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April 30, 1997

GEORGE J. BARTLETT, MICHAEL RABIDEAU, DSA, and JOHN BURGE, Deputy Superintendent of Security, Defendants.

The opinion of the court was delivered by: HECKMAN

 This case has been referred to the undersigned by Hon. Michael A. Telesca, pursuant to 28 U.S.C. § 636(b)(1), for pretrial matters and to hear and report on dispositive motions. Defendants have filed a motion for summary judgment (Item 22) pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has responded to this motion, and has filed a motion for leave to amend or supplement his complaint (Item 30) and a motion for appointment of counsel (Item 45). For the reasons that follow, it is recommended that defendants' motion for summary judgment be granted. Plaintiff's motions to amend/supplement and for appointment of counsel are denied.


 On June 27, 1995, J.C. Sullivan, a Corrections Officer at the Elmira Correctional Facility maintained by the New York State Department of Correctional Services ("NYSDOCS"), issued an Inmate Misbehavior Report charging plaintiff with throwing a cup full of feces and urine on Sullivan and Corrections Counselor Christine Jussaume, in violation of Rules 100.11 *fn1" and 118.22 *fn2" of the NYSDOCS Institutional Rules of Conduct/Standards of Inmate Behavior (Item 23, Ex. 20). At the time, plaintiff was confined in the Elmira facility's Special Housing Unit ("SHU"). *fn3" As a result of this incident, plaintiff was moved to a cell with a plexiglas shield and placed on a restricted diet, in accordance with NYSDOCS regulations and directives. See 7 N.Y.C.R.R. §§ 304.2 (restrictive diet), 305.6 (cell shield); NYSDOCS Directive No. 4933(VII)(A) (restricted diet), & (VIII)(F) (cell shield). The cell shield order was signed by Sgt. R.N. Latterell (Item 23, Ex. 168) and authorized by acting Deputy Superintendent John Burge (id., Ex. 167). The pre-hearing restricted diet order was signed by both Burge and Superintendent George Bartlett (id., Ex. 29). Plaintiff remained on the restricted diet, consisting of a one-pound "Nutriloaf" (whole wheat flour, sugar, carrots, potatoes, whole and packaged milk and yeast) and one cup of raw cabbage served three times a day (see id., Ex. O; see also Trammell v. Coombe, 170 Misc. 2d 471, 649 N.Y.S.2d 964, 967 (Sup.Ct. Westchester Co. 1996)), until July 4, 1995 (Item 23, Ex. 29; Item 38, P 6).

 A disciplinary hearing was held on July 13, 1995 before Hearing Officer Michael Rabideau. Plaintiff was found guilty of the charges in the misbehavior report, and was assessed a penalty of 45 days restricted diet, an additional 36 months SHU confinement and loss of recreational, package, commissary and telephone privileges, and 24 months loss of good time credits (Item 43, Exs. 14-15). During the period from July 31, 1995, to September 25, 1995, plaintiff was served a restricted diet for seven consecutive days followed by two days of regular meals (Item 39, Ex. S).

 On September 14, 1995, NYSDOCS Director of Special Housing/Inmate Discipline Donald Selsky reversed the July 13, 1995 hearing determination and ordered a rehearing, based on the hearing officer's "failure to provide written reason for denial of requested witness" (Item 43, Ex. 13). Plaintiff's rehearing was held on September 28, 1995 before Hearing Officer Larry Bates. Plaintiff refused to attend the hearing (Item 39, Ex. 1(B)). Relying on the June 27, 1995 misbehavior report, photographs of plaintiff's cell, and other documentary evidence, and considering plaintiff's refusal to present evidence or witnesses in his defense, Hearing Officer Bates found plaintiff guilty of the charges in the misbehavior report. He imposed a penalty of 365 days SHU confinement and loss of recreational, package, commissary and telephone privileges, 12 months loss of good time credits, and 35 days restricted diet (Item 23, Exs. 17-19). On October 3, 1995, Captain G.D. Aidala amended the hearing officer's disposition to give plaintiff credit for time already served on restricted diet (Item 23, Ex. 24).

 On October 10, 1995, plaintiff filed this action pro se in the Northern District of New York, pursuant to 42 U.S.C. § 1983. In his complaint, plaintiff claims that Bartlett and Burge violated his rights under the equal protection clause and the eighth amendment to the United States Constitution by ordering his pre-hearing cell shield confinement and restricted diet. Plaintiff also claims that Rabideau's conduct of the hearing on July 13, 1995, and the disciplinary penalty that resulted, violated his fourteenth amendment due process rights, and that the conditions of his confinement (including inadequate ventilation in the shielded cell and a nutritionally deficient restricted diet) violated his eight amendment right to be free from cruel and unusual punishment.

 On November 13, 1995, Magistrate Judge Ralph Smith entered an order transferring the case to this district (Item 6). On February 27, 1996, Judge David G. Larimer granted plaintiff's application to proceed in forma pauperis, and dismissed the complaint to the extent that it stated a claim against Corrections Officer Mark Taylor for lack of personal involvement in the alleged constitutional violations (Item 7).

 Defendants Bartlett, Burge and Rabideau now move for summary judgment. Plaintiff has moved for leave to file an amended or supplemental complaint to challenge the constitutionality of the September 28, 1995 hearing and the resulting disciplinary penalty, and for appointment of counsel to assist him in litigating his claims. Each of these motions is discussed in turn below.


 I. Defendants' Motion for Summary Judgment.

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986); Coach Leatherware Co., Inc. v. Ann Taylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991), and must give extra latitude to a pro se plaintiff. McDonald v. Doe, 650 F. Supp. 858, 861 (S.D.N.Y. 1986).

 Defendants Bartlett, Burge and Rabideau move for summary judgment on the following grounds:

1. That plaintiff's cell shield confinement and restricted diet, both pre-hearing and post-hearing, did not violate his eighth amendment right to be free from cruel and unusual punishment;
2. That plaintiff has no protected liberty interest in remaining free from cell shield confinement;
3. That the administrative reversal of his July 13, 1995 hearing cured any due process violations which may have occurred at that hearing; and,
4. That the defendants are entitled to qualified immunity.

 Each of these grounds is now discussed in turn.

 A. Eighth Amendment.

 The eighth amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials. Romano v. Howarth, 998 F.2d 101, 104 (2d Cir. 1993)(citing Wilson v. Seiter, 501 U.S. 294, 297, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991), and Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976)). The core inquiry for the court in assessing a prisoner's claim that prison officials subjected him or her to cruel and unusual punishment is whether the prison officials acted "in a good-faith effort to maintain or restore prison discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992).

 An inmate claiming that prison officials subjected him or her to cruel and unusual punishment has the burden of establishing both an objective and a subjective component. Romano v. Howarth, supra, 998 F.2d at 105. Objectively, the plaintiff must establish that the deprivation alleged is sufficiently serious or harmful enough to reach constitutional dimensions. Id.; see also Wilson v. Seiter, supra. Subjectively, the plaintiff must show that the defendants acted "maliciously and sadistically to cause harm . . . ." Id. at 7; Romano v. Howarth, supra, 998 F.2d at 105.

 In this case, plaintiff has failed to establish that the cell shield and diet restrictions at issue, either pre-hearing or post-hearing, were the result of any wanton, malicious or sadistic conduct on the part of defendants Bartlett, Burge or Rabideau. The record clearly establishes that these punitive restrictions were imposed in a good-faith effort to maintain prison discipline as a response to the feces-throwing incident on June 27, 1995. The propriety of punishing an inmate's repeated unhygienic acts by cell shield confinement is a matter of settled law in New York State. See, e.g., Trammell v. Coombe, supra, 649 N.Y.S.2d at 967; Williams v. Coughlin, 190 A.D.2d 883, 593 N.Y.S.2d 570 (3rd Dept.), leave to appeal denied, 82 N.Y.2d 651 (1993); see also DeMaio v. Mann, 877 F. Supp. 89, 93 (N.D.N.Y. 1995). Plaintiff does not deny that this incident occurred, and the record in this case clearly establishes that plaintiff's conduct warranted his confinement in a shielded cell. The valid penological need for cell shield restriction of an individual who has repeatedly hurled excrement at passersby can hardly be called into question. Trammell v. Coombe, supra; see also N.Y. Penal Law § 240.32 (1996), Practice Commentary.

 In addition, the cruel and unusual punishment clause of the eighth amendment does not prohibit prison officials from restricting an inmate's diet as a punitive measure, as long as the inmate receives nutritionally adequate food that does not present an imminent health risk. Williams v. Coughlin, 875 F. Supp. 1004, 1011 (W.D.N.Y. 1995)(citing Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983)); Brown v. Selsky, 1995 U.S. Dist. LEXIS 213, 1995 WL 13263, *8 (W.D.N.Y. Jan. 11, 1995); see also Adams v. Kincheloe, 743 F. Supp. 1385, 1393 (E.D.Wa. 1990)(restricted "nutra-loaf" diet did not violate inmate's eighth or fourteenth amendment rights; state interest in effectively preventing unhygienic acts outweighs interest of inmates in receiving regular prison food); Gray v. Jones, 83 A.D.2d 679, 442 N.Y.S.2d ...

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