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STRAUCH v. DEMSKIE

June 28, 1995

HERMAN STRAUCH, Plaintiff, against JOSEPH DEMSKIE, FIRST DEPUTY SUPERINTENDENT OF SING SING CORRECTIONAL FACILITY, sued in his individual and official capacity, Defendant.


The opinion of the court was delivered by: SHIRA A. SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.

 Plaintiff Herman Strauch sues Defendant Joseph Demskie, the Deputy Superintendent of the Sing Sing Correctional Facility, under 42 U.S.C. § 1983. *fn1" Plaintiff now moves, pursuant to Fed. R. Civ. P. 56, for partial summary judgment on the issue of Defendant's liability. Defendant has cross-moved for summary judgment. For the reasons stated below, Defendant's motion is granted and Plaintiff's motion is denied.

 Plaintiff was incarcerated at the Sing Sing Correctional Facility in Ossining, New York at the time of the occurrences that form the basis of his complaint. See Affidavit of Herman Strauch, January, 1995 ("Strauch Aff."), at PP 4-13. On July 5, 1990, Corrections Officer Glenn Zook procured a urine specimen that was attributed to Plaintiff; the urine tested positive for cocaine, and Plaintiff was charged in an Inmate Misbehavior Report with violating rule 113.12 (use of a controlled substance). See Affidavit of Noah M. Weissman, January 26, 1995 ("Weissman Aff."), Exhibit C: Inmate Misbehavior Report. At a Tier III hearing, Plaintiff pled not guilty, offered evidence that he could not have been the source of the urine tested because he was working in the shop at the time of the test, and was found not guilty. See Weissman Aff., Exhibits E and F: Hearing Transcript and Hearing Disposition Rendered Form. *fn2"

 Five weeks after Plaintiff's acquittal, Demskie ordered Strauch to produce a urine specimen, which tested positive for cocaine. See Weissman Aff., Exhibit G: Request for Urinalysis Test Form. Demskie based his Request for Urinalysis on suspicion aroused by the initial positive result. See Weissman Aff., Exhibit L: Deposition of Joseph Demskie at 91. Demskie noted at the Tier III hearing on the second positive, "[Strauch] had a positive urine [test] in the past and his Tier III hearing was overturned because of a procedural error. . .and that did not change the fact in my mind that he still had a positive test result." Transcript of Tier III hearing of October 11, 1990, ("Tr.") at 6. Plaintiff was convicted of using a controlled substance. See Tr. at 9.

 Plaintiff then challenged the ruling in an Article 78 proceeding brought in the state court. See Strauch v. Keane and Coughlin, Index No. 1908-91, (Sup. Ct. Westchester Co. Oct. 22, 1991). Observing that New York Code R. & Regs., Title 7, 1020.4 permits non-random urinalysis testing of an inmate when a prison official has "reason to believe" that an inmate has taken a proscribed narcotic, Justice Carey found that Defendant Demskie did not have adequate "reason to believe" that plaintiff had used drugs. Id. Justice Carey therefore excluded the positive test and vacated the Tier III conviction.

 Plaintiff then initiated a § 1983 suit in this District. *fn3" Both parties now move for summary judgment.

 II. DISCUSSION

 A. Qualified Immunity

 1. The Applicable Standard

 To establish Defendant's liability under § 1983, Plaintiff must demonstrate:

 
(i) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (ii) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States.

 Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993). *fn4" Plaintiff claims that Demskie's subjecting him to the September 15, 1990, urine test violated Strauch's Fourth Amendment right to be free from unreasonable ...


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