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February 10, 1998

JOHN MCGINNIS, Superintendent, C.O. COOK, LT. SIMMONS, Defendants.

The opinion of the court was delivered by: GRUBIN


 SHARON E. GRUBIN, United States Magistrate Judge:

 Plaintiff brings this action pro se pursuant to 42 U.S.C. § 1983 against a correction officer, a lieutenant and the Superintendent at the Downstate Correctional Facility. Pending are defendant's motions to dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). For the following reasons, the motions of defendants McGinnis and Simmons should be granted and the motion of defendant Cook should be granted in part and denied in part.


 The Complaint

 Construed liberally, see Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam); Salahuddin v. Coughlin, 781 F.2d 24, 28-29 (2d Cir. 1986), the complaint claims (a) denial of due process in violation of the Fourteenth Amendment by all three defendants, in that plaintiff incorrectly was accused of disciplinary violations and was subjected to seventeen days of keeplock, including loss of package, commissary and telephone privileges *fn1" and (b) cruel and unusual punishment in violation of the Eighth Amendment by defendant Cook, in that plaintiff was the victim of excessive physical force.

 Plaintiff has filed the Clerk's Office form complaint alleging as follows for his Statement of Claim:


I was not involved in the fight of Feb. 12, 1996 & Officer Cook lock me down for 17 days & violated all my rights, my phone, packages & commissary & they try to take my good time but after they denied it & after 17 days the superintendent reverse the verdict. I was affected mentally & Physically. The officer had use force on me, he put a handcuff to the back & step on back of me, now I have back pain because of that. . . .

 Although material outside a complaint generally is not to be taken into consideration on a motion to dismiss, the policy reasons favoring liberal construction of pro se complaints permit a court to consider allegations of a pro se plaintiff in opposition papers on a motion where, as here, those allegations are consistent with the complaint. Donahue v. United States Dept. of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990). See Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987); Shen v. Japan Airlines, 918 F. Supp. 686, 690 (S.D.N.Y.), aff'd, 43 F.3d 1459 (2d Cir. 1994); Lucas v. New York City, 842 F. Supp. 101, 104 & n.2 (S.D.N.Y. 1994). I accordingly find it appropriate to consider the following additional allegations by plaintiff contained in plaintiff's "Support of Motion Not to Dismiss Case" ("Pl. Opp."), submitted in opposition to defendants' motions to dismiss the complaint. Plaintiff identifies defendant Simmons as "the person that conducts the misbehavior report" and alleges that Simmons "just convicted me without giving me a chance to defend myself" (Pl. Opp. p. 2). Defendant McGinnis is identified as responsible for releasing plaintiff from keeplock after determining that plaintiff was not guilty of the alleged disciplinary violation (id.). As to defendant Cook, plaintiff states:


C.O. Cook pick me out and lock me down with out a explanation, he wrote me a misbehavior report saying that he believes that plaintiff was involved in a fight, he was not sure, he pick the wrong person . . . . He found out that it wasn't me the person fighting after he & his co-workers force me to go to the hospital for injury report about the fight, and I didn't have no injury because I wasn't fighting, so they handcuff me behind my back and used force kicking me on my back & putting they foot on my back, from that day I've have back pain and it's worse I can hardly walk, my back is weak, my spine not straight, and it hurts.

 (Id. p. 1). Finally, in a further document also in opposition to defendants' motions ("Pl. Supp. Opp.") plaintiff states:


When I was taken out of my cell to be taken to the hospital, the two officers that were escorting me with my hands cuffed behind my back, began to kick me numerous times on my lower back; and they also stepped on my lower back, since then, I have been unable to perform any of my normal work duties . . . . I am still suffering from the injuries that was sustained by said officers.

 (Pl. Supp. Opp. p. 1). Attached to this submission are an Inmate Misbehavior Report, dated February 13, 1996; an Appeal to the Superintendent, dated February 21, 1996; and what appear to be copies of medical records concerning plaintiff's complaints of back pain subsequent to February 12, 1996.

 The Motions to Dismiss the Complaint

 All defendants contend that they are protected from liability by qualified immunity and that the allegations concerning plaintiff's confinement in keeplock do not rise to the level of a constitutional violation. Defendants McGinnis and Simmons also argue that dismissal should be granted because the complaint contains no specific allegations against them and does not allege they were personally involved in the events and that the claims against them are barred by the Eleventh Amendment.


 In determining whether to grant a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992), cert. denied, 507 U.S. 961, 122 L. Ed. 2d 762, 113 S. Ct. 1387 (1993) and 507 U.S. 972 (1993); Ad-Hoc Committee of Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987). "Consideration is limited to the factual allegations in [the] complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). "After viewing plaintiff's allegations in this favorable light," the court should not dismiss the complaint unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Walker, 974 F.2d at 298 (quotation omitted). See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513 U.S. 816, 130 L. Ed. 2d 28, 115 S. Ct. 73 (1994). Pro se complaints, which are to be liberally construed, should be given even greater latitude than complaints drafted by lawyers. See Hughes v. Rowe, 449 U.S. at 9; Haines v. Kerner, 404 U.S. at 520-21; Salahuddin v. Coughlin, 781 F.2d at 28-29.

 The Alleged Denial of Due Process

 The United States Supreme Court held in Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), that disciplinary confinement such as that complained of by plaintiff does not deprive a prison inmate of a constitutionally protected liberty interest unless the confinement "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 515 U.S. at 484. To determine whether a protected liberty interest is implicated, a court must examine the circumstances of the confinement, including the nature of the confinement and its duration. Wright v. Coughlin, 132 F.3d 133, 1998 WL 1417, at *3-4 (2d Cir. 1998); Brooks, 112 F.3d at 48-49; Miller v. Selsky, 111 F.3d 7, 9 (2d Cir. 1997). "The decisions in the Second Circuit are unanimous that keeplock . . . confinement of 30 days or less in New York prisons is not 'atypical or significant hardship' under Sandin." Williams v. Keane, 1997 U.S. Dist. LEXIS 12665, No. 95 Civ. 0379 (JGK)(AJP), 1997 WL 527677, at *6 (S.D.N.Y. Aug. 25, 1997) (citing 30 cases). See, e.g., Nicholas v. Remillard, 1997 U.S. Dist. LEXIS 18113, 92-C V-900, 1997 WL 711385 (N.D.N.Y. Nov. 13, 1997) (twenty-five days in keeplock); Duncan v. Keane, 1997 U.S. Dist. LEXIS 8421, 95 Civ. 1090 (SHS), 1997 WL 328070 (S.D.N.Y. June 13, 1997) (thirty days in keeplock because of allegedly false misconduct report). See also, e.g., Reaves v. Williams, 1997 U.S. Dist. LEXIS 130, 95 Civ. 0281 (DC) (sixty-nine days in keeplock before prison official reversed finding that inmate was guilty of misconduct); Luis v. Coughlin, 935 F. Supp. 218 (W.D.N.Y. 1996) (thirty-three days in keeplock without a hearing).

 Plaintiff's due process claim alleges only that he was detained in keeplock for seventeen days for misbehavior he did not commit. Even with the most liberal reading, this claim fails to allege a constitutional deprivation of a protected liberty interest and, accordingly, plaintiff's due process claims against all three defendants should be dismissed.

 The Alleged Use of Excessive Force

 In order to sustain a constitutional claim based on a prison official's use of force, the official's behavior must have risen to the level of a violation of the cruel and unusual punishments clause of the Eighth Amendment. That clause is violated when the behavior involves the "unnecessary and wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 319-320, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986). See Estelle v. Gamble, 429 U.S. 97, 102-103, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). See also Hudson v. McMillian, 503 U.S. 1, 5, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992). "Whenever prison officials stand accused of using excessive physical force . . . the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 6-7. This is so whether or not significant injury is sustained. Id. at 9.

 There is no indication in the pleadings at this stage of this case of a good-faith reason for the alleged application of any force by Officer Cook. Plaintiff's several submissions allege that Cook, without provocation and while plaintiff was handcuffed, stepped on plaintiff's back and kicked him in his lower back numerous times (see complaint p. 4; Pl. Opp. p. 1; Pl. Supp. Opp. p. 1). This account by plaintiff, if proven, could constitute sufficient evidence for a jury to find that Cook violated plaintiff's rights under the Eighth Amendment.

 In addition, plaintiff's claim cannot be defeated at the pleading stage by Cook's assertion of qualified immunity. To establish a qualified immunity defense to an excessive force claim an officer must establish either (1) that the alleged conduct did not violate clearly established rights of which a reasonable person would have known, or (2) that it was objectively reasonable to believe that the conduct did not violate clearly established rights. Finnegan v. Fountain, 915 F.2d 817, 823 (2d Cir. 1990). See Anderson v. Creighton, 483 U.S. 635, 639-641, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). That issue cannot be resolved on this motion. It is not disputed that the right to be free from the use of excessive force was clearly established at the time of the events in suit. Nor does defendant Cook contend that it would have been objectively reasonable to believe that the conduct alleged by plaintiff was permissible. As a result, the motion to dismiss the claim of excessive force on the ground that defendant Cook is entitled to qualified immunity cannot be granted. See McGauley v. Administration of MCC, 1993 U.S. Dist. LEXIS 7065, No. 88 Civ. 6296 (MGC), 1993 WL 183703 at *1 (S.D.N.Y. May 25, 1993) ("Whether a reasonable correctional officer would have believed that defendants' conduct was lawful depends upon plaintiff's conduct, defendants' conduct, and the surrounding circumstances.").


 For the reasons set forth above, I recommend (a) the motions of defendants McGinnis and Simmons be granted; (b) the motion of defendant Cook to dismiss plaintiff's due process claim be granted; and (c) the motion of defendant Cook to dismiss plaintiff's excessive force claim be denied. *fn2"

 Copies of this Report and Recommendation were mailed to:


Mr. Damar Rodriguez




Midstate Correctional Facility


P.O. Box 2500


Marcy, New York 13403


Alpa J. Sanghhvi, Esq.


Assistant Attorney General


120 Broadway


New York, New York 10271

 The parties are hereby directed that if you have any objections to this Report and Recommendation you must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court and send copies to the Honorable Jed S. Rakoff, to the opposing party and to the undersigned. Failure to file objections within ten (10) days will preclude later appellate review of any order that will be entered by Judge Rakoff. See 28 U.S.C. § 636(b)(1); Rules 6(a), 6(e), and 72(b) of the Federal Rules of Civil Procedure; Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); IUE AFL-CI0 Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 130 L. Ed. 2d 38, 115 S. Ct. 86 (1994); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 121 L. Ed. 2d 696, 113 S. Ct. 825 (1992); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983) (per curiam).

 Dated: New York, New York

 February 10, 1998

 Respectfully submitted,


 United States Magistrate Judge

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