may impose reasonable restrictions on the use of prison law libraries. Morello, 810 F.2d at 347.
To sustain a claim based on actual denial of access to the law library, the plaintiff must allege that the deprivation proximately caused some prejudice or denial of a legal claim. Id. ; Ragland v. Crawford, 1997 U.S. Dist. LEXIS 1245, No. 95 Civ. 10069, 1997 WL 53279, *6 (S.D.N.Y. Feb. 7, 1997); Duff v. Coughlin, 794 F. Supp. 521, 524 (S.D.N.Y. 1992) (granting summary judgment, where complaint did not describe any prejudice suffered). In the case before this Court, Plaintiff's alleged deprivation of access to the law library was temporary, lasting only one day. (Pl.'s Mem. Law at 4.) In addition, Plaintiff has not sufficiently plead any actual injury resulting from not having access to the law library. Therefore, Plaintiff's claim on this issue is dismissed.
Plaintiff alleges that false IMRs were issued in retaliation for his having exercised his constitutional rights to "access the law library" and remain "free from cruel and unusual punishment" pursuant to the Eighth Amendment. (Pl.'s Mem. Law at 27.) Furthermore, Plaintiff alleges that Francis filed a false IMR on August 23, 1993, in retaliation for Plaintiff having contested the February 7, 1993 IMR. (Pl.'s Mem. Law at 2, 27; Compl. P 3.)
A prisoner has a right not to be subjected to false misconduct charges in retaliation for his exercise of a constitutional right.
Jones v. Coughlin, 45 F.3d 677, 679-80 (2d Cir. 1995); Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988). However, the filing of a false misbehavior report, does not, by itself, violate a prisoner's right to due process. Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986), cert. denied, 485 U.S. 982, 99 L. Ed. 2d 484, 108 S. Ct. 1273 (1988); Webb v. Artuz, 1996 U.S. Dist. LEXIS 11431, No. 93 Civ. 5985, 1996 WL 452260 (S.D.N.Y. Aug. 8, 1996). Instead, the Plaintiff bears the burden of showing that the conduct at issue was constitutionally protected and that the protected conduct was a substantial or motivating factor in the prison official's decision to discipline Plaintiff. Mount Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); Graham v. Henderson, 89 F.3d 75, 79-80 (2d Cir. 1996); Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988); Ragland, 1997 U.S. Dist. LEXIS 1245, 1997 WL 53279, at *6. In addition, prisoners' claims of retaliation must be viewed with skepticism and with particular care. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
Plaintiff has failed to show that the circumstances surrounding his denial of access to the law library is constitutionally protected or to show any connection between the allegedly false IMR and Plaintiff's access to the library. Accordingly, this claim is dismissed.
As to the portion of Plaintiff's claim addressing the Eighth Amendment, quoted above, the Court will treat this as a claim that Defendants filed several false IMRs in retaliation for Plaintiff having filed grievances. There is a constitutional right of access to the courts and governmental officials for redress of grievances. Graham, 89 F.3d at 80; Colon, 58 F.3d at 872. However, Plaintiff has not pled with sufficient particularity how the filing of the grievances resulting in retaliation. Plaintiff filed three grievances, one against Defendant Francis, one against Defendant O'Connor, and one against Defendant Jacobs.
After filing a grievance against Defendant Francis, Francis never filed another IMR. The same is true for Defendant O'Connor. Defendant Jacobs never filed an IMR. Therefore the Court fails to see how he was retaliated against for filing a grievance. Plaintiff has also failed to allege, whether the particular Defendants even knew about Plaintiff's grievances and, beyond any conclusory statements, why there would be any retaliation.
Regarding Plaintiff's allegation that Francis' August IMR was in retaliation for Plaintiff appealing or challenging the February IMR, Plaintiff has failed to make a sufficient showing of any connection between the two acts. Gill v. Mooney, 824 F.2d 192, 194-95 (2d Cir. 1987). The time period is also too long to draw any inferences of a connection. Colon, 58 F.3d at 872.
Accordingly, Plaintiff's retaliation claims are dismissed as a matter of law.
d. Defendants Keane and Greiner
Plaintiff alleges that Keane and Greiner failed to comply with DOCS rules and regulations by not responding to his grievance within the 15 day time frame provided in 7 N.Y.C.R.R. ch. 5 § 253.8, Appeal Procedure,
and thereby violated his due process rights. (Compl. P 6, at 8; Pl.'s Mem. Law at 2, 29.)
Under the analysis adopted by the Supreme Court in Sandin, and as discussed above, the prison regulations requiring that a grievance disposition be returned within 15 days does not create an interest to which due process rights attach. Consequently, Plaintiff's claim of a denial of due process fails as a matter of law.
2. Eighth Amendment
In Plaintiff's Third Cause of Action he makes a bare allegation of Eighth Amendment violations without stating anything further. The Eighth Amendment protects prisoners from punishment that is deemed cruel and unusual. Prisoners usually allege Eighth Amendment violations for excessive force in conducting searches and for denial of certain human needs such as food and medical care.
a. Verbal Threats and Harassment
The only possible claim the Court can see as a violation of the Eighth Amendment is Plaintiff's allegation that he was verbally harassed. Plaintiff alleges that he was provoked by Defendant Jacobs on December 24, 1993; (Compl. P 5), harassed by Defendant Leghorne, who allegedly used profanity towards him, and by Defendant Francis; and provoked by Defendant O'Connor into a confrontation. (Compl. PP 2 & 6-7; Pl.'s Mem. Law at 1, 26-27.) Allegations of threats, verbal harassment or profanity, without any injury or damage, do not state a claim under § 1983. Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (name calling claim does not allege a constitutional violation); Ragland v. Crawford, 1997 U.S. Dist. LEXIS 1245, No. 95 Civ. 10069, 1997 WL 53279 (S.D.N.Y. Feb. 7, 1997); Ramirez v. Holmes, 921 F. Supp. at 209; Santiago v. Coughlin, No. 85 Civ. 2936, 1990 WL 4741, at *4 (E.D.N.Y. Jan. 17, 1990) (verbal harassment by a guard does not state a cause of action); Wright v. Santoro, 714 F. Supp. 665, 667 (S.D.N.Y.) (racially derogatory remarks by a guard do not violate an inmate's constitutional rights), aff'd, 891 F.2d 278 (2d Cir. 1989). Here, assuming Plaintiff's allegations are true, he alleges only verbal harassment and threats by Defendants.
Those allegations do not support a § 1983 violation as a matter of law. Plaintiff's claims are therefore dismissed.
3. Plaintiff's Urinalysis Testing -- Fourth Amendment
Plaintiff alleges that Defendant Holder did not have probable cause to subject him to a urinalysis test, thus violating Plaintiff's Fourth Amendment rights. (Pl.'s Mem. Law at 28.) It is well established that urinalysis testing constitutes a search. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989). However, it is equally well-established that a prisoner's rights to be free from unreasonable searches is diminished once he or she steps through the prison door.
Id. 489 U.S. at 619-20; Bell v. Wolfish, 441 U.S. 520, 557, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). If the intrusion into one's privacy is found to be minimal, as it is here,
and the expectation of privacy is minimal, as it is here, and there is a governmental reason advanced supporting a search, as is the case here, then the search will not violate one's Fourth Amendment rights. Under New York regulations, 7 N.Y.C.R.R. § 1020.4(a)(1)(iii), corrections personnel may order an inmate to submit to a urine test based on a reasonable suspicion and based on information from a source that the inmate is or has recently used illicit drugs or alcohol.
Holder smelled marijuana from the gallery below him and requested other correction officers to investigate the matter. The corrections officers reported back to Holder that Plaintiff was the only person on the gallery and as a consequence Plaintiff was requested to submit to a urinalysis test.
Plaintiff's test was negative and accordingly, no charges were filed against him. The Court finds Defendant Holder thus had probable cause to order urinalysis.
Accordingly, Plaintiff's claim is dismissed.
4. Supervisor Liability
Finally, Plaintiff alleges that Defendants "Keane and Greiner, as early as February 20, 1993, learned of the differences between C.O. Francis, Lt. Patterson and plaintiff. . . . Plaintiff filed a grievance on C.O. Francis in September 1993. . . . Plaintiff filed a complaint against C.O. Jacobs in December 1993. . . . Plaintiff filed a grievance against Sgt. O'Connor and C.O. Canon, in July and August, 1994, respectively. . . . Both of the defendants were grossly negligent in managing all of the aforementioned defendants," (Pl.'s Mem. Law at 30), "and failed to remedy a wrong." (Pl.'s Mem. Law at 31.)
Defendants contend that because Keane and Greiner were not personally involved in the alleged violations of Plaintiff's constitutional rights the Complaint should be dismissed as against them. (Defs.' Mem. Law at 21.) The personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983. Colon, 58 F.3d at 873; Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Plaintiff has failed to allege any direct involvement by these Defendants.
Personal involvement is shown by evidence that: "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating unconstitutional acts were occurring." Colon, 58 F.3d at 873; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986). Here, the Plaintiff has not shown that there have been any constitutional deprivations. The Plaintiff has also failed to come forward with any evidence, beyond conclusory allegations, to support any of these allegations. They are accordingly dismissed.
The Court, having examined the Complaint in its entirety, and finding no other potential claims on Plaintiff's behalf, grants Defendants' Motion for Summary Judgment, dismissing Plaintiff's Complaint in its entirety.
Pursuant to 28 U.S.C. § 1915(a), any appeal from this Order would not be taken in good faith.
Dated: New York, New York
April 21, 1997
Deborah A. Batts