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WELLS v. WADE

January 28, 1999

TONY WELLS, PLAINTIFF,
v.
D. WADE, CORRECTION OFFICER, LT. DIBARTOLLO, CORRECTION SUPERVISOR, SGT. COMFORT, GRIEVANCE OFFICER, AND T.J. MILLER, ACTING SUPERINTENDENT, WOODBOURNE CORRECTIONAL FACILITY, DEFENDANTS.



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

  MEMORANDUM OPINION AND ORDER

Plaintiff Tony Wells ("Wells"), an inmate in the custody of the New York State Department of Correctional Services proceeding pro se, brings the instant action pursuant to 42 U.S.C. § 1983. Wells alleges that during his incarceration at Woodbourne Correctional Facility ("Woodbourne"), prison officials violated his civil rights by confining him for thirteen days in pre-hearing "keeplock" detention on the basis of a false disciplinary report. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendants move for summary judgment. For the reasons stated below, summary judgment is granted in favor of defendants Lieutenant Dibartollo ("Dibartollo"), Sergeant Comfort ("Comfort"), and Superintendent T.J. Miller ("Miller"). The Court denies summary judgment only as to plaintiff's claim against defendant D. Wade ("Wade") for retaliation.

BACKGROUND

Wells alleges that on November 28, 1995, Wade, a corrections officer at Woodbourne, approached Wells in the prison mess hall and ordered him to remove his Islamic prayer beads.*fn1 See Verified Complaint, sworn to January 7, 1996 ("Compl.") ¶ 7. Soon thereafter, Wells sought treatment at the infirmary for pain in his knees. See id. ¶ 8. The nurse prescribed pain killers and granted Wells a seven-day medical excuse to rest his knees. As part of the prescribed rest, the nurse restricted Wells's telephone privileges. See id. However, Wells, upset that the nurse had restricted his telephone privileges, attempted to file a grievance with the grievance officer on duty. See id. ¶ 9. Wells told the grievance officer, defendant Comfort, that the prescribed restrictions were unnecessary because he could still walk to the telephones. See id. ¶ 8; Wells Dep. at 78. Comfort suggested that Wells file a grievance with one of the inmate clerks. See Compl. ¶ 9.

While Wells was filing the grievance, Wade entered the grievance office, observed Wells attempting to file a grievance, and then left. See id. Wade apparently concluded that Wells was filing a grievance about Wade's reprimand of Wells for wearing beads.*fn2 After Wade left the grievance office, he filed a misbehavior report against Wells charging him with (1) being out of place, (2) disobeying a direct order, (3) possessing unauthorized jewelry, and (4) leaving an assigned area without permission. See id. ¶¶ 10-11; see also Misbehavior Report. Wade's Misbehavior Report bears the additional signatures of Comfort and Lieutenant Jones*fn3 as witnesses; Wells alleges that Wade forged their signatures. See Compl. ¶ 12. Additionally, Wells claims that Comfort alerted Wade to Wells's presence in the grievance office and "initiated the incident of the religious beads."*fn4 Id. ¶¶ 12, 23.

Pursuant to state prison regulations, Wells was placed in pre-hearing "keeplock" confinement on November 28, 1995, pending the disposition of the charges against him.*fn5 See id. ¶ 14. While confined in keeplock, Wells was segregated from the general prison population and confined in his cell for 23 hours a day, with one hour spent outside the cell for exercise. See Wells Dep. at 113. Inmates in keeplock retain some privileges, such as visitation rights and access to cell study programs, books and periodicals. See Affidavit of Anthony J. Annucci, sworn to October 23, 1997 ("Annucci Aff.") ¶¶ 9, 13.

Dibartollo, the hearing officer assigned to the matter, commenced the hearing on December 1, 1995, and then adjourned the hearing for further investigation. See Compl. ¶ 14. On December 11, 1995, Dibartollo dismissed the charges against Wells and ordered that Wells be released from keeplock. See id. ¶ 15. The Misbehavior Report was expunged from his record, and Wells was told that he "should just foreget [sic] about it." Id. ¶ 15. Dibartollo refused Wells's request to continue the hearing to allow Wells to show that "criminal acts had taken place," namely, that Wade forged the signatures of Jones and Comfort on the misbehavior report and made false statements in his report. Id. ¶¶ 13, 24; Wells Dep. at 40-41.

Wells brings this action claiming that Wade, Comfort, and Dibartollo violated his rights under the United States Constitution by wrongfully confining him to keeplock for thirteen days.*fn6 See Compl. ¶¶ 1, 3-5, 16, 21-22, 24. Wells also names Acting Superintendent T.J. Miller as a defendant because of his supervisory role over the other defendants at Woodbourne. See id. ¶¶ 6, 19-20.

Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, arguing that (1) Wells has no constitutional liberty interest in remaining free from pre-hearing keeplock confinement; (2) Wells fails to plead a claim for retaliation; and (3) defendants enjoy qualified immunity from liability for performance of their official responsibilities. In addition, defendant Miller argues that he cannot be liable under § 1983 because Wells's claim against him rests upon the doctrine of respondeat superior.

DISCUSSION

Summary judgment should be granted in favor of the moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the Court views all facts and construes all rational inferences derived therefrom in the light most favorable to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

In the instant case, Wells has failed to file any opposition to defendants' motion, even though defendants' Notice of Motion properly advised Wells of the need to file an opposing statement to defendants' motion and of the consequences of a failure to do so. See Defs.' Notice of Motion ¶¶ 2-3. Although under Local Civil Rule 56.1(c), a non-movant's failure to controvert the material facts set forth by movant is properly deemed an admission of the truth of these facts, see U.S.Dist.Ct.Rules S.D.N.Y., Civil Rule 56.1(c); United States v. All Right, Title and Interest in Real Property and Appurtenances, 77 F.3d 648, 657 (2d Cir. 1996), the Court, mindful of the limitations of incarcerated pro se litigants, declines to treat Wells's silence as an admission of those facts presented by defendants that contradict the allegations of his Complaint because plaintiff has filed a verified Complaint sworn before a notary public and further testified under oath regarding the allegations of his Complaint at his deposition by defendants. Nevertheless, on the basis of Wells's Complaint and deposition testimony and defendants' affidavits describing the conditions experienced by Wells both in the general population and in keeplock, the Court grants defendants summary judgment on all claims except Wells's claim against Wade for retaliation.

Because Wells has filed no opposition to defendants' motion, it is unclear to the Court which rights guaranteed by the Constitution he alleges that defendants have violated. Although Wells sets forth in his Complaint a detailed recitation of the facts from which his claims arise, he fails to offer any intimation of the particular rights secured by the Constitution that defendants violated by their conduct. Liberally construing, as the Court must, the allegations of Wells's Complaint to raise the strongest arguments that they suggest, see Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the Court discerns two possible claims. First, Wells alleges that defendants violated his rights under the due process clause of the ...


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