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MALSH v. AUSTIN

October 13, 1995

LUXLEY GEORGE MALSH, Plaintiff against CORRECTIONAL OFFICER AUSTIN, et al., Defendants.

John G. Koeltl, United States District Judge


The opinion of the court was delivered by: KOELTL

John G. Koeltl, District Judge:

 On this motion to dismiss, the court accepts the allegations in the plaintiff's pro se complaint as true for purposes of this motion. Cooper v. Pate, 378 U.S. 546, 12 L. Ed. 2d 1030, 84 S. Ct. 1733 (1964). The pro se complaint is to be "liberally construed", Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), held to "less stringent standards than formal pleadings drafted by lawyers", and can only be dismissed for failure to state a claim if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 520-521, quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 Even taking all of the plaintiff's allegations as true and liberally construing his complaint, the plaintiff has failed to state a claim for violations of 42 U.S.C. §§ 1983, 1985(3) and 1986. Accordingly, the plaintiff's complaint must be dismissed.

 The allegations in the complaint are as follows: the plaintiff was scheduled for a dental appointment on June 13, 1994 with the Woodbourne Dental Clinic. On June 13, his appointment was cancelled and rescheduled for July 6, 1994. When the plaintiff inquired as to why his appointment was rescheduled, he was informed by defendant Corrections Officer Austin that it was rescheduled because he was currently in "keeplock." The plaintiff was not satisfied with the response to his inquiry and filed a grievance against defendant Austin with the Woodbourne Grievance Office.

 Defendant Dr. Green, the director of the dental clinic at Woodbourne, responded to plaintiff's grievance by submitting a memorandum to the Woodbourne Grievance Office explaining that, on June 13, 1994, plaintiff's appointment, which was a routine follow-up to his regular dental care, was rescheduled due to several dental emergencies which required immediate emergency attention. On June 29, 1994, a hearing was held in connection with the plaintiff's grievance. The grievance committee did not find any merit to the plaintiff's claim and dismissed the case. The plaintiff appealed the dismissal to defendant Acting Superintendent Hanslmaier; Hanslmaier subsequently denied the appeal. Seemingly in protest of the handling of his claim, the plaintiff thereafter chose not to keep his rescheduled appointment at the dental clinic on July 6, 1994.

 The plaintiff also claims that, as a result of his arguments and complaints following the rescheduling of his dental appointment, he was threatened by parties unidentified in the complaint. The plaintiff alleges he was told that, if he continued to complain, a "Direct Order" report detailing his misbehavior would be filed against him, he would suffer physical violence, he could incur further detention in keeplock, and he might be subject to segregation.

 The plaintiff's first claim is that he was denied his Fourteenth Amendment right to Due Process because he was denied adequate dental care. The Fourteenth Amendment provides that a State shall not "deprive any person of life, liberty, or property, without due process of law...." U.S. CONST. amend. XIV, § 1. To allege a Fourteenth Amendment Due Process violation in this case, the plaintiff must allege that he was deprived of a constitutionally protected liberty interest. In determining whether state officials have deprived an inmate, such as the plaintiff, of such a protected "liberty" interest, the Supreme Court has recently instructed that:

 
States may under certain circumstances create liberty interests which are protected by the Due Process Clause....these interests will generally be limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293, 2295 (1995).

 Sandin thus held that, for an inmate to prove he was deprived of a liberty interest protected by the Fourteenth Amendment, the inmate must meet the standard of an "atypical and significant hardship...in relation to the ordinary incidents of prison life" and generally, this has been limited to freedom from restraint.

 The initial question here is whether the plaintiff had a protected right not to have his dental appointment adjourned. Plaintiff's rescheduled dental appointment plainly does not meet the "atypical and significant hardship standard" articulated in Sandin. When compared to the examples given in Sandin of violated liberty interests which would satisfy this standard (involuntary commitment to a mental hospital, Vitek v. Jones, 445 U.S. 480, 491-494, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980); involuntary administration of antipsychotic drugs, Washington v. Harper, 494 U.S. 210, 221-222, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990)), it is clear that plaintiff's claim does not reach the severity necessary to violate the Fourteenth Amendment's Due Process Clause. A rescheduled routine dental appointment is not atypical, nor did it pose a significant hardship to the plaintiff in relation to the ordinary incidents of prison life, nor did it involve any restraint against plaintiff; plaintiff was simply forced to wait three weeks for non-emergency dental care.

 In Sandin, the Supreme Court explicitly rejected the prior reasoning articulated in Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983), which allowed courts to find protected liberty interests in either (1) the nature of the deprivation (e.g., how severe, in degree or kind) or (2) the State's rules governing the imposition of the deprivation (whether the rules, in effect, give the inmate a "right" to avoid the deprivation). Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293, 2304. (Breyer, J., dissenting). Under the latter standard, the mandatory language of prison regulations could be found to create protected liberty interests. After Sandin, however, the inquiry must focus not on the mandatory nature of a State's rule governing the imposition of the deprivation, but rather on the nature of the deprivation itself.

 The plaintiff bases his claim in part upon the rejected Hewitt methodology of identifying liberty interests from prison regulations which had used "language of an unmistakably mandatory character." Hewitt, 459 U.S. at 471-472. The plaintiff argues that Woodbourne's own directives and procedures gave him a protected liberty interest. However, regardless of whether the Woodbourne directives required that the plaintiff must have his appointment on the day scheduled or that the grievance committee must follow certain prison procedural directives, the plaintiff does not have a ...


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