The opinion of the court was delivered by: MUNSON
Plaintiff brought this civil rights suit under 42 U.S.C. § 1983, alleging in his pro se complaint violations of his rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. In its December 21, 1990 Memorandum-Decision and Order ("MDO"), the court declined to accept the Magistrate's Report-Recommendation in the instant case and directed the Magistrate to conduct further findings. After making additional findings of fact, the Magistrate recommended that the court deny defendants' motion for summary judgment. Presently before the court is defendants' renewed motion for summary judgment dismissing plaintiff's civil rights claim. Plaintiff, with the assistance of court-appointed counsel, opposes defendants' motion.
As the instant motion is one for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure, the court construes the following facts in a light most favorable to plaintiff. Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). Plaintiff Carlos Lazoda was an inmate at the Clinton Correctional Facility ("CCF") on July 11, 1985, when he was met by Investigator Thomas W. Kirwan and Sergeant Jerry P. Maggy. Maggy is a corrections officer at CCF. Kirwan is a senior investigator in the narcotics unit of the New York State Office of the Inspector General. Kirwan obtained the assistance of Maggy in enforcing a federal district court subpoena requiring plaintiff to provide handwriting exemplars ("exemplars") and hand, palm and finger prints ("prints") in relation to an investigation of drug trafficking at CCF.
Kirwan identified himself to plaintiff and said that he had a subpoena requiring plaintiff to provide his exemplars and prints. Plaintiff saw the subpoena in Kirwan's possession but never obtained the original or a copy of the subpoena. Plaintiff told Kirwan that he would not comply with the subpoena until he spoke with an attorney and had an opportunity to contest its validity. At Kirwan's request, Maggy ordered plaintiff to comply with the subpoena, but plaintiff again refused, explaining that he wanted to speak with an attorney. Maggy then told plaintiff that he would file a misbehavior report if plaintiff refused to comply with Maggy's direct order. Plaintiff again refused to comply. The officers escorted plaintiff back to his cell and Maggy subsequently filed an "Inmate Misbehavior Report", cosigned by Kirwan. The report charged plaintiff with violating correctional facility rules by refusing to obey a direct order. Inmate Misbehavior Report, Exhibit ("Exh.") A attached to Notice of Motion, Document ("Doc.") 13.
Plaintiff was given the assistance of a CCF employee to prepare for the hearing, Assistant Selection Form, Exh. A attached to Notice of Motion, Doc. 13, and was allowed to testify at the hearing. At plaintiff's request, Maggy testified at the hearing and plaintiff cross-examined him. Plaintiff was found guilty of refusing to obey a direct order and was commited to 30 days confinement with loss of privileges, including the loss of conjugal visits. Disciplinary Hearing Disposition, Exh. A attached to Notice of Motion, Doc. 13. The hearing officer's decision was affirmed by the CCF Superintendent upon appeal. Appeal Form to the Superintendent, Exh. A attached to Notice of Motion, Doc. 13.
Plaintiff instituted this § 1983 action against numerous prison officials, principally objecting that Kirwan and Maggy filed the misbehavior report in retaliation for plaintiff's refusal to comply with the subpoena, and objecting to the hearing officer's determination. Plaintiff alleges that defendants' actions violated his Fourth Amendment right to privacy, Fifth Amendment right against self-incrimination, Sixth Amendment right to counsel, Eighth Amendment right against cruel and unusual punishment, and Fourteenth Amendment right to due process. Plaintiff seeks monetary relief and an order enjoining defendants from ordering him to comply with a subpoena without first providing plaintiff the opportunity to challenge the subpoena with the assistance of counsel.
Defendants filed a motion for summary judgment asserting qualified immunity and claiming that plaintiff failed to state a cause of action because none of defendants' actions violated plaintiff's constitutional rights. Affidavit of Judith I. Ratner, attached to Notice of Motion, Doc. 13; Defendants' Memorandum of Law, Doc. 14.
In a Report-Recommendation to this court, Magistrate-Judge Smith recommended that defendants' motion for summary judgment be granted. July 31, 1990 Report-Recommendation, Doc. 24. Specifically, the Magistrate concluded that plaintiff failed to state a cause of action under the Self-Incrimination Clause of the Fifth Amendment because exemplars and fingerprints are "identifying physical characteristics and not within the protection of the Fifth Amendment." July 31, 1990 Report-Recommendation, Doc. 24, at 4; see Gilbert v. California 388 U.S. 263, 266-67, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967) ("taking of exemplars did not violate petitioner's Fifth Amendment privilege against self-incrimination"); see also Doe v. United States, 487 U.S. 201, 207, 101 L. Ed. 2d 184, 108 S. Ct. 2341 (1988).
The Magistrate also concluded that plaintiff's Sixth Amendment right to counsel did not attach because no criminal proceeding had been instituted against plaintiff and the taking of his exemplars and prints were not part of any pending criminal proceeding. July 31, 1990 Report Recommendation, Doc. 24, at 4.
Although plaintiff did not expressly make a claim under the Fourth Amendment, the Magistrate nevertheless concluded that such a claim would fail because plaintiff had no expectation of privacy in his exemplars or prints. July 31, 1990 Report-Recommendation, Doc. 24, at 4; see also Hudson v. Palmer, 468 U.S. 517, 529-30, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984).
As to plaintiff's complaint that he was denied conjugal visits during his period of administrative confinement, the Magistrate concluded that plaintiff had no property right to participate in the prison's Family Reunion Plan which administers the conjugal visit program. Thus plaintiff's right to due process was not violated when he was denied conjugal visits. The Magistrate further concluded that because plaintiff had no constitutional right to participate in the Family Reunion Plan, it was neither cruel nor unusual to deny him conjugal visits. July 31, 1990 Report-Recommendation, Doc. 24, at 4.
Further, plaintiff failed to allege a sufficient procedural due process claim under the Fourteenth Amendment because he "received all process to which he was entitled." July 31 Report-Recommendation, Doc. 24, at 4. In addition, plaintiff did not directly challenge the procedures used. Rather, plaintiff challenged the result reached by the hearing officer -- one based upon an allegedly illegal order to comply with the subpoena. July 31, 1990 Report-Recommendation, Doc. 24, at 5.
Lastly, plaintiff alleged conspiracy and racial discrimination. The magistrate found plaintiff's claims totally conclusory and unsupported. First, plaintiff failed to plead specific facts in support of either claim. With regard to the conspiracy claim, plaintiff did not present any evidence tending to show an agreement to commit an improper act. As to the claim based on his race, plaintiff "presented no concrete allegation as to any improper action based on his race but has merely ...