them to collect feces and urine and to throw the stored matter through the food hatches at passing staff. Id. at PP 6-8; Item 31, P 9. *fn1" To combat this problem, on November 25, 1991, a new procedure was established that required inmates in shielded cells to return, after each meal, all food trays, containers, and utensils that had been given to them. Item 29, PP 11-12; Item 31, PP 10-11 and Ex. 1. *fn2" If an inmate failed to comply, he would be subject to a misbehavior report and deprivation of meals. Item 29, P 13; Item 31, P 11 and Ex. 1. *fn3"

 At the time the new procedure was instituted, Williams was being held in the special area at Southport reserved for inmates with chronic disciplinary problems. Item 29, P 10; Item 31, P 8. He claims, and the defendants have not disputed, that he was placed there because of a shortage of cell space elsewhere in the facility. Item 34, p. 1. He maintains further, and again the defendants have not disputed, that he was not in a shielded cell, and did not have a record of using food containers to throw feces, urine, or other matter at staff or other inmates. Item 26, pp. 2-3; Item 34, p. 1.

  In the afternoon or early evening of November 26, 1991, Williams refused to return a styrofoam food tray and a cup to defendant Corrections Officer Philip Davis. Item 1, P 19; Item 33, P 4. *fn4" According to Williams, Davis thereupon walked away from his cell without giving him his evening meal. Item 1, P 19; see also, Item 26, p. 1. Davis contends that prison log book entries show that Williams was not denied his evening meal on November 26, 1991. Item 33, P 3. The defendants have placed copies of pertinent pages of the log in the record. Item 31, Ex. 4. Two entries indicate that the meal was served at about 4:10 p.m., and that Davis was collecting trash at 6:00 p.m. An entry evidently made at 6:10 p.m. states that Williams had refused to give up his tray. *fn5" There is no mention of food being withheld from Williams at that time.

 Following Williams' refusal to relinquish his food tray and cup on November 26, 1991, Davis completed an inmate misbehavior report, stating that Williams had failed to comply with two direct orders to throw out the tray, in violation of Rule 106.10. *fn6" Item 31, Ex. 3; Item 33, P 5. Again, the report gives no indication that Williams was deprived of any meals on November 26, 1991. See also, Item 29, P 15.

 At about 7:25 a.m. on the following morning, November 27, 1991, Williams again refused to give up his tray, this time to defendant Corrections Officer R. Murphy. Item 29, P 16; Item 31, Exs. 3 and 4. A log book entry marked 7:25 a.m., apparently made by Murphy, states that Williams was not fed at that time, and that he was "deprived of rec/showers this date per [defendant Sergeant] Townley." Item 31, Ex. 4. Like Davis, Murphy completed an inmate misbehavior report, stating that on the morning of November 27, 1991, Williams had twice refused to comply with direct orders to give up his tray, in violation of Rule 106.10. Item 31, Ex. 3. The report continues by stating that "at this time I did not give him his morning meal," and that "Sgt. Townley was notified of the situation and he deprived inmate Williams of his rec., showers." Id. See also, Item 29, P 16. Townley made out a deprivation order, pursuant to 7 N.Y.C.R.R. § 305.2, stating that Williams had been deprived of "exercise, shower," because it had been determined that he was a "threat to safety of staff. Refused to surrender feed up tray from dinner meal 11/26/91." Item 31, Ex. 2. The order made no mention of deprivation of food.

 Williams claims that when Murphy withheld his breakfast on November 27, 1991, he demanded that Murphy give him his meal. Item 1, P 20. He told Murphy that he had no authority to deny him food, and that he was allowed only to "write me a ticket if I refused to comply with your orders." Id. Murphy then purportedly told Williams that defendant Lieutenant Burge had ordered him to deprive inmates of meals if they did not comply with "feed-up" procedures. Id. Williams thereupon asked Murphy to tell Burge that he would like to speak with him. Id.

 Shortly thereafter, Burge came to Williams' cell, and informed him of the policy governing the return of food containers and utensils, and of the consequences of failing to comply with that policy. Item 1, P 21; Item 11, P 6. Williams claims that he asked Burge why he was being deprived of his right to an adequate diet, and told him that he had a right to eat, and that prison officials had no right to deprive him of food. Item 1, P 21.

 Later that day, Murphy withheld a second meal from Williams. Item 1, P 22; Item 29, P 17; Item 31, Ex. 4. An entry in the prison log, apparently made at 1:10 p.m., states that Williams "refused to give up his tray from 3-11 shift 11-26-91. Inmate was not fed. Sgt. Townley notified. Inmate refused to eat." Item 31, Ex. 4.

 Williams was deprived of his evening meal on November 27, 1991, but the record does not make clear which officers were involved. Item 1, P 24; Item 29, P 17. The prison log simply contains an entry, made at 5:10 p.m., stating that Williams "refused to give back feed-up tray from earlier meal -- inmate was not given a tray at this time." Item 31, Ex. 4. Williams claims that the deprivation ...

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