United States District Court, W.D. New York
May 2, 2005.
COREY LASHLEY, Plaintiff,
CORRECTIONAL OFFICER M. WAKEFIELD, et al., Defendants.
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
Plaintiff, Corey Lasley, an inmate in the custody of the New
York State Department of Correctional Services ("DOCS"),
commenced this action pro se pursuant to 42 U.S.C. § 1983
claiming that defendants, five DOCS employees, violated his
First, Eighth, and Fourteenth Amendment rights. Plaintiff alleges
that defendants filed false misbehavior reports against him and
conducted repeated retaliatory searches of his cell in order to
stop him from filing grievances and doing legal work in the law
library. Defendants have moved for summary judgment. (Dkt.
#26).*fn1 For the reasons set forth below, defendants'
motion is granted, in part, and denied, in part.
The following facts are construed in a light most favorable to
plaintiff. At all relevant times, plaintiff was housed at Five
Points Correctional Facility, a maximum security prison.
Incidents involving C.O. Wakefield, Sgt. Piccolo, Lt. Sarra,
and Dep. Superintendent Aidala
In October 2001, plaintiff worked as clerk assisting other
inmates with legal research and writing in the library at Five
Points. On October 8, defendant Correctional Officer Marlene
Wakefield informed the law clerks working in the library that day
of an alleged new policy that limited clerks to five minutes with
each inmate that they were assisting. Plaintiff, who claimed
familiarity with the regulations, questioned Wakefield as to the
basis for the new policy. Wakefield responded that the director
for libraries in Albany had issued the policy. She told plaintiff
to file a grievance if he was not happy with her directive.
Plaintiff immediately began preparing such a written grievance
to the Superintendent claiming that Wakefield did not give him
sufficient time to render proper legal assistance to inmates.
(Grievance "FPT 3504-01," at Dkt. #26, Ex. 2, Dep. Ex. 6).
Wakefield apparently saw plaintiff writing the grievance and called defendant Sgt. Paul Piccolo to
the library for assistance. Plaintiff was searched and property
was taken from him. Sgt. Piccolo allegedly said to plaintiff,
"What are you crazy writing one of my officers up, now your (sic)
gonna pay and then maybe it'll stop those other assholes from
writing my officers up."(Dkt. #1, ¶ 28).
Wakefield wrote an inmate misbehavior report against plaintiff
charging him with four rules violations: possession of
contraband, harassment, refusing a direct order, and unauthorized
legal work. (Dep. Ex. 8). Plaintiff was placed on keeplock
confinement beginning that day.*fn2 Two days later, on
October 10, 2001, plaintiff filed a second grievance, this time
alleging retaliation by Wakefield and Piccolo. (Grievance "FPT
3471-01," at Dep. Ex. 5). Plaintiff's cell was then searched on
October 10 and 14. Plaintiff claims that his cell was ransacked
and some of his property was destroyed.
After a disciplinary hearing on October 16, 2001, plaintiff was
found not guilty of all the October 8 charges. The hearing
officer found that the "evidence [did] not support misbehavior
report." Plaintiff was released from keeplock confinement that
same day. (Dep. Ex. 8). On October 18, 2001, the Superintendent
denied Grievance FPT 3471-01, in which plaintiff accused
Wakefield and Sgt. Piccolo of retaliation. (Dep. Ex. 5).
However, on October 24, the Inmate Grievance Review Committee
("IGRC") responded to plaintiff's first grievance, FPT 3504-01,
and agreed with him that the law clerk Directive did not contain
a time limit on how long a law clerk could meet with an inmate.
On October 30, the Superintendent "accepted" this grievance and found that "law
clerks should be provided ample opportunity to provide assistance
to other inmates with their legal work in accordance with the
Directive." (Dep. Ex. 6). Plaintiff's cell was searched four days
later on November 3, 2001.
On November 5, 2001, plaintiff wrote a letter complaint to the
Law Library Supervisor complaining that another unnamed
correctional officer and Sgt. Piccolo again tried to enforce a
time limit on how long he could meet with inmates. Plaintiff gave
the officer a copy of the decision on his last grievance and the
Directive pertaining to law clerks. The officer called Sgt.
Piccolo to the library. Plaintiff claims that Sgt. Piccolo
harassed him for giving the officer a copy of the decision and
that, in fact, Sgt. Piccolo had instructed the officer to enforce
the time limit. Plaintiff received no response to this complaint,
despite sending follow-up letters to the Superintendent and the
Law Library Supervisor. (Dep. Ex. 10).
Sometime in November 2001, plaintiff also informed Inmate
Grievance Supervisor Hendricks and defendant Lt. Gregory Sarra
that he intended to run in the upcoming election to become an
IGRC representative. Plaintiff was dissatisfied with the manner
in which the IGRC at Five Points was handling certain grievances.
He voiced his complaints to members of the IGRC and other
On November 20, 2001, Lt. Sarra filed an inmate misbehavior
report against plaintiff charging him with creating a disturbance
and threatening an inmate member of the IGRC ("the November 20
charges"). These incidents allegedly took place on November 18
and 20 in the law library. Lt. Sarra based the misbehavior report
on information received through confidential informants.(Dep. Ex.
11).Plaintiff was confined to his cell on keeplock confinement
pending a disciplinary hearing. On December 5, plaintiff was found not
guilty after a hearing of the November 20 charges. The hearing
officer found that there was no evidence that the inmate who
plaintiff allegedly threatened was present in the law library at
the time of the alleged incident. (Dep. Ex. 11).
On December 5, plaintiff wrote a grievance against Lt. Sarra
claiming that the misbehavior report was written in retaliation
for plaintiff's complaints against the IGRC representatives that
they were not processing grievances correctly. (Dep. Ex. 12).
Plaintiff filed a second grievance on December 5 complaining that
the October 10, October 14, and November 3, 2001 cell searches
were retaliatory and based on the grievances he had filed
regarding the library policies, as well as his acquittal of the
October 8 charges. Plaintiff also grieved the fact that he did
not receive a response from the law library administrator
concerning his November 5 complaint against Sgt. Piccolo for
enforcing a time limit on law clerk/inmate meetings. (Grievance
"FPT 3820-01," Dep. Ex. 7).
In addition to naming Sgt. Piccolo in the grievance, plaintiff
also named defendant Dep. Superintendent Dana Aidala because
Aidala authorized the three cell searches. According to Dep.
Superintendent Aidala, plaintiff's cell was searched on these
dates based on a computer program that randomly identified cells
to search. (Aidala Aff., Dkt. #32). Grievance FPT 3820-01 was
denied on January 6, 2002. (Dep. Ex. 7).
On December 4, 2001, Sgt. Piccolo ordered another search of
plaintiff's cell in order to look for "law library material." A
law library book was found in plaintiff's cell. The officer who
searched the cell (who is not a party to this lawsuit) wrote a
misbehavior report against plaintiff charging him with possession
of stolen state property and contraband. According the
misbehavior report, Sgt. Piccolo "deemed" the book "stolen
property" and "contraband." (Dkt. #26, Dep. Ex. 13). On December 5, plaintiff wrote a grievance against Sgt. Piccolo
claiming that the December 4 cell search was retaliatory. (Dep.
Ex.12). On December 14, the hearing officer found plaintiff not
guilty of the charges based on the fact that plaintiff had
permission to sign the law book out of the library.*fn3 A
week later, on December 21, 2001, plaintiff's cell was searched
again. It was searched again on February 12 and 15, 2002.
Incidents with C.O. Levac
On February 20, 2002, while plaintiff was on his way to the law
library, defendant Correctional Officer T. Levac stopped him,
searched his legal file, and then sent him on his way. When
plaintiff returned from library, C.O. Levac stopped plaintiff
again and, this time, searched plaintiff himself, his personal
property, his wallet, and his legal file. Plaintiff alleges C.O.
Levac searched him in retaliation for doing his own and other
inmates' legal work. He alleges C.O. Levac made retaliatory
comments to him during the search. C.O. Levac then confiscated
some of plaintiff's personal and legal papers. Plaintiff
repeatedly asked C.O. Levac for his papers back, to no avail. Ten
minutes later, as plaintiff was on his way to recreation, he
passed by C.O. Levac and they got into a dispute about whether
plaintiff was entitled to the return of his property. Plaintiff
requested to be placed in the special housing unit so that he
could make a record of the incident with C.O. Levac. That night,
plaintiff's cell was searched.
On February 21, 2002, C.O. Levac wrote an inmate misbehavior
report against plaintiff charging him with five violations,
including creating a disturbance, refusing a direct order,
threats, being out of place, and conducting unauthorized legal
work. On February 28, 2002, plaintiff was found not guilty of three of the charges (being out of place,
creating a disturbance, and unauthorized legal work) and guilty
of two of the charges (refusing a direct order and threats). He
was sentenced to thirty additional days keeplock confinement and
loss of privileges. (Dep. Ex. 17). As a result of this finding,
plaintiff lost his law clerk job. (Dep. 141).
Plaintiff's cell was searched again on February 27, and March
19, 2002. Plaintiff filed a grievance regarding the cell
searches. Plaintiff received a written response from Dep.
Superintendent Aidala that his complaint would be addressed by
the IGRC, but that never occurred. (Dep. Ex. 20).
On March 22, 2002, plaintiff was scheduled to see the facility
dentist. C.O. Levac was in charge of the area where the dental
appointments were scheduled. Plaintiff claims that, without
provocation, C.O. Levac refused to let him see the dentist and
ordered that he be escorted back to his cell. Plaintiff filed a
grievance against C.O. Levac for this conduct. (Dep. Ex. 4). The
grievance was denied. Plaintiff's cell was searched again on
April 25, 2002.
I. Summary Judgment Standards
Summary judgment is appropriate where "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The Court's role in summary judgment is not "to weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). The Court "must view the evidence in the light
most favorable to the non-moving party and draw all reasonable
inferences in its favor." Sologub v. City of New York,
202 F.3d 175, 178 (2d Cir. 2000) (internal quotations omitted). Where, as
here, the plaintiff is proceeding pro se, the court must "read
the pleadings . . . liberally and interpret them to raise the
strongest arguments that they suggest." Corcoran v. New York
Power Auth., 202 F.3d 530, 536 (2d Cir. 1999) (internal
For his first claim, plaintiff alleges that defendants C.O.
Wakefield, Sgt. Piccolo, Lt. Sarra, C.O. Levac, and Dep.
Superintendent Aidala retaliated against him by filing false
misbehavior reports, ordering cell searches, and constantly
harassing him, all in an effort to stop him from seeking redress
of grievances and working as a law clerk.
In order to prevail on a claim of retaliation, plaintiff bears
the burden of showing "(1) that the speech or conduct at issue
was protected, (2) that the defendant took adverse action against
the plaintiff, and (3) that there was a causal connection between
the protected speech and the adverse action." Scott v.
Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (internal quotations
omitted); Gayle v. Gonyea, 313 F.3d 677 (2d Cir. 2002).
Assuming that plaintiff can satisfy the three elements,
defendants may escape liability if they demonstrate that they
would have taken the same adverse action "`even in the absence of
the protected conduct.'" Graham v. Henderson, 89 F.3d 75, 79
(2d Cir. 1996) (quoting Mount Healthy Sch. Dist. v. Doyle,
429 U.S. 274, 287 (1977)).
Viewing the evidence in the light most favorable to plaintiff,
I find that a genuine issue of material fact exists as to whether
the actions of defendants C.O. Wakefield, Sgt. Piccolo, and Lt. Sarra were taken in retaliation for protected activity. The
retaliation claims against C.O. Levac and Dep. Superintendent
Aidala, however, should be dismissed.
A.C.O. Wakefield, Sgt. Piccolo, and Lt. Sarra
Defendants do not dispute that filing grievances is considered
protected activity.*fn4 The Second Circuit recognizes that
"a prisoner has a substantive due process right not to be
subjected to false misconduct charges as retaliation for his
exercise of a constitutional right such as petitioning the
government for redress of his grievances." Jones v. Coughlin,
45 F.3d 677, 679-80 (2d Cir. 1995). At issue, then, is whether
plaintiff suffered any adverse action or can prove the requisite
causal connection between that action and the protected activity.
Courts have found that prison officials' conduct constitutes an
"adverse action" when it "would deter a similarly situated
individual of ordinary firmness from exercising his or her
constitutional rights." Dawes v. Walker, 239 F.3d 489, 493 (2d
Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002); see also Davis v. Goord,
320 F.3d 346, 353 (2d Cir. 2003) (the alleged retaliation must be more
than de minimis). Plaintiff alleges that defendants repeatedly
filed false disciplinary charges against him, resulting in
keeplock confinement and loss of privileges. I find that a question of fact exists as
to whether a person similarly situated would have had their First
Amendment rights deterred under these circumstances.
Defendants argue that because plaintiff continued to file
grievances and complaints despite their actions, and because he
admitted at his deposition that he was not actually deterred
(see Pl. Dep. at 144), his retaliation claims must be
dismissed. "The test, however, is not whether plaintiff . . .
himself was chilled (if that were the standard, no plaintiff
likely would prevail, for the very commencement of a lawsuit
could be used by defendants to argue that the plaintiff was not
chilled). . . ." Walker v. Pataro, No. 99 Civ. 4607, 2002 WL
664040,*9 (S.D.N.Y. Apr. 23, 2002). The test, as set forth in
Dawes and Davis, is whether a similarly situated person of
"ordinary firmness" would have been deterred from filing
grievances or complaints. I cannot hold as a matter of law that a
similarly situated inmate would not have been deterred. See Gill
v. Tuttle, 2004 WL 605281, *3 (2d Cir. Mar. 29, 2004) (reversing
district court decision granting summary judgment on a
retaliation claim because plaintiff was not himself deterred by
defendants' conduct and holding that "there is a genuine,
material question of fact as to whether a similarly situated
person of ordinary firmness" would have been deterred).
Defendants further maintain that, because he was found not
guilty of the charges in three of the four inmate misbehavior
reports, plaintiff suffered no harm at all or any adverse action.
I disagree. The record shows that plaintiff spent at least twenty
days in keeplock confinement (and perhaps more depending on
whether he was confined on the December 4, 2001 report), with
concomitant loss of privileges, during the pendency of the three
disciplinary hearings that resulted in `not guilty' findings.
Courts have found that keeplock confinement for similar periods
of time were sufficient adverse actions to support a retaliation claim.
See Gill v. Hoadley, 261 F.Supp.2d 113, 123-24 (N.D.N.Y. 2003)
(keeplock confinements of four days and twenty-one days);
Baskerville v. Blot, 224 F.Supp.2d 723, 733 (S.D.N.Y. 2002)
(twenty days keeplock confinement); see also Gill v. Tuttle,
2004 WL 605281, at *3 (reversing district court finding, as a
matter of law, that nine days keeplock confinement constituted
de minimis impact of alleged retaliation).
Defendants also argue that plaintiff cannot show that a causal
connection exists between the protected activity and their
conduct. Evidence that can lead to an inference of a causal
connection or retaliatory motive includes: (1) the temporal
proximity of the filing of a grievance and the alleged
retaliatory act; (2) the inmate's prior good disciplinary record;
(3) vindication at a hearing on the matter; and (4) statements by
the defendant regarding his motive for disciplining plaintiff.
See Colon v. Coughlin, 58 F.3d 865, 872-73 (2d Cir. 1995).
Applying these principles, the Second Circuit has held that
"testimony that [a defendant] made retaliatory threats, together
with evidence of the sequence of events" could permit a trier of
fact to infer that there was retaliation. Jones,
45 F.3d at 680.
In the case at bar, I find that circumstantial evidence exists
to raise a question of fact regarding whether retaliation was a
substantial factor in the conduct of C.O. Wakefield, Sgt.
Piccolo, and Lt. Sarra. Plaintiff alleges that Sgt. Piccolo made
retaliatory statements to him. (Dkt. #1, ¶ 28). Gayle,
313 F.3d at 684. Further, there is a close temporal proximity between
plaintiff's protected activities and the misbehavior reports, in
some instances only a matter of a few days. Colon,
58 F.3d at 872. In addition, plaintiff was found not guilty of charges
contained in the misbehavior reports filed by C.O. Wakefield, Lt.
Sarra, and the report for which Sgt. Piccolo was responsible.
Vindication of the inmate after a hearing may constitute
circumstantial evidence of defendant's retaliatory motive. See
Gayle, 313 F.3d at 683 ("A false reason for the report's
issuance would support the inference that the real reason was the
improper one: retaliation."); Bennett v. Goord, 343 F.3d 133,
138 (2d Cir. 2003) (summary judgment on retaliation claim was
inappropriate where "essentially all relevant adverse actions by
DOCS officials were subsequently found to have been unjustified . . .
not on procedural or technical grounds but because, on
review, they were found to have been devoid of factual
support."). This is particularly so here, where the hearing
officers explicitly found that there was insufficient evidence to
support the charges against plaintiff.
For this same reason, I find that defendants Wakefield,
Piccolo, and Sarra have not satisfied their burden of showing
that they would have taken the same adverse actions even in the
absence of plaintiff's protected activities. See Graham,
89 F.3d at 79. This is not a case in which plaintiff admits to the
conduct underlying the misbehavior reports and the sole issue is
defendants' motivation. Cf. Hynes v. Squillance, 143 F.3d 653,
657 (2d Cir. 1998) (defendants met their burden of proof that
they would have disciplined plaintiff to the same extent where
the evidence demonstrated that plaintiff had committed "the most
serious, if not all, of the prohibited conduct.").
Rather, there was insufficient evidence that plaintiff engaged
in the charged conduct. A question of fact exists, therefore, as
to whether C.O. Wakefield would have brought the October 8
charges against plaintiff had he not written a grievance against
Wakefield regarding the alleged time limit policy for law clerks
(which grievance was later accepted by the Superintendent).
Although C.O. Wakefield denies in a short, conclusory affidavit that she
did not file the misbehavior report in retaliation for any
conduct by plaintiff (Dkt. #29), that is not an issue that the
Court can decide in the context of a summary judgment motion. The
same reasoning applies concerning the claims against Sgt. Piccolo
and Lt. Sarra. Both deny in conclusory fashion that they engaged
in any retaliation. Importantly, however, neither deny having
knowledge of the plaintiff's protected activities. Bennett,
343 F.3d at 139 ("DOCS offered only a conclusory denial of these
allegations, failing to submit affidavits or any other admissible
evidence concerning what [facility] officials did or did not
Plaintiff's claims against these defendants ultimately will be
decided based on the credibility of the witnesses and the weight
of the evidence. These issues are within the province of the
jury, and not for the Court to decide on summary judgment.
Graham, 89 F.3d at 81 (plaintiff's "punishment was either
wholly retaliatory or it was not retaliatory at all . . . This
question runs to matters of credibility and weight of the
evidence, which are matters for the jury. . . ."); Colon,
58 F.3d at 872 (summary judgment inappropriate where there was
evidence of admission of retaliatory motive by defendants and
circumstantial evidence based on temporal proximity between
grievance and retaliation); Jones, 45 F.3d at 680
("determinations as to whether to credit such testimony and as to
what inference to draw from the sequence of events is within the
province of the factfinder at trial [on the retaliation claims],
not of the court on a motion for summary judgment.").
The retaliation claim against C.O. Levac, however, should be
dismissed. Plaintiff alleges that C.O. Levac filed the February
21, 2002 misbehavior report against him and prevented him from seeing the facility dentist on March 22, 2002, in retaliation for
plaintiff working as a law clerk.*fn5 Assuming, without
deciding, that plaintiff could show that working as a law clerk
was a protected activity, see fn.3, supra, I find that there
is insufficient evidence to survive summary judgment that a
causal connection exists between that activity and C.O. Levac's
The only evidence that Levac had a retaliatory motive is the
statement plaintiff alleges that he made during the search.
Plaintiff claims that Levac said that plaintiff was the "asshole"
that worked in the law library and who had given him a "hard
time" during a library shift he worked a few weeks earlier. (Pl.
Dep. 107). This statement alone cannot support a finding that
Levac filed the February 21, 2002, inmate misbehavior report in
retaliation for plaintiff's work as a law clerk.
During his deposition, plaintiff described the earlier
encounter with Levac in the library. Plaintiff allegedly told
Levac, who normally did not work in the library, what to do
concerning a glass partition between the law library and the
regular library. (Pl. Dep. 107-108, 115-16). Levac's statement to
plaintiff during the search that he was the inmate who had given
him a "hard time," therefore, may be evidence that Levac
retaliated against plaintiff for telling him how to do his job.
But plaintiff's conduct in this regard is not protected activity
under the First Amendment. Moreover, when put into context, the
statement does not concern plaintiff's job as a law clerk at all,
and is not evidence that Levac retaliated against plaintiff
because he held that particular job.
In any event, even if the statement could be proof that Levac
retaliated against plaintiff, there is no other evidence,
circumstantial or otherwise, to support a retaliation claim
against Levac. Unlike the misbehavior reports filed by Wakefield and Sarra, plaintiff
was not vindicated after a hearing of all the charges filed by
Levac. After reviewing a videotape of the incident and hearing
the testimony of several witnesses, the hearing officer found
plaintiff guilty of refusing a direct order and threats, and
sentenced him to thirty more days of keeplock confinement. This
finding was upheld on appeal. (Dep. Ex. 17).
Although plaintiff was found not guilty of three of the charges
in the report, that does not change the result. Even assuming
Levac filed those three charges as retaliation, plaintiff still
would have received the keeplock confinement as a result of the
other two disciplinary convictions. Thus, C.O. Levac has shown
that plaintiff would have received the same discipline even in
the absence of any alleged retaliatory motive. Hynes,
143 F.3d at 657 (quoting Graham, 89 F.3d at 81) ("even assuming
retaliatory motive, the defendants would be entitled to summary
judgment `if there were proper, non-retaliatory reasons for
[plaintiff's] punishment.'"); accord Lowrance v. Achtyl,
20 F.3d 529, 535 (2d Cir. 1994) ("the conclusion that the state
action would have been taken in the absence of improper motives
is readily drawn in the context of prison administration where we
have been cautioned to recognize that prison officials have broad
administrative and discretionary authority over the institutions
they manage.") (internal quotations and citations omitted).
Therefore, C.O. Levac is entitled to summary judgment.
C. Dep. Superintendent Aidala
Plaintiff alleges that Dep. Superintendent Aidala retaliated
against him by ordering cell searches because plaintiff filed
grievances and complaints against other correctional officers and
worked as a law clerk. This claim must be dismissed. The Supreme
Court has ruled that inmates have no constitutional protection from cell searches, even those
conducted for retaliatory reasons. See Hudson v. Palmer,
468 U.S. 517, 530 (1984); Walker v. Keyser, No. 98 Civ. 5217, 2001
WL 1160588, *9 (S.D.N.Y. Oct. 17, 2001); Moncrieffe v. Witbeck,
No. 97-CV-253, 2000 WL 949457, *6 (N.D.N.Y. Jun. 29, 2000);
Higgins v. Coombe, No. 95 Civ. 8696, 1997 WL 328623, *7
(S.D.N.Y. Jun. 16, 1997). It is well-settled, then, that
plaintiff cannot base a retaliation claim against defendant
Aidala based solely on cell searches and summary judgment is
warranted. Salahuddin v. Mead, No. 95 Civ. 8581, 2002 WL
1968329, *5 (S.D.N.Y. Aug. 26, 2002) (dismissing First Amendment
retaliation claim based on cell searches and finding that
plaintiff suffered no adverse action).
III. Cruel and Unusual Punishment
Plaintiff's third claim alleges that defendants Dep.
Superintendent Aidala and Sgt. Piccolo violated his Eighth and
Fourteenth Amendment rights by ordering searches of plaintiff's
cell solely to harass him.*fn6 Although prisoners have no
constitutional protection from cell searches conducted for
retaliatory reasons, they do enjoy Eighth Amendment protection
from searches that lack any legitimate penological interest and
are intended solely to harass. Nilsson v. Coughlin, No. 86 Civ.
7135, 1987 WL 12823, *4 (S.D.N.Y. Jun. 18, 1987) ("a prisoner
maintains the right under the Eighth Amendment to be free from
searches which are unrelated to prison needs, but rather
calculated to harass."); Moncrieffe, 2000 WL 949457, at *6
(same). As evidence of the harassment, plaintiff relies on the number
of searches conducted at least eleven searches between October
10, 2001 and April 25, 2002 and the fact that they occurred
soon after protected activities or confrontations with DOCS
employees. He also relies on the fact that all the searches
allegedly were conducted in a manner inconsistent with DOCS's
directives because his cell was ransacked and some of his
belongings damaged. Moreover, he claims that during his
incarceration, he has never been found to be in possession of
contraband or weapons. Nevertheless, his cell continued to be
searched. Finally, as further evidence that the searches were
meant to harass him, he relies on the fact that he never received
a response to the numerous grievances he filed complaining about
them. (Dep. Exs. 14, 19, 20, and 21).
In support of his motion for summary judgment, Dep.
Superintendent Aidala filed an affidavit stating that, at a
maximum security prison like Five Points, cell searches are
conducted approximately one to two times a month on a particular
cell, as randomly dictated by a computer program. The searches
are done in an effort to maintain discipline and security, and to
search for weapons and contraband. Aidala authorized the searches
on plaintiff's cell on October 10 and 14, November 3, December
29, February 15 and 27, and March 19. According to Aidala, these
searches were conducted as directed by the random computer
program. (Dkt. #32, ¶¶ 5-12).
I find that Aidala has met his burden of proving that there was
a legitimate penological reason for searching plaintiff's cell on
these occasions. By failing to respond to the motion, plaintiff
has left Aidala's statements uncontested. Further, there is
insufficient evidence in the record to raise an issue of fact
regarding whether the searches authorized by Aidala were
conducted solely to harass plaintiff. The number of searches
during the five or six month time period is not excessive, in
light of the policy at Five Points that cells are searched once or
twice a month. Moreover, in order to prevail on an Eighth
Amendment claim, plaintiff would have to show that Aidala ordered
the searches with the specific intent to cause plaintiff harm and
that the searches, in fact, caused him harm. See Hudson v.
McMillian, 503 U.S. 1, 7-8 (1992). The record lacks any evidence
to make that showing. Therefore, Aidala is entitled to summary
judgment. See Salahuddin, 2002 WL 1968329, at *5-*6; Walker,
2001 WL 1160588, at *8; Troy v. Kuhlmann, No. 96 Civ. 7190,
1999 WL 825622 (S.D.N.Y. Oct. 15, 1999).
Sgt. Piccolo, as the area supervisor, specifically authorized
the search of plaintiff's cell on December 4, 2001, and February
12, 2002. I find that a question of fact exists regarding whether
the December 4, 2001 cell search was done solely to harass
plaintiff. In an affidavit, Sgt. Piccolo explains that he was
informed by a corrections officer that plaintiff had law library
books in his cell without authorization. He states that after he
investigated, he learned that plaintiff did not have the book
signed out. Therefore, he ordered that his cell be searched. Sgt.
Piccolo deemed the book found during the search "contraband" and
"stolen property" and an inmate misbehavior report was issued
charging plaintiff with two rules violations. (Dkt. #30). Yet,
Sgt. Piccolo fails to explain why plaintiff was later exonerated
after a disciplinary hearing on both charges. The hearing officer
found, based on documentary proof, that plaintiff signed out the
book on November 22. Therefore, there is some evidence in the
record to call into question Sgt. Piccolo's motivation for
ordering the search.
There is no question, though, as to whether plaintiff suffered
actual harm as a result of Sgt. Piccolo's conduct. There is no
evidence that plaintiff suffered any harm from the February 12,
2002 search. As to the December 4 search, the record is not clear
as to whether plaintiff was kept in keeplock confinement for ten days during the pendency of the
charges that arose from it. Nevertheless, even assuming he was, a
typical ten-day keeplock confinement is not the type of "extreme
deprivation" protected by the Eighth Amendment. See Hudson,
530 U.S. at 9 (only those deprivations that deny the "minimal
civilized measure of life's necessities are sufficiently grave to
form the basis of an Eighth Amendment claim.") (internal
quotations omitted); Sims v. Artuz, 230 F.3d 14, 21 (2d Cir.
2000) ("To prevail on a claim based on the conditions of his
confinement, a prisoner must show extreme deprivations, because
routine discomfort is part of the penalty that criminal offenders
pay for their offenses against society") (internal quotations and
citations omitted). Therefore, Sgt. Piccolo is entitled to
summary judgment as well.
IV. Deliberate Indifference
Plaintiff's fifth claim alleges that defendants Dep.
Superintendent Aidala and Sgt. Piccolo, after learning of the
constitutional violations of plaintiff's rights through reports
and continuing to order retaliatory cell searches, exercised
"deliberate indifference" to his constitutional rights. For the
reasons articulated in part III, supra, this claim is also
Plaintiff's second claim alleges that defendants "knowingly and
willingly den[ied] the plaintiff the Equal Protection of Law, by
way of discrimination, retaliation, and conspiracy." Construed
broadly, plaintiff alleges that defendants violated
42 U.S.C. §§ 1981, 1985(3) and 1986. At his deposition, plaintiff alleged that defendants denied him
equal protection of the laws because he was African-American and
a Muslim. He admitted, however, that no defendant had ever said
anything to him about his race or religion. (Dep. 145). There is
no evidence in the record that defendants held a discriminatory
or class-based animus towards plaintiff. Summary judgment,
therefore, on plaintiff's §§ 1981 and 1985(3) claims is
warranted. See Graham, 89 F.3d at 81-82; Giano v. Senkowski,
54 F.3d 1050, 1057 (2d Cir. 1995) ("To prove an equal protection
violation, claimants must prove purposeful discrimination . . .
directed at an identifiable or suspect class.") (internal
citations omitted); see also Oliveri v. Thompson,
803 F.2d 1265, 1280 (2d Cir. 1986). Likewise, because his § 1985 claim
fails, so too does his claim brought pursuant to § 1986 for
conspiracy. Graham, 89 F.3d at 82 ("Section 1986 imposes
liability on an individual who has knowledge of discrimination
prohibited under § 1985. Hence, a § 1986 claim is contingent a
valid § 1985 claim."). Therefore, defendants are entitled to
summary judgment on plaintiff's second claim.
Plaintiff's fourth claim alleges that defendants conspired to
deprive him of his constitutional rights in violation of
42 U.S.C. § 1983. Because the only claims that remain are the
retaliation claims against defendants Wakefield, Sgt. Piccolo,
and Lt. Sarra, the Court's inquiry is limited to whether
plaintiff has raised an issue of fact that these three defendants
conspired to retaliate against him. "To prove a § 1983 conspiracy, a plaintiff must show: (1) an
agreement between two or more state actors . . .; (2) to act in
concert to inflict an unconstitutional injury; and (3) an overt
act done in furtherance of that goal causing damages." Pangburn
v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). Plaintiff offers
only conclusory allegations that defendants acted in concert with
each other to deprive him of his First Amendment rights. There is
no evidence in the record to support that claim. Therefore,
summary judgment is warranted. Ciambriello v. County of Nassau,
292 F.3d 307, 325 (2d Cir. 2002) ("conclusory, vague, or general
allegations that the defendants have engaged in a conspiracy to
deprive the plaintiff of his constitutional rights are properly
Defendants' motion for summary judgment (Dkt. #26) is granted,
in part, and denied, in part as follows:
Plaintiff's second (discrimination), third (cruel
and unusual punishment), fourth (conspiracy), and
fifth (deliberate indifference) claims are dismissed
Defendants' motion for summary judgment as to the
first claim alleging retaliation against defendants
T. Levac and Dep. Superintendent Aidala is granted,
and it is dismissed with prejudice;
Defendants' motion for summary judgment as to the
first claim alleging retaliation against defendants
C.O. Wakefield, Sgt. Piccolo, and Lt. Sarra is
denied, and plaintiff may proceed to trial on this
claim only against these defendants. The Clerk of the Court is directed to terminate defendants
T.Levac and D.G. Aidala.
IT IS SO ORDERED.