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ALNUTT v. CLEARY

January 8, 1996

JEFFREY ALNUTT, Plaintiff,
v.
WILLIAM CLEARY, JAMES KENNER, KEITH WHITE, ROBERT GRUVER, JOSEPH BATES, RICHARD KOSLOWSKI, THOMAS LAMB, CARL ANDERSON, MARY GUENTHER, Defendants.



The opinion of the court was delivered by: LARIMER

DECISION AND ORDER

 BACKGROUND

 This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Jeffrey Alnutt ("Alnutt"), a prisoner who at all times relevant was incarcerated at the Wende Correctional Facility ("Wende"). *fn1" Pending before the Court are the parties' cross-motions for summary judgment.

 FACTS

 The facts, as alleged by Alnutt, are as follows: Alnutt was an inmate at Wende where defendants were all employed in various capacities. Prior to his election as IGRC representative in late February 1990, Alnutt was housed at Wende in what was referred to as the "Honor Block." Prior to his election he had never been cited for any disciplinary violations.

 According to Alnutt, after he was elected as an IGRC representative, the corrections officers who guarded his cell block - defendants William Cleary ("Cleary"), James Kenner ("Kenner"), and Keith White ("White") - began to systematically harass him. Such harassment, according to Alnutt, included verbal taunts, denigrating remarks, a deprivation of meals, bedding, clothing and mail, and interference with his job responsibilities both as the IGRC representative and "feed-up" man in the mess hall. He also alleges that he was required to undergo more drug tests than had previously been the case.

 Alnutt claims that defendant Robert Gruver ("Gruver"), the grievance officer who was charged with the responsibility of overseeing Alnutt's duties as IGRC representative, recommended the increased drug testing and threatened Alnutt that he would be "set up" if he did not stop his activities as an IGRC representative.

 Before he was elected as IGRC representative, Alnutt had been subjected to only one urine test in the two years that he had been at Wende. However, during the four months that he served as IGRC representative, he was subjected to three urine tests.

 On July 12, 1990, Alnutt's urine sample was tested by defendants Carl Anderson ("Anderson") and Thomas Lamb ("Lamb"). Apparently, neither Anderson, who performed the initial urine test, nor Lamb, who performed the confirmatory test, recalibrated the testing machine prior to testing Alnutt's urine, which Alnutt claims was in violation of a Department of Correctional Services' ("DOCS") Directive, codified at 7 N.Y.C.R.R. §§ 1020 et seq. Alnutt claims that the failure to recalibrate the machine was significant because another inmate had tested positive for cannabinoids immediately before Alnutt's test.

 In Alnutt's misbehavior report charging drug use, Anderson declared that he had recalibrated the testing machine prior to administering the test. At his deposition, however, Anderson admitted that he had not calibrated the machine as claimed. He attributed this change in testimony to his confusion at the time the initial report was prepared. But, Anderson steadfastly maintains that the failure to recalibrate the machine did not affect the validity of the test as administered.

 There were other problems with the test. The misbehavior report indicates that defendant Lamb performed a second, confirming test. Apparently, Anderson filled out the forms and signed Lamb's name to them concerning the results of this test. At his deposition, Lamb testified that he did the second test which showed the presence of marijuana. He also admitted, however, that proper recalibration procedures had not been followed prior to his test and that he knew that was the case when the initial misbehavior report was filed.

 Defendant Joseph Bates ("Bates"), was the hearing officer at the hearing on the drug charge in the misbehavior report. Defendant Richard Koslowski ("Koslowski"), testified about the process and general procedure for narcotics testing. He explained some of the matters that Alnutt claimed were suspect about his test. For example, he verified that the test results were positive for marijuana and that certain "control" numbers on the report were irrelevant in determining the results of Alnutt's tests. Alnutt objects to the procedures used when Koslowski testified. Prior to Koslowski's testimony, Bates turned off the recording device, sent Alnutt out of the hearing room, and conferred privately with Koslowski. Koslowski also admitted that he conferred with Lamb about Alnutt's case prior to testifying.

 Alnutt claims that, at his hearing, Bates prevented him from introducing evidence that would have demonstrated the mistakes that had been made by Anderson and Lamb in conducting the drug test. After the hearing, Bates found Alnutt guilty on the disciplinary charge, sentenced him to 90 days in special housing ("SHU") with a loss of privileges and discharged him from his position as IGRC representative.

 Prior to Alnutt's hearing on the drug charge, defendant Mary Guenther ("Guenther") transferred Alnutt to Southport Correctional Facility ("Southport") around midnight on July 18, 1990, while he was still an IGRC representative. This transfer was effected even though DOCS' regulations, codified at 7 N.Y.C.R.R. § 701.5, require a hearing prior to the transfer of an IGRC representative unless the representative creates an emergency situation necessitating his immediate removal. Guenther stated that Alnutt was transferred due to an emergency situation that existed at Southport Correctional Facility which required an exchange of inmates.

 DISCUSSION

 I. Standards on Summary Judgment

 A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). All ambiguities and inferences must be resolved in favor of the non-moving party and all doubts as to the existence of a genuine material issue for trial should be resolved against the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970).

 If, when "viewing the evidence produced in the light most favorable to the non-movant...a rational trier could not find for the non-movant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991); Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).

 No genuine issue of material fact exists if "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party..." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 II. Plaintiff's Due Process Claims

 A. Verbal Harassment and False ...


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