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June 16, 1998

JULIO F. GIANO, Plaintiff,
GLENN GOORD, Commissioner, Department of Correctional Services, DONALD SELSKY, Director, Special Housing Programs, FRANK IRVIN, Superintendent, Wende Correctional Facility, ROY HENNEBERG, Deputy Supt. of Security, JEFFREY SKINNER, Captain, Wende Correctional Facility, WALTER SHANNON, Lieutenant, Wende Correctional Facility, JAMES BURKE, Sergeant, Wende Correctional Facility, TIMOTHY JEZIORSKI, Sergeant, Wende Correctional Facility, THOMAS LAMB, MICHAEL BISHOP, GARY KEOHANE, E. MCEVOY, HOWARD BRENNAN, JOHN BARBERA, and JOHN DOE, Correctional Officer, Wende Correctional Facility, Defendants.

The opinion of the court was delivered by: SIRAGUSA



 Plaintiff Julio Giano, an inmate of Comstock Correctional Facility, has filed this pro se action seeking relief under 42 U.S.C. § 1983 (Docket # 1) and has been granted permission to proceed in forma pauperis (Docket # 3). Plaintiff was directed by this Court to file proof of exhaustion of his administrative remedies. (Docket # 3). Plaintiff filed his response in a timely manner. (Docket # 5). For the reasons discussed below, certain of plaintiff's claims are dismissed without prejudice pursuant to 42 U.S.C. § 1997e(a) and the remaining claims are dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).


 Plaintiff alleges in his complaint that on June 19, 1995, he was confined at Auburn Correctional Facility ("Auburn"), during which time certain Auburn inmates staged a "peaceful" protest against the decision of the New York Department of Correctional Services ("DOCS") to restructure the housing arrangement of inmates at Auburn. Plaintiff was not formally accused of any wrongdoing with regard to this incident, but claims that on June 22, 1995, prison officials transferred him from Auburn to a different correctional facility, presumably, Wende Correctional Facility ("Wende"), where the incidents complained of in this action took place.

 Plaintiff further alleges that in November 1995, he filed a § 1983 action in this district, entitled Giano v. Coombe, docket number 95-CV-6570L, in which he accused various Wende officials of subjecting him to retaliation, under the belief that plaintiff had "singlehandedly created a prison shut-down" at Auburn, and that he had previously complained about the conditions of his confinement at an unidentified facility and date. Plaintiff does not indicate which Wende officials he sued in Giano v. Coombe or specify the allegations raised in that action. *fn1"

 According to plaintiff, on September 28, 1996, defendant Timothy Jeziorski, a Wende correctional sergeant, presented a request to defendant Lieutenant Walter Shannon, to obtain and test plaintiff's urine. Defendant Jeziorski allegedly represented to Shannon that the request was based on confidential information he had obtained, indicating plaintiff's use of a controlled substance. Plaintiff claims that, in the thirteen years of his confinement in the DOCS institutions, he had never before been accused of possessing, selling, or using controlled substances. Plaintiff claims that Jeziorski's information was false and misleading. Defendant Shannon approved the request for urinalysis of plaintiff.

 Plaintiff alleges that at Wende, inmate urine testing is conducted in the basement of the facility, beneath the disciplinary office in the main corridor that adjoins all housing blocks. There is a general storage room in which urine samples of inmates are kept until they are transported to another location in the prison for testing. He claims that all correctional officers have access to the basement on a 24 hour basis.

 On September 30, 1996, defendants John Barbera and Howard Brennan, both correctional officers, escorted plaintiff from his cell to the basement, where defendant Jeziorski ordered plaintiff to submit a urine sample. Plaintiff complied. He claims that after he submitted the sample, neither defendant Barbera nor Brennan placed a tamper-proof seal on the cup that contained his sample. He also claims that he was not informed of the storage or testing locations for his sample. Plaintiff alleges that defendants Barbera and Brennan proceeded to leave plaintiff's urine sample in an unattended, accessible area for approximately two hours.

 Furthermore, plaintiff claims that at some point between September 30, 1996 and October 3, 1996, *fn2" defendants Shannon, Jerziorski, Barbera, and Brennan, along with defendants Thomas Lamb and Michael Bishop, also correctional officers, willfully and deliberately contaminated his urine sample to produce a positive result for use of marijuana. He alleges that the defendants' act were in retaliation for his filing of a lawsuit in Giano v. Coombe and for other unspecified grievances that he had filed to complain about conditions of confinement at Wende.

 Plaintiff further claims that defendants Bishop and Lamb, again acting in retaliation, filed a false misbehavior report against him, charging him with use of a controlled substance. Following issuance of the misbehavior report, defendant E. McEvoy, who was assigned as an employee assistant to plaintiff in preparing for the disciplinary hearing, allegedly conspired with other unidentified correctional officers to deprive plaintiff of information that would help his defense against the charge, in violation of plaintiff's due process rights. Plaintiff claims that he informed defendant Frank Irvin, the Wende Superintendent, of McEvoy's misconduct, and that Irvin failed to investigate or take action to remedy the alleged misconduct.

 At the disciplinary hearing (plaintiff does not specify the date of its occurrence), defendants Jeziorski, Bishop, Lamb, Brennan, Shannon, Barbera, and McEvoy, in further retaliation for plaintiff's prior lawsuit and grievances, deliberately presented either falsified documentary or testimonial evidence to support the controlled substance charge against plaintiff. Plaintiff claims that as a result of the misbehavior charge, he spent 35 days of keeplock, with loss of privileges, but that the charges against him were ultimately dismissed.

 Plaintiff claims that after the hearing, defendant McEvoy approached him and threatened to "get even" for having filed reports against McEvoy for his inadequate performance of duties as plaintiff's employee assistant. Defendant McEvoy also stated, "You better be real careful for this is not the end. I work with the officers who test urine and you're not going to make fools of us." Plaintiff also alleges that defendant McEvoy admitted during this conversation that plaintiff had been set up with a contaminated urine sample because of a lawsuit he had filed, but that McEvoy denied any involvement in the set up.

 Plaintiff also alleges that from 1986 until the present, he has participated in a family reunion program (FRP) instituted by DOCS, whereby prisoners are allowed to visit with family members in designated trailers outside of the main prison, for a period of up to 72 hours each time. A prerequisite of the FRP is that inmate participants maintain a good institutional record. Additionally, inmates must undergo three different urine tests immediately before and after the trailer visits.

 Plaintiff claims that defendants Irvin, Henneberg, Skinner, Jeziorski, Lamb, Bishop, and McEvoy, along with two other correctional officers, defendants Gary Keohane and Sergeant James Burke, knew that plaintiff had a trailer visit on November 18, 1996, and conspired to contaminate one of his urine tests so that he would receive disciplinary sanctions and be suspended from the FRP. Specifically, he alleges that on November 18, 1996, *fn3" after plaintiff had a trailer visit to see his mother, defendant Keohane ordered him to submit a urine sample in a plastic cup, and then placed the sample in a paper bag, along with the urine sample of another inmate. Defendant Keohane did not secure a tamper-proof seal across the sample container, or inform plaintiff of the storage or testing sites of his samples.

 Plaintiff alleges that between November 18 and 20, 1996, defendants Keohane, Lamb, Bishop, and Burke deliberately conspired and contaminated his urine sample to produce a positive result for marijuana use, in order to fabricate a false misbehavior report. He claims that they acted in retaliation for his previous filings of the Giano v. Coombe lawsuit and unspecified grievances. Plaintiff claims that at the resulting Tier III disciplinary hearing on December 10, 1996, defendants Keohane, Jeziorski, Bishop, Lamb, McEvoy, Brennan, and Barbera submitted false documentary or testimonial evidence to ensure a guilty finding against plaintiff, and that their actions were in retaliation for the prior lawsuit and grievances. Additionally, plaintiff alleges that defendant Henneberg, who conducted the hearing, deprived him of procedural due process (fair and impartial hearing) by denying him the rights to present material documentary evidence and to call certain witnesses. Plaintiff claims that Henneberg deprived him of these rights after conspiring with defendants Lamb, Bishop, and Keohane, in retaliation for his previous lawsuit and grievances.

 Plaintiff was found guilty of the controlled substance charge and sentenced to 30 days of keeplock, loss of phone, commissary, package, and television privileges, a notation in his records that he is considered a drug user, and a one-year suspension from the FRP with subsequent participation contingent upon participation in a drug education program. He claims that defendants Goord, Selsky, ...

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