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HAMEED v. PUNDT

May 20, 1997

LARRY BASHEER HAMEED, Plaintiff, against S. PUNDT, CORRECTION OFFICER, S. DOLE, CORRECTION OFFICER, AND C. KELLY JR., CORRECTION OFFICER, Defendants.


The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.:

 Pursuant to 42 U.S.C. § 1983 and § 1985, plaintiff Larry Basheer Hameed, proceeding pro se, filed the instant action against Correction Officers Steven Pundt, Steven Dole, and Charles Kelly (together "defendants") seeking declaratory relief and actual and punitive damages. Hameed alleges that defendants violated his First, Eighth, and Fourteenth Amendment rights by conspiring to discriminate against him because he is Muslim, black, and a "litigator". Pursuant to Federal Rule of Civil Procedure 56(c), defendants move for summary judgment dismissing the instant action. For the reasons that follow, defendants' motion is granted.

 BACKGROUND

 Plaintiff Larry Basheer Hameed is a New York State prison inmate in the custody of the New York State Department of Correction Services ("DOCS") confined at Sing Sing Correctional Facility ("Sing Sing") in Ossining, New York. See Plaintiff's Statement Pursuant to Local Rule 3(g) dated May 31, 1995 ("Pltf's. Rule 3(g) Stmt.") P 4. Hameed is a black man and a practicing Muslim. See Complaint dated June 24, 1993 ("Cmplt.") P 22. During the relevant time of this action, Hameed was a member of L-Company with a cell located in A-Block. Id. P 12.

 Defendants are State of New York Correction Officers employed by DOCS and assigned to Sing Sing. See Pltf's. Rule 3(g) Stmt. PP 1-3. Correction Officer Steven Pundt and Correction Officer Steven Dole were assigned to A-Block, L-Company at the time the complaint was filed. Id. PP 1, 2. Correction Officer Charles Kelly was the area Sergeant responsible for A-Block security. Id. P 3.

 On June 5, 1993, at approximately 7:00 a.m., Hameed was confronted by Officer Pundt who asked Hameed "were [sic] he was going." See Cmplt. P 12. Before Hameed could answer, Officer Pundt inquired whether Hameed was planning to attend the Muslim Festival. Id. Hameed responded in the affirmative. Id. A short time after Hameed and Officer Pundt's meeting, L-Company was called to the mess hall for breakfast. Id. Afterwards, Hameed returned to his cell to wash-up and shave. Id.

 At approximately 8:40 a.m., Sing Sing officials announced that the "run" to Tappan Gym for the Muslim Festival would be leaving shortly and that there would be no second run. See Cmplt. P 12. Before leaving his cell for the Festival, Hameed spread a sheet over the things on his bed and then closed his cell door. *fn1" See Defendants' Statement Pursuant to Local Rule 3(g) dated May 11, 1995 ("Defts. Rule 3(g) Stmt.") P 2; Cmplt. P 13. Hameed also asserts that he expressly told Officer S. Quinn, the L-Company Officer, to deadlock L-304. See Cmplt. P 13. Hameed then proceeded to Tappan Gym where he attended the Muslim Festival. Id. P 14.

 Later that same day at approximately 1:45 p.m., while Hameed was working in the back of Tappan Gym helping with the food, Hameed was confronted by Correction Officers Benjamin and Cannon who insisted that he leave the Festival. See Cmplt. P 14. Hameed was escorted out of the gym to a frisk area where he was met by Correction Officer Kelly. Hameed alleges that defendant Kelly told him that a body was found in his cell and that Hameed messed up the head count. *fn2" Id. Defendants did not take any photographs of Hameed's bed. See Pltf's. Rule 3(g) Stmt. P 7.

 On June 6, 1993, Hameed was charged with Possession of Escape Items (charge number 108.13), Causing Miscount (charge number 112.10) and Delaying Count (charge number 112.20). See Defts. Rule 3(g) Stmt. P 3. On June 11, 1993, a Superintendent's Hearing was held and Hameed was found not guilty of Possession of Escape Items and Causing Miscount, Id. P 4, but guilty of Delaying Count based upon the evidence of written reports by Officer Pundt indicating that the clothes found under the sheet in Hameed's cell were in the form of a body. See Defendants' Notice of Motion for Summary Judgment dated May 11, 1995, Exh. B. Hameed was confined to keeplock for thirteen (13) days. See Cmplt. P 7.

 On June 28, 1993, Hameed filed the instant action alleging that defendants Pundt, Dole and Kelly, while acting under the color of state law, (1) showed deliberate indifference to his constitutional rights; (2) acted unconstitutionally and beyond the scope of their authority by conspiring, orchestrating and discriminating against him, because he is Muslim, black and a litigator; (3) sought to uphold and further DOCS' "open door mirror of society policy" against Muslims as agents for the New York State Department of Correctional Services; and (4) showed deliberate indifference by working in concert as agents of each other to deprive Hameed of his rights under the First, Eighth, and Fourteenth Amendments of the Constitution.

 On May 11, 1995, pursuant to Federal Rule of Civil Procedure 56(c), defendants moved for summary judgment arguing that (1) Hameed fails to state a claim for conspiracy; (2) even assuming arguendo that defendants filed a false misbehavior report, that does not rise to a constitutional violation; (3) defendants are entitled to qualified immunity; and (4) Hameed has neither alleged nor proven that defendants Dole or Kelly were personally involved in the alleged unconstitutional charges.

 Defendants Pundt, Dole and Kelly assert that prior to their arrival at Sing Sing none of them had ever met or known Hameed. See Declaration of Steven Pundt dated April 25, 1995 ("Pundt Dec.") P 3; Declaration of Stephen Dole sworn to April 24, 1995 ("Dole Dec.") P 3; Declaration of Charles Kelly dated April 25, 1995 ("Kelly Dec.") P 3. Defendants further assert that until this incident they were unaware of Hameed's religious affiliation or beliefs. *fn3" See Defts. Rule 3(g) Stmt. P 6. In addition, prior to the events alleged in this action, none of the defendants ever filed a misbehavior report against Hameed. Id. P 5. Nor did Hameed make a complaint, file a grievance, or bring another lawsuit against any of these defendants. Id P 6. Since his incarceration at Sing Sing in 1990, Hameed has filed only one lawsuit, which concerned a parole hearing and was dismissed. *fn4" See Defendants' Notice of Motion for Summary Judgment dated May 11, 1995, Exh. A, Deposition of Larry Basheer Hameed at 47-49. Moreover, defendants deny that at the time the incident occurred on June 5, 1993, they either discussed or were aware of any complaints, grievances or lawsuits filed by Hameed against each other or any other person. See Defts. Rule 3(g) Stmt. P 6.

 Hameed argues that defendants have seen him in his Muslim headgear (Kufi), going to and from his Islamic services and classes, participating in Ramadan observance, and being in the company of other Muslims. Hameed further argues that defendants' declarations are submitted in bad faith and that two of the declarations should be rejected because ...


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