& 112). Plaintiff's amended complaint does not satisfy the second
prong of the deliberate indifference test with respect to these
defendants, however, for he fails to allege that any of them knew
of and disregarded an excessive risk to his health. Accordingly,
plaintiff's deliberate indifference claim against Keyser,
Patterson, and DiTomasso, is dismissed.
5. Denial of Due Process
The amended complaint can be read to allege a Fourteenth
Amendment denial of due process claim against defendants Nagy,
Blaetz, and Gwen Schneider. Plaintiff alleges that he was denied
due process of law at three separate disciplinary hearings, held
on August 7, 1997, April 28, 1999, and July 5, 1999.
Specifically, Rivera alleges that defendant Nagy falsely
testified at the August 7, 1997 hearing about the events that led
to the hearing; Blaetz, the presiding officer at the hearing,
found Rivera guilty of all charges and sentenced Rivera to 90
days in "confinement" and 120 days loss of privileges. Rivera
further alleges that Gwen Schneider, the officer who presided
over the April 28, 1999 hearing, was biased against him by her
personal connection with several of the defendants named in this
suit; Gwen Schneider found Rivera guilty of lying to an officer
and sentenced him to three days confinement in his cell. Finally,
Rivera alleges that Nagy, the presiding officer at the July 5,
1999 hearing, was biased against him because Nagy was already a
defendant in this lawsuit at the time he presided over the
hearing; Nagy found Rivera guilty of two of the charges against
him and sentenced him to 30 days confinement to his cell and loss
To prevail on a § 1983 claim for denial of due process at a
disciplinary hearing, a prisoner must establish both that the
disciplinary confinement or restraint creates "`an atypical and
significant hardship'" on the inmate in relation to the ordinary
incidents of prison life 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."
Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (quoting
Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132
L.Ed.2d 418 (1995)). A disciplinary sanction does not meet the
Sandin "atypical and significant hardship" standard unless it
is "onerous." Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.
1999). While the Second Circuit has cautioned that "there is no
bright-line rule regarding the length or type of sanction" that
meets the Sandin standard, see id., the Court of Appeals
recently suggested that confinement for a period of less than 101
days would not constitute an atypical and significant
hardship.*fn6 See Colon v. Howard, 215 F.3d 227, 231-32 (2d
Cir. 2000) (discussing Sealey v. Giltner, 116 F.3d 47 (2d Cir.
1997), in which confinement of 101 days was held not to have met
If a prisoner satisfies both these elements, the Court then
addresses "`whether the deprivation of that liberty interest
occurred without due process of law.'" Sealey v. Giltner,
116 F.3d 47, 51 (2d Cir. 1997) (quoting Bedoya v. Coughlin,
91 F.3d 349, 351-52 (2d Cir. 1996)); see Jackson v. Johnson,
15 F. Supp.2d 341, 347 (S.D.N.Y. 1998). The Second Circuit has
emphasized that the Sandin analysis entails
both a consideration of the duration of the challenged
confinement as well as a fact-intensive examination of the
conditions of that confinement. See, e.g., Ayers v. Ryan,
152 F.3d 77, 83 (2d Cir. 1998); Arce v. Walker, 139 F.3d 329, 336
(2d Cir. 1998); Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir.
Even assuming that all of Rivera's allegations against Nagy,
Blaetz, and Gwen Schneider are true, the amended complaint fails
to satisfy the Sandin test. After the three disciplinary
hearings, Rivera was confined to his cell for periods of ninety
days, three days, and thirty days, respectively. These relatively
short periods of confinement do not constitute an atypical or
significant hardship. Moreover, Rivera was not confined in Green
Haven's SHU, but to his own cell. Because plaintiff's complaint
contains no allegations that would indicate that the length or
conditions of his confinement were "atypical or significant," his
due process claims against Nagy, Blaetz, and Gwen Schneider must
D. Official/Supervisory Defendants
Plaintiff alleges that the Official/Supervisory Defendants are
liable for the unconstitutional actions of their employees. With
the exception of George Schneider, all of these defendants argue
that they cannot be liable under § 1983 because they were not
personally involved in the alleged constitutional violations.
Personal involvement of a defendant in an alleged
constitutional deprivation is "a prerequisite to an award of
damages under § 1983." Williams v. Smith, 781 F.2d 319, 323 (2d
Cir. 1986) (internal quotations and citation omitted). The
personal involvement of a supervisory defendant may be shown by
evidence that the defendant "(1) directly participated in the
violation; (2) failed to remedy the violation after learning of
it through a report or appeal; (3) created a custom or policy
fostering the violation or allowed the custom or policy to
continue after learning of it; or (4) was grossly negligent in
supervising subordinates who caused the violation." Sealey, 116
F.3d at 51 (citing Williams, 781 F.2d at 323-24). "Liability
may not be premised on the respondeat superior or vicarious
liability doctrines, . . . nor may a defendant be liable merely
by his connection to the events through links in the chain of
command." Prince v. Edwards, No. 99 Civ. 8650(DC), 2000 WL
633382, at *6 (S.D.N.Y. May 17, 2000) (internal quotations and
As alleged, the involvement of the Official/Supervisory
Defendants does not fall into any of these categories. First,
Rivera fails to allege any facts demonstrating that defendants
Goord, Artuz, Zwillinger, McCoy, Klein,*fn7 and Bliden were
personally involved in or even knew of the alleged constitutional
violations; he merely asserts that he wrote to these defendants
complaining about the conduct of various Medical and Correctional
Defendants and that his complaints were ignored. These
allegations are insufficient to hold these Official/Supervisory
Defendants liable under § 1983. See, e.g., Woods v. Goord, 97
Civ. 5143(RWS), 1998 WL 740782, at *5 (S.D.N.Y. Oct. 23, 1998);
Cox v. Colgane, No. 94 Civ. 6361(DAB), 1998 WL 148424, at *6
(S.D.N.Y. Mar. 27, 1998); Garrido v. Coughlin, 716 F. Supp. 98,
100 (S.D.N.Y. 1989).
Second, even assuming that Goord, Artuz, Zwillinger, McCoy,
Klein, and Bliden had received Rivera's complaints and were aware
of the allegedly unconstitutional conduct of the Medical and
Correctional Defendants, Rivera has alleged no facts by which it
could be inferred that any of these defendants were deliberately
indifferent to the violations or grossly negligent in supervising
any of the other defendants. Rivera contends that Goord, Artuz,
Zwillinger, Stevens, and Bliden are liable because
they "affirmatively promot[ed] a policy which sanctioned and
perpetuated the intentional disregard of plaintiff's
constitutional rights by the other defendants" (Pl. Mem. at 8;
see also Am. Compl., ¶ 120), but the amended complaint contains
no allegations of how these defendants "affirmatively promoted"
any such policy. Accordingly, the claims against Goord, Artuz,
Zwillinger, McCoy, Klein, and Bliden must be dismissed for lack
of personal involvement.
Third, although Rivera alleges some personal involvement on the
part of George Schneider, the allegations are insufficient.
Rivera alleges that in 1997, Schneider directed a sham
investigation into one of Rivera's retaliation grievances "in
order to cover . . . his officials['] illegal conduct."
(Am.Compl., ¶ 66). Rivera further alleges that in 1999, Schneider
ignored additional complaints of retaliation lodged by Rivera
against Nagy, Mitchetti, and Keyser. (See id., ¶ 105). Even
assuming these allegations are true, the alleged conduct does not
fall within any of the Sealey categories, and thus plaintiff's
claims against George Schneider are dismissed as well.
E. Plaintiff's Other § 1983 Claims
I have considered Rivera's other purported § 1983 claims (see,
e.g., Am. Compl., ¶¶ 24, 117, 112, 121 & n. 1) and find them to
be without merit as a matter of law.
F. Qualified Immunity
All of the defendants contend that even if plaintiff states a
viable § 1983 claim against them, they are entitled to qualified
immunity. "[A] prison official . . . may claim qualified immunity
from suit . . . for [his] discretionary acts that do `not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.'" Hathaway, 37 F.3d at 67
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982)). Even where a prisoner's rights are
clearly established, "qualified immunity is still available to an
official if it was `objectively reasonable for the public
official to believe that his acts did not violate those rights.'"
Id. (quoting Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d
Defendants contend, in a conclusory fashion, that their actions
were objectively reasonable. (See Def. Mem. at 21-22). Because
plaintiff has adequately pled claims for deliberate indifference,
retaliation, and excessive force, however, I hold that defendants
are not entitled to qualified immunity based on the existing
record. Defendants' motion, insofar as it seeks dismissal of the
§ 1983 claims based on qualified immunity, is denied.
II. Plaintiff's §§ 1985 and 1986 Claims
Plaintiff also brings suit pursuant to 42 U.S.C. § 1985 and
1986. Rivera alleges in broad language that unspecified
defendants conspired to violate his constitutional rights (see
Am. Compl, ¶¶ 20, 116), but he alleges no specific facts that
would indicate the existence of any kind of conspiracy against
him. The mere use of the word "conspiracy," without more, does
not state a claim under § 1985. Accordingly, Rivera's § 1985
claim is dismissed against all defendants. Because § 1985
liability is a predicate to § 1986 liability, plaintiff's § 1986
claim is also dismissed against all defendants. See
42 U.S.C. § 1986; Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir.
All claims against defendants Goord, Artuz, Zwillinger,
Stevens, Licerio, Stolfi, Cortes, Miller, Keyser, Schmitt, Ward,
Tierney, Patterson, Surber, DiTommaso, Frazier, Colatosti, Brenda
Schneider, Mitchetti, Daly, Middleton, George Schneider, Gwen
Schneider, Quackenbush, Klein, Blaetz, Totton, McCoy, Bliden,
Green Haven Correctional Facility, and St.
Francis Medical Center are dismissed with prejudice.
Plaintiff's Eighth Amendment deliberate indifference to medical
needs claim survives as to defendants Selwin, Fratalone,
Kershenbaum, Silver, Sohng, Mamis, and Pecenco.
Plaintiff's First Amendment retaliation claim survives as to
defendants Kelly, Belton, Brady, Meyer, and Nagy.
Plaintiff's Eighth Amendment excessive force claim survives as
to defendants Kelly, Belton, and Brady.
All claims against defendants Selwin, Fratalone, Kershenbaum,
Silver, Sohng, Mamis, Pecenco, Kelly, Belton, Brady, Meyer, and
Nagy in their official capacities are dismissed with prejudice.
All § 1983 claims asserted against these defendants individually,
other than the three claims addressed above, are dismissed with
prejudice, as are plaintiff's § 1985 and § 1986 claims.
A pretrial conference will be held on October 20, 2000, at 3
p.m., at Courtroom 11A, Daniel Patrick Moynihan United States
Courthouse, 500 Pearl Street, New York, New York.