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.
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
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.
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 ...