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THOMAS v. IRVIN

September 7, 1997

JAMES THOMAS, Plaintiff,
v.
FRANK IRVIN, et al., Defendants.



The opinion of the court was delivered by: HECKMAN

 This matter was referred to the undersigned by Hon. William M. Skretny, to hear and report, in accordance with 28 U.S.C. § 636(b). Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, it is recommended that defendants' motion be granted.

 BACKGROUND

 Plaintiff filed this action on December 13, 1995. He alleges that, while he was an inmate at the Wende Correctional Facility maintained by the New York State Department of Correctional Services ("DOCS"), he was confined to "drug watch" for 7 days in a room with inadequate ventilation, in violation of his constitutional rights. He seeks compensatory and punitive damages, pursuant to 42 U.S.C. § 1983, against Wende Superintendent Frank Irvin, Deputy Superintendent Donald Wolff, an unidentified Corrections Officer, and an unidentified nurse.

 The isolation room in the Wende infirmary is 8 feet wide and 11.5 feet long, with 11 foot ceilings. It is larger than the average cell at Wende (Item 22, P18). During plaintiff's drug watch, the room was equipped with a bed mattress, pillow, bed linen, blanket, hand towel, bedpan and portable toilet seat (id., P 10 & Ex. D). The two air vents in the room were covered as a security measure to prevent inmates from concealing contraband in the vents (id., P 19).

 The procedures for "Drug & Special Watches--Temporary Isolation" are set forth at DOCS Directive 4910(IV)(I), which authorizes the placement of an inmate in a temporary isolation cell or room "when there is 'probable cause' to believe that the inmate has either ingested a contraband item or inserted a contraband item into the rectal cavity" (Item 22, Ex. C). Directive 4910(IV)(I) also sets forth the following drug watch procedures:

 
a. The toilet water supply shall be turned off.
 
b. The inmate shall remain isolated for a period not to exceed 48 hours unless:
 
1) a defecation containing contraband occurs, in which case the inmate will be retained until two negative defecations occur; or
 
2) defecation does not occur within 48 hours, in which case the inmate will be retained until two negative defecations occur; or
 
3) a radiological detection search . . . indicates the presence of a contraband item which remains in the inmate's body. In this case, the temporary isolation may continue for up to 72 hours with the written approval of the superintendent or his/her designee.
 
c. In any case where the temporary isolation period exceeds 24 hours, a member of the facility health services staff shall visit the inmate once every 24 hours.
 
d. A chronological log shall be maintained which shall include, but not be limited to, visits by medical and/or other staff, negative defecation, defecation containing contraband, Unusual Incidents, or an incident relative to the situation.

 (Item 22, Ex. C; see also DOCS Policy and Procedure No. 2411, Item 22, Ex. D).

 As indicated in the chronological drug watch log attached to the Wolff affidavit, plaintiff was confined to drug watch at 2:30 p.m. on November 24, 1994 (Item 22, Ex. G, p. 14). He did not defecate until 10:05 a.m. on November 29, 1994. (id., p. 29). The log indicates that this was "not of large enough quantity/size to qualify" as a "negative defecation" under Directive 4910(IV)(I)(b) (id., p. 30). Plaintiff defecated again at 1:10 p.m. on November 29 (id.). This defecation was negative for contraband (id.). Plaintiff again defecated "very little" at 8:12 p.m. on November 29 (id., p. 31). According to the log entry, "very little quantity will not do--have to be a lot" (id.). Plaintiff did not defecate again until 4:07 p.m. on December 2, 1994 (id., p. 40). No contraband was found, and plaintiff was released from drug watch on December 2 (id. ; Item 16, P 47).

 Plaintiff claims that his confinement to the isolation room between November 24 and December 2, 1994 resulted in a violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. Defendants move for summary judgment on the following grounds:

 
1. The conditions complained of do not meet the standards applicable to claims under either the Eighth or Fourteenth Amendment;
 
2. Defendants Irvin and Wolff were not personally involved in the alleged constitutional violations; and
 
3. Irvin and Wolff are entitled to qualified immunity.

 Each of these grounds is addressed in turn below.

 DISCUSSION

 I. 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. ...


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