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June 11, 1998

SAM JAMES, Plaintiff,
THOMAS A. COUGHLIN, III, Individually and in his official capacity as Commissioner, et al., Defendants.

The opinion of the court was delivered by: LARIMER



 Plaintiff Sam James, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, who is currently an inmate at Clinton Correctional Facility, alleges that while he was housed at Attica Correctional Facility ("Attica"), the defendants violated his First, Eighth, and Fourteenth Amendment rights by subjecting him to sexual abuse and excessive force during a pat frisk, depriving him of a shower (without due process of law), denying him medical treatment for injuries suffered during the pat frisk, and later issuing a false misbehavior report against him.

 The defendants, and the positions they held at all relevant times, are: New York State Department of Corrections ("DOCS") Commissioner Thomas A. Coughlin, Wende Superintendent Walter R. Kelly, and Attica Correctional Officers Dennis J. Elbow, Mark Busch, M.V. Kozlowski, and David Morris, all of whom plaintiff sues in their official and individual capacities. Defendants have moved for summary judgment *fn1" For the reasons discussed infra, defendants' motion for summary judgment is granted, and the complaint is dismissed.


 Plaintiff claims that on April 21, 1994, he was housed at Wende in the Special Housing Unit ("SHU"). Defendants M. Busch and M. Kozlowski approached plaintiff's cell to escort him to the shower area. In accordance with SHU regulations (7 NYCRR § 305.1(b)), these defendants prepared to conduct a "pat frisk" of plaintiff. Plaintiff handed his towel and wash rag to defendants Busch and Kozlowski, and then turned his back to the cell door. He claims that the cell door opened, and that he obeyed defendant Busch's order to step out and place his hands above the cell for the frisk.

 Plaintiff then claims that defendant Busch reached his right hand into the back of plaintiff's pants, grasping the material and pulling it above waist level so that the pants were wedged high into the back of plaintiff's crotch. Plaintiff asked defendant Busch to remove his hand and stop from conducting the frisk in this inappropriate fashion. Defendant Busch allegedly ignored plaintiff's request and positioned himself so that his genital area was pushing against plaintiff's buttocks while he frisked plaintiff's left side.

 Plaintiff claims that he again asked defendant Busch to stop and that Busch disregarded his request, while continuing the frisk on plaintiff's right side in the same manner. After plaintiff repeatedly asked Busch to stop conducting the frisk in this manner, Busch allegedly told plaintiff to be quiet, and thrust the palms of his hands into plaintiff's lower back to push plaintiff back into the cell, allegedly causing injury to plaintiff's back.

 Plaintiff claims that this push constituted the use of excessive force, in violation of his Eighth Amendment rights, and that Busch's orders silencing him from protesting against the improper pat frisk violated his First Amendment right of expression. Additionally, plaintiff claims that defendant Busch denied him access to medical care after the incident, in deliberate indifference to his serious medical needs.

 Plaintiff further alleges that defendant Busch deprived him of his shower after pushing him into the cell, and that Busch wrote up a false misbehavior report on that date, charging plaintiff with refusing a direct order. Plaintiff contends that defendant Busch did not issue a deprivation order as required by regulations before depriving plaintiff of a shower, in violation of plaintiff's due process rights.

 Additionally, plaintiff claims that defendants Kozlowski and Dennis J. Elbow observed the incident and did nothing to protect plaintiff or otherwise prevent defendant Busch from committing the alleged misconduct. He further alleges that defendants Kozlowski and Elbow knew that defendant Busch issued a false misbehavior report, and that they not only failed to intervene, but in fact, endorsed the false report.

 Defendant Busch's inmate misbehavior report, dated April 21, 1994, stated:

I ...was escorting inmates to the shower with Officer M. Kozlowksi. To pat frisk inmate James . . ., I ordered him to back out. I started to pat frisk inmate James and he started to mouth-off. I gave inmate James a direct order to remain quiet during the pat frisk. Inmate James refused to comply and became loud and boisterous. I gave inmate James two more direct orders to be quiet, he refused and replied, "No one tells me to shut my mother-fuckin mouth." I stopped the pat frisk and ordered inmate James to step into his cell. He refused. After three more direct orders to step into his cell, I placed both hands, open palms on his lower back, and guided him into his cell. Inmate James turned to his left and sucker punched me with a closed right fist above my left eye. Inmate James['s] cell door was closed and Officer M. Kozlowski and myself [sic] walked off the West Gallery without further incident.

 (Docket # 33, Exh. B). The defendant's Statement of Facts, filed pursuant to Local Rule of Civil Procedure 56, indicates that plaintiff had directed comments to several other inmates during the pat frisk. Defendant Busch charged plaintiff with several violations: rule 100.11 (inflicting bodily harm upon staff), 106.10 (disobeying direct order), and 115.10 (refusing to comply with frisk procedures). Defendants Kozlowski and Elbow signed the report as witnesses. Id. A use of force report filed by defendant Busch and also signed by defendants Kozlowski and Elbow states an identical account of the incident. (Docket # 33, Exh. A).

 Approximately thirty minutes after the incident, Attica nurse B. Cade examined plaintiff, at which time he denied having any injuries or suffering any falls. (Docket # 33, Exh. A). Cade thoroughly examined plaintiff's hands and found no swelling or cuts. Her employee accident/injury report, also dated April 21, 1994, states that she examined defendant Busch and that he had moderate swelling and discoloration around his left eyebrow. (Docket # 33, Exh. B).

 Plaintiff filed an inmate grievance complaint regarding the pat frisk incident and the failure of medical staff to treat his injuries. (Docket 33, Exh. D). Attica Correctional Sergeant Slawatycki investigated the grievance and indicated in a May 3, 1994 memorandum to Acting Deputy Henneburg that plaintiff was receiving medication daily and had recently been examined by a nurse. (Docket # 33, Exh. G). Additionally, Slawatycki stated that he had advised plaintiff to see a doctor about the back pain and that plaintiff had refused, claiming that the doctor was a "homo" and that he did not wish to be examined by the doctor. Id. On May 4, 1994, Superintendent Charles Brunelle denied plaintiff's grievance, finding no evidence of staff misconduct. (Docket # 33, Exh. I).

 At an April 27, 1994 Tier III disciplinary hearing, the hearing officer determined that defendant Kozlowski's testimony and the videotaped recording of the incident corroborated defendant Busch's account. (Docket # 33, Exh. C, L). Plaintiff was found guilty of violating Rules 100.11 (assault on staff) and 106.10 (refusing direct order); the charge of refusing a search or frisk was dismissed. (Docket # 33, Exh. C). Plaintiff was sentenced to 120 days of SHU confinement and loss of phone privileges, and a recommended 6 month loss of good time credits.

 Plaintiff also alleges that on April 22, 1994, the day after the pat frisk incident, defendant Correctional Officer D. Morris was assigned to collect the breakfast trash, and that defendant Morris, while standing in front of plaintiff's cell, told another correctional officer, "That's the asshole [who] assaulted Busch." Plaintiff claims that later that day, when defendant Morris arrived to collect the afternoon meal trash, he disposed of a utensil returned by plaintiff and then issued a misbehavior report, accusing plaintiff of failing to return a spoon. Plaintiff claims that defendant Morris placed him on a three day restricted diet before a disciplinary hearing took place.

 Plaintiff filed an inmate grievance complaint about the incident with defendant Morris, claiming that Morris harassed him. In response to the grievance, Superintendent Brunelle determined that Morris, who did not see plaintiff return the spoon, correctly followed the procedures by placing him on temporary restricted diet for failing to return the utensil. (Docket # 33, Exh. J). At the disciplinary hearing, a video recording of the incident indicated that plaintiff had complied with the rules and turned in his spoon, and that defendant Morris had thrown the spoon into the garbage. Plaintiff was found not guilty of the charge. He claims that defendant Morris issued the false misbehavior report to retaliate against him for assaulting defendant Busch, and that Morris's actions violated his substantive due process rights.

 Finally, plaintiff claims that defendants DOCS Commissioner Thomas A. Coughlin and Attica Superintendent Walter R. Kelly had received complaints from other inmates and plaintiff concerning the "unprofessional and abusive conduct" of defendant Busch and that they failed to investigate the complaints, improperly trained the correctional officers, and mismanaged this employee.

 Plaintiff seeks injunctive relief, compensatory damages of $ 300,000, "declaratory damages" of $ 200,000, and punitive damages of $ ...

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