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February 20, 1995

FRANK DEMAIO, Plaintiff, against LOUIS F. MANN, Supt., et al., Defendants.

The opinion of the court was delivered by: LEWIS A. KAPLAN

KAPLAN, District Judge.1

 This is Section 1983 action by an inmate at the Attica Correctional Facility of the New York State Department of Correctional Services against various officers and officials at the Shawangunk Correctional Facility, where plaintiff formerly was incarcerated. The matter is before the Court on cross-motions for summary judgment.

 The amended complaint and some of the voluminous motion papers contain references to a host of grievances by the plaintiff. Plaintiff's motion for summary judgment, however, contains also a motion for voluntary dismissal of all but two of his claims and dismissal as to all defendants other than Mann, Levine, Vitaris, Freer, Turso, Yambay and Fredenburgh. He acknowledges that he cannot substantiate the other claims.

 The two matters that remain relate to plaintiff's claims that he was improperly confined in "strip plexiglass deprivation cells" from April 4 through April 25 and from August 30 through September 9, 1992.

 Facts *fn2"

 The April Incident

 On April 4, 1992, plaintiff was housed in the Special Housing Unit ("SHU") at Shawangunk in cell SHU-1 when an incident involving COs Freer and Vitaris took place. Plaintiff claims that Vitaris spit on him and that Vitaris and Freer then made a fictitious misbehavior report against him to retaliate for grievances plaintiff previously had filed. *fn3" Sergeant Yambay had plaintiff put in cell SD-1, the so-called strip plexiglass cell, where he remained until April 25. During a hearing on the misbehavior report before Deputy Superintendent Fredenburgh, plaintiff claimed that the incident must have been recorded on video tape because a surveillance camera was in the area. Fredenburgh, according to plaintiff, refused to view the alleged tape, stating that no tape had been recorded. Plaintiff was found guilty and sentenced to sixty days keeplock and sixty days loss of privileges to run consecutively with his existing SHU sentence.

 Plaintiff nowhere describes the strip plexiglass cell. He does, however, assert in a declaration that Vitaris and Freer deprived him of meals for the two day period, April 4-5. That assertion is supported also by a handwritten affidavit or declaration of inmate Soto contained in docket item 37.

 Not surprisingly, the defendants' version of these events is different in most respects. According to defendants, the incident began when CO Freer ordered plaintiff to remove a sheet from the bars of his cell. Plaintiff became abusive and spit on Freer. Plaintiff then was charged with misbehavior and moved to cell SD-1. (Def. 10(J) PP 31-34; Clerkin Aff. Ex. F [part]) The misbehavior report indicates that plaintiff was moved to SD-1 "(plastic)" on orders of a Lieutenant Cheers, who is not a party to this action.

 The defendants have provided also a rough transcription of the hearing on the misbehavior report, which began on April 10 and continued on April 17, 1992. (Clerkin Aff. Ex. G) The transcript confirms that plaintiff requested that the video tape that he assumed to exist be viewed. An exchange between Fredenburgh and Yambay during the April 17 portion of the hearing indicates that the incident was not recorded.

 Defendants have submitted evidence regarding the alleged plexiglass strip cell. The SHU at Shawangunk is split in the middle. Cells run in corridors to the left and the right, with a console area in the center. The right corridor has the SHU or "SH" designation; the left corridor has the "SD" designation. The cells are physically identical. (Mutz Aff. PP 19-23)

 Cells SD-1 and SD-8 have plexiglass shields on the cell doors, and the other cells may be fitted with such shields if necessary. Plexiglass shield orders are issued when an inmate engages in activities such as throwing food or bodily materials out of his cell or spitting on staff. Their purpose is to prevent such actions, but they do not stop fresh air from circulating into the cell. (Hoffman Aff. PP 9-10)

 It appears that plaintiff was kept in cell SD-1 from the time he was accused of spitting on CO Freer through the April 17 disposition of the misbehavior report on which he was found guilty. He was continued there from April 19 through April 25, 1992 pursuant to a Cell Shield Order issued by Deputy Superintendent Rivera because there was no other cell available. (Id. P 11)

 Significantly, defendants have not addressed plaintiff's claim that Vitaris and Freer withheld food from plaintiff for two days. That allegation therefore is undisputed.

 The August Incident

 Another incident took place on August 30, 1992. According to plaintiff, COs Vitaris and Turso and Sergeant Yambay moved him from cell SD-4 to SD-6 and destroyed or stole various articles of plaintiff's personal property. A few hours later, Vitaris allegedly charged plaintiff with throwing a cup of milk at him. Plaintiff claims that he thereupon was put into cell SD-8, which he also characterizes as a strip plexiglass deprivation cell. He allegedly was held there without exercise or fresh air, and kept naked, for twelve days during which unspecified defendants allegedly urinated in his beverages and gave him empty food trays. He claims also that he was improperly denied the right to call a witness at the hearing on the misbehavior report and that no finding was made on the complaint because he was transferred to another institution before the hearing concluded.

 Again, the defendants tell a very different story. In their version, plaintiff on August 30 threw milk and bread pudding onto the gallery floor in front of his cell, splashing CO Vitaris, and threatened Vitaris, resulting in Vitaris issuing a misbehavior report. *fn4" A hearing was commenced on September 2 at which plaintiff's request to call ...

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