The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
The parties to this action consented to proceed before the undersigned on February 25, 2003. The matter is presently before the court on Defendants' motion for summary judgment (Doc. No. 63), filed January 13, 2006.
Plaintiff Floyd Cowart ("Plaintiff") commenced this civil rights action on November 18, 2002, seeking monetary relief pursuant to 42 U.S.C. §§ 1981 and 1983 for alleged violations of his right to due process under the Fifth and Fourteenth Amendments.*fn2
Complaint, Legal Claim and Injury, ¶¶ 1-3, 5-7. Plaintiff specifically alleges that while he was confined in the Special Housing Unit ("SHU") at Southport Correctional Facility ("Southport"), Defendants denied his request for a wide tooth comb which Plaintiff maintains is necessary "to properly groom his 6" Afro" [sic] hair style. Complaint, Facts ¶ 1. Plaintiff maintains that he was provided with a wide tooth comb when he was incarcerated at Clinton Correctional Facility, id., but that upon being moved to Southport, he was provided only with a small tooth plastic comb that "was designed for thin straight hair" most commonly found only on white inmates. Complaint, Facts ¶ 4. The grievance Plaintiff filed with the Inmate Grievance Resolution Committed ("IRGC"), regarding Plaintiff's wide-tooth comb request was denied on the basis that the 5" Aristocrat fine-tooth plastic comb ("the Aristocrat comb") provided to Plaintiff complied with Department of Corrections ("DOCS") Directive #4933 ("Directive # 4933) which requires only that prison facility inmates housed in SHU be provided with a "plastic comb." Complaint, Facts ¶ 10. Plaintiff maintains that Defendants' interpretation of Directive # 4933 as permitting the provision of the Aristocrat tooth comb for inmates such as Plaintiff and other inmates who have hair of the texture and length "found in African Americans and Hispanics" establishes Defendants acted with racial animus and discrimination toward Plaintiff in denying his request for a wide tooth comb. Complaint, Claims for Relief ¶¶ 7-8. As such, Plaintiff also seeks a declaration that Directive # 4933 is unconstitutional.
On January 13, 2006, Defendants filed the instant motion for summary judgment (Doc. No. 63) ("Defendants' Motion"), supported by a Statement of Facts in Support of Defendants' Motion for Summary Judgment (Doc. No. 64) ("Defendants' Statement of Facts"), a Memorandum of Law in Support of Defendants' Motion for Summary Judgment (Doc. No. 65) ("Defendants' Memorandum"), and Declarations of Michael Corcoran (Doc. No. 66) ("Corcoran Declaration"), with attached exhibits A through C ("Corcoran Declaration Exh(s). __"), Michael McGinnis (Doc. No. 67) ("McGinnis Declaration"), with attached exhibits A through H ("McGinnis Declaration Exh(s). __"), Jodi Litwiler (Doc. No. 68) ("Litwiler Declaration"), with attached exhibits A and B ("Litwiler Declaration Exh(s). __"), Al Prack (Doc. No. 69) ("Prack Declaration"), with attached exhibits A through C ("Prack Declaration Exh(s). __"), Lucien LeClaire, Jr. (Doc. No. 70) ("LeClaire Declaration"), with attached exhibits A through C ("LeClaire Declaration Exh(s). __"), and Wayne Wilhelm (Doc. No. 71) ("Wilhelm Declaration"), with attached exhibits A through E ("Wilhelm Declaration Exh(s). __"). In opposition to summary judgment, on May 15, 2006, Plaintiff filed a Reply Affirmation and Memorandum of Law (Doc. No. 78) ("Plaintiff's Response"), attached to which is a volume of exhibits A through T1 ("Plaintiff's Exh(s). __"). Oral argument was deemed unnecessary.
Based on the following, Defendants' motion for summary judgment (Doc. No. 63) is GRANTED.
Defendants have moved for summary judgment on all Plaintiff's claims, asserting that Plaintiff presents only conclusory assertions that Directive # 4933 is unconstitutional, Defendants' Memorandum at 9-10, that Plaintiff cannot establish his equal protection claim because the record demonstrates that the denial of a wide-tooth comb is related to a legitimate penological security interest outweighing any disparate impact imposed by Directive # 4933 on African-American and Hispanic prison inmates, id. at 10-17, that Plaintiff does not have a protected liberty interest in a wide tooth comb as required to support Plaintiff's due process claim, id. at 17-19, and that Plaintiff's claim under 42 U.S.C. § 1981, which applies only to the formation of contracts, is without merit. Id. at 21. Defendants alternatively maintain they are qualifiedly immune from liability on Plaintiff's claim, Defendants' Memorandum at 19-21, that Plaintiff is not entitled to compensatory relief or punitive damages on his § 1983 claim, id. at 22-23, and that the claims should be dismissed as against all Defendants for lack of personal involvement. Id. at 23-25.
Plaintiff, in opposing summary judgment, maintains that evidence in the record establishes that Directive # 4933 is unconstitutional because Defendants have failed to point to any evidence supporting Defendants' assertion that wide tooth combs pose a security threat, Plaintiff's Response at 2-9, that the denial of grooming instruments that are intended for the type of hair and hairstyles found on many African-American and Hispanic prison inmates is an equal protection violation, requiring such inmates to abandon their "heritage" and religious beliefs, id. at 10-19; that insofar as Directive # 4933 does not specify the type of plastic comb permitted, DOCS officials are not authorized to interpret the directive as permitting only one specific type of comb, id. at 19-22, and that Plaintiff has asserted a claims pursuant to 42 U.S.C. § 1981 without any particularization. Id. at 23. With regard to Defendants' alternative arguments, Plaintiff argues that Defendants are not entitled to qualified immunity because the right to a basic human need to maintain dignity and well being was clearly established for prisoners to whom Defendants denied Plaintiff use of the wide tooth comb, Plaintiff's Response at 22, asserts he is entitled to both compensatory and punitive damages on his claims, id. at 23, and maintains the personal involvement of each Defendant has been established by the record. Id. at 23-24. Finally, Plaintiff questions whether Assistant Attorney General Michael Siragusa, who previously represented Defendants in this action, is the son of District Judge Charles J. Siragusa and, if so, seeks an order either directing that the case be assigned to another Assistant Attorney General, or transferring the action to another district. Id. at 24-25.
Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party's favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, 477 U.S. at 322.
Once a party moving for summary judgment has made a properly supported showing as to the absence of any genuine issue as to all material facts, the nonmoving party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor and "may not simply rely on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Goenaga v. March of Dimes ...