The opinion of the court was delivered by: SPRIZZO
Pursuant to 28 U.S.C. § 1983 (1996), plaintiff Robert Jones, proceeding pro se, filed the instant action against Correction Officers John Bishop ("Bishop") and Robert Hartung ("Hartung"), and Sing Sing Department of Correction ("Sing Sing"). Defendants Bishop and Hartung move for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). For the reasons that follow, defendants' motion is granted and the claims against Sing Sing, which is immune form suit under the Eleventh Amendment, are dismissed sua sponte.
Plaintiff Robert Jones is a New York State prison inmate who was incarcerated at Sing Sing Correctional Facility at all times relevant herein. See Complaint ("Compl.") P 1; Deposition of Robert Jones ("Jones Dep.") dated April 8, 1992, at 132.
Correction Officer Bishop was the Claims Officer and Correction Officer Hartung was the Officer-in-Charge of the Special Housing Unit ("SHU") at Sing Sing. See Affidavit of John Bishop ("Bishop Aff.") Sworn to September 16, 1992, P 1; Affidavit of Robert Hartung ("Hartung Aff.") Sworn to November 23, 1992, P 1.
On January 27, 1991, plaintiff was allegedly stabbed by another inmate, Eric Baez, during a "riot." See Compl. P IV; Jones Aff. P 1. Rather than report his injuries or request medical treatment, plaintiff returned to his cell that evening. See Jones Dep. at 23-24. The next day, plaintiff was observed swinging a sharp metal object at Baez, apparently intending to stab him. See Affidavit of Carol Schechter Sworn to October 27, 1992 ("Schechter Aff."), Exh. 1, Inmate Misbehavior Report. After a chase, plaintiff was apprehended and frisked by a Correction Officer who discovered a nine-inch shank in plaintiff's pants' pocket. Id. Immediately thereafter, plaintiff was taken to the hospital for an "assessment" of his stab wounds from the prior evening. Id.
Plaintiff was served with a Misbehavior Report for violating the following rules: 109.10 (being out of place); 118.23 (failing to report injury): 100.13 (engaging in fighting); 100.15 (engaging in disorderly conduct); and 113.10 (making or possessing a weapon). See Defendants' Statement Pursuant to Local Rule 3(g) ("Defts' Rule 3(g) Stmt.") P 2.
In accordance with applicable rules and regulations, plaintiff was placed in a hospital room pending a hearing on those charges, and the property in his cell was packed and itemized. See Defts' Rule 3(g) Stmt. P 4. Plaintiff alleges that while he was being taken to the hospital, Correction Officers failed to lock his cell. As a result, plaintiff claims that his cell was burglarized and that stolen property was placed in it by inmates attempting to implicate him. See Affidavit of Robert Jones sworn to May 21, 1992 ("Jones Aff.") P 4; Jones Dep. at 170.
On January 29, 1991, Bishop confiscated all articles of plaintiff's property, except legal papers and state-issued clothing, to conduct an investigation into the ownership of each item. See Defts' Rule 3(g) Stmt. P 6; Jones Aff. P 6; Bishop Aff. P 10. Bishop asserts that plaintiff had not received certain property in any of the proper methods, i.e., he had not possessed the property at the time of his transfer to Sing Sing, had not purchased it from the commissary, had neither received it by mail nor upon delivery from a visitor, and had not received the authorization that is required for inmates to receive property from other inmates. See Bishop Aff. PP 7-9. Bishop further states that the aforementioned property was reported as stolen by other inmates at the prison. Id. P 11.
On January 29, 1991, Bishop filed a Misbehavior Report against plaintiff charging him with violating the following rules: 113.15 (accepting property from another inmate without authorization), 116.13 (stealing property or possessing stolen property), and 120.20 (gambling). See Defts' Rule 3(g) Stmt. P 7; Bishop Aff. PP 13-14, Exh. 2.
On February 1, 1991, a Tier III disciplinary hearing was held, at which plaintiff was acquitted of violating Rule 109.10, but found guilty of violating all other counts, including the charges filed by Bishop. See Defts' Rule 3(g) Stmt. P 3. Plaintiff was sentenced to 455 days in SHU, 451 days loss of packages, commissary and telephone usage, and 18 months loss of good time. Id. Shortly thereafter, he was escorted from the hearing to a cell in SHU. See Jones Aff. P 8.
On February 2, 1991, plaintiff requested that his remaining property from the hospital be returned to him at SHU, but was allegedly told by defendant Hartung that his cell had been robbed of everything. See Jones Aff. P 10. Presumably Hartung misunderstood plaintiff's request. On February 4, 1991, an unnamed Correction Officer returned plaintiff's watch and "Walkman" tape-player which had been confiscated from another inmate. See Jones Aff. P 17.
In mid-February, plaintiff complained in a letter to Superintendent John P. Keane that defendant Bishop was depriving him of his property. See Compl. P IV; Bishop Aff., P 16. In response, Bishop interviewed plaintiff who explained that although his commissary and package privileges had been suspended since August 5, 1990, plaintiff had arranged a scheme whereby he sent money to another inmate to purchase items for him. See Bishop Aff. P 17.