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May 2, 2005.


The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District



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 correctional staff.

  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 ...

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