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WARREN v. IRVIN

December 2, 1997

RUBEN M. WARREN, Plaintiff,
v.
FRANK E. IRVIN, Superintendent at Wende Correctional Facility and M.J. GUENTHER, Captain at Wende Correctional Facility, Defendants.



The opinion of the court was delivered by: LARIMER

 Plaintiff, Ruben M. Warren ("plaintiff"), acting pro se, commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendants, Superintendent Frank E. Irvin ("Irvin"), Captain M.J. Guenther ("Guenther"), Hearing Officer J. Kihl ("Kihl"), and Hearing Officer J.P. O'Connor ("O'Connor") (collectively "defendants"), violated his constitutional rights while he was incarcerated at the Wende Correctional Facility. Pending before me are the parties' motions for summary judgment.

 BACKGROUND

 On May 30, 1991, plaintiff was removed from his general population cell and placed in the Special Housing Unit ("SHU"), allegedly for attacking a corrections officer. Thereafter, O'Connor conducted a Tier III disciplinary hearing regarding the incident. Plaintiff claims that O'Connor did not allow him to present certain witnesses or evidence and that he failed to provide plaintiff with copies of the documents that were being used against him. At the conclusion of the hearing, O'Connor found plaintiff guilty and imposed a punishment of twenty-four months in SHU, twenty-four months loss of good time credits, and twenty-four months loss of telephone, package, commissary, earphone, television, movie, and third-shower privileges.

 Plaintiff appealed the disposition, claiming that his due process rights had been violated. By order dated July 30, 1991, plaintiff's hearing decision was reversed because not all of the witnesses' testimony had been properly recorded, and a rehearing was required to be commenced within seven days of receipt of the order and to be completed within fourteen days. Plaintiff complained to defendant Guenther about his continued confinement in SHU after the decision had been reversed, but, according to plaintiff, Guenther ordered him to remain in SHU pending the rehearing.

 Plaintiff claims that when Irvin made the rounds in SHU on August 16, 1991, plaintiff informed him that he had been in SHU for fifteen days and there had been no rehearing. According to plaintiff, Irvin said he would look into the matter. That evening, a rehearing was commenced before defendant Kihl.

 Plaintiff maintains that he informed Kihl that the rehearing violated his due process rights because it was not timely. Plaintiff also alleges that Kihl denied him the right to have an assistant and to call witnesses. At the conclusion of the rehearing, Kihl found plaintiff guilty and imposed the same penalties that had been imposed after the first hearing.

 Plaintiff again appealed this disposition, claiming that his due process rights had been violated. On November 6, 1991, the decision was reversed because the rehearing was not timely held. The underlying incident and the charge were expunged from plaintiff's record. In total, plaintiff was confined in SHU for 161 days on the charges stemming from the May 30, 1991 incident. *fn1"

 Plaintiff also alleges that for three days while he was housed in SHU, he was denied food and water, and the lights in his cell were turned off. Plaintiff also claims that at this time, Irvin required all SHU inmates to keep their personal property on the floor of their cells. Plaintiff maintains that on August 5, 1991, when he was weak from not receiving meals and water and while his cell lights were turned off, he slipped and fell on paper that was on the floor of his cell and cut his arm on the cell door.

 Plaintiff commenced this action, alleging that defendants' conduct violated his constitutional rights. Specifically, plaintiff's complaint asserts a Fourteenth Amendment claim against Irvin, Guenther, Kihl, and O'Connor and an Eighth Amendment claim against Irvin relating to the incident in plaintiff's cell on August 5, 1991 when plaintiff fell and injured himself. *fn2"

 DISCUSSION

 A. Summary Judgment Standard

 Summary judgment will be granted if the record demonstrates 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). A genuine issue of material fact exists only if the record, taken as a whole, could lead a reasonable trier of fact to find in favor of the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 The burden of demonstrating the absence of any genuine issue of material fact rests on the moving party, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), and all ambiguities and inferences that may be reasonably drawn from the facts must be viewed in the light most favorable to the nonmoving party. Coach Leatherware Co. v. Ann Taylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991). To defeat summary judgment, the non-moving party must go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e.).

 On May 23, 1995, plaintiff served a Request for Admissions on defendants. To date, defendants have not responded. Plaintiff moves for summary judgment, arguing that the Court should deem the matters admitted, and, therefore, there is no genuine issue of fact for ...


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