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WARBURTON v. GOORD

July 29, 1998

JOHN WARBURTON, 94-B-1581, Plaintiff,
v.
GLENN S. GOORD, Commissioner of Correction; TIMOTHY MURRAY, Superintendent of the Groveland Correctional Facility; Captain KREMPASKY, Groveland Correctional Facility; Captain HOMRIGHOUSE, Groveland Correctional Facility; Lieutenant WENDERLICH, Groveland Correctional Facility; Deputy Superintendent PERKINS; Groveland Correctional Facility; Lieutenant RICHARDSON, Groveland Correctional Facility; Sgt. PERRY, Groveland Correctional Facility; MICHAEL J. LOCKWOOD, Inspector Generals Office; and Justice JAMES B. CANFIELD, Albany Supreme Court; Defendants.



The opinion of the court was delivered by: SIRAGUSA

DECISION AND ORDER

 INTRODUCTION

 Plaintiff John Warburton, an inmate of the Groveland Correctional Facility ("Groveland"), has filed this pro se action seeking relief under 42 U.S.C. § 1983 (Docket # 1) and has both requested permission to proceed in forma pauperis and filed a signed Authorization (Docket # 2). Plaintiff also seeks appointment of counsel (Docket # 3). Plaintiff claims that the defendants, New York State Department of Correctional Services ("DOCS") Commissioner Goord, Groveland Superintendent Murray, Deputy Superintendent Perkins, Captains Krempasky and Homrighouse, Lieutenants Wenderlich and Richardson, Sergeant Perry, Inspector General Lockwood and New York State Supreme Court Justice Canfield, violated his constitutional rights. For the reasons discussed below, plaintiff's request to proceed as a poor person is granted, the complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), and plaintiff's request for appointment of counsel is denied as moot.

 PLAINTIFF'S ALLEGATIONS

 Plaintiff's thirteen-count complaint concerns events which occurred between August 2, 1997 and April 22, 1998, at Groveland Correctional Facility. These events, which include allegations of verbal threats and intimidation by both the defendants and non-defendant corrections officers, searches of plaintiff's cell and desk at the law library, the failure to investigate grievances filed by plaintiff, attempts by confidential informants to entrap plaintiff into taking compensation for legal work, a denial of due process at a hearing which resulted in the loss of good-time credits, the two-day placement of plaintiff in keeplock, and the questioning of plaintiff regarding a picture sent to Governor Pataki are allegedly part of a vast retaliatory conspiracy on the part of the defendants. Additionally, plaintiff alleges that his constitutional rights have been violated in an Article 78 proceeding in New York State Supreme Court stemming from the above-described events, because defendant Justice Canfield is allegedly unfair to inmates. Plaintiff seeks compensatory damages of $ 3,000,000 on each count, *fn1" punitive damages of $ 250,000 on two counts, restraining orders on twelve counts, release from the custody and supervision of New York State, and the removal of Justice Canfield from the bench.

 DISCUSSION

 Plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and filed an Authorization with respect to this action. Therefore, plaintiff is granted permission to proceed in forma pauperis.

 Section 1915 mandates that when the court grants in forma pauperis status, it also must conduct an initial screening of the action to ensure that it goes forward only if it meets certain qualifications. A review of plaintiff's complaint demonstrates that plaintiff's claims are based on indisputably baseless legal theories. As a result, this action is subject to dismissal under 28 U.S.C. § 1915(e)(2)(B). Neitzke v. Williams, 490 U.S. 319, 327, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989).

 Plaintiff brings this action pursuant to 42 U.S.C. § 1983. In order to state a claim under § 1983, a plaintiff must allege: (1) that the challenged conduct was attributable at least in part to a person acting under color of state law; and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993).

 The Verbal Abuse Claims

 Throughout his lengthy complaint, plaintiff claims that he was verbally abused, taunted and threatened by defendants. In effect, plaintiff is alleging that his Eighth Amendment right to be free of cruel and unusual punishment has been violated by this verbal abuse. However, "harassment or profanity alone, 'unaccompanied by any [physical] injury, no matter how inappropriate, unprofessional, or reprehensible it might seem,' does not constitute the violation of any federally protected right and therefore is not actionable under 42 U.S.C. § 1983." Shabazz v. Pico, 994 F. Supp. 460, 1998 WL 65987 (S.D.N.Y. 1998). Accord Patton v. Przybylski, 822 F.2d 697 (7th Cir. 1987) (determining that derogatory remarks do not constitute a constitutional violation); Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (affirming the dismissal of a claim that a prison guard called plaintiff names); Hurdle v. Ackerhalt, 1993 U.S. Dist. LEXIS 3128, 1993 WL 71370 (N.D.N.Y. Mar. 8, 1993) (allegations of harassment and threats do not rise to the level of a constitutional violation). Accordingly, plaintiff's verbal abuse claims are hereby dismissed with prejudice.

 The Search Claims

 Plaintiff alleges that the defendants unlawfully searched his law library desk, memory typewriter and the crate in his cell containing his legal materials. To the extent that plaintiff is arguing that his right to privacy has been violated, the courts have continually held that prisoners have only limited rights to privacy. See e.g. Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) (upholding constitutionality of double-bunking and body cavity searches); Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984) (prisoners have no reasonable expectations of privacy in their cell). To the extent that plaintiff is arguing that his right of access to the courts has been violated, plaintiff also fails to state a cognizable constitutional claim. While it is true that under the Constitution a correctional facility must provide an inmate with meaningful access to the courts, Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977), the mere search of plaintiff's law library desk and crate of legal materials, without more, does not state a constitutional claim. "'The Constitution requires no more than reasonable access to the courts.'" Jermosen v. Coughlin, 877 F. Supp. 864, 871 (S.D.N.Y. 1995), quoting Pickett v. Schaefer, 503 F. Supp. 27, 28 (S.D.N.Y. 1980). Moreover, in order to state a constitutional claim, a plaintiff must make a showing that he has suffered, or will imminently suffer actual harm, that is, that he was "hindered [in] his efforts to pursue a legal claim." Lewis v. Casey, 518 U.S. 343, 351, 135 L. Ed. 2d 606, 116 S. Ct. 2174 (1995). Accord Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987).

 Thus, plaintiff must show that he has suffered an actual injury traceable to the challenged conduct of prison officials -- that is, that a "nonfrivolous legal claim had been frustrated or was being impeded" due to the actions of prison officials. Lewis, 518 U.S. 343, 116 S. Ct. 2174, 2179, 2181, 135 L. Ed. 2d 606. Taking plaintiff's claim as true, he nevertheless "offers no facts to explain how these searches prejudiced [plaintiff's] ability to seek redress from the judicial system." Smith v. O'Connor, 901 F. Supp. 644, 649 (S.D.N.Y. 1995). Accordingly, this Court finds that plaintiff's search claims fail to state a cognizable claim that either his right to privacy was violated or that he has been denied access to the courts, and his claims are hereby dismissed with prejudice.

 The Keeplock Claim

 Plaintiff alleges that his constitutional rights were violated by his confinement in keeplock from April 22 to April 24, 1998, after he refused involuntary protective custody. Keeplock confinement, in and of itself, does not give rise to a liberty interest. Sullivan v. Schweikhard, 968 F. Supp. 910, 913 (S.D.N.Y. 1997). In New York State prisons, "keeplock" is a form of administrative or disciplinary segregation in which the inmate is confined, deprived of participation in normal prison routine, and denied contact with other inmates. Gittens v. LeFevre, 891 F.2d 38, 39 (2d Cir. 1989); see also 7 NYCRR §§ 301.1-301.7. In a medium security facility such as Groveland, the inmate may remain confined to his cubicle (cube), or be placed in the Special Housing Unit ("SHU"). While package, telephone and commissary privileges may be suspended, and the inmate is confined for 23 hours each day, the privileges of an inmate in disciplinary keeplock are not otherwise more limited that those of prisoners confined in keeplock for administrative detention or protective custody. McIntosh v. Daddario, 1998 U.S. Dist. LEXIS 3144, 1998 WL 118156 at *4 (S.D.N.Y. March 17, 1998) (holding that inmate's disciplinary keeplock confinement for 45 days, with loss of package and phone privileges after inmate was found guilty of violating terms of work release program, did not implicate a liberty interest). Keeplock is less confining that is confinement in SHU; keeplocked inmates enjoy such amenities as showers and on-site social and legal visits, for example. Id. Inmates receive the same diet as those in general population, and continue to receive and send mail, as well as obtain materials from the prison library. Saulter v. Hanslmaier, 1997 U.S. Dist. LEXIS 4686, 1997 WL 177887, at *2 (S.D.N.Y. April 14, 1997).

 The two-day confinement to keeplock in this case did not give rise to a liberty interest. Plaintiff does not claim that the duration of his sentence was affected by the confinement, or that the terms of his confinement signaled a "dramatic departure" from the basic conditions of his sentence. Plaintiff's term of keeplock, during which he remained in his own cube, was a mere two days; courts have found that longer durations of keeplock confinement, often with a similar loss of privileges, do not implicate liberty interests. See, e.g., McIntosh, 1998 WL 118156 at *4-5, (45 days keeplock plus loss of privileges); Reaves v. Williams, 1997 U.S. Dist. LEXIS 130, 1997 WL 10132 at *5 (S.D.N.Y. January 10, 1997) (69 days served in keeplock, of a 90-day sentence). See also Saulter, 1997 WL 177887, at *2 (taking into ...


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