court should be reluctant to interfere in matters of prison administration and confinement. Sandin, 115 S. Ct. at 2299. In Sandin, the Supreme Court concluded that a thirty-day disciplinary confinement did not amount to an atypical and significant hardship triggering a right to procedural protections such as those required by Wolff. Id. at 2301; see also Rivera v. Coughlin, 1996 U.S. Dist. LEXIS 560, 92 Civ. 3404 (DLC), 1996 WL 22342, at *5 (S.D.N.Y. Jan. 22, 1996) (holding that 89 days keep-lock did not constitute an atypical or significant hardship sufficient to create a liberty interest, and collecting other cases holding that from 11 days in keep-lock up to 270 days confinement in a Special Housing Unit did not impose an atypical hardship).
Mitchell's three days of confinement to special protective custody does not trigger due process scrutiny. Indeed prehearing administrative segregation for several days without a hearing has been upheld, because such limited restraint did not require due process protections. See Hewitt v. Helms, 459 U.S. 460, 479, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983) (five days administrative confinement does not trigger full due process protection); see also Bolden v. Alston, 810 F.2d 353, 357-58 (2d Cir.), cert. denied, 484 U.S. 896, 98 L. Ed. 2d 188, 108 S. Ct. 229 (1987).
Mitchell also claims that he was denied due process at the IPC hearing, because Wohlrab was biased against him. However, he makes no factual allegations from which an inference of bias can be drawn. While Mitchell calls attention to the fact that a previous misbehavior report was withdrawn, that fact does not suggest that a hearing officer considering a later report was biased.
Mitchell also claims that he was denied access to the prison's grievance procedure. However, it appears from the submissions before the court that Mitchell filed grievances, had them referred to a prison official, and received a letter reporting that there was no evidence to substantiate his complaints. Mitchell's dissatisfaction with this response does not constitute a cause of action.
For these reasons, Mitchell's procedural due process claims will be dismissed.
VI. The Double Jeopardy Claim Will Be Dismissed
Mitchell contends that the multiple disciplinary reports, the imposition of protective custody and the subsequent criminal prosecution constituted a violation of the Double Jeopardy Clause.
However, "it is . . . well settled that 'punishment' imposed by prison authorities for infractions of prison regulations does not generally bar a subsequent criminal prosecution for the same conduct." United States v. Hernandez-Fundora, 58 F.3d 802, 806 (2d Cir.), cert. denied, 115 S. Ct. 2288 (1995) (citing United States v. Rising, 867 F.2d 1255, 1259 (10th Cir. 1989); Kerns v. Parratt, 672 F.2d 690, 691-92 (8th Cir. 1982); United States v. Stuckey, 441 F.2d 1104, 1105-06 (3d Cir.), cert. denied, 404 U.S. 841, 30 L. Ed. 2d 76, 92 S. Ct. 136 (1971)); see also United States v. Newby, 11 F.3d 1143, 1144-45 (3d Cir. 1993), cert. denied, 513 U.S. 834, 130 L. Ed. 2d 58, 115 S. Ct. 111 (1994).
Thus, jeopardy never attached in Mitchell's disciplinary proceedings, and his right not to be punished twice for the same conduct is not implicated.
VII. The Motions to Amend Will Be Denied
Rule 15(a) provides that leave to amend a complaint "shall be freely given when justice so requires." The federal courts, however, have interpreted Rule 15 to permit such amendments only when (1) the party seeking the amendment has not unduly delayed, (2) when that party is not acting in bad faith or with a dilatory motive, (3) when the opposing party will not be unduly prejudiced by the amendment, and (4) when the amendment is not futile. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); see Mackensworth v. S.S. Am. Merchant, 28 F.3d 246, 251 (2d Cir. 1994); Prudential Ins. Co. v. BMC Indus., Inc., 655 F. Supp. 710, 711 (S.D.N.Y. 1987).
An amendment is considered futile if the amended pleading fails to state a claim or would be subject to a successful motion to dismiss on some other basis. See, e.g., S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir. 1979); Freeman v. Marine Midland Bank-New York, 494 F.2d 1334, 1338 (2d Cir. 1974).
As stated above, a defendant's personal involvement in a constitutional violation must be alleged in order to state a claim. With the exception of the claims against DeLutis, Mitchell's first motion to amend does not identify which defendants are involved in which alleged misbehavior, and so the motion to amend must be denied as to those defendants.
The claim against DeLutis alleges that the criminal prosecution was brought to intimidate him into withdrawing his civil claims. Such a claim of malicious prosecution brought under Section 1983 is governed by state law. Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995); Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989). To establish a malicious prosecution claim under New York law, a plaintiff must establish four separate elements: (1) the initiation or continuation of a criminal proceeding against the plaintiff; (2) the termination of the proceeding in the plaintiff's favor; (3) a lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions. Russell, 68 F.3d at 36; Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991); Pandolfo v. U.A. Cable Sys., 171 A.D.2d 1013, 568 N.Y.S.2d 981, 982 (4th Dep't 1991).
Here, Mitchell was convicted of the assault charges. Thus, having failed to allege that the criminal action was terminated in Mitchell's favor, Mitchell's motion to amend to add this claim against DeLutis will be denied.
Mitchell's second motion to amend is similarly defective. His vague allegations of "harsh resentment" and "malicious oppression" do not state any cognizable injury. Mitchell does not identify the benighted officials who instigated racial wars, searched cells, confiscated books, or sexually harassed prisoners during strip searches. He does not even allege that he himself was a victim of these foul deeds.
Mitchell's complaint that his mail privileges were curtailed does not state a claim, because he does not specify how his privileges were curtailed.
His remaining complaints (about the climate control problems, the inadequacy of the law library, the sewage dripping through the ceiling, the reduction in recreation time, and the dirty meal trays) may be read as an Eighth Amendment challenge to the conditions of his confinement. See Helling v. McKinney, 509 U.S. 25, 31, 125 L. Ed. 2d 22, 113 S. Ct. 2475 (1993) (conditions of confinement subject to scrutiny under Eighth Amendment).
To prevail on a claim under the Eighth Amendment based on prison conditions, a plaintiff must plead and prove both a subjective element (i.e., a culpable state of mind on the part of the defendants) and that the objective conditions were "sufficiently serious" to invoke the Eighth Amendment's protections. Wilson v. Seiter, 501 U.S. 294, 298-99, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). With respect to the subjective component, the plaintiff must prove that prison officials acted with "deliberate indifference." Id. at 297. As for the objective component, "the deprivation alleged must be in objective terms 'sufficiently serious' such that the deprivation 'denied the minimal civilized measure of life's necessities." Branham, 77 F.3d at 630-31 (quoting Wilson, 501 U.S. at 298).
With the exception of the dripping sewage, none of the deprivations, viewed objectively, amounts to a denial of the minimal necessities of civilized life. Mitchell does not identify the person to whom he complained about the sewage, so it is impossible to determine who, if anyone, had the required culpable mental state.
Accordingly, Mitchell's motions to amend will be denied.
For the reasons set forth above, all of Mitchell's claims, with the exception of the Eighth Amendment excessive force claim against Burgess and Corcoran, are hereby dismissed. The claim against Corcoran will be dismissed, unless Mitchell serves the complaint upon him within thirty (30) days of the entry of this order. Mitchell's motions for summary judgment and for leave to amend are hereby denied. The parties are granted leave to renew motions for summary judgment on the excessive force claim at the close of discovery.
Mitchell is also warned that continued vexatious and frivolous filings may result in the imposition of sanctions, possibly including dismissal of his remaining claim.
It is so ordered.
New York, N. Y.
August 19, 1997
ROBERT W. SWEET