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January 20, 1999


The opinion of the court was delivered by: Siragusa, District Judge.


This is an action pursuant to 42 U.S.C. § 1983, in which the plaintiff, a prison inmate, alleges that he was sexually assaulted by a corrections officer during a frisk, that the corrections officer filed a false misbehavior report regarding the incident, that as a result of the misbehavior report he was denied certain privileges, and that at his disciplinary hearing, the hearing officer refused to provide him with an assistant, all in violation of his rights under the United States Constitution and the laws of the State of New York. Before the Court is the defendants' motion to dismiss [# 31]. For the reasons that follow, the defendants' application is granted.


On August 23, 1995, the plaintiff was incarcerated at Southport Correctional Facility. On that day, the defendant corrections officers R. Michalko and A. Hicks were conducting a frisk of the plaintiff. While the plaintiff stood facing a wall, defendant Michalko used a hand-held metal detector to check the plaintiff for contraband. In his complaint, the plaintiff alleges that Michalko then "intentionally, aggressively shoved the hand held metal detector up between my anal body area for no reason, `sexually assaulting' me." From reading all of the plaintiff's papers, it appears that the plaintiff was fully clothed during the frisk, and that Michalko allegedly pushed the metal detector between the plaintiff's thighs. The plaintiff turned and complained to Michalko, but Michalko told the plaintiff to face the wall. The plaintiff alleges that Michalko then "sexually assaulted" him again in the same manner, and the plaintiff again verbally objected to the alleged assault. Officer Hicks, who had also been ordering the plaintiff to face the wall, then ordered the plaintiff back to his cell. Officers Michalko and Hicks then escorted the plaintiff to the gallery where his cell was located. At the entrance to the gallery, they were met by Sergeant Edwards. The plaintiff started to complain to Edwards about Michalko, but Edwards ignored the plaintiff and ordered him to follow Officer Hick's directions. Officer Hicks then ordered the plaintiff to face the wall, and frisked the plaintiff. The plaintiff was then returned to his cell. Later that day, Officers Michalko filed an Inmate Misbehavior Report, endorsed by Officer Hicks, charging the plaintiff with refusing a direct order, violating frisk procedures and harassment. Sergeant Edwards then issued a Deprivation Order, which denied the plaintiff his shower, cell clean-up privilege, and exercise for that day. Also that same day, the plaintiff filed an Inmate Grievance Complaint against Michalko, which stated, in relevant part, that Michalko "used the metal detector and sexually assaulted me by shoving up the metal detector between my thighs towards my anal area." On August 29, 1995, the plaintiff wrote a letter to Southport Superintendent R.J. McClellan, reiterating the allegations in his grievance, and concluding by stating that "I would like for you to remove Officer R. Michalko from doing recreation and abolish the ticket because of R. Michalko's action." By memo dated September 2, 1995, Superintendent McClellan informed the plaintiff that his letter had been referred to R. Morse, Deputy Superintendent for Security Services, and that Mr. Morse would investigate the plaintiff's complaint and respond to the plaintiff directly. On September 5, 1995, a Tier II hearing on the aforementioned misbehavior report was conducted by Lieutenant Ryan. At the hearing, the plaintiff complained that he had not been given an assistant to help him prepare for the hearing. Prior to the hearing, on August 24, 1995, pursuant to 7 NYCRR, Part 251 C of Chapter V, the plaintiff had been given a "Tier Assistance Selection Form" to complete. The instructions printed at the top of the form stated that the plaintiff was to choose three names from a list of persons qualified to act as inmate assistants, and that "[i]f you choose not to select three (3) assistants, and the assistant you did select is not available, you waive your right to an assistant." The plaintiff made only two selections, and apparently both of the assistants whom he requested were unavailable. Ryan explained to the plaintiff that since he had not indicated a third choice for assistant, that he had waived his right to an assistant. Ryan then proceeded with the hearing, despite the plaintiff's objections. As a result of being denied an assistant, it appears that the plaintiff was unable to put forth a defense. At the conclusion of the hearing, Ryan found the plaintiff guilty of all three infractions, and sentenced the plaintiff to thirty days of keeplock. The plaintiff unsuccessfully appealed this determination, and accordingly, Ryan's determination is undisturbed. By memo dated September 7, 1995, Deputy Superintendent Morse informed the plaintiff that he found that the prison staff acted appropriately and that the plaintiff's loss of privileges was solely the result of the plaintiff's misbehavior.

Issue was joined in this action on December 4, 1995. Liberally construing the pro se plaintiff's complaint, he is asserting the following claims: 1) a claim against Michalko and Hicks for sexual assault, in violation of his rights under the 8th Amendment and 14th Amendment Substantive Due Process Clause; 2) a claim against Michalko and/or Wicks for filing a false misbehavior report, in violation of his rights under the 14th Amendment Due Process Clause; 3) a claim against Edwards for depriving him of shower, exercise and cell cleanup privileges on August 23, 1995, in violation of his rights under the 14th Amendment Due Process Clause; 4) a claim against Ryan for conducting the disciplinary hearing in violation of his 14th Amendment Due Process rights; and 5) a claim against McClellan for all of the above, apparently on a theory of respondeat superior liability. On April 13, 1998, the defendants moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) [# 31]. The Court issued a motion scheduling order [# 33] on April 20, 1998, which stated that the plaintiff's failure to file and serve a response to the motion by May 15, 1998, could result in the action being dismissed. The plaintiff has not responded to the motion to dismiss.


Initially, the Court notes that motions pursuant to Fed.R.Civ.P. 12(b) are to be made "before pleading if a further pleading is permitted." The defendants answered the complaint prior to making this motion, therefore this motion is more correctly treated as a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). National Ass'n of Pharm. Mfrs., Inc. v. Ayerst Labs., Div. of/and American Home Prod. Corp., 850 F.2d 904, 909 n. 2 (2d Cir. 1988). However, the Court applies the same standard to either motion. Id.

  In deciding a Rule 12(c) motion, we apply the same
  standard as that applicable to a motion under Rule
  12(b)(6). Under that test, a court must accept the
  allegations contained in the complaint as true, and
  draw all reasonable inferences in favor of the
  non-movant; it 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. This standard is applied
  with particular strictness when the plaintiff
  complains of a civil rights violation.

Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994) (Citations and quotation marks omitted), cert. denied, 513 U.S. 816, 115 S.Ct. 73, 130 L.Ed.2d 28 (1994).

  To state a claim under 42 U.S.C. § 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.

New York Magazine, a Div. of Primedia Magazines, Inc. v. Metropolitan Transp. Auth., 136 F.3d 123, 127-28 (2d Cir. 1998) (Citations and quotation marks omitted), cert. denied, ___ U.S. ___, 119 S.Ct. 68, 142 L.Ed.2d 53 (1998).

  [I]t is well settled that to state a civil rights
  claim under § 1983, a complaint must contain specific
  allegations of fact which indicate a deprivation of
  constitutional rights; allegations which are nothing
  more than broad, simple, and conclusory statements
  are insufficient to state a claim under § 1983.

Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).

The plaintiff's claims against Michalko and Wicks for sexual assault must be dismissed. "[S]exual abuse of an inmate by a corrections officer may reach constitutional dimensions and give rise to an Eighth Amendment claim under Section 1983." Boddie v. Schnieder, 105 F.3d 857, 859 (2d Cir. 1997). However, to establish an Eighth Amendment violation, the plaintiff must demonstrate that the alleged sexual abuse was "objectively, sufficiently serious," and that the defendant acted with a "sufficiently culpable state of mind." Id. at 861. Here, it appears clear that the plaintiff cannot satisfy either of these two elements. Essentially, the plaintiff alleges that on a single occasion, during a lawful frisk, Michalko used a hand-held metal detector to touch the plaintiff between his legs, in what the plaintiff calls his "anal area." The plaintiff does not allege that the frisk was otherwise unjustified, or that Michalko or Wicks said or did anything to indicate they had a sexual intent in touching him with the metal detector. The Court finds that these facts do not allege the type of "severe or repetitive sexual abuse" that would rise to the level of a Eighth Amendment violation. See, Boddie, 105 F.3d at 861; Williams v. Kane, No. 95 CIV. 0379 AJP JGK, 1997 WL 527677, at *8-11 (S.D.N.Y. Aug. 25, 1997). Nor has the plaintiff stated a ...

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