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NY SHU Conditions Case Dismissed Under Physical Injury Rule

Pushing the plaintiff into his SHU cell after he unzipped his pants and
turned around to face the officers, and at one point raised his fist, did
not violate the Eighth Amendment even though his head struck the wall
giving him a headache.

Personal Property (375): The plaintiff alleged that he was not given his
property when moved to a new cell, so he flooded his cell; officers then
threw his property into a puddle. These allegations do not state a
constitutional claim.

Sexual Abuse (375): Allegations that on several occasions during pat
frisks, one defendant squeezed his genitalia, and that the officer made
sexual propositions, did not state constitutional claims.

Procedural Due Process--Disciplinary Proceedings (376): False disciplinary
charges do not violate the Constitution.

Verbal Abuse (376): "Verbal threats or harassment, unless accompanied by
physical force or the present ability to effectuate the threat, are not
actionable under § 1983."

Protection from Inmate Assault; Negligence, Deliberate Indifference, and
Intent (377): The plaintiff alleged that officers released another prisoner
into a recreation area in hopes that he would attack the plaintiff. At 377:

Prison officials who fail to act reasonably to ensure a safe environment
for a prisoner, when they are aware that there is a significant risk of
injury to that prisoner, violate that prisoner's rights whether or not an
attack actually occurs. . . . Furthermore, where, as here, no legitimate
law enforcement or penological purpose can be inferred from the defendant's
alleged conduct, the harassment itself may also be sufficient evidence of a
malicious and sadistic state of mind.

Allegations that defendants spread rumors that the plaintiff was gay, a
child molester, and a rapist, resulting in his being threatened with bodily
harm, stated a claim.

PLRA--Mental or Emotional Injury (377-78): The plaintiff alleged that he
suffered from severe stress and depression as a result of defendants'
alleged spreading of rumors about him and their attempt to instigate a
physical confrontation with another prisoner. His damage
claims--compensatory and punitive--are dismissed under the mental/emotional
injury provision, with no reference to the body of case law stating that
punitive and nominal claims can go forward. (The Second Circuit has now
adopted that position.) The plaintiff can proceed with declaratory and
injunctive claims. See: Montero v. Crusie, 153 F.Supp. 368 (S.D.N.Y. 2001).

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Related legal case

Montero v. Crusie

Here, it is undisputed that plaintiff unzipped his pants as he approached his cell and then turned around to face defendants Jones and Dimonda as he directed profanities at them. Although plaintiff claims that he did not actually threaten defendants, the videotape of the events is less than clear on this point. See Defs.' Ex. C. The confrontation escalated and then ended rapidly and with some confusion. It is clear that at some early point, despite his claim to the contrary, plaintiff raised his fist at defendants. See id. Furthermore, it appears that plaintiff was not pushed with a degree of force disproportional to that necessary to compel him to enter the cell. See id. It is impossible to conclude that defendants Jones and Crusie were objectively unreasonable to believe that they were not acting maliciously and sadistically for the very purpose of causing harm to plaintiff. Therefore, defendants Jones and Crusie are entitled to qualified immunity for their actions in the pushing *375 incident and their motion for summary judgment as to this claim is granted.

2. Plaintiff's Claims Against O'Connor, Montegari, and Dimonda

As a prerequisite to a § 1983 claim, "a defendant must have personal involvement in the alleged deprivation of the constitutional right." Pearson v. Principe, No. 97 Civ. 3746, 1999 WL 66521, at *1 (S.D.N.Y. February 9, 1999); see also Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986). Plaintiff neither alleges nor sets forth affirmative facts showing that any other defendants were involved in the physical confrontation outside of his cell. Therefore, plaintiff's claim of excessive force with regard to the pushing incident is dismissed as to defendants O'Connor, Montegari, and Dimonda.

B. New Cell Incident and Pat Frisking

The Eighth Amendment prohibits "cruel and unusual punishment" in the course of incarceration. See U.S. Const. amend. VIII. To show a violation of the Eighth Amendment pursuant to § 1983, an inmate must establish that the deprivation of which he is complaining is "sufficiently serious" to constitute cruel and unusual punishment, and that a defendant's actions in allowing the deprivation must have amounted to deliberate indifference to inmate health or safety. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The Second Circuit has set forth the requisite showing as follows:

First, the plaintiff must demonstrate that he is incarcerated under conditions posing a substantial risk of serious harm. Second, the plaintiff must demonstrate that the defendant prison officials possessed sufficient culpable intent. The second prong of the deliberate indifference test, culpable intent, involves a two-tier inquiry. Specifically, a prison official has sufficient culpable intent if he has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm. Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 620 (2d Cir.1996) (citations omitted).

None of plaintiff's allegations with respect to the new cell incident or the pat frisking involve a harm of federal constitutional proportions as defined by the Supreme Court. See Farmer, 511 U.S. at 833-34, 114 S.Ct. 1970; Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir.1997) (finding that a small number of incidents of alleged sexual touching and harassment was insufficient to state a claim under the Eighth Amendment); Ramirez v. Holmes, 921 F.Supp. 204, 208 (S.D.N.Y.1996) (holding that denial of a shower for an inmate on three occasions failed to state an Eighth Amendment claim). Plaintiff does not allege that his property was damaged as a result of the new cell incident or that he was even deprived of his property for more than a single day. Nor does he allege that he was injured as a result of the pat frisking. Accordingly, plaintiff does not show a sufficiently serious deprivation resulting from either incident to make out an Eighth Amendment claim. Furthermore, these episodes do not collectively amount to an Eighth Amendment violation, since "nothing so amorphous as 'overall conditions' can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists." Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Therefore, plaintiff's claims with respect to the new cell incident and the pat frisking are dismissed.

C. Misbehavior Reports and Disciplinary Hearings

Plaintiff claims that his due process rights were violated when defendants*376 Montegari and Crusie submitted three false IMRs that resulted in plaintiff being disciplined. It is well-settled that in the absence of retaliation or a constitutionally defective hearing, an "inmate has no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest." Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.1986); see also Greaves v. New York, 958 F.Supp. 142, 144 (S.D.N.Y.1997) ("the failure to conduct a constitutionally adequate disciplinary hearing may give rise to a Section 1983 action, but the mere filing of a false misbehavior report against an inmate does not.").FN3

FN3. However, a § 1983 claim based upon a false misbehavior report survives dismissal when the disciplinary hearing that results is not constitutionally sufficient and the false report is alleged to be retaliation for the inmate's exercise of other constitutional rights. See Jones v. Coughlin, 45 F.3d 677, 679-80 (2d Cir.1995). Plaintiff does not allege retaliation in this case.
Plaintiff further claims that the two disciplinary hearings that resulted from these reports were constitutionally defective because they violated his due process rights. Although plaintiff asserts that the hearing officer who conducted both proceedings was "unfair, partial, and biased," and that "he deprived [plaintiff] of a proper hearing," (Pl.'s Mem. Law ¶ 10), plaintiff neither alleges nor sets forth affirmative facts showing that defendants in this case were personally involved in the alleged deprivation of his rights at the disciplinary hearings. See Bass, 790 F.2d at 263. Accordingly, this claim is dismissed.

D. Death Threats Associated with Pat Frisking and Other Verbal Harassment

Plaintiff claims that defendants occasionally harassed and threatened him during his incarceration at Green Haven, including Crusie's alleged sexual solicitations and alleged death threats. Verbal threats or harassment, unless accompanied by physical force or the present ability to effectuate the threat, are not actionable under § 1983. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986); Amaker v. Goord, No. 98 Civ. 3634, 1999 WL 511990, at *10 (S.D.N.Y. July 20, 1999) ("such verbal harassment 'unaccompanied by any injury no matter how inappropriate, unprofessional, or reprehensible it might seem does not constitute the violation of any federally protected right and is therefore not actionable under 42 U.S.C. § 1983.'") (quoting Shabazz v. Pico, 994 F.Supp. 460, 474 (S.D.N.Y.1998)).

Because plaintiff has alleged only verbal abuse without any physical injury or damage, summary judgment on this claim is granted.

E. Plaintiff's Claims for Declaratory and Injunctive Relief for Defendants' Attempted Incitement of Physical Confrontation Between Inmates

1. The Torres Incident

Plaintiff claims that on December 13, 1997, defendants Crusie and O'Connor released inmate Torres into the recreation yard with plaintiff and tried to incite Torres to fight plaintiff. Defendants deny asking Torres to fight plaintiff.

Prison officials have a duty, under the Eighth Amendment, "'to protect inmates from violence at the hands of *377 other inmates.'" Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.1997) ( quoting Farmer, 511 U.S. at 833, 114 S.Ct. 1970). Prison officials who fail to act reasonably to ensure a safe environment for a prisoner, when they are aware that there is a significant risk of injury to that prisoner, violate that prisoner's rights whether or not an attack actually occurs. Heisler v. Kralik, 981 F.Supp. 830, 837 (S.D.N.Y.1997). Furthermore, where, as here, no legitimate law enforcement or penological purpose can be inferred from the defendant's alleged conduct, the harassment itself may also be sufficient evidence of a malicious and sadistic state of mind. See Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).

Because genuine issues of material fact exist concerning defendants' role in attempting to incite a fight between plaintiff and Torres, summary judgment on plaintiff's claim for declaratory and injunctive relief is denied as to defendants Crusie and O'Connor.

However, because plaintiff does not allege or set forth any facts showing that defendants Jones, Dimonda, or Montegari played any role in attempting to incite a fight between inmate Torres and plaintiff, summary judgment on plaintiff's claim for declaratory and injunctive relief based upon the Torres incident is granted as to defendants Jones, Dimonda, and Montegari. See Bass, 790 F.2d at 263.

2. Rumors and Comments Concerning Plaintiff's Sexuality

"In the prison context in which [plaintiff] was required to live, one can think of few acts that could be more likely to lead to physical injury than spreading rumors of homosexuality." Thomas v. District of Columbia, 887 F.Supp. 1, 4 (D.D.C.1995).

Plaintiff claims that defendants Crusie, O'Connor, and Montegari spread rumors throughout the Green Haven population indicating that plaintiff was gay, was a child molester, and was a rapist. Plaintiff claims that as a result of these rumors, he was twice confronted by inmates and once threatened with bodily harm. Defendants deny spreading these rumors.

In light of the genuine issues of material fact concerning defendants' role in spreading the rumors, summary judgment on plaintiff's claim for declaratory and injunctive relief is denied as to defendants Crusie, O'Connor, and Montegari.

However, because plaintiff does not allege or set forth any facts showing that defendants Jones or Dimonda played any role in spreading the alleged rumors, summary judgment on plaintiff's claim for declaratory and injunctive relief based upon the spreading of rumors is granted as to defendants Jones and Dimonda. See Bass, 790 F.2d at 263.

F. Plaintiff's Claims for Compensatory and Punitive Damages for Defendants' Attempted Incitement of Physical Confrontation Between Inmates

Defendants argue that plaintiff's claims for compensatory and punitive damages should be dismissed under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(e). Section 1997e(e) provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."

Plaintiff claims that he suffers from severe stress and depression as a result of defendants' alleged spreading of rumors about him. In addition, plaintiff claims that he has suffered psychological pain as *378 a result of Crusie's and O'Connor's attempt to instigate a physical confrontation with Torres.

Because plaintiff has failed to allege a palpable physical injury in conjunction with his claims for mental and emotional suffering, plaintiff's claims for damages are barred under § 1997e(e). Summary judgment is therefore granted with regard to plaintiff's claims for compensatory and punitive damages.FN4

FN4. Plaintiff may nevertheless seek declaratory and injunctive relief for his two Eighth Amendment claims regarding defendants' alleged attempts to incite a physical confrontation between other inmates and himself. See Amaker, 1999 WL 511990, at *5 (" § 1997e(e) does not bar a plaintiff from seeking injunctive or declaratory relief.").

III. CONCLUSION

For the foregoing reasons, summary judgment is hereby DENIED on plaintiff's claims for declaratory and injunctive relief based upon (1) his Eighth Amendment claim concerning the alleged attempt of defendants Crusie and O'Connor to incite a physical confrontation between Torres and plaintiff and (2) his Eighth Amendment claim concerning the alleged attempt by defendants Crusie, O'Connor, and Montegari to incite physical confrontation between inmates by spreading rumors about plaintiff's sexuality. Summary judgment is hereby GRANTED as to the rest of plaintiff's claims.