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No Sexual Assault Claim Based on Abusive Metal Detector Search
The plaintiff alleged that an officer shoved a hand-held metal detector between his buttocks. He was fully clothed. He was later issued a one-day deprivation order and a misbehavior report for refusing a direct order, violating frisk procedures, and harassment. He asked for assistance, but checked off only two names and not the required three, and was held to have waived his right to assistance; the two he selected were not available.
The plaintiff's claim for sexual assault does not rise to the level of an Eighth Amendment violation (implicitly, it's neither sexual nor an assault).
The allegation of a false misbehavior report does not state a claim. The allegation that it was done to retaliate for the plaintiff's First Amendment-protected complaint is rejected because it didn't hinder or prevent the plaintiff from complaining. The hearing did not deny due process because 30 days in keeplock is not atypical and significant under Sandin and the plaintiff did not allege that he had obtained relief from the disciplinary hearing in an appeal or other proceeding before suing under 1983.
The plaintiff's complaint to a supervisor about the event does not make the supervisor sufficiently personally involved to be held liable.
The deprivation order does not support a due process claim because deprivation of one shower, one day of exercise and one day of cell clean-up are de minimis, not atypical and significant, and also don't support an Eighth Amendment claim. See: Nelson v. Michalko, 35 F.Supp.2d 289 (W.D.N.Y. 1999).
The plaintiff's claim for sexual assault does not rise to the level of an Eighth Amendment violation (implicitly, it's neither sexual nor an assault).
The allegation of a false misbehavior report does not state a claim. The allegation that it was done to retaliate for the plaintiff's First Amendment-protected complaint is rejected because it didn't hinder or prevent the plaintiff from complaining. The hearing did not deny due process because 30 days in keeplock is not atypical and significant under Sandin and the plaintiff did not allege that he had obtained relief from the disciplinary hearing in an appeal or other proceeding before suing under 1983.
The plaintiff's complaint to a supervisor about the event does not make the supervisor sufficiently personally involved to be held liable.
The deprivation order does not support a due process claim because deprivation of one shower, one day of exercise and one day of cell clean-up are de minimis, not atypical and significant, and also don't support an Eighth Amendment claim. See: Nelson v. Michalko, 35 F.Supp.2d 289 (W.D.N.Y. 1999).
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Related legal case
Nelson v. Michalko
| Year | 1999 |
|---|---|
| Cite | 35 F.Supp.2d 289 (W.D.N.Y. 1999) |
| Level | District Court |
| Conclusion | Admin. Award |
| Injunction Status | N/A |