Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment in favor of the moving party 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In considering a moving party's motion for summary judgment, the Court views all facts and construes all rational inferences derived therefrom in the light most favorable to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). In this case, construing plaintiff's complaint liberally as the Court must, see Haines v. Kerner, 404 U.S. 519, 520-521, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) and read in conjunction with his deposition testimony, see Le Grand v. Evan, 702 F.2d 415, 416 n.3 (2d Cir. 1983), his complaint must be dismissed.
Plaintiff's deposition testimony makes clear that the conditions of his cell in SHU are insufficient to support an Eighth Amendment claim. To support an Eighth Amendment claim, plaintiff must establish both an objective and subjective component. See Branham v. Meachum, 77 F.3d 626, 630 (2d Cir. 1996) (citing Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994)). The objective component relates to the "seriousness of the injury," Davidson, 32 F.3d at 29, whereas the subjective component relates to whether the defendant "possessed a 'wanton' state of mind when engaging in the alleged misconduct." See Branham, 77 F.3d at 630 (citing Hudson v. McMillian, 503 U.S. 1, 6-7, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992)). Since plaintiff indicates in his deposition that other inmates remedied the cold experienced by plaintiff by the simple expedient of wearing sweats or long-johns, and that the cold caused him depression only, the fact that certain windows may have been open in February does not meet the objective component. In any event, plaintiff certainly cannot show that Hartung, or any supervisory officials at Sing Sing, possessed a wanton state of mind in leaving windows open since there is no evidence in the record that plaintiff communicated to officials that he was cold or required additional blankets, or that other inmates experienced and communicated similar discomfort.
Furthermore, plaintiff's claims that he was called a "super-rape-po" and a "tree jumper", and was otherwise taunted by Hartung, are insufficient to form the basis for a claim under § 1983. See Haussman v. Fergus, 894 F. Supp. 142, 149 (S.D.N.Y. 1995) (stating that taunts, insults and racial slurs do not comprise an infringement of constitutional guarantees); Wright v. Santoro, 714 F. Supp. 665, 667 (S.D.N.Y.) (stating that discriminatory statements reflecting racial prejudice are not actionable under § 1983 where not connected to any physical injury), aff'd, 891 F.2d 278 (2d Cir. 1989). Nor has plaintiff provided any evidence supporting his claim that his recreational privileges were "toyed" with. As such, he has failed to demonstrate any violation of a constitutional right.
Plaintiff's claim that portions of his indictment were seized and that he was delayed access to law books also fails to state a claim under § 1983. Prisoners have a constitutional right of access to the courts, which requires prison officials to provide access to an adequate law library or adequate assistance from a person trained in the law. See Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977). To demonstrate a constitutional violation, a prisoner must show that he or she was injured or prejudiced, i.e., that he or she was actually denied access to the courts. See Hudson v. Robinson, 678 F.2d 462, 466 (3d Cir. 1982); see also Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989) (if an inmate does not challenge the adequacy of a law library or legal assistance, he or she must show actual injury, in which an inmate was actually denied access to the courts). Plaintiff's deposition testimony, if believed, reveals that he suffered only a de minimis denial of access to the courts. First, while his indictment was missing for approximately two weeks, and returned with portions missing, plaintiff testified that he never needed the document, and believed that he could have obtained another copy had he faced such a need. Moreover, with respect to Hartung's alleged delay in returning books to the law library staff, plaintiff testified that the delay only caused a corresponding delay in new books being issued to him. Plaintiff's claim that such acts may have prejudiced his criminal appeal is belied by his testimony that his appeal papers were not ultimately due until more than one year later. That being so, plaintiff could not possibly have suffered actual prejudice from a delay of several days in receiving law books.
Plaintiff's suit against Sing Sing must also be dismissed under the Eleventh Amendment. While defendants' memorandum of law formally moves for summary judgment on behalf of Bishop and Hartung only, throughout the memorandum, counsel refers generally to "defendants," and in one sentence under the heading of the Eleventh Amendment states that "Sing Sing Department of Correction" is not an appropriate party in a § 1983 suit and the action should be dismissed as against it. See Memorandum of Law is Support of Defendants' Motion for Summary Judgment at 15. The Supreme Court has held that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar that it will hear that defense even when not raised in a trial court. See Edelman v. Jordan, 415 U.S. 651, 678, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974). Since it appears that counsel also intended to move on behalf of Sing Sing, and Sing Sing, as part of DOCS, a state agency, is considered an arm of the State and stands in the same position as the State, the Court concludes that it should sua sponte dismiss all claims against Sing Sing as well. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984); see also Scott v. Coughlin, 1990 U.S. Dist. LEXIS 9175, 1990 WL 108383 at *5 (S.D.N.Y. July 26, 1990) (DOCS entitled to Eleventh Amendment immunity from suits under § 1983); True v. New York State Department of Correctional Services, 613 F. Supp. 27, 31 (W.D.N.Y. 1984) (same).
For the reasons set forth above, defendants Bishop's and Hartung's motion for summary judgment is granted and the claims against Sing Sing are dismissed sua sponte. The Clerk of the Court is directed to enter judgment accordingly and close the above-captioned action.
It is SO ORDERED.
DATED: New York, New York
October 23, 1997
John E. Sprizzo
United States District Judge