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March 3, 1995


The opinion of the court was delivered by: KENNETH R. FISHER

 Plaintiff, proceeding pro se, initiated this action pursuant to 42 U.S.C. § 1983, alleging that defendants violated his constitutional rights when they confined him to administrative segregation without proper hearings from January 23, 1991 to February 12, 1991, and from March 1, 1991 to December 4, 1991, respectively. Plaintiff also has claimed that the periodic denial of his privileges during these periods deprived him of his constitutional rights.

 This matter was originally referred to me by Chief Judge Michael A. Telesca, by order dated February 28, 1992, pursuant to 28 U.S.C. § 636(b)(1)(A). The parties subsequently executed a Consent to Proceed Before a United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). The consent was confirmed by order of Chief Judge Michael A. Telesca, dated December 3, 1992, pursuant to Fed. R. Civ. P. 73.

 In a Decision and Order dated May 11, 1994 (Docket Entry #69) I granted defendant's motion for summary judgment on plaintiff's First Amendment and Substantive Due Process claims. I denied without prejudice to renewal, the summary judgment motion on plaintiff's procedural due process claims, because defendants did not address these claims. Thereafter, in accordance with the timetable set forth in the aforementioned Decision and Order, defendants filed a motion for summary judgment on the procedural due process claims. Plaintiff submitted his affidavit in response to the motion on June 29, 1994. Plaintiff's procedural due process claims can be placed into three categories: unlawful placement in administrative segregation; unlawful use of administrative segregation as disciplinary confinement; and, unlawful continued confinement in administrative segregation. These claims are also directed at plaintiff's loss of privileges during administrative confinement. The following is my Decision and Order granting defendants' motion for summary judgment.

 I. Facts and Background

 Plaintiff was incarcerated as a pretrial detainee at the Monroe County Jail on January 18, 1991, following his arrest and arraignment on serious felony charges filed by the Rochester Police, including attempted murder. He was continuously confined there until received by DOCS to serve sentences imposed upon his conviction for attempted murder and other felonies, including attempted escape from custody. His stay at the jail was stormy. On January 23, 1991, plaintiff attempted to escape from custody during an appearance for a preliminary hearing in the Rochester City Court on the attempted murder charges. The escape attempt occurred as plaintiff was escorted to a City Court courtroom (Part #5). The plaintiff ran from the transport deputies, jumped the rail separating the bar from the general public, and was shortly apprehended, handcuffed, and returned to the City Court holding cell behind the courtroom.

 A report was submitted by a Monroe County Sheriff's deputy requesting that plaintiff be placed in administrative segregation. This request was approved in writing by defendant Jail Superintendent Robert J. Squires ("Squires") and defendant Captain Edward J. Frattare ("Frattare"). On the same day, plaintiff was given written notice of the reasons for, and the special conditions attending, administrative confinement. Squires affidavit filed June 15, 1994 (docket entry #74), at P 8, Exhibit C. Plaintiff's behavior in administrative segregation was monitored on a weekly basis, and his privileges were gradually restored. He was released to the general population by February 12, 1991, 17 days later. But he was never given a formal administrative hearing in connection with the January 23rd escape attempt. Instead, criminal charges for escape were lodged in criminal court. Plaintiff was arraigned on them and entered a plea the next day. Plaintiff claims that he was not given a hearing or an opportunity to make a statement to the responsible prison officials concerning this administrative confinement, and that he had a constitutional right to have such a hearing. The record shows, however, that he made a statement to the transport deputy, Jolly, when Jolly asked him why he tried to escape. According to Jolly's report, plaintiff said, "Did you see my charges. I had to try and escape, and I'll do it again if I get a chance." No formal hearing was held, however.

 On March 1, 1991, jail officials learned from a "reliable source" that plaintiff was planning another escape. Plaintiff's cell was searched. This search turned up contraband, a circular piece of metal that jail officials believed could be used in an escape. Cpl. J. Maier filed a report of the discovery and requested that plaintiff be returned to administrative segregation, with the restriction that he be handcuffed whenever he left his cell. Maier's written report/request was reviewed by Sgt. Palma, who recorded on Maier's report that plaintiff was indeed a threat to security and that he was moved to administrative segregation at 1930 hours on March 1st. Later that day, plaintiff was notified of the contraband infraction and interviewed by Deputy Passe. Plaintiff explained that he was placed in a corridor cell after he came back from a visit, and when confronted with the discovery of contraband in his cell, said, "I don't know nothing about it." Report of Deputy Passe, attached as Exhibit A of the Reply Affirmation of T. Andrew Brown, Esq. (docket entry #66). The interview occurred within 4 1/2 hours of plaintiff's transfer to administrative segregation. The report states that plaintiff was confined to administrative segregation "pending a hearing." It appears, however, that plaintiff was not told of the investigation which yielded his plans for escape.

 Plaintiff was given written notice of the handcuff restriction on March 4, 1991. Plaintiff was served with written notice of the contraband rule infraction and the scheduled hearing date on March 6, 1991. Squires Affidavit (docket entry #74), at P 12, Exhibit D. The "Notification of Infraction" told plaintiff that Cpl. Maier filed an infraction against him, charging him with possessing contraband in violation of the Inmate Rules and Regulations. The notice also stated that it was "based on the written report attached," and that plaintiff would be given an opportunity to answer the "alleged infraction" at the hearing scheduled the next day, March 7, 1991. Unfortunately, the record does not reveal precisely what written report was attached to the notification. Cpl. Maier wrote up at least three reports in connection with the events of March 1, 1991. First, a "Report of Infraction" was prepared recording the discovery of contraband, plaintiff's statement to Deputy Passe, and the referral of the matter for a hearing. Brown affidavit (docket entry #66) at Exh. A. Second, Maier prepared a two page "Special Report" dated March 1, 1991, to Sgts. Palma and Pereira detailing information from "reliable sources" tending to show that plaintiff was planning another escape attempt. Third, another two page "Special Report" to Sgt. Pereira was prepared on March 3rd detailing plaintiff's statements to another inmate, and conduct observed by the confidential "source" tending to confirm that plaintiff "is contemplating another attempt" to escape. Squires Affidavit (docket entry #60), at Exh. H. The latter Report resulted in a handcuff restriction ordered on March 4, 1991. It is not clear which reports were attached to the notification of hearing delivered to plaintiff, but plaintiff claims that the escape issue never surfaced at the March 7th hearing, and defendants do not refute this. Plaintiff later learned of the special reports detailing his escape plans when defendants filed a response later that year to an Article 78 proceeding in State Supreme Court. It is therefore a fair inference -- indeed there does not appear to be an issue of fact -- that only the "Report of Infraction" concerning the contraband was attached to the March 6th notice.

 Squires states in his affidavit that a hearing was held at 4:00 p.m. on March 7th, and that "Ramsey admitted both infractions." Squires Affidavit (docket entry #74), at P 13; Krenzer Affidavit of May 29, 1991, at P 11. *fn1" Plaintiff does not affirmatively dispute that he admitted the infractions, but he points out that the escape issue never came up. The hearing officer, defendant Deputy Edward L. Krenzer, recommended that plaintiff be given a verbal reprimand and continued administrative segregation. The recommendation was in writing and stated to be "Substantiated based on Written Report Given." Squires affidavit (docket entry #74), at Exh. D. Again, the court presumes, that the Special Reports prepared by Maier on the escape issue were not presented to the hearing officer, because defendants do not allege otherwise.

 Over the following three months, plaintiff was cited with more infractions which were sustained after hearings. Squires Affidavit P 16 and Exh. E. Plaintiff makes no claim with regard to the constitutional sufficiency of these hearings under the due process clause. Instead, he contends that the charges were lodged against him as unlawful retaliation for his plans to escape, an issue defendants chose not to confront him with.

 On June 1, 1991, while still confined to administrative segregation, plaintiff, with the assistance of two other inmates, attempted to escape once again. Deputy Danny Clark was escorting inmate Roy Timmons back to his cell when Timmons threw hot water in Clark's face. While Deputy Clark was temporarily blinded, Timmons took Clark's keys and opened his cell. Timmons then assaulted Clark. Clark's keys fell to the floor and were picked up by inmate Henry Newsome, who let himself and plaintiff out of their cells. While Timmons was fighting with Clark, and before Newsome let plaintiff out of his cell, plaintiff attempted to give Timmons a pen in order to stab Clark. After leaving their cells, the three inmates locked Clark into a cell.

 The inmates began to break windows in aid of an escape from the facility. But they returned to the cell occupied by Deputy Clark and opened it. Clark grabbed Newsome and the keys, and then locked Newsome back in his cell. Next, Clark struggled with plaintiff, but managed to lock plaintiff back into his cell.

 Clark was taken to the hospital. A team of deputies located and secured inmate Timmons. A shakedown of the third floor was conducted "to obtain any and all evidence of the escape attempt as well as any other contraband that may have been utilized or obtained during the escape attempt." Squires Affidavit P 24 & Exh. I. According to defendants, this "escape attempt was the most serious escape attempt in the twenty-one year history of the Monroe County Jail since being located at the Public Safety Building, 130 Plymouth Avenue South, Rochester, New York[,] . . . [and] resulted in serious physical injury to Jail Deputy Daniel Clark . . . and in property damage in excess of $ 9,000." Squires Affidavit (docket entry #60) P 15 & Exh. J.

 After the incident, plaintiff was continued in administrative segregation, and subjected to several restrictions. The next day, on June 2nd, Captain Frattare ordered, inter alia, that plaintiff be subject to a full handcuff restriction every time he was out of his cell and that he only be permitted non-contact visits. Further, the items plaintiff was permitted to have in his cell were restricted by order of Superintendent Squires dated June 4, 1991. See id. Exh. L. Plaintiff was served with written notice of the infraction on June 7, 1991. Plaintiff complained vigorously of the restrictions, in at least four memoranda, some written in crayon, to jail officials. Defendants responded to some of these memoranda, but not all.

 The jail administration notified plaintiff of its intent to pursue criminal charges against him. Based on the pursuit of the criminal charges, the internal disciplinary proceedings were held in abeyance pending the outcome of the criminal charges. Squires Affidavit (docket entry #74), at P 20; see also, Notification of Intention to Pursue Criminal Charges, dated June 10, 1991, annexed to plaintiff's prior Motion for Summary Judgment (docket entry #40). The record does not indicate whether these disciplinary hearings were ever held, but plaintiff was convicted of the escape charges and sentenced to state prison. He was removed to DOCS custody on December 4, 1991.

 II. Standards on a Motion for Summary Judgment

 The rules applicable to summary judgment motions have been restated by the Supreme Court as follows.

Rule 56(c) states that a party is entitled to summary judgment in his favor "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(e) further provides:
"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."
As we stated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." 477 U.S. at 322, 106 S. Ct. at 2552. Where no such showing is made, "the moving party is 'entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 323, 106 S. Ct. at 2552.

 Lujan v. National Wildlife Federation, 497 U.S. 871, 884, 110 S. Ct. 3177, 3186, 111 L. Ed. 2d 695 (1990).

 Although the court must "assess the record in the light most favorable to the non-movant . . . , the non-movant, . . . , who must sustain the ultimate burden of proof, must demonstrate in opposing a summary judgment motion that there is some evidence which would create a genuine issue of material fact." Delaware & Hudson Railway Company v. Consolidated Rail Corporation, 902 F.2d 174, 177-78 (2d Cir. 1990), cert. denied, 500 U.S. 928, 114 L. Ed. 2d 125, 111 S. Ct. 2041 (1991).

Conclusory allegations will not suffice to create a genuine issue. There must be more than a "scintilla of evidence," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 Id. 902 F.2d at 178. See, United National Insurance Co. v. Tunnel, Inc., 988 F.2d 351, 354 (2d Cir. 1993) ("On a motion for summary judgment the court must pierce the pleadings and their adroit craftsmanship to get at the substance of the claim"); Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991) ("where the nonmoving party will bear the burden of proof at trial, Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim"); Howard v. Gleason Corporation, 901 F.2d 1154, 1159 (2d Cir. 1990) ("summary judgment cannot be avoided by immaterial factual disputes"); Fetterusso v. State of New York, 898 F.2d 322, 328 (2d Cir. 1990) (failure "to submit affidavits or indeed to point to any evidence").

  Finally, in pro se cases, "special solicitude should be afforded pro se litigants generally, when confronted with motions for summary judgment." Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988); see also, Ruotolo v. Internal Revenue Service, 28 F.3d 6, 8 (2d Cir. 1994). When the pro se plaintiff is unaware of the requirement of Rule 56(e) that he or she must file affidavits which show a genuine issue of fact, it is inequitable, without a more explicit warning, to enter summary judgment against that plaintiff. Graham v. Lewinski, 848 F.2d at 344. In this case, plaintiff's knowledge of the requirements of Rule 56(e) is ...

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