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JACKSON v. GOORD

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


July 23, 1998

JOE JACKSON and RUBY JACKSON, Plaintiffs, against C.O. THOMAS JOHNSON and GLENN S. GOORD, Commissioner of Correctional Services, Respondent.

The opinion of the court was delivered by: KAPLAN

MEMORANDUM OPINION

 LEWIS A. KAPLAN, District Judge.

 Plaintiff pro se Joe Jackson, a New York inmate, brings this action pursuant to 42 U.S.C. § 1983 seeking monetary and injunctive relief stemming from allegedly false disciplinary charges brought against him and his subsequent transfers to various prisons, both of which Jackson contends the defendant corrections officers precipitated in retaliation for Jackson's constitutionally protected activities. Jackson's wife, plaintiff Ruby Jackson, alleges psychological and economic damage resulting from her husband's transfers. Before the Court is the defendants' summary judgment motion. For the reasons that follow, the defendants' motion for summary judgment is granted in part and denied in part.

 Facts

 In January 1996, while incarcerated at Fishkill Correctional Facility ("Fishkill"), Jackson requested to be placed in protective custody to "avoid possible problems" with other inmates. At a meeting with prison officials to assess Jackson's need for protective custody, defendant Johnson allegedly presented him with a list of fellow inmates' names and asked him to implicate the inmates as his harassers. Jackson refused. The next day, Jackson was placed in protective custody. While escorting him to the unit, Johnson allegedly threatened Jackson for refusing to implicate one of the inmates.

 A few hours after Jackson arrived in protective custody, Johnson was assigned to pack up Jackson's personal belongings from his open cube located in a dorm for approximately 60 inmates. While thus engaged, Johnson allegedly found in Jackson' s cubicle a razor "that had the end and guards broken off exposing the blade." *fn1" After determining that the razor could be used as a weapon, Johnson issued a misbehavior report which charged Jackson with violating prison regulations. *fn2"

 A Tier III disciplinary hearing was held on the charge in the misbehavior report. Jackson was found guilty and sentenced to 99 days of "keeplock" and loss of privileges. Jackson alleges that, also as a result of the guilty finding, he was "hit at the parole board with two additional years" and denied his "property," "legal materials," and "access to the law library." *fn3" Jackson contends, moreover, that he was forbidden "access to vocational, educational, recreational and rehabilitative therapy, and programs," restrictions were placed on his exercise, he was confined to a cell for 24 hours a day for more than 150 days, and "he was forced to wear the same one set of state greens, day after day, week after week, being unable to wash them because he had nothing to change into." *fn4" Jackson's efforts to appeal the disciplinary charge were unsuccessful. His prison administrative appeals were denied, and his Article 78 proceeding was dismissed for failure to timely serve the petition. *fn5"

 Jackson then filed this action under 42 U.S.C. § 1983. The Court understands this pro se litigant to allege that he was denied due process of law because (1) the razor was planted in his belongings and the charges fabricated in retaliation for his refusal to implicate his fellow inmates. (2) the evidence introduced against him was "tainted" in that the defendants did not follow a DOCS directive in regard to the search and, in any case, the only evidence introduced at the hearing was a photocopy of the razor rather than the razor itself, and (3) because his appointed assistant refused to help him prepare a defense. Jackson alleges that the defendants retaliated against him also by transferring him to various prisons.

 The defendants move for summary judgment. The Magistrate Judge to whom the case was referred recommended granting summary judgment, and Jackson objects to the report and recommendation.

 It should be noted that Jackson's complaint raised also a number of allegations concerning his treatment while incarcerated at Attica Correctional Facility ("Attica"), and in later submissions Jackson contended that he was mistreated also while at Auburn Correctional Facility ("Auburn"). By Order of June 12, 1997, this Court severed Jackson's claims regarding the period during which he was incarcerated at Attica and transferred those claims to the Western District of New York where Attica is located. The Court at that time made clear also that any claims Jackson intended to raise regarding his treatment while at Auburn were to be addressed to the Northern District of New York. Jackson, however, has reasserted before this Court several of his grievances concerning Attica and Auburn and has made other complaints without specifying where the offending conduct occurred. In passing on this motion, the Court has assumed, as it must, that all conduct not specifically stated to have occurred at Attica or Auburn took place at Fishkill.

 Discussion

 Due Process Challenge to the Disciplinary Hearing

 The defendants' motion for summary judgment on Jackson's due process challenge to the prison disciplinary hearing relies on four grounds: (1) that Jackson has failed to demonstrate that his confinement posed an "atypical and significant hardship" as required by Sandin v. Conner,6 (2) that Edwards v. Balisok7 bars Jackson's claim, (3) that Jackson did not demonstrate that the procedures employed at the disciplinary hearing fell short of those required in Wolff v. McDonnell8 and finally, (4) that the defendants are entitled to qualified immunity.

 Sandin v. Conner

 The logical starting point for analysis is the defendants' belated argument *fn9" that they are entitled to summary judgement on the ground that Jackson failed to allege "any facts to suggest that the duration or conditions of his segregated confinement amounted to an atypical and significant hardship" as required by the Supreme Court's decision in Sandin v. Conner.10

 To establish a due process violation "it is necessary to prove that the state has created a protected liberty interest and that the process due was denied." *fn11" The Supreme Court in Sandin v. Conner considered whether prisoners have protected liberty interests in prison disciplinary proceedings such that they are entitled to due process in those hearings. The Court found that, although "States may under certain circumstances create liberty interests which are protected by the Due Process Clause[,] these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." *fn12"

 Following Sandin, the Second Circuit articulated a two-part test governing due process challenges to prison disciplinary proceedings. "To prevail, [the plaintiff] must establish both that the confinement or restraint creates an 'atypical and significant hardship' under Sandin, and that the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint." *fn13" Factors bearing on the "atypical and significant hardship" inquiry include: (1) the effect of disciplinary action on the length of prison confinement, (2) the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions, and (3) the duration of the disciplinary segregation imposed compared to discretionary confinement. *fn14"

 The Second Circuit repeatedly has made clear that district courts are to undertake extensive fact-finding in assessing whether a liberty interest has been affected, including determinations regarding both the length and the circumstances of the confinement. *fn15" It has cautioned district courts to remain cognizant also of their duty on summary judgment to take the non-moving party's allegations as true and draw all permissible factual inferences in favor of that party. *fn16" In Wright v. Coughlin, for example, the Second Circuit reversed a lower court's grant of summary judgment because the court had impermissibly credited a prison official's assertion that the plaintiff's confinement had not been atypical or significant and ignored the plaintiff's allegations that he was denied access to certain programs to which administratively confined prisoners were permitted access and deprived of personal belongings (including clothing), sufficient food, opportunities for work, programming, and recreation, numerous privileges (including telephone usage, receipt of packages, and conjugal visits), and access to the law library. *fn17" Summary judgment was improper, according to the Circuit, because the district court in substance had resolved issues of fact by crediting the prison officials. *fn18"

 In this case, the defendants rely entirely on the length of Jackson's confinement for their argument that the punishment was not "atypical and significant." *fn19" The defendants have submitted no evidence, however, regarding the conditions of Jackson's confinement. Jackson, on the other hand, alleges in his sworn statements that, in addition to his 99 days of "keeplock" and loss of privileges, he was "hit at the parole board with two additional years" and denied his "property," "legal materials," and "access to the law library," *fn20" forbidden "access to vocational, educational, recreational and rehabilitative therapy, and programs," restricted in his exercise, confined to a cell for 24 hours a day for more than 150 days, and "forced to wear the same one set of state greens, day after day, week after week, being unable to wash them because he had nothing to change into." *fn21" The defendants do not challenge these assertions.

 Bearing in mind that defendants move for summary judgment and that the burden therefore rests with the defendants to establish the absence of a genuine issue of material fact, the Court finds that defendants have failed to sustain their burden. In the face of Jackson's sworn statement regarding the conditions of his confinement, the defendants failed to adduce any evidence that these conditions were not an "atypical and significant hardship" in comparison to the condition of other prisoners. Consequently, it would be improper to grant the defendants summary judgment on that ground. *fn22"

 Edwards v. Balisok

 In Edwards v. Balisok,23 the Supreme Court held that a prisoner may not challenge under Section 1983 the result of a prison disciplinary hearing that deprived the prisoner of good-time credits if success of the challenge necessarily would imply the invalidity of the hearing unless and until the results of the hearing have been overturned or vacated. *fn24"

 Neither party has alleged or demonstrated that Jackson lost good-time credits as part of his punishment for the misbehavior charges. *fn25" Jackson contends, however, that he was "hit at the parole board with two additional years" because of the misbehavior report filed against him. *fn26" It is unclear whether the denial of parole based on misconduct is equivalent to a loss of good-time credits imposed as a consequence of a disciplinary hearing. But the Court need not decide whether it is because there is no competent evidence on the record to substantiate Jackson's assertion. *fn27" Jackson's Rule 56.1 statement, although sworn, does not demonstrate that he is competent to testify as to the basis for any parole board decision. His allegation that he was denied parole for an additional two years on the basis of the misbehavior report at issue therefore must be disregarded by this Court.

 The issue before the Court then is whether Edwards bars prisoner due process challenges under Section 1983 to disciplinary hearings where the prisoner has lost no good time as a result of the hearing. In analyzing this issue, it is important to consider Edwards in context.

 Twenty five years ago, in Preiser v. Rodriguez,28 the Supreme Court considered the availability to prisoners of Section 1983 relief based on the denial of due process at prison disciplinary proceedings. In that case, it held that a prisoner seeking to restore good time credits that had been withdrawn through allegedly unconstitutional prison disciplinary proceedings must proceed through habeas corpus rather than Section 1983. Reasoning that "attacking the very duration of [the prisoner's] physical confinement itself' due to the loss of good time credits lay "within the core of habeas corpus," the Court found that permitting a prisoner to proceed through Section 1983, rather than habeas when he had not exhausted available state remedies would "wholly frustrate" Congress' s intent in providing an exhaustion requirement for habeas. *fn29" Preiser consequently refused to permit prisoner challenges via Section 1983 to "the fact or duration of [their] confinement based . . . upon the alleged unconstitutionality of state administrative action." *fn30"

 Notably, the Court limited its ruling to prisoner challenges to "the fact or duration of" prison confinement and reaffirmed that Section 1983 remains "a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody." *fn31" Among the Court's examples of "condition of confinement" cases were Haines v. Kerner32 and Wilwording v. Swenson,33 both of which involved due process attacks on prison disciplinary hearings which had resulted in disciplinary segregation but no loss of good time credits and thus no change in the fact or duration of the prisoners' confinement to prison. *fn34"

 Then, in Heck v. Humphrey,35 the Supreme Court considered a claim for damages under Section 1983 by a prisoner who alleged that prosecutors and police officers had engaged in various types of misconduct in the investigation and prosecution of his case. Concluding that the plaintiff's claim implied the invalidity of his conviction, the Court held "that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." *fn36" Central to the Court's conclusion was the notion that permitting a Section 1983 attack on a conviction that still stands would "expand opportunities for collateral attack" and might risk "the creation of two conflicting resolutions arising out of the same or identical transaction[s]." *fn37" Thus, the Court held, a district court initially must determine whether a Section 1983 claim for damages, if established, would "necessarily imply the invalidity of the conviction or sentence." *fn38" If so, the complaint must be dismissed unless the conviction or sentence already has been invalidated. *fn39"

 Most recently, the Supreme Court in Edwards v. Balisok40 applied Heck to a prisoner's due process challenge to the procedures of a prison disciplinary hearing which resulted in the deprivation of the prisoner's good-time credits and thus lengthened his confinement. As in Heck, the Supreme Court concluded that the prisoner's claims, which were based on the alleged deceit and bias on the part of the decisionmaker, if established, would "necessarily imply the invalidity of the punishment imposed" *fn41" and held that the claim was "not cognizable under § 1983." *fn42"

 This case differs from Edwards in an important respect. As noted above, plaintiff Joe Jackson does not claim that he lost good time credits as a result of the disciplinary action. Hence, the issue raised by defendants' motion is whether Edwards nevertheless bars this Section 1983 claim on the theory that the outcome of this case could imply the invalidity of Jackson's hearing. There is a circuit split on this point.

 The District of Columbia Circuit in Brown v. Plaut43 confined Edwards to challenges resulting in the loss of good time credits. Relying on the language of Preiser that Section 1983 remains "a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody," *fn44" the court concluded that a disciplinary hearing that results only in administrative segregation does not affect the fact or duration of the prisoner's confinement. Accordingly, it held that a challenge to the outcome of such a hearing is cognizable under Section 1983. *fn45"

 In contrast, the Seventh Circuit in Stone-Bey v. Barnes46 held that Edwards bars all prisoner Section 1983 attacks, the success of which necessarily would imply the invalidity of prison disciplinary hearings, unless the result of the hearing in question previously has been overturned or vacated. The Stone-Bey court reasoned that "the 'conviction' in the prison disciplinary sense is the finding of guilt on the disciplinary charge." *fn47" In other words, the Seventh Circuit found that Edwards bars challenges to the "fact or duration of" the disciplinary sanctions, not simply the "fact or duration of" the prison confinement itself.

 This Circuit has not yet directly considered the applicability of Edwards to Section 1983 claims involving no loss of good time credits. Nor do the existing indications of its view point uniformly in one direction. On the one hand, in Black v. Coughlin, which was decided after Heck but before Edwards, the Second Circuit considered a prisoner's claim based on an alleged denial of due process in a prison disciplinary proceeding which did not result in a loss of good time credits. It held, under Heck, that the claim did not accrue for statute of limitations purposes until the plaintiff succeeded in having the disciplinary ruling reversed by the state court. *fn48" Black thus implies, although it does not hold, that the Second Circuit would follow the Seventh Circuit's interpretation of Edwards and require a prison disciplinary hearing determination to be overturned or vacated before forming the basis of a Section 1983 suit unless the success of the Section 1983 claim would not imply the invalidity of the hearing result. On the other hand, however, this Circuit recently has permitted Section 1983 challenges to prison disciplinary hearings which involved no loss of good-time credits and in which the underlying guilty finding had not been vacated or invalidated. *fn49" Thus, the issue of Edwards' applicability to claims involving prison disciplinary hearings which do not involve the loss of good time credits remains very much an open one in this Circuit.

 This Court is persuaded that Edwards does not apply where the disciplinary hearing at issue has no impact on the fact or duration of the prisoner's confinement in prison. Preiser, which is the ultimate foundation of Edwards, is based on the principle that habeas corpus, not Section 1983, is the appropriate vehicle for challenging the existence or duration of confinement. *fn50" The Preiser Court reiterated that Section 1983 is available to challenge conditions of confinement, indicating by its citation to Haines v. Kerner that disciplinary segregation involves such conditions. *fn51" Both Heck and Edwards made clear also that they were concerned with challenges to the fact or duration of the prison confinement, not disciplinary segregation within the prison -- Edwards involved prison procedures that resulted in the loss of good time credits and Heck concerned imprisonment based on allegedly unconstitutional prosecutorial and investigatory procedures that led to the plaintiff's imprisonment. In consequence, the Seventh Circuit's view that Edwards bars an action like this is not persuasive, particularly when Edwards is considered in its full context.

 Nor would such a result be supported by the rationale of the relevant Supreme Court decisions. Preiser was concerned primarily with ensuring that prisoners use habeas corpus, not Section 1983, to attack the fact or duration of their confinement or to collaterally attack their convictions because such challenges lie at the "core" of habeas corpus, the availability of which is subject to important statutory restrictions inapplicable to Section 1983. *fn52" It expressly refused to require use of habeas for condition of confinement cases in light of the fact that "it is arguable that habeas corpus will lie to remove the restraints making the custody illegal." *fn53" Thus, there is no principled reason for requiring a prisoner who is challenging the conditions of his confinement to proceed by habeas corpus rather than Section 1983. Because Jackson did not lose any good time credits and because he has not challenged the fact or duration of his confinement in prison, Edwards v. Balisok presents no barrier to this claim.

 Remaining Defenses

 The defendants make two other cursory arguments with respect to Jackson's due process claim. First, they contend that plaintiff "does not allege any facts to suggest that any of the procedural due process protections set forth in Wolff v. McDonnell54 were violated during the disciplinary hearing." *fn55" Second, they argue that they are entitled to qualified immunity because any liberty interest that Jackson had in remaining free from segregated confinement was not "clearly established in 1996." *fn56" The Court disagrees.

 In support of his claim that he was denied due process protection, Jackson contends that tainted evidence was introduced against him in the disciplinary hearing and that he was deprived of assistance in preparing his defense. The tainted evidence argument is based on Jackson's claim that he was not present when his cell was searched, as allegedly required by a prison directive, that the razor itself was not produced at the hearing and allegedly was destroyed by the prison officials, that the only evidence introduced against him was a photocopy of the razor, and that the log books which purportedly contain an entry after the razor was found now are missing. *fn57" Essentially Jackson contends that the evidence against him was inherently unreliable and otherwise insufficient.

 "Due process requires 'that there be some evidence to support the findings made in the disciplinary hearing.'" *fn58" The record of the disciplinary hearing reveals that the evidence offered against Jackson included the misbehavior report filed by Johnson, a photocopy of the razor allegedly found in Jackson's belongings, the testimony of Correction Officer Marshall, and a letter by Jackson to Lieutenant Pataro. *fn59" The stated reason for the guilty finding was that the defendant had shown "no reason why someone would plant a weapon on him." *fn60" Although it is true that the actual razor appears not to have been introduced at the hearing *fn61" and that the log books documenting the chain of custody of the razor supposedly have been lost, *fn62" this Court cannot say that there was no evidence supporting the disciplinary board's finding that Jackson was guilty of the charges. The other due process claim, however, is not so easily dismissed.

 Assuming that Jackson's punishment implicated a protected liberty interest -- that is, that his confinement was "atypical and significant" and that New York law had created a liberty interest in being free of such confinement *fn63" -- he then will have to demonstrate that the procedures afforded him at the disciplinary hearing fell short of the requirements enunciated in Wolff v. McDonnell. Jackson's deprivation of assistance argument is based on his assertion that he requested the help of a staff assistant in preparing his defense for the disciplinary hearing but was refused. *fn64" Wolff requires, among other things, the assistance of at least a staff member or fellow inmate where the prisoner is illiterate or the issues involved complex. *fn65" As the defendants have not shown that neither of these conditions was present, they have failed to establish the absence of a genuine issue of fact as to whether Jackson's disciplinary hearing comported with the requirements of Wolff.

 As to the qualified immunity argument, "government officials are protected from suits against them in their individual capacity for money damages where 'their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" *fn66" "A right is 'clearly established' if 'the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" *fn67" Qualified immunity does not shield officials who "knowingly violate the law." *fn68"

 Defendants' qualified immunity argument rests on the notion that the only protectible liberty interest that Jackson might have possessed was in being free of disciplinary confinement that exceeded a certain period of time. This overlooks Jackson' s allegations that during his confinement, he was subjected to a myriad of deprivations above and beyond the length of the keeplock itself. *fn69" A prisoner's right to be free of such conditions, such as the denial of access to the courts through restrictions on typewriters or law libraries, was firmly established a number of years prior to 1996. *fn70" Without a more substantial showing than that currently before the Court, the defendants are not entitled to dismissal on the ground of qualified immunity at this time.

 Retaliation Claims

 In addition to challenging the procedures employed at the disciplinary hearing, Jackson claims also that the defendants retaliated against him for his request to be placed in protective custody, his refusal to implicate other inmates as his potential harassers and because of defendant Johnson's racist state of mind. *fn71" In particular, Jackson asserts that the filing of "false charges" against him and the decisions to transfer him to various prisons were the product of the defendants' retaliatory motives. The defendants' motion for summary judgment contends that Jackson failed to demonstrate a deprivation of his constitutional rights in that (1) the retaliation is alleged in conclusory terms, (2) the complaint fails to show that retaliation was a "substantial or motivating factor" behind the issuance of the misbehavior report, and (3) the defendants have demonstrated that the plaintiff would have been disciplined based on proper reasons alone because defendant Johnson was required by the administrative code to report any incident involving inmate misbehavior such as possession of a weapon. Additionally, the defendants argue that neither of them had personal involvement in the decision to transfer Jackson to various prisons.

 Prisoners have "a right not to be subjected to false misconduct charges in retaliation for [their] exercise of a constitutional right." *fn72" In order to survive summary judgment, a plaintiff who claims retaliation for the exercise of a constitutional right must demonstrate both "(1) that the disciplined conduct was constitutionally protected, and (2) that his punishment was motivated, in whole or in part, by his conduct -- in other words, that the prison officials' actions were substantially improper retaliation." *fn73" If the plaintiff meets this burden, "his claim will still not survive summary judgment . . . if the defendants meet their burden of showing that there is no genuine issue as to the fact that [the plaintiff] would have received the same punishment even if they had not been improperly motivated." *fn74"

 Misbehavior Report

 Jackson contends that he engaged in constitutionally protected behavior when he petitioned prison officials to place him in protective custody because he had reason to fear for his life from other inmates in his housing unit and when he refused to implicate a fellow inmate as one of his harassers. *fn75" He contends also that his request for protective custody and his refusal to implicate a certain inmate were substantial factors in Johnson's planting the razor in his belongings or writing Jackson up on the razor Johnson legitimately located in Jackson's belongings. *fn76"

 Defendants have offered competent and undisputed proof that Officer Johnson did not place the razor in Jackson's belongings *fn77" and that Johnson was required by statute to report the razor as a weapon. *fn78" The applicable statutes require that "every incident of inmate misbehavior involving danger to life, health, security or property must be reported, in writing as soon as practicable," *fn79" and that "the misbehavior report shall be made by the employee who has observed the incident or who has ascertained the facts of the incident." *fn80" Because Johnson did not plant the razor and was obligated to issue a misbehavior report once he found it, the defendants have demonstrated adequately that they would have issued the misbehavior report even in the absence of a retaliatory motive. They therefore are entitled to summary judgment on this claim.

 Transfers

 Jackson contends that the Department of Correctional Services retaliated against him by transferring him from Fishkill to Auburn Correctional Facility to Greenhaven and then back to Fishkill as part of an effort to "intentionally hinder and hamper" his efforts to challenge the disciplinary hearing in an Article 78 proceeding. *fn81" The defendants have submitted a declaration from the Deputy Superintendent of Security for Fishkill, Robert Ercole, who reviewed plaintiff's transfer from Fishkill to Auburn and determined that (1) defendant "Goord is not involved in routine transfers such as plaintiff's 1996 transfer," and (2) "a Correction Officer, such as Thomas Johnson, lacks the authority to initiate or authorize any such transfer." *fn82"

 Although it is well settled that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983," *fn83" Ercole's declaration fails to state that Goord and Johnson were not personally involved in Jackson's transfer. While Goord may not "typically" be involved in routine transfers such as Jackson' s, Ercole has not excluded the possibility that this was an atypical case -- i.e., that Goord was involved in Jackson's transfer. And while Johnson lacks the authority to initiate or authorize a transfer, that is not to say that he was not personally involved in one or more of these transfer decisions. Nor does Ercole allege personal knowledge of the facts of Jackson's transfer. His declaration is premised entirely on his review of the official report of Jackson's transfer and his personal knowledge of the Department of Correctional Service's transfer rules and procedures. *fn84" As this fails to comply with FED. R. CIV. P. 56(e), the defendants are not entitled to summary judgment on the ground that they lacked personal involvement in the transfers.

 Remaining Claims

 Jackson's pro se papers, read liberally, allege also that the defendants infringed upon his Eighth Amendment rights. Jackson's wife, plaintiff Ruby Jackson, claims that her rights have been violated by the transfer of her husband to a prison much further from her home. Both of these claims fail for the reasons articulated by the Magistrate Judge in his report and recommendation.

 Conclusion

 Defendants' motion for summary judgment dismissing the complaint is granted (a) in its entirety with respect to plaintiff Ruby Jackson and (b) with respect to plaintiff Joe Jackson insofar as he complains of (i) an allegedly retaliatory misbehavior report, (ii) violations of the Eighth Amendment, and (iii) the alleged use of "tainted" evidence against him in the Tier III hearing. It is denied in all other respects. Thus, what remains of the case is Jackson's claim that he was deprived of assistance in the Tier III hearing and subjected to retaliatory transfers.

 SO ORDERED.

 Dated: July 23, 1998

 Lewis A. Kaplan

 United States District Judge


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