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United States District Court, Northern District of New York

January 16, 2003


The opinion of the court was delivered by: Gary L. Sharpe, United States Magistrate Judge


I. Introduction

This matter has been referred to the undersigned for a Report-Recommendation by the Honorable Frederick J. Scullin, Jr., Chief United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). Plaintiff, pro se, Cornell Delisser ("Delisser") brings this action under 42 U.S.C. § 1983 claiming that the defendants violated his civil rights under the First, Eighth and Fourteenth Amendments. On February 22, 2002, the defendants filed a motion to dismiss (Dkt. Nos. 28-29), and Delisser responded (Dkt. No. 33). For the foregoing reasons, the motion to dismiss should be granted.

II. Procedural Background

On January 17, 2002, Chief United States District Court Judge Michael B. Mukasey, Southern District of New York, found Delisser's complaint deficient and ordered that he amend it. Judge Mukasey rejected Delisser's complaint because he failed to show that a constitutional violation occurred, or that the named defendants were somehow personally involved in the alleged violation. Delisser was permitted sixty days to amend his complaint to set forth allegations demonstrating how each named defendant was deliberately indifferent to his medical needs. Thereafter, Delisser filed two amended complaints in the Southern District. On January 22, 2002, this case was transferred to the Northern District of New York.

In this motion, the defendants argue that Delisser failed to allege a constitutional violation. They argue that they are entitled to qualified immunity and that, in any event, the DOCS Tuberculin Hold ("TB Hold")*fn3 policy is reasonably related to a legitimate penological objective. Finally, they argue that Delisser has failed to allege personal involvement of the named defendants. The court shall address each of these issues seriatim.

III. Facts

On July 26, 1999, Delisser was asked to take a Purified Protein Derivative (PPD) test for tuberculosis screening. He refused to submit to the PPD test for religious reasons.*fn4 Delisser informed unnamed "John Doe" physicians that he had taken a Bacille Calmette-Guerin*fn5 vaccine just prior to entering the United States from Jamaica in 1978. Delisser informed the doctors that he would be willing to submit to an x-ray examination or an oral swab test as an "alternative" test screening. The doctors disregarded his request and he was placed in medical keeplock*fn6 until August 30, 1999. Delisser spent 41 days in medical keeplock and he was released on August 30, 1999, after he agreed to submit to the PPD test.

Subsequently, Delisser tested positive for TB (see Pl.['s] Resp. to Motion to Dismiss P. 6). On October 21, 1999, Delisser's refusal to accept medication for the treatment of tuberculosis caused him to be placed in medical keeplock again. Delisser claims that during this time, he was denied "regular" commissary privileges. Delisser claims that he spent a total of 52 days in medical keeplock.

IV. Discussion

A. Legal Standard

Federal Rules of Civil Procedure 12(b)(6) provides that a cause of action shall be dismissed if a complaint fails "to state a claim upon which relief can be granted." In other words, the court should dismiss the complaint pursuant to Rule 12(b)(6), if it appears beyond doubt that the plaintiff can prove no set of facts in support of the complaint which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999); S.E.C. v. U.S. Environmental, Inc., 155 F.3d 107, 110 (2d Cir. 1998). "The task of the court in ruling on a Rule 12(b)(6) motion `is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)). Therefore, in analyzing a motion to dismiss, the facts alleged by a plaintiff are assumed to be true and must be liberally construed in the light most favorable to him. See e.g., Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991).

The court must "confine its consideration `to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. West Point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999). "Moreover, `when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,' the court may nevertheless take the document into consideration in deciding the defendants' motion to dismiss, without converting the proceeding to one for summary judgment." Int'l Audiotext Network, Inc. v. American Tel. and Tel. Co., 62 F.3d 69, 72 (1995) (citation omitted). With this standard in mind, the court turns to the sufficiency of Delisser's claims.*fn7

B. Qualified Immunity

Qualified immunity protects government officials who perform discretionary functions in the course of their employment. It shields them from liability for money damages where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). It also protects officials from "the burdens of costly, but insubstantial, lawsuits." Warren v. Keane, 196 F.3d 330, 332 (2d Cir. 1999) (quotation marks and internal citations omitted).

The question of whether qualified immunity will protect a public official depends upon "`the objective legal reasonableness' of the action assessed in light of the legal rules that were `clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citations omitted). Furthermore, the contours of the right violated must be sufficiently clear that a reasonable official might understand that his actions violate that right. Id. at 640, 107 S.Ct. at 3039; Keane, 196 F.3d at 332. In other words, "in evaluating whether a right was clearly established at the time a § 1983 defendant acted [the court must determine]: `(1) whether the right in question was defined with "reasonable specificity"; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and, (3) whether under pre-existing law a reasonable defendant official would have understood that his or her acts were unlawful.'" African Trade & Information Center, Inc., v. Abromaitis, 294 F.3d 355, 360 (2d Cir. 2002). See also, Charles W. v. Maul, 214 F.3d 350, 360 (2d Cir. 2000).

Additionally, the Second Circuit has held that a court may dismiss a claim based upon qualified immunity without first deciding the substantive claims therein. See Horne v. Coughlin, 191 F.3d 244 (2d Cir. 1999). Also within this decision, the Second Circuit suggested that the qualified immunity issue should be addressed before the substance of a claim. The court will now consider the defendants' claim that they are entitled to qualified immunity.

1. First Amendment Claim

In Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996), the court found that Jolly had demonstrated a likelihood of success on the merits of his Eighth Amendment claim where he had been confined to medical keeplock for three-and-a-half years and had only been allowed out of his cell for one ten-minute shower per week. In response to this ruling, DOCS amended its policy to limit an inmates's period of confinement on TB Hold to one year, and to allow more exercise and shower time to such inmates. In Word v. Wright, 1999 U.S. Dist. LEXIS 22047, at *14 (W.D.N.Y. Sept. 15, 1999), the court noted that the Second Circuit had not yet ruled on whether the new TB Hold policy was constitutional. In that case, the court held that the TB Hold policy did not deprive the inmate of basic human needs violative of the Eighth Amendment. Word, 1999 U.S. Dist. Lexis 22047, at *15.

In Giles v. Coughlin, 1997 U.S. Dist. LEXIS 11129 (S.D.N.Y. Aug. 1, 1997), the district court found that DOCS' TB Hold policy [after the 1996 changes] did not violate the Eighth Amendment. In Dorsey v. McQuillian, 1997 WL 772779, at *3 (S.D.N.Y. Dec. 15, 1997), the district court held that the defendants were entitled to summary judgment based on qualified immunity since the "right to be free from [TB Hold] on First Amendment grounds (assuming such right exists) ha[d] never been established."

On the other hand, recently, in Reynolds v. Goord, 103 F. Supp.2d 316 (S.D.N.Y. 2000), the district court found that the plaintiff showed a clear and substantial likelihood of proving at trial that his First Amendment rights would be violated by application of the TB Hold policy. Moreover, the district court held that "even if plaintiff's confinement in TB Hold was not a loss of a First Amendment freedom, his placement on TB Hold for the exercise of his religious beliefs is a substantial burden on his constitutional right that cannot be adequately compensated monetarily." Id. at 337.

In this case, Delisser claims that the defendants violated his First Amendment right to freedom of religion when they placed him in medical keeplock for refusing a PPD test on religious grounds. He further argues that alternative TB tests were available like x-rays and oral swabs instead of the PPD test. Delisser contends that the defendants deliberately violated his right when they placed him in TB Hold rather than offer him an alternative TB test. Furthermore, Delisser contends that their implementation of the TB Hold policy was not objectively reasonable.

The defendants maintain that they are entitled to qualified immunity because Delisser cannot demonstrate that they were aware that they were violating a clearly established right at the time of their conduct. They further argue that their entitlement to qualified immunity is not precluded by Reynolds. They maintain that Delisser cannot rely on Reynolds to show that his constitutional rights were clearly established under the circumstances, since that case was decided a year after the time period at issue.

This court finds that the defendants are entitled to dismissal based on qualified immunity as to Delisser's First Amendment claim. Delisser would have the court focus on the clearly established First Amendment right to free expression of religion. Indeed, "the Second Circuit has approved of the following definition of religion: `the feeling, acts, and experiences of individual men in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine.'" Selah v. Goord, 2002 WL 73231, at *4 (N.D.N.Y. Jan. 2, 2002). However, the issue before the court is whether the defendants knew or should have known that placing Delisser in TB Hold for refusing a PPD test based on religious grounds was a violation of his rights at the time the conduct occurred.

This court finds that the defendants are entitled to qualified immunity since this right was not clearly established during the period in question. On July 20, and October 21, 1999, a reasonable official would not have known that placing Delisser on TB Hold for refusing to submit to a PPD test violated his First Amendment rights. Moreover, as the defendants point out, Reynolds was decided after the incident in question occurred. Accordingly, this court recommends the dismissal of Delisser's First Amendment claim based on qualified immunity.

C. Eighth Amendment claim

1. Medical Condition

The Eighth Amendment does not mandate comfortable prisons, yet it does not tolerate inhumane prisons either, and the conditions of an inmate's confinement are subject to examination under the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1975, 128 L.Ed.2d 811 (1994). Nevertheless, deprivations suffered by inmates as a result of their incarceration only become reprehensible to the Eighth Amendment when they deny the minimal civilized measure of life's necessities. Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)).

Moreover, the Eighth Amendment embodies "broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . ." against which penal measures must be evaluated. See Estelle v. Gamble, 429 U.S. at 102, 97 S.Ct. at 290. Repugnant to the Amendment are punishments hostile to the standards of decency that "`mark the progress of a maturing society.'" Id. (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). Also repugnant to the Amendment, are punishments that involve "`unnecessary and wanton inflictions of pain.'" Id. at 103, 97 S.Ct. at 290 (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)).

In light of these elementary principles, a state has a constitutional obligation to provide inmates adequate medical care. See West v. Atkins, 487 U.S. 42, 54, 108 S.Ct. 2250, 2258, 101 L.Ed.2d 40 (1988). By virtue of their incarceration, inmates are utterly dependant upon prison authorities to treat their medical ills and are wholly powerless to help themselves if the state languishes in its obligation. See Estelle, 429 U.S. at 103, 97 S.Ct. at 290. The essence of an improper medical treatment claim lies in proof of "deliberate indifference to serious medical needs." Id. at 104, 97 S.Ct. at 291. Deliberate indifference may be manifested by a prison doctor's response to an inmate's needs. Id. It may also be shown by a corrections officer denying or delaying an inmate's access to medical care or by intentionally interfering with an inmate's treatment. Id. at 104-105, 97 S.Ct. at 291.

The standard of deliberate indifference includes both subjective and objective components. The objective component requires the alleged deprivation to be sufficiently serious, while the subjective component requires the defendant to act with a sufficiently culpable state of mind. See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). A prison official acts with deliberate indifference when he "`knows of and disregards an excessive risk to inmate health or safety.'" Id. (quoting Farmer, 511 U.S. at 837, 114 S.Ct. at 1979). "`The official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'" Id.

However, an Eighth Amendment claim may be dismissed if there is no evidence that a defendant acted with deliberate indifference to a serious medical need. An inmate does not have a right to the treatment of his choice. See Murphy v. Grabo, 1998 WL 166840, at *4 (N.D.N.Y. April 9, 1998) (citation omitted). Also, mere disagreement with the prescribed course of treatment does not always rise to the level of a constitutional claim. See Chance, 143 F.3d at 703. Moreover, prison officials have broad discretion to determine the nature and character of medical treatment provided to inmates. See Murphy, 1998 WL 166840, at *4 (citation omitted).

In this case, it is clear from the record that Delisser has failed to allege sufficient facts to satisfy either the objective or subjective element of an Eighth Amendment medical indifference claim. As the defendants point out, Delisser has failed to provide any specifics concerning his medical condition. Moreover, Delisser has failed to indicate that he was in pain or that any of the defendants ignored a condition which created a substantial risk of harm to him. Lastly, he fails to allege sufficient facts to indicate how any of the named defendants were deliberately indifferent to his medical needs.

This court finds that these allegations fail to establish that the defendants were deliberately indifferent to Delisser's medical needs. He was initially placed in medical keeplock due to his refusal to submit to a TB test. In Delisser's response to the motion to dismiss, he informs the court that he indeed tested positive for TB (see Pl. ['s] Resp. to Motion to Dismiss P. 6). Delisser further concedes that despite testing positive for TB, he refused to take the medication since there were serious side effects.

Even if Delisser's allegation concerning the side effects to the medication are considered true, there is nothing in the record which shows that the defendants knew of and disregarded an excessive risk to Delisser's health or safety. Delisser's allegations fail to demonstrate deliberate indifference in violation of his Eighth Amendment. Accordingly, this court recommends the dismissal of Delisser's Eighth Amendment deliberate indifference to his medical need claim.

2. Prison Conditions

As previously noted, in order to prevail on a claim that the conditions of confinement constitute cruel and unusual punishment, a plaintiff must satisfy both an objective element and a subjective element. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994). To satisfy the objective element, a "plaintiff must demonstrate that the conditions of his confinement result in unquestioned and serious deprivations of basic human needs." Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985) (citing Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399); see also, Farmer, 511 U.S. at 834, 114 S.Ct. at 1977 (holding that prison officials' acts must deprive inmate of "the minimal civilized measure of life's necessities").

The subjective element requires a plaintiff to show that the prison official acted with a "sufficiently culpable state of mind." Farmer, 511 U.S. at 834, 114 S.Ct. at 1977 (quoting Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 2326, 115 L.Ed.2d 271 (1991)). In cases involving prison conditions, the state of mind is one of "deliberate indifference." Farmer, 511 U.S. at 834, 114 S.Ct. at 1977 (quoting Wilson, 501 U.S. at 302-03, 111 S.Ct. at 2321). Nevertheless, conditions that are restrictive and harsh are an element of the penalty that criminal offenders pay to society for their offenses. Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399.

Although, the complaint is not a model of clarity, Delisser appears to be claiming that being placed in medical keeplock for his refusal to take the TB test and TB medication was cruel and unusual punishment. The only prison condition he complains about involves the denial of his "regular" commissary privileges which were revoked during his time in medical keeplock.

This court finds that these allegations are without merit. Delisser does not mention any conditions which purportedly violate his rights. Even if his "regular" commissary privileges were revoked, this allegation fails to demonstrate that the conditions of his confinement resulted in unquestioned and serious deprivations of basic human needs violative of the Eighth Amendment. Accordingly, this court recommends the dismissal of all of Delisser's Eighth Amendment claims.

D. Fourteenth Amendment Claim*fn8

For a plaintiff to prevail on a § 1983 claim for denial of due process, 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, 2300, 132 L.Ed.2d 418 (1995)). A disciplinary sanction does not meet the Sandin "atypical and significant hardship" standard unless it is "onerous." Jenkins, 179 F.3d at 28.

Furthermore, an inmate's liberty interests are implicated "only if the discipline he received affected the duration of his sentence in an unexpected manner, or if the punitive confinement involved a `dramatic departure from the basic conditions of [the] indeterminate sentence.'" Giano v. Goord, 9 F. Supp.2d 235, 240 (W.D.N.Y. 1998) (quoting Sandin, 515 U.S. at 485, 115 S.Ct. at 2301). However, the Second Circuit has cautioned that "there is no bright-line rule regarding the length or type of sanction" that meets the Sandin standard. Id. at 28. Nevertheless, the Court of Appeals has recently suggested that confinement for a period of less than 101 days would not constitute an atypical and significant hardship. See Colon v. Howard, 215 F.3d 227, 231-32 (2d Cir. 2000).*fn9

On the other hand, if a prisoner satisfies both of these elements, the Court then addresses "`whether the deprivation of that liberty interest occurred without due process of law.'" Sealey, 116 F.3d at 51 (quoting Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996)). 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. 1997). Although Sandin dealt with punitive confinement, the Second Circuit has held that its analysis also applies to administrative segregation. Arce, 139 F.3d at 334-35.

In this case, it appears that Delisser served two different terms of medical keeplock: one for 41 days and the second term for 52 days (see Pl. ['s] Resp. Motion to Dismiss P. 6). This court finds that even if Delisser's allegations were true concerning his time in keeplock, his due process claim fails to satisfy the Sandin test. His relatively short period of confinement does not constitute an atypical or significant hardship. Since this court finds that there is no liberty interest implicated herein, it is unnecessary to determine if he received due process. Accordingly, this court recommends the dismissal of Delisser's Fourteenth Amendment claim.

E. Personal Involvement

"It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citation omitted). Since there is no respondeat superior liability, the defendant must be shown to have personal involvement in the alleged deprivation of rights. Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989). Supervisory officials cannot be held liable under § 1983 solely for the acts of their subordinates. See Monell v. Department of Social Servs. of the City of New York, 436 U.S. 658, 690-695, 98 S.Ct. 2018, 2035-2038, 56 L.Ed.2d 611 (1978). However, a supervisory official can be held liable for constitutional violations if he or she: (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 after learning of it; or (4) was grossly negligent in supervising subordinates who caused the violation. Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).

The defendants maintain that Delisser has failed to allege their personal involvement. They point out that Delisser fails to allege any acts on the part of Doctor Kang Maeng Lee*fn10 ("Lee") and F. Bushey ("Bushey"). They claim that the only allegations as to the remaining defendants is that they received letters from Delisser or that they sent him responses to his letter.

This court finds that Delisser fails to show that Bushey and Lee were personally involved. The court notes that pro se complaints must be liberally construed, however, there is nothing in the complaint which purports to show that these defendants were personally involved in any alleged constitutional violation. Dismissal as to the remaining defendants should be denied since it appears that they may have been involved. Accordingly, as an additional ground to grant dismissal, this court recommends the dismissal of defendants Bushey and Lee from this suit.

WHEREFORE, for the foregoing reasons, it is hereby

RECOMMENDED, that the defendants' motion to dismiss (Dkt. No. 28) be GRANTED in regards to defendants D. Ruby and Stephen M. Bernardi since they were never served and this court lacks jurisdiction over them; and it is further

RECOMMENDED, that the defendants' motion to dismiss (Dkt. No. 28) be GRANTED as to all of the defendants over which this court has jurisdiction based on Qualified Immunity as to Delisser's First Amendment claim; and it is further

RECOMMENDED, that the defendants' motion to dismiss (Dkt. No. 28) be GRANTED as to all of the defendants over which this court has jurisdiction in Delisser's Eighth Amendment claim; and it is further

RECOMMENDED, that the defendants' motion to dismiss (Dkt. No. 28) be GRANTED as to all of the defendants over which this court has jurisdiction in Delisser's Fourteenth Amendment claim; and it is further

RECOMMENDED, as an additional basis for granting dismissal, that the defendants' motion to dismiss (Dkt. No. 28) be GRANTED as to defendants Lee and Bushey since Delisser's complaint fails to show that these defendants were personally involved in the alleged constitutional violation; and it is further

ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

*fn3 Delisser calls this "medical keeplock."

*fn4 Delisser belongs to the Rastafari religion.

*fn5 Delisser alleges that this vaccine causes him to test false positive for TB.

*fn6 Delisser claims that he was confined to his cell.

*fn7 Delisser quotes parts of DOCS' Tuberculosis Policy and the defendants provide the court with a copy of DOCS' Tuberculosis Policy. (See Defs. ['] Aff. B.).

*fn8 Delisser claims that his equal protection rights have been violated. The equal protection clause directs state actors to treat similarly situated people alike. See Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). "To prove an equal protection violation, claimants must prove purposeful discrimination directed at an identifiable or suspect class." Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995) (citations omitted). Here, Delisser presents no evidence that the policy discriminated against a particular class of inmates. Thus, this court recommends that Delisser's equal protection claim should be dismissed.

*fn9 In Colon, the court discussed Sealey v. Giltner, 116 F.3d 47 (2d Cir. 1997), in which confinement of 101 days was held not to have met the Sandin standard. Colon, 215 F.3d at 231-232. Judge Newman, expressing "only [his] own views on this issue and not those of the panel," advocated "a bright-line rule that confinement in normal SHU conditions of more than 180 days meets the Sandin standard." Id. at 232. Conversely, confinement of 180 days or less would not meet the Sandin standard. Among the other reasons for his belief that a bright-line rule would be appropriate in the context of Sandin claims, Judge Newman observed that "the district judges of this Circuit would significantly benefit from use of a standard that would permit prompt dismissal of many cases where the facts alleged in the complaint demonstrate that the duration and conditions of confinement do not exceed an announced standard." Id. at 233.

*fn10 In Delisser's complaint, he mentions that he met with the "Head of the Infectious Unit" but fails to state who that was. It may well be that he means Dr. Lee, however, this conclusion is not readily apparent.

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