April 4 misconduct report, improperly refused to view the alleged video tape and that Mr. Levine, who conducted the September hearing, improperly refused to call inmate Soto as a witness. We assume the contention is that he was denied procedural due process.
Plaintiff has failed to submit any competent evidence that the alleged video tape ever existed. The hearing record indicates that the video camera was used for surveillance purposes and that the video signal was recorded only if a particular request was made. Since there was no evidence that any tape of the incident ever existed, Fredenburgh's actions did not deprive plaintiff of any constitutional right.
The claim that Levine improperly failed to call inmate Soto at the hearing on the August 30 misbehavior reports is equally without merit. Inasmuch as the hearing was not concluded as a result of plaintiff's transfer to another institution, no finding ever was made on the charges in the misbehavior reports, and no sanction was imposed on the basis of any such finding, we find no infirmity.
False Retaliatory Misbehavior Report
As noted, plaintiff was found guilty of spitting on CO Freer in April 1992 and sentenced to sixty days keeplock and sixty days loss of privileges. He denies under oath that he was guilty of the conduct alleged and asserts in substance that Freer concocted the charge against him to retaliate for plaintiff's filing of grievances against him and others.
As we noted not long ago, recent decisions by the Second Circuit indicate that the filing of false disciplinary charges against an inmate by correction officials may deprive the inmate of the right to substantive due process, at least where the officials act in retaliation for the exercise of constitutionally protected rights and perhaps in any case. McCorkle v. Walker, 871 F. Supp. 555, 1995 WL 4732, *2 (N.D.N.Y. 1995), citing Grillo v. Coughlin, 31 F.3d 53, 56 (2d Cir. 1994); Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994); Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988).
Here, there is an issue of fact as to whether the charges that COs Freer and Vitaris lodged against plaintiff were false. In consequence, both plaintiff's motion for summary judgment and the cross-motion of COs Freer and Vitaris must be denied. Inasmuch as plaintiff has submitted no competent evidence implicating any of the other defendants in the alleged filing of false charges, the cross-motion by the other defendants with respect to this incident is granted.
Cell Search and Loss of Property
Plaintiff complains about the search of his cell on April 4, 1992 and the alleged destruction and loss of personal property.
Searches of prison cells, even arbitrary searches, implicate no protected constitutional rights. E.g., Hudson, 486 U.S. 517; Payne v. Axelrod, 871 F. Supp. 1551 1995 WL 4303, *3 (N.D.N.Y. 1995). It is well established, moreover, that plaintiff's allegation of loss of property does not state a claim upon which relief may be granted in view of the availability to plaintiff of a claim against the State of New York in the State Court of Claims. Daniels v. Williams, 474 U.S. 327, 329, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986); Hudson, 468 U.S. at 533; Parratt v. Taylor, 451 U.S. 527, 543, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981); Forman v. Coughlin, 1994 U.S. Dist. LEXIS 18103, 1994 WL 708150, *1 (S.D.N.Y. 1994).
For the foregoing reasons, plaintiff's motion for summary judgment is denied in all respects. His motion to discontinue all claims other than those relating to the April and August 1992 incidents is granted and those claims are dismissed with prejudice.
Defendants' cross-motion for summary judgment dismissing the action is denied with respect to the following claims:
(a) the claims that Freer and Vitaris inflicted cruel and unusual punishment on and deprived plaintiff of procedural due process by withholding food from him on April 4 and 5, 1992;
(b) the claims that Vitaris, Yambay and Turso inflicted cruel and unusual punishment on and deprived plaintiff of procedural due process by withholding food and clothing from him during the period August 30 through September 9, 1992; and
(c) the claim that Freer and Vitaris deprived plaintiff of substantive due process by lodging a false charge against him on April 4, 1992.
The motion for summary judgment dismissing the action is granted in granted in all other respects.
Inasmuch as this ruling completely disposes of this action insofar as it is brought against defendants Mann, Levine and Fredenburgh and the issues involving those defendants are quite distinct from those that remain against the others, we conclude, pursuant to Fed. R. Civ. P. 54(b), that there is no just reason for delay and direct the entry of judgment dismissing the action as to defendants Mann, Levine and Fredenburgh.
Dated: February 20, 1995
Lewis A. Kaplan
United States District Judge