with no weapons. Moreover, a medical examination of Johnson revealed no broken bones, bruises or swelling. Investigative Supervisor's Report, dated June 26, 1992, annexed to the Waldron Decl. as Exh. "5." As such, the Court finds that this level of force is de minimis and thus not protected by the Eighth Amendment. See Candelaria v. Coughlin, 787 F. Supp. 368, 374-75 (S.D.N.Y.) (where officer allegedly pushed his fist against inmate's neck so inmate could not move or breathe, court found only de minimis use of force since officer did not use force repeatedly and no bruises or swelling resulted), aff'd, 979 F.2d 845 (2d Cir. 1992).
Even if this level of force were more than de minimis, Captain Simon's conduct and Johnson's corresponding injuries were not serious enough to satisfy the objective component of the Eighth Amendment. Captain Simon is alleged only to have pushed Johnson against the wall with his hands. As Judge Friendly recognized, "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 38 L. Ed. 2d 324, 94 S. Ct. 462 (1973); see also Gabai v. Jacoby, 800 F. Supp. 1149, 1155 (S.D.N.Y. 1992) (Eighth Amendment claim dismissed on summary judgment where officer, in attempting to restore order, allegedly pushed inmate into chair causing a bruise on inmate's arm). In any event, not only were Johnson's injuries minor, but were also more likely caused by the riot squad officer, whom Johnson claims hit him several times with a stick, as opposed to Captain Simon, who is alleged only to have pushed Johnson against the wall.
Finally, the record is devoid of evidence that in pushing Johnson, Captain Simon acted in a wanton manner. Johnson has neither alleged nor attempted to establish that Captain Simon exhibited "malicious and sadistic behavior." Romano v. Howarth, 998 F.2d at 105 (quoting Whitley v. Albers, 475 U.S. at 320-21). The force allegedly used by Captain Simon was reasonable in light of the circumstances and the threat reasonably perceived by him.
VII. Qualified Immunity
Government officials performing discretionary functions are entitled to qualified immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Qualified immunity allows courts to terminate meritless lawsuits quickly and reduces litigation expenses and the deterrence of citizens from accepting positions in public office. Id. at 814. If, however, facts material to the issue of qualified immunity are in dispute, claims cannot be dismissed based on qualified immunity as a matter of law before trial. DiMarco v. Rome Hospital, 952 F.2d 661, 666 (2d Cir. 1992). In other words, "if any reasonable trier of fact could find that the defendants' actions were objectively unreasonable, then the defendants are not entitled to summary judgment." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995).
In the present case, the core inquiry is whether a reasonable prison official would have believed that the group strip search and the refusal to separate the Muslim inmates violated RFRA, the First Amendment or the Fourth Amendment. As discussed above, a material issue of fact exists as to whether the manner in which the search was conducted was objectively unreasonable and thus violative of the First and Fourth Amendments. Since this fact is material to the determination of qualified immunity, summary judgment on plaintiffs' First and Fourth Amendment claims cannot be granted on qualified immunity grounds.
Whether a reasonable prison official would have believed that the strip search of plaintiffs with the other inmates violated RFRA presents a different question. On a motion for summary judgment on qualified immunity grounds, the Court must not only assess the "objective legal reasonableness" of defendants' actions, but must also consider whether the legal rule at issue was "clearly established" at the time the actions were taken. Harlow v. Fitzgerald, 457 U.S. at 818-19. If the law under which plaintiffs' claims are brought was not clearly established at the time the defendants acted, the defendants cannot be said to know that the law forbade their actions. Gilmore-Bey v. Coughlin, 929 F. Supp. 146, 150 (S.D.N.Y. 1996). Although RFRA applies retroactively to the conduct at issue here, which occurred in 1992, see Reese v. Coughlin, 1996 U.S. Dist. LEXIS 9206, No. 93 Civ. 4748, 1996 WL 374166, at *5 (S.D.N.Y. July 3, 1996), the statute was not passed until November 1993. As held in Woods v. Evatt, 876 F. Supp. 756, 771-72 (D.D.C.), aff'd, 68 F.3d 463 (4th Cir. 1995):
The RFRA was clearly a change in the law and was a clear and determined break from the interpretation of that law by the Supreme Court and the appellate courts. As its legislative history makes clear, the law was intended to change the standard under which claims of religious freedoms and/or discrimination were considered.
Therefore, as in Gilmore-Bey v. Coughlin, 929 F. Supp. at 150, defendants here are "clearly entitled to qualified immunity for acts taken prior to the effective date of the statute, November 16, 1993." Plaintiffs' claims pursuant to RFRA are thus dismissed on the ground that defendants are entitled to qualified immunity.
For the reasons set forth above, defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 is granted as to (1) all claims against Warden Patterson and Captain Whitehead; and (2) plaintiffs' claims pursuant to the Religious Freedom Restoration Act and the Eighth Amendment. Defendants' motion for summary judgment is denied as to plaintiffs' claims pursuant to the First and Fourth Amendments.
SHIRLEY WOHL KRAM
United States District Judge
Dated: New York, New York
January 7, 1997