RAHSAAN WILLIAMS, Plaintiff, - against - Commissioner GLENN S. GOORD; Director Special Housing/Inmate Discipline DONALD SELSKY; Superintendent ROBERT H. KUHLMANN; Deputy Superintendent for Security D.G. AIDALA; Captain PETER HEALY; Lieutenant J. HAYNAL; Sergeant BRICKNER; Corrections Officer J. PORTZ; Corrections Officer K. SANOK; and Corrections Officer DOUGLAS SMITH, in their individual capacities, Defendants.



99 Civ. 1680 (SAS)



UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK



142 F. Supp. 2d 416; 2001 U.S. Dist. LEXIS 1338



January 24, 2001, Decided

January 29, 2001, Filed







DISPOSITION: [**1] Plaintiff's motion for partial summary judgment denied and defendants' cross-motion for summary judgment based on qualified immunity denied in part and granted in part.









COUNSEL: For Plaintiff: Roger G. Brooks, Esq., Stephen J. Elliot, Esq., Aviva Wertheimer, Esq., Amy Tully Ackert, Esq., Cravath, Swain & Moore, New York, New York.


For Defendants: Bruce Brown, Esq., June Duffy, Esq., Jerry Slater, Esq., Assistant Attorneys General for the State of New York, New York, New York.



JUDGES: Shira A. Scheindlin, U.S.D.J.



OPINIONBY: Shira A. Scheindlin



OPINION: [*419]

OPINION AND ORDER


SHIRA A. SCHEINDLIN, U.S.D.J.:

Plaintiff Rahsaan Williams brings this action, pursuant to 42 U.S.C. § 1983, against officials with the New York State Department of Correctional Services ("DOCS") and employees at the Sullivan Correctional Facility ("Sullivan"). n1 Plaintiff alleges that while incarcerated at Sullivan, his Fourteenth, First and Eighth [*420] Amendment rights were violated. n2 Plaintiff is seeking declaratory relief, compensatory damages for both physical injuries and mental and emotional distress, punitive damages, costs and reasonable attorneys' fees, and any other relief that [**2] this Court deems proper. n3 See Am. Compl. P 40 and Prayer for Relief PP 1-5.



n1 Plaintiff has since discontinued his Eighth Amendment claim against Lieutenant J. Haynal.

n2 This Court's decision in Williams v. Goord, 111 F. Supp. 2d 280 (S.D.N.Y. 2000) ("Williams I"), dismissed all of plaintiff's claims except for his Eighth Amendment claim against Commissioner of Corrections Glenn S. Goord, former Superintendent of the Sullivan facility, Robert H. Kuhlmann, Deputy Superintendent of Security of the Sullivan facility, D. G. Aidala, and Captain Peter Healy in their individual capacities. Subsequent to that decision, plaintiff amended his Complaint, naming the statewide Director of the Special Housing/Inmate Discipline Unit for DOCS, Donald Selsky, Sergeant Brickner, Corrections Officers J. Portz, K. Sanok, and D. Smith as additional defendants. See Am. Compl. P 3.

n3 Plaintiff seeks a judgment declaring that the policy requiring inmates confined in the Sullivan Special Housing Units ("SHU") under a restraint order to wear mechanical restraints while in the exercise cage is cruel and unusual punishment in violation of the Eighth Amendment. See Am. Compl. at Prayer for Relief P 1. However, because plaintiff was transferred from Sullivan to another facility on September 2, 1998, his claim for declaratory relief is moot and hereby dismissed. See Young v. Coughlin, 866 F.2d 567, 568 n.1 (2d Cir. 1989) (plaintiff's transfer from the facility against which he sought declaratory relief rendered those claims moot); Beyah v. Coughlin, 789 F.2d 986, 988 (2d Cir. 1986) (same); Courts v. Coombe, 1996 U.S. Dist. LEXIS 7921, No. 95 Civ. 2350, 1996 WL 312357, at *2 (S.D.N.Y. June 11, 1996) (same). In addition, although plaintiff does not specifically seek injunctive relief, "[it] is settled in this Circuit that a transfer from a prison facility moots an action for injunctive relief against the transferring facility." Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996); see also Graham v. Perez, 121 F. Supp. 2d 317, 325 (S.D.N.Y. 2000); Brown v. Williams, 1998 U.S. Dist. LEXIS 22932, No. 95 Civ. 3872, 1998 WL 841638, at *2 (E.D.N.Y. Dec. 2, 1998). Accordingly, no injunctive relief directed to the Sullivan facility may be awarded. However, because plaintiff will be subject to the same restraint order at Southport Correctional Facility, where he is scheduled to be returned after trial, plaintiff has requested leave to amend his Complaint to proceed against Commissioner Goord and Director Selsky in their official capacities. Decision is reserved on this issue.


[**3]

In Williams I, defendants moved for summary judgment on the ground that plaintiff had failed to demonstrate that his Eighth Amendment right to be free of cruel and unusual punishment had been violated based on a total deprivation of the right to engage in meaningful exercise. See 111 F. Supp. 2d at 284. Defendants' motion was denied and plaintiff was allowed to proceed on his claim against Goord, Healy, Aidala, and Kuhlmann, in their individual capacities.

Plaintiff now moves for partial summary judgment claiming that: (1) he was effectively denied all meaningful exercise in violation of the Eighth Amendment; and (2) defendants are not entitled to qualified immunity which would shield them from liability for money damages. In response, defendants have cross-moved for summary judgment on the ground that they are entitled to qualified immunity. For the reasons stated below, both motions are denied, with one exception relating to qualified immunity. n4



n4 Defendants Portz, Sanok, and Smith are entitled to qualified immunity. See infra Part III.D.


[**4]


I. BACKGROUND

The facts of this dispute are set forth in detail in Williams I, familiarity with which is assumed. Only those facts relevant to the instant motions are detailed below.

A. The Deprivation

Prisoners housed in SHU facilities operated by DOCS in 1998 were entitled to one [*421] hour of out-of-cell exercise per day. See 9/18/95 DOCS Directive 4933, entitled "Special Housing Units" ("Directive 4933"), Ex. M to 12/22/00 Declaration of Stephen Elliot, plaintiff's counsel ("Elliot Decl."); see also N. Y. Comp. Codes R. & Regs. ("NYCRR"), tit. 7, § 304.3 (1999); 12/4/00 Deposition of Robert H. Kuhlmann ("Kuhlmann Dep."), Ex. B to 12/22/00 Declaration of Aviva Wertheimer, plaintiff's counsel ("Wertheimer Decl."), at 22-23; 12/5/00 Deposition of D.G. Aidala ("Aidala I Dep."), Ex. E to Wertheimer Decl., at 77, 81; 11/21/00 Deposition of Donald Selsky ("Selsky Dep."), Ex. A to Wertheimer Decl., at 19, 56-57, 61.

On August 5, 1998, during his confinement in the Sullivan SHU, Aidala placed plaintiff under a restraint order because he verbally harassed a corrections officer. Pursuant to the order, mechanical restraints were placed on plaintiff's hands and waist [**5] whenever he was removed from his cell. n5 The restraint order remained in place for twenty-eight consecutive days. n6



n5 Initially, Aidala ordered that plaintiff be restrained for a period of seven days, the standard duration of a restraint order. At the end of the seven-day period, Aidala and Healy reviewed the restraint order and decided to renew it. The restraint order was renewed a total of three times.

n6 There is no limit to the number of days an SHU inmate may be subject to a restraint order. See 7 NYCRR § 300 et seq.


As a general matter, inmates in the Sullivan SHU exercise in individual exercise yards, often called "cages," located near the SHU. n7 See 12/6/00 Photos of Sullivan Exercise Cage, Exs. G, H to Elliot Decl. Only one inmate at a time exercises in each cage. See 12/6/00 Deposition of Peter J. Healy, Jr. ("Healy Dep."), Ex. F to Wertheimer Decl., at 87-88; 12/7/00 Deposition of Peter Brickner ("Brickner Dep."), Ex. I to Wertheimer Decl., at 31-32. The individual cages are separated [**6] from each other by solid concrete walls. See Healy Dep. at 80. The cages are open to the sky, but are covered with wire fencing. See id. at 100; see also 12/6/00 Deposition of Douglas Smith ("Smith Dep."), Ex. H to Wertheimer Decl., at 20. The front wall of the cage consists of "no-climb" fencing. See 12/4/00 Deposition of Jeffrey Portz ("Portz I Dep."), Ex. C to Wertheimer Decl., at 20. The door to the exercise cage is made of iron and is locked during the time an inmate is in the cage. See 12/5/00 Deposition of Jeffrey Portz ("Portz II Dep."), Ex. D to Wertheimer Decl., at 78-79; 12/6/00 SHU Photo of Exercise Cage Door, Ex. E to Elliot Decl. The exercise cage doors, like SHU cell doors, contain a small (approximately six inches by ten inches), separately lockable "hatch" through which an inmate may extend his hands so that a corrections officer can apply or remove restraints without unlocking the door. See Aidala I Dep. at 104; Portz I Dep. at 6-7; 12/6/00 SHU Photo of Exercise Cage Door Hatch, Ex. F to Elliot Decl.



n7 The exercise cages are approximately ten feet by twenty feet. See Elliot Decl. P 9. No exercise equipment is provided in the cages, but the space permits an inmate to engage in activities such as calisthenics, jogging, walking, push-ups and sit-ups. See Kuhlmann Dep. at 23; Aidala I Dep. at 81-82.


[**7]

The mechanical restraints worn by plaintiff during his one hour in the exercise cage consisted of a steel chain fitted around his waist to which steel handcuffs were attached, thus allowing plaintiff to move his hands and arms only a few inches. n8 See Portz II Dep. at 65; Healy [*422] Dep. at 47; Brickner Dep. at 55; Aidala I Dep. at 52; see also 12/6/00 SHU Photo of Mechanical Restraints, Ex. K to Elliot Decl.



n8 Under SHU regulations, leg irons may be applied in addition to the wrist and arm restraints. See Directive 4933 at VIII(D)(1). No such restraints were placed on plaintiff.


The obvious purpose of the mechanical restraints is to restrict the mobility of the prisoner. See Brickner Dep. at 54-55; Smith Dep. at 27. Movement in such restraints is so restrictive that if an inmate were to lose his balance he could fall and would be unable to prevent serious injury. See Brickner Dep. at 57-58; Aidala I Dep. at 87. The helplessness of a prisoner in restraints, and the resulting hazard to the prisoner's [**8] safety, is one reason that the Sullivan policy requires a corrections officer to hold onto the waist chain while moving a prisoner. See Aidala I Dep. at 87; see also 6/9/98 Sullivan SHU Policy and Procedures Manual ("Sullivan SHU Manual"), Ex. L to Elliot Decl., at 7.

During the summer of 1998, the following procedures were followed when escorting plaintiff to the exercise cage. n9 The lockable hatch in plaintiff's cell door was opened from the outside. See Brickner Dep. at 53-54; Portz II Dep. at 69-71; see also 12/6/00 SHU Photos of Cell Door, Exs. A, D to Elliot Decl. Plaintiff was then directed to place his hands through the hatch, whereupon the corrections officer placed him in handcuffs which were already attached to the waist chain. See Portz II Dep. at 70. Plaintiff was directed to completely turn around so that the waist chain wrapped around his body. See id. at 70-71. The officer then secured the waist chain with a padlock. See Healy Dep. at 59-60. While plaintiff was escorted to the exercise cage, at least one officer held the waist chain. See Aidala I Dep. at 87. Plaintiff was then locked in the exercise cage. Even though there is a hatch [**9] in the exercise cage door for the purpose of safely removing and re-applying restraints, prison officials never utilized the hatch; rather, they left plaintiff in the restraints during his exercise period. See 12/6/00 Deposition of Kenneth J. Sanok ("Sanok Dep."), Ex. G to Wertheimer Decl., at 35.



n9 This procedure remains in effect today. See 7 NYCRR § 300 et seq.


According to plaintiff's expert, Dr. Gary Sforzo, n10 plaintiff was unable to do push-ups, sit-ups, jumping jacks or to run in place while in the restraints. See 12/19/00 Declaration of Gary A. Sforzo, Ph.D ("Sforzo Decl."), at 9-10; 1/9/01 Transcript of Daubert Hearing ("Tr.") at 21-25; Brickner Dep. at 75. Sit-ups and back exercises would have been painful or impractical because of the chain around plaintiff's waist. See Sforzo Decl. at 10; Tr. at 25; Portz II Dep. at 85. Running in place would have been hazardous because of the loss of balance resulting from the restriction of arm movement and because plaintiff would be unable [**10] to break his fall if he were to lose his balance. See Sforzo Decl. at 9; Tr. at 21-24.



n10 Dr. Sforzo is Chairman of the Graduate Program in Exercise and Sport Sciences at Ithaca College in Ithaca, New York.


B. Restriction of Plaintiff's Other Out-of-Cell Activities

Plaintiff alleges that his other out-of-cell activities were also severely restricted. With the exception of the one hour out-of-cell exercise period, occasional trips to the shower and meetings with visitors, plaintiff was confined to his cell. See Defendants' Response to Plaintiff's Statement Pursuant to Local Rule 56.1 in Opposition to His Motion for Partial Summary Judgment, dated January 3, 2001 ("Def. Resp."), P 2.

C. Opportunity for In-Cell Exercise

Plaintiff alleges that his opportunity for in-cell exercise was severely restricted. [*423] The cell contained a bed, toilet, sink, desk and stool. n11 See 12/6/00 SHU Photos of Plaintiff's Cell, Exs. C, D to Elliot Decl. It did not have air-conditioning or an outside window. [**11] See 1/12/01 Supplemental Report of Gary A. Sforzo, Ph.D ("Supp. Rep.") at 6; see also Portz II Dep. at 105; Elliot Decl. PP 4, 5. The ventilation in the cell area was poor, compounded by the fact that many of the SHU inmates smoked. n12 See Aidala I Dep. at 51; Elliot Decl. P 8. Defendants, however, claim that the Sullivan SHU met the standards of The American Corrections Association for air exchange rates in 1998. See 12/21/98 Air Ventilation Survey for 1998, Ex. G to 1/5/01 Affidavit of June Duffy, defendants' counsel ("Duffy Aff."). The experts reach different conclusions as to whether plaintiff could have engaged in any meaningful exercise in his cell in August of 1998. See Supp. Rep. at 6-7; 1/4/01 Report of Dr. Michael D. Robinson n13 ("Robinson Rep."), Ex. F. to Duffy Aff., at 2.



n11 The size of plaintiff's cell is in dispute. Plaintiff asserts that the cell measures six feet by ten feet, see Elliot Decl. P 4, while defendants assert that there is an additional foot and a half in length and width. See Def. Resp. P 3.

n12 As of January 1, 2001, all DOCS facilities are smoke free. See Def. Resp. P 45. [**12]




n13 Dr. Robinson is a medical doctor specializing in Physical Medicine and Rehabilitation.


D. Justification for the Deprivation

Directive 4933 states that "whenever an inmate is under a restraint order, that inmate will be shackled whenever he/she leaves the SHU cell for any reason." Directive 4933 at VIII(D)(2). There are six exceptions to this rule: (1) upon request of a physician; (2) upon request of the Parole Board at a Parole Hearing; (3) upon the request of a judge or magistrate; (4) when the inmate can be secured in a shower room during the scheduled shower period; (5) upon order of the Deputy Superintendent for Security Services or higher ranking authority; or (6) when in a general population visiting room and not in a non-contact area. See id. at VIII(D)(2)(b)(1)-(6).

Prior to March of 1998, it was the policy and practice in Sullivan to shackle an inmate when he left his cell to go to the exercise cage, but to remove the restraints once the inmate had been secured in the exercise cage in the same manner as was done when an inmate was secured in his cell. n14 See Healy [**13] Dep. at 69; Sanok Dep. at 35; Portz II Dep. at 78-79.



n14 The Sullivan facility applies a completely different policy when inmates under a restraint order are secured in the shower. Sullivan SHU inmates subject to restraint orders are entitled to three showers a week. See Sullivan SHU Manual at 11. The shower door consists of iron bars. See Aidala I Dep. at 103. Officers are able to apply or remove restraints from an inmate through a gap in the bars in the center of the door, similar to the hatches in the doors of the cells and exercise cages. See id. at 103-04; see also 12/6/00 SHU Photos of Shower Door, Exs. I, J to Elliot Decl. Prisoners subject to restraint orders are routinely released from restraints after they have been secured in the shower. See Healy Dep. at 49.

The Sullivan policy regarding visitation is also different. SHU inmates subject to restraint orders are generally entitled to one visit per week. See Selsky Dep. at 19. When the prisoner is taken to a visiting area, the restraints are routinely removed. See id. at 74; Aidala I Dep. at 74-75.


[**14]

Pursuant to a memorandum issued by Healy on March 17, 1998, the interpretation of Directive 4933 was changed to require that prisoners remain restrained even after they were secured in the SHU exercise cage. See 3/17/98 Memorandum from Healy to "All SHU Staff and Inmates" ("March 17 Mem."), Ex. F to Declaration of Amy Tully Ackert, plaintiff's [*424] counsel ("Ackert Decl."). Plaintiff complained of remaining shackled during his daily out-of-cell exercise period. In response to this complaint, Aidala stated:


The application of mechanical restraints is in no way a punishment. Mechanical restraints are an insurance that you will be moved safely from your cell to the exercise area and back to your cell without any need or possibility of having to use physical force. This procedure is as much for your safety and well being as it is for all other parties concerned.


8/21/98 Memorandum, Ex. 11 to 2/2/99 Deposition of Plaintiff ("Pl. Dep."). n15



n15 Plaintiff contends that the safety justification is not supported by any evidence. During discovery, none of the defendants identified a single incident in which a guard was injured or endangered in the course of removing or applying restraints to an inmate locked in an exercise cage. See 12/7/00 Deposition of D.G. Aidala ("Aidala II Dep."), Ex. J to Wertheimer Decl. at 203-04; Healy Dep. at 70-71; Kuhlmann Dep. at 71; Brickner Dep. at 71-74; Sanok Dep. at 36-37; Smith Dep. at 36; Portz II Dep. at 83-84. Nor did any defendant identify a single incident in which guards were required to enter an exercise cage to subdue an inmate who refused to come to the door for the application of restraints at the end of his allotted exercise period. See Def. Resp. P 53. Indeed, no incident has been identified that justified changing the previous interpretation of Directive 4933. See Healy Dep. at 70-71; Brickner Dep. at 67-68; Sanok Dep. at 38; Smith Dep. at 35.


[**15]


II. PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

A. Legal Standard for Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment "if 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 judgment as a matter of law." "An issue of fact is 'material' for these purposes if it might affect the outcome of the suit under the governing law[,] [while] an issue of fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000) (internal quotation marks and citations omitted).

In assessing the record to determine whether genuine issues of material fact are in dispute, a court must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Parkinson v. Cozzolino, 238 F.3d 145, 2001 U.S. App. LEXIS 76, 2001 WL 8559, at *4 (2d Cir. 2001). "Although the moving party bears the initial burden [**16] of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must 'set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). However, the non-moving party may not "rest upon . . . mere allegations or denials." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) ("If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted.") (internal quotation marks, citations, and alterations omitted).

B. The Eighth Amendment Claim

The Eighth Amendment prohibits punishment that involves the unnecessary [*425] and wanton infliction of [**17] pain. See Rhodes v. Chapman, 452 U.S. 337, 346, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981). A prisoner's conditions of confinement fall within the ambit of the Eighth Amendment. See id. at 345. "When the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being." Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999) (internal quotation marks omitted).

In order to prevail on an Eighth Amendment claim, the plaintiff must satisfy both an objective element and a subjective element. n16 See Farmer v. Brennan, 511 U.S. 825, 834, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994); Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996). To satisfy the objective element, the plaintiff must prove a sufficiently serious deprivation of a basic human need. See Wilson v. Seiter, 501 U.S. 294, 303-04, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991); see also Farmer, 511 U.S. at 834 (holding that a prison official's acts must deprive the inmate of "the minimal civilized [**18] measure of life's necessities"); Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985) (a plaintiff must demonstrate that the conditions of his confinement resulted "in unquestioned and serious deprivations of basic human needs") (citation omitted). The subjective element requires a plaintiff to show that the defendant acted with a "sufficiently culpable state of mind." Farmer, 511 U.S. at 834. In cases involving prison conditions, that state of mind is one of "deliberate indifference." Id.; see also May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997); Jolly, 76 F.3d at 480.



n16 In addition, it is well settled in the Second Circuit that "personal involvement of defendants in [an] alleged constitutional deprivation[] is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1997). The standard for determining whether or not a defendant is "personally involved" in the alleged constitutional deprivation is thoroughly discussed in Williams I, 111 F. Supp. 2d at 293.


[**19]

1. The Objective Element

With respect to the objective element, this Court has already found, based on clearly established law in this Circuit, that "exercise is one of the basic human needs protected by the Eighth Amendment." Williams I, 111 F. Supp. 2d at 292 (citing Williams v. Greifinger, 97 F.3d 699, 704 (2d Cir. 1996) and Anderson, 757 F.2d at 35). However, not every deprivation of exercise amounts to a constitutional violation. Rather, a plaintiff must show that he was denied all meaningful exercise for a substantial period of time. See Davidson v. Coughlin, 968 F. Supp. 121, 129 (S.D.N.Y. 1997). Factors to consider in making this determination are: (1) the duration of the deprivation; (2) the extent of the deprivation; (3) the availability of other out-of-cell activities; (4) the opportunity for in-cell exercise; and (5) the justification for the deprivation. See Williams I, 111 F. Supp. 2d at 291; Amaker v. Goord, 1999 U.S. Dist. LEXIS 10905, No. 98 Civ. 3634, 1999 WL 511990, at *6 (S.D.N.Y. July 20, 1999) (citing Davidson, 968 F. Supp. at 130).

Courts have granted summary judgment [**20] to prisoners where the magnitude of the deprivation of exercise was patent. See, e.g., Williams v. Greifinger, 918 F. Supp. 91, 98 (S.D.N.Y.) (holding plaintiff was entitled to summary judgment on Eighth Amendment claim because he was deprived of exercise for 589 days), rev'd on other grounds, 97 F.3d 699 (1996); Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996) (upholding preliminary injunction requiring prison officials to release inmate from medical keeplock when inmate allowed out of cell only ten minutes per week for over [*426] three-and-one-half years); cf. Allen v. Sakai, 48 F.3d 1082, 1086-88 (9th Cir. 1995) (affirming district court's denial of qualified immunity where inmate allowed only forty-five minutes of outdoor exercise per week for period of six weeks and segregation was indefinite); Mitchell v. Rice, 954 F.2d 187, 192 (4th Cir. 1992) (holding that qualified immunity is not appropriate because reasonable prison official should have known that depriving inmate of out-of-cell exercise for periods of seven months and eleven months would violate Eighth Amendment).

By contrast, depriving a [**21] prisoner of exercise for a relatively brief period of time has resulted in summary judgment in defendants' favor. See, e.g., Green v. Ferrell, 801 F.2d 765, 771-72 (5th Cir. 1986) (holding that Eighth Amendment was not violated by policy denying inmates out-of-cell exercise for first fifteen days of punitive confinement); Gibson v. City of New York, 1998 U.S. Dist. LEXIS 3618, No. 96 Civ. 3409, 1998 WL 146688, at *3 (S.D.N.Y. Mar. 25, 1998) (denying prisoner right to exercise for eight days in a sixty day period does not violate Eighth Amendment); Davidson, 968 F. Supp. at 131 (deprivation of outdoor exercise for fourteen days did not violate Eighth Amendment); Arce v. Walker, 907 F. Supp. 658, 662-63 (W.D.N.Y. 1995) (holding that Eighth Amendment not violated when inmate in administrative confinement was deprived of out-of-cell exercise for eighteen out of nineteen days).

This case, however, falls between the bookends -- neither extremely long nor short. Plaintiff has alleged that he was deprived of "meaningful" exercise for twenty-eight days. This presents a close constitutional case. See Davidson, 968 F. Supp. at 131 ("If, [**22] in fact, he had been deprived of all outdoor exercise for thirty days, this case would present a closer constitutional question."). Accordingly, a jury must determine whether defendants' conduct constituted a sufficiently serious deprivation of exercise such that plaintiff was denied "the minimal civilized measure of life's necessities." Farmer, 511 U.S. at 834; cf. Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995) ("Disputes over reasonableness are usually fact questions for juries."); Banks v. Person, 49 F. Supp. 2d 119, 125 (E.D.N.Y. 1999) (same).

In addition, there are material issues of fact with regard to at least two of the five factors of the objective element test. For instance, relying on the testimony of plaintiff's expert witness, Dr. Sforzo, plaintiff contends that the handcuffs and waist chain restraints prevented him from engaging in "meaningful exercise." n17 See Sforzo Decl. at 16. By contrast, defendants' expert witness, Dr. Michael D. Robinson, will testify that, even while subject to the restraints, plaintiff could walk and march, which are "well established aerobic exercises, shown to maintain and modestly [**23] improve aerobic fitness." Robinson Rep. at 2. Similarly, plaintiff and defendants disagree as to whether plaintiff had any meaningful opportunity for in-cell exercise n18 and whether defendants' actions [*427] were justified. n19 These disputes require weighing the credibility of both lay and expert witnesses - determinations within the province of a jury. n20 See Dorsey v. McQuillian, 1997 U.S. Dist. LEXIS 19849, No. 94 Civ. 3578, 1997 WL 772779, at *4 (S.D.N.Y. Dec. 15, 1997) (denying summary judgment on Eighth Amendment claim where parties disputed whether plaintiff would have exercised had he been offered the opportunity to do so during his time in medical keeplock).



n17 Plaintiff also relies on Martinez v. Fairman, 1995 U.S. Dist. LEXIS 8729, *15, No. 93 C 6225, 1995 WL 383072, at *5 (N.D. Ill. June 22, 1995), where the court stated that "it is obviously impossible for a prisoner to engage in any meaningful activity while his limbs are restrained." However, in that case, the plaintiff was subject to handcuffs, shackles, and leg shackles. Here, unlike Martinez, Williams was not subject to leg shackles, thus increasing his range of movement. [**24]




n18 Plaintiff contends that "the undisputed facts establish that the conditions in Mr. Williams' cell made meaningful exercise impossible: no air conditioning, no ventilation from the outdoors, extremely limited space, and pervasive cigarette smoke. If the conclusion were not obvious, an expert in exercise physiology has opined -- and there is no contrary evidence in the record -- that meaningful exercise in such conditions is not possible." Memorandum in Support of Plaintiff's Motion for Partial Summary Judgment at 17. Plaintiff is overstating his case. The following testimony of Dr. Sforzo during the Daubert hearing is instructive:


Q: Would you agree that raising and lowering his arms, raising and lowering his legs during the time he was in the cell, that is 23 hours a day, if he did it for several hours a day for each day, that would be meaningful exercise?


A: Meaningful in the sense that it is for Mr. Williams [?] He would still be detraining. It would be [doing] much less than he would normally be doing on a given day but looking at the word "meaningful" in maybe a different sense it is much better than if he had been confined to bed rest and being able to lift his legs and arms, yes.


Tr. at 66-67. Dr. Sforzo also admitted that plaintiff apparently could perform "deep knee bends" and "jumping jacks" while in his cell. Id. at 79-80. [**25]




n19 Plaintiff contends that defendants' purported justification is unsupported by the evidence. See supra note 15.

n20 In addition, the question whether plaintiff actually suffered a "physical injury" under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e, is a question of fact for the jury. See Waters v. Andrews, 2000 U.S. Dist. LEXIS 16003, No. 97- CV-407, 2000 WL 1611126, at *8 (W.D.N.Y. Oct. 16, 2000) (holding that a reasonable jury could find the term "physical injury" as used in the PLRA to include exposure to noxious odors and dreadful conditions of confinement, without undermining Congress' intent); Williams I, 111 F. Supp. 2d at 291 n.4 ("There are issues of fact here that preclude summary judgment on the issue of whether plaintiff suffered a physical injury sufficient to satisfy the PLRA.").


2. The Subjective Element

In order to satisfy the subjective element of an Eighth Amendment violation, a plaintiff must show that defendants acted with deliberate indifference. A prison official's conduct does not rise to the level of deliberate [**26] indifference unless he "knows of and disregards an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837. Put differently, the "official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. The subjective element "entails something more than mere negligence." Id. at 835.

At this stage of the proceedings, however, the Court cannot conclude that defendants acted with deliberate indifference. Whether defendants ignored a substantial risk of serious harm to plaintiff necessarily depends on whether plaintiff was deprived of a basic human need. If, for instance, the jury finds that plaintiff was not deprived of "meaningful" exercise, then plaintiff was not exposed to a substantial risk of serious harm and defendants could not have acted with deliberate indifference.

Because there are disputed issues of material fact as to both the objective and the subjective prongs of the alleged Eighth Amendment violation, plaintiff's motion for partial summary judgment is denied.

[*428]

III. DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT BASED ON [**27] QUALIFIED IMMUNITY

A. The Summary Judgment Standard in Qualified Immunity Cases

The doctrine of qualified immunity shields government officials acting in their official capacity from suits for money damages under 42 U.S.C. § 1983 unless their actions violate clearly established rights of which an objectively reasonable official would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). This policy is justified in part by the risk that the "fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties." Anderson v. Creighton, 483 U.S. 635, 638, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987).

Whether a right is "clearly established" turns on an analysis of whether "the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 640. For purposes of qualified immunity, "it is sufficient if decisions of the Supreme Court or of the appropriate circuit have defined the contours of the right with reasonable specificity. [**28] " Russell v. Coughlin, 910 F.2d 75, 78 (2d Cir. 1990) (citing Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989)). A court need not have passed on the identical course of conduct in order for its illegality to be "clearly established"; however, "in light of pre-existing law the unlawfulness must be apparent." Anderson, 483 U.S. at 639-40; see also Greifinger, 97 F.3d at 703. Furthermore, a law is considered "clearly established" so long as this "circuit's decisions 'clearly foreshadow' a particular ruling on the issue." Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997) (quoting Shabazz v. Coughlin, 852 F.2d 697, 701 (2d Cir. 1988)).

Even if the applicable law was clearly established when the purported violation occurred, officials may still successfully assert qualified immunity if they can show that their actions were "objectively reasonable." See Greifinger, 97 F.3d at 703. That is, officials seeking to establish qualified immunity must show that "reasonable persons in their positions would not have understood that their conduct was within the scope of the established [**29] prohibition." In re State Police Litig., 88 F.3d 111, 123 (2d Cir. 1996). Summary judgment on the basis of claim of qualified immunity is therefore only appropriate


if the court finds that the asserted rights were not clearly established, or if the evidence is such that, even when it is viewed in the light most favorable to the plaintiffs and with all permissible inferences drawn in their favor, no rational jury could fail to conclude that it was objectively reasonable for the defendants to believe that they were acting in a fashion that did not violate a clearly established right.


Id.; see also Robison v. Via, 821 F.2d 913, 920-21 (2d Cir. 1987). In other words, if any reasonable trier of fact could conclude that the defendants' conduct was objectively unreasonable, then the defendants are not entitled to summary judgment.

B. The Clearly Established Right to Exercise

Because exercise is one of the basic human needs protected by the Eighth Amendment, the Second Circuit has "described the right to exercise in unequivocal terms, stating that 'courts have recognized that some opportunity to exercise must be afforded to prisoners. [**30] '" Greifinger, 97 [*429] F.3d at 704 (quoting Anderson, 757 F.2d at 35). More specifically, this right to exercise must include some out-of-cell exercise. See Greifinger, 97 F.3d at 704 and n.5 (relying on the uniform conclusions of the other circuits "that the Eighth Amendment requires . . . prison inmates be allowed some out-of-cell exercise") (citations omitted); see also Sostre v. McGinnis, 442 F.2d 178, 186 (2d Cir. 1971) (the court held that one hour of exercise "in a small, enclosed yard, open to the sky" was acceptable under the Eighth Amendment, albeit not a mandatory minimum standard).

A prisoner may be denied out-of-cell exercise under what is termed a "safety exception." See Greifinger, 97 F.3d at 704. The Second Circuit has expressly recognized that deprivations of exercise for safety reasons "must be limited to unusual circumstances or circumstances in which exercise is impossible because of disciplinary needs." Id. (internal quotation marks and citations omitted). In addition, even if a prisoner is deemed an unusual security risk, that fact alone would not justify subjecting him to a blanket [**31] policy denying such prisoners any opportunity for out-of-cell exercise. "The fact that an inmate is violent may justify segregating him or her from the general population, but does not necessarily justify a prison's failure to make other exercise arrangements." Id. at 704-05 (internal quotation marks and citations omitted).

C. The Objectively Reasonable Standard

The Supreme Court and Second Circuit have encouraged the use of summary judgment when qualified immunity is raised as a defense. See Harlow, 457 U.S. at 815-16; Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). However, in order to grant qualified immunity this Court must find that, viewing the evidence in the light most favorable to the plaintiff, "no rational jury could fail to conclude" that it was objectively reasonable for defendants to believe that depriving plaintiff of out-of-cell exercise for a period of twenty-eight days would not violate his Eighth Amendment rights. See LaBounty v. Coughlin, 137 F.3d 68, 74 (2d Cir. 1998) (reversing grant of summary judgment to defendants based on qualified immunity); see also Greifinger, 97 F.3d at 703 [**32] (same); In re State Police Litig., 88 F.3d at 123 (declining to review district court's decision denying qualified immunity based on the existence of issues of fact).

While this Circuit has held that an hour a day of out-of-cell exercise comports with the requirements of the Eighth Amendment, see Sostre, 442 F.2d at 186, it has never established a constitutional minimum. See Amaker, 1999 WL 511990, at *6; Davidson, 968 F. Supp. at 129-30. Nonetheless, at the time of the alleged violation it was apparent that a denial of all meaningful out-of-cell exercise for a significant period of time without adequate justification constituted an Eighth Amendment violation. See Greifinger, 97 F.3d at 703-705.

Furthermore, qualified immunity would not be warranted if it was objectively unreasonable for defendants to [*430] believe that their actions were not unlawful. The jury's determination as to whether plaintiff has satisfied the objective prong of an Eighth Amendment violation bears directly on this question. For example, if the jury finds that the restraints deprived plaintiff of any opportunity for meaningful [**33] out-of-cell exercise, that plaintiff could not "meaningfully exercise" in his cell, and that there was no adequate justification for keeping him restrained, a rational jury could indeed conclude that it was not objectively reasonable for the defendants to believe that their actions did not violate plaintiff's right to exercise. See Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999) ("Summary judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonableness."); see also Kaminsky v. Rosenblum, 929 F.2d 922, 927 (2d Cir. 1991) (finding that the district court was correct in not determining whether it was objectively reasonable for defendants to believe their acts were lawful because facts in dispute were relevant to that determination). Indeed, this Circuit has ruled, in the context of an Eighth Amendment claim of deliberate indifference to a prisoner's medical needs, that if a defendant is found to have been "deliberately indifferent to [a prisoner's] serious medical needs, [the defendant] is not entitled to qualified immunity because it would not be objectively reasonable [**34] for him to believe his conduct did not violate [plaintiff's] rights." Hathaway v. Coughlin, 37 F.3d 63, 69 (2d Cir. 1994).

Accordingly, defendants' cross-motion for summary judgment on the basis of qualified immunity is denied.

D. Lower Ranking Officers

Qualified immunity is granted to defendants Portz, Sanok, and Smith. Higher ranking officials are held to a higher standard of legal knowledge than their subordinates. See Charles v. Maul, 214 F.3d 350, 360 (2d Cir. 2000). As these officers had no input into the development and implementation of the restraint policy and were merely following what they believed to be lawful orders, they are entitled to qualified immunity. See Varrone, 123 F.3d at 81 ("Since the four subordinate officers were merely carrying out [the Inspector General's] instruction and that of their immediate superior when they ordered the strip search, they were entitled to [qualified] immunity."); see also Bilida v. McCleod, 211 F.3d 166, 174-75 (1st Cir. 2000) ("Plausible instructions from a superior or fellow officer supported qualified immunity where, viewed objectively in light of [**35] the surrounding circumstances, they could lead a reasonable officer to conclude that the necessary legal justifications for his actions exist."); cf. Lauro v. Charles, 219 F.3d 202, 216 n.10 (2d Cir. 2000) (fact that defendant was following orders given by his superiors further supported the existence of qualified immunity).


IV. CONCLUSION

For the reasons stated above, plaintiff's motion for partial summary judgment is denied and defendants' cross-motion for summary judgment based on qualified immunity is denied in part and granted in part. If necessary, the issue of qualified immunity will be addressed again at the conclusion of trial. See Blissett v. Coughlin, 66 F.3d 531, 538 (2d Cir. 1995) ("Where summary judgment is inappropriate, and the case proceeds to trial, the defense of qualified immunity may be presented to the jury or may be decided by the court in a motion for judgment as a matter of law.") (emphasis added); see also Oliveira v. Mayer, 23 F.3d 642, 650 (2d Cir. 1994) (finding that district court erred by not submitting qualified immunity to the jury after the court ruled in plaintiff's favor on liability). [**36]

SO ORDERED:

Shira A. Scheindlin

U.S.D.J.


Dated: New York, New York

January 24, 2001

RAHSAAN WILLIAMS, Plaintiff, - against - GLENN S. GOORD, et al., Defendants.



99 Civ. 1680 (SAS)



UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK



111 F. Supp. 2d 280; 2000 U.S. Dist. LEXIS 10601



July 28, 2000, Decided

July 28, 2000, Filed







DISPOSITION: [**1] Defendants' motion for summary judgment granted in part and denied in part.









COUNSEL: Rahsaan Williams, Plaintiff, Pro se, Pine City, New York.


For Defendants: Efrem Zevi Fischer, Assistant Attorney General, New York, New York.



JUDGES: Shira A. Scheindlin, U.S.D.J.



OPINIONBY: Shira A. Scheindlin



OPINION: [*284]

OPINION AND ORDER


SHIRA A. SCHEINDLIN, U.S.D.J.:

Pro se plaintiff Rahsaan Williams brings this action, pursuant to 42 U.S.C. § 1983, against officials and employees of the New York State Department of Correction Services ("DOCS") at Sullivan Correctional Facility ("Sullivan"). n1 Plaintiff alleges that while he was incarcerated at Sullivan, defendants violated his constitutional rights under the Fourteenth, First and Eighth Amendments. Specifically, plaintiff claims that he was (i)unlawfully confined in Sullivan's Special Housing Unit ("SHU") without due process of law; (ii) subjected to retaliation after he complained about his improper confinement; and (iii) deprived of his right to daily exercise as a result of being placed in mechanical restraints. Plaintiff seeks compensatory and punitive damages.



n1 Defendants are Glenn S. Goord, Commissioner; Donald Selsky, Director of Special Housing Unit; Robert H. Kuhlmann, Superintendent; D. G. Aidala, Deputy Superintendent of Security; Peter Healy, Captain; J. Haynal, Lieutenant; P. Brickner, Sergeant; J. Portz, Corrections Officer; K. Sanok, Corrections Officer. The docket reflects that Corrections Officer Smithy was not served. The names "Haynal", "Brickner" and "Sanok" are misspelled in the complaint as "Hayanl", "Bricker" and "Sonic" respectively.


[**2]

Pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, defendants now move for summary judgment on three grounds. First, defendants contend that plaintiff cannot show any violation of his constitutional rights. Second, defendants contend that plaintiff's claims against certain defendants are barred because there is no allegation of personal involvement. Third, defendants contend that the Eleventh Amendment bars recovery of damages from defendants in their official capacity. For the reasons stated below, defendants' motion for summary judgment is granted in part and denied in part.


I. Background

A. Factual Background

During relevant time periods, plaintiff was an inmate at Sullivan in Fallsburg, New York. The facts set forth below are taken from the pleadings, the supporting affidavits and other materials presented.

On June 14, 1998, plaintiff was served with an inmate misbehavior report for assault with a weapon, fighting, being out of place and refusing a direct order -- charges that he denied. See 6/14/98 Inmate Misbehavior Report, Exhibit ("Ex.") A to Complaint [*285] ("Compl."). A Tier Three Disciplinary Proceeding (the "Tier III hearing"), [**3] with Haynal as the presiding officer, was held ten days later. See 6/24/98 Hearing Transcript, Ex. 4 to Deposition of Plaintiff, dated February 2, 1999 ("Pl. Dep."). As part of his defense, plaintiff requested that an inmate who had been transferred to another correctional facility be called as a witness. Compl. P 3. Haynal denied the request on the ground that the inmate had refused to testify. Id.

In a determination dated June 28, 1998, Haynal found plaintiff guilty of all charges and imposed a penalty of 90 days confinement to Sullivan's Special Housing Unit ("SHU"); loss of packages, telephone and commissary privileges for those 90 days; and loss of 90 days of good-time credit. See 6/28/98 Superintendent Hearing Disposition Rendered ("Hearing Disposition"), Ex. B to Compl.

Plaintiff appealed Haynal's determination to the Special Housing/Inmate Disciplinary Program Office, alleging that several of his due process rights had been denied at the Tier III hearing. See 7/8/98 Appeal from a Superintendent's Hearing, Ex. C to Compl. He specifically contended that his rights were violated because Haynal (1) failed to conduct a fair and impartial hearing when the alleged [**4] victim testified that plaintiff was not the one who assaulted him and Haynal failed to credit this testimony or to further investigate; (2) denied plaintiff the right to call a witness who allegedly refused to testify and failed to conduct an independent investigation into the alleged refusal; (3) denied plaintiff's request for a copy of the victim's medical records; and (4) denied plaintiff his right to assistance. See id.

While plaintiff was in SHU, Portz, who was on duty, went from cell to cell and asked the SHU inmates if they wanted out-of-cell exercise. See 1/31/00 Affidavit of Portz in Support of Defendants' Motion for Summary Judgment ("Portz Aff.") PP 4-6. Plaintiff allegedly refused to go to the recreation yard that day. See id. PP 7, 8 and accompanying exhibit. Later, plaintiff filed a grievance with Kuhlmann against Portz for denying him exercise. See 8/2/98 Letter, Ex. E to Compl. Portz states that he never refused plaintiff exercise. See Portz Aff. P 8 and accompanying exhibit.

Three days later, when Portz conducted the morning go-around, plaintiff allegedly told Portz that he would "kick [his] ass when [he] get[s] the chance." Portz Aff. P [**5] 10 and accompanying exhibit. Portz escorted plaintiff to the recreation yard for exercise. See id. Upon returning from the yard to his cell, plaintiff allegedly continued to threaten Portz, stating "just remember for every action there is a reaction." Id. These statements were corroborated by Corrections Officer Miller. See 8/10/98 Hearing Disposition, Ex. E to Portz Aff. As a result, plaintiff was charged with making threats and verbal harassment. See 8/5/98 Inmate Misbehavior Report, Ex. F to Compl. The next day, plaintiff filed a complaint with Kuhlmann against Portz, alleging that Portz had retaliated against plaintiff in response to his filing a grievance against Portz. See 8/6/98 Letter, Ex. M to Compl. Portz asserts that August 12, 1998 was the first time he was notified, interviewed or made aware of plaintiff's allegations. See Portz Aff. P 9.

Following a Tier II Disciplinary Proceeding, plaintiff was found guilty of threatening and verbally harassing a corrections officer and penalized with 30 days loss of packages, telephone and commissary privileges. See 8/10/98 Hearing Disposition, Ex. G to Compl. In addition, plaintiff was placed in mechanical [**6] restraints on his hands and waist when moving from his cell to the showers and when exercising, by order of Deputy Superintendent Aidala. n2 See 8/10/98 Restraint Order, [*286] Ex. H to Compl. The mechanical restraint order remained in place for 28 days. See 8/17/98, 8/24/98 and 8/31/98 Restraint Orders, Ex. L to Compl.



n2 Initially, Aidala ordered that plaintiff be placed in mechanical restraints for a period of seven days. At the end of the seven-day period, Aidala and Healy reviewed the restraint order and renewed it for an additional seven-day period. The restraint order was renewed four times.


Thereafter, plaintiff filed a grievance with the Inmate Grievance Program, stating that he was being subjected to retaliatory discipline for filing a grievance against Portz. See 8/14/98 Inmate Grievance Complaint, Ex. I to Compl. He also stated that the mechanical restraints left on during his one hour of daily exercise constituted cruel and unusual punishment in violation of his Eighth Amendment rights. See [**7] id. Kuhlmann reviewed plaintiff's grievance and found it to be "lodged in retaliation for a misbehavior report issued by the grievant by the officer [Portz] in question." 8/28/98 Memorandum, Ex. J to Compl. On appeal to the Central Office Review Committee, plaintiff noted that Kuhlmann


not surprisingly did not touch on the unlawful full-restraint policy in which SHU inmates under a restraint-order are compelled to remain in full-restraints (handcuffs and waistchains) during their one (1) hour exercise period -- which deprives inmates of their right to exercise. This unlawful policy is being carried out for the purpose of punishment -- where each SHU inmate spends their one (1) hour of daily exercise in a solidly secured one-man cage by their [sic] self [sic] with brick walls around them, and therefore presents no threat to security during exercise periods.


Id. (emphasis in original). An investigation by the Central Office Review Committee found that "there is no requirement that [the mechanical restraints] be removed during the grievant's exercise period." 10/14/98 Inmate Grievance Decision, Ex. G to Portz Aff.

In mid-August, plaintiff filed two complaints [**8] with Kuhlmann. His first complaint stated that the mechanical restraints violated his Eighth Amendment rights. See 8/15/00 Letter, Ex. K to Compl. Kuhlmann referred this complaint to Aidala, who found that the imposition of mechanical restraints was "reasonable, prudent and well within the bounds of accepted principles and sound correctional practices" given plaintiff's "rather extensive disciplinary history" and recent charges. 8/21/98 Memorandum, Ex. 11 to Pl. Dep. Plaintiff's second complaint was filed with Kuhlmann after plaintiff was again denied exercise when Portz allegedly placed the waistchains on plaintiff too tightly. See 8/17/98 Letter, Ex. N to Compl. Kuhlmann also referred this complaint to Aidala, who found the complaint "without merit." 8/24/98 Memorandum, Ex. O to Compl.

In late August, plaintiff filed a second grievance with the Inmate Grievance Program, complaining of retaliation by Sanok, Smithy and Brickner. See 8/24/98 Inmate Grievance Complaint, Ex. P to Compl. In this grievance, plaintiff alleged that the three corrections officers denied him exercise in retaliation for plaintiff filing grievances against Portz. He specifically claimed that Sanok [**9] and Smithy stated that "assholes like me [sic] don't deserve to go to exercise, just stay in my [sic] cell and continue writing complaints." Id. He also alleged that Brickner stated "you lucky that's all you got deaded [sic] on, you keep writing all these complaints you gonna get yours." Id. Plaintiff further alleged cruel and unusual punishment as a result of the mechanical restraints left on during his one hour of daily exercise. See id. According to defendants, plaintiff was only denied exercise because he did not request it during the morning go-around. See Portz Aff. PP 22-27 and accompanying exhibits. A full investigation by the Inmate Grievance Program ensued, including but not limited to interviews of both inmate witnesses and corrections officers. See [*287] 9/10/98 Inmate Grievance Decision, Ex. M to Portz Aff. It was determined that plaintiff's allegations were unfounded and that his grievance lacked merit. See id.

In September, after plaintiff had served 68 days of his 90-day sentence in SHU, Selsky, the Director of the Special Housing/Inmate Disciplinary Program, reversed the Tier III Hearing Determination of June 28, 1998 on the ground that Haynal [**10] failed to make a further inquiry or to document a witness's refusal to testify on plaintiff's behalf. See 9/3/98 Reversal of Superintendent's Hearing/Expunction Order, Ex. 5 to Pl. Dep. Records containing references to the Tier III hearing were ordered to be expunged. See id. Eight days later, after having spent 75 days in SHU, plaintiff was released from SHU confinement and returned to the general population at Clinton Correctional Facility. See Pl. Dep. at 12.

B. Procedural Background

On December 23, 1998, plaintiff filed the instant lawsuit under 42 U.S.C. § 1983. Plaintiff's Complaint sets forth three claims. Claim I alleges that plaintiff's confinement in SHU violated his Fourteenth Amendment due process rights. Compl. PP 2-5. He maintains that, while in SHU, he was (i) confined to his cell for 23 hours a day; (ii) deprived of his personal property; (iii) allowed only one hour of daily exercise; (iv) restricted in his phone privileges; (v) allowed only one visit per week; (vi) allowed to shower only three times per week; and (vii) unable to participate in programs or to use the law library. See Pl. Dep. at 40-44; Plaintiff's Memorandum [**11] of Law in Opposition to Defendants' Motion to Dismiss ("Pl. Mem.") at 7-8.

Claim II alleges that plaintiff's First Amendment rights were violated when Portz issued a false misbehavior report in retaliation for plaintiff's grievances against Portz. Compl. PP 8, 19. Plaintiff also claims that Sanok, Smithy and Brickner deprived him of exercise in retaliation for the grievances plaintiff filed against Portz. Id. PP 17, 19.

Claim III contends that defendants are liable under the Eighth Amendment for deprivation of exercise by use of mechanical restraints which severely restricted plaintiff's range of body movement. Id. PP 9, 10, 21 and accompanying exhibits. Plaintiff claims that his lack of exercise caused him "mental anguish and stress" and was "unbearable and threatening to his [sic] physical health." Pl. Dep. at 61-62; Compl. P 14.


C. Legal Standard for Summary Judgment

A motion for summary judgment may be granted only when "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 judgment as a matter [**12] of law." Fed. R. Civ. P. 56(c). "Genuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law. A reasonably disputed, legally essential issue is both genuine and material and must be resolved at trial." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999)(internal quotations and citations omitted).

In assessing the record to determine whether genuine issues of material fact are in dispute, courts must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). However, if the moving party meets its initial burden, the non-moving party may not rely on conclusory [*288] allegations or speculation to create factual disputes. Instead, [**13] the non-moving party "must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)(internal quotations and citations omitted)(alteration in original).

I am mindful of the fact that Williams is a pro se litigant and must be given some degree of latitude. See McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them 'to raise the strongest arguments that they suggest'"). In particular, the pro se party must be given express notice of the summary judgment procedure, the need for his response and consequences of his failing to respond. Id.; see also Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). In this case, by Notice to Pro Se Litigant Opposing Motion for Summary Judgment dated February 1, 2000, plaintiff was advised of the procedures for responding to a motion for [**14] summary judgment, including the requirement to submit a response to defendants' Rule 56.1 Statement and the need to submit counter-evidence. Plaintiff thereafter submitted a timely response to the motion, together with a Statement of Disputed Facts.


D. Discussion

A. Claim I: Fourteenth Amendment

Plaintiff alleges that, as a result of the actions of Haynal and Selsky, he spent 75 days in SHU confinement in violation of his due process rights. A prisoner asserting a § 1983 claim for denial of due process at a disciplinary hearing "must first 'identify a liberty interest protected by the Due Process Clause of which he was deprived.'" Walker v. Goord, 2000 U.S. Dist. LEXIS 3501, 98 Civ. 5217, 2000 WL 297249, at *7 (S.D.N.Y. Mar. 22, 2000) (quoting Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999)). To meet this burden, a prisoner must establish that the deprivation -- here, the sentence imposed as a result of the hearing -- creates an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995); see Jenkins, 179 F.3d at 28. [**15]

The Second Circuit has instructed that "although there is no bright-line rule regarding the length or type of sanction that would give rise to an 'atypical and significant hardship,' this standard will not be met unless the disciplinary and administrative sanctions are onerous." Jenkins, 179 F.3d at 28 (quoting Sandin, 515 U.S. at 486). Next, the prisoner must establish that "'the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint.'" Id. (quoting Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996)). If a prisoner satisfies both these elements, the Court then addresses "'whether the deprivation of that liberty interest occurred without due process of law.'" Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (quoting Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996)). The Second Circuit has emphasized that the Sandin analysis entails both a consideration of the duration of the challenged confinement as well as a fact-intensive examination of the conditions of that confinement. See, e.g., Ayers v. Ryan, 152 F.3d 77, 83 (2d Cir. 1998); [**16] Arce v. Walker, 139 F.3d 329, 336 (2d Cir. 1998); Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997).

As the Second Circuit has recently explained, after Sandin, a prisoner has no actionable due process claim if other prisoners typically experience approximately the same deprivation as a result of the "ordinary administration of the prison." Welch v. Bartlett, 196 F.3d 389, 393 (2d Cir. 1999). Due process claims are reserved [*289] instead for those prisoners who endure hardships that are "substantially more grave" than those hardships that prisoners would ordinarily experience as members of the general population. Id.

Although the length of the sanction imposed on plaintiff was 75 days, "SHU confinement in New York generally does not impose 'atypical and significant hardship' because it remains within the normal range of prison custody." Trice v. Clark, 1996 U.S. Dist. LEXIS 6644, 94 Civ. 6871, 1996 WL 257578, at *3 (S.D.N.Y. May 16, 1996) (citing Frazier, 81 F.3d at 317).

"The content of the Sandin standard of 'atypical and significant hardship' is an issue of law, but if the facts concerning the conditions or the duration [**17] of confinement are reasonably in dispute, the jury (where one is claimed) must resolve those disputes and then apply the law of atypicality, as instructed by the Court." Colon v. Howard, 215 F.3d 227, 2000 U.S. App. LEXIS 12725, No. 97-2206, 2000 WL 739245, at *3 (2d Cir. June 9, 2000) (citing Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999)). If the facts regarding conditions and duration of confinement are undisputed, it is appropriate for the court to decide the Sandin issue as a matter of law. See id.

SHU confinement in New York entails a number of restrictions on an inmate's privileges relative to his status in the general population. See N. Y. Comp. Codes R. & Regs. ("NYCRR") tit. 7, § § 300.1-.14 (1999). Specifically, SHU inmates are entitled to one nonlegal visit per week. See id. at § 302.2(j)(1)(i). Telephone calls are not permitted unless required for an emergency or a legal reason. See id. at § 302.2(j)(2). Personal belongings are restricted. See id. at § 302.2(e). SHU inmates are permitted out of their cells for only one hour per day consisting of outdoor exercise. See id. at § 304.3. This exercise period is subject to restrictions due to weather, [**18] see id. at § § 303.3(a), (c), or safety concerns, see id. at § 303.3(d). Showers are limited to a minimum of two per week. See id. at § 304.5(a).

Here, the evidence concerning the conditions and duration of plaintiff's SHU confinement is undisputed. The conditions were the normal conditions of SHU confinement in New York. No facts are presented indicating that plaintiff's confinement was any different than ordinary SHU confinement. Plaintiff was placed in a solitary confinement cell, kept in his cell for 23 hours a day, permitted to exercise in the prison yard for one hour a day prior to further discipline, limited to three showers a week, restricted in his personal property and denied various privileges available to general population prisoners, such as access to the law library and educational programs. Visitors were permitted, but the frequency was less than in the general population. Telephone calls were also restricted. With respect to duration, plaintiff served 75 days of the 90-day sentence imposed prior to reversal.

Plaintiff has failed to allege that his 75-day confinement constitutes an "atypical or significant hardship" under Sandin or that the sanction [**19] was "onerous." See Jackson v. Johnson, 15 F. Supp. 2d 341, 361-62 (S.D.N.Y. 1998) (granting motion for summary judgment, holding that 99 days in keeplock was not atypical or significant hardship, and observing that numerous district courts within the Second Circuit have refused to find atypical or significant hardship even when period of confinement was substantial); Trice, 1996 U.S. Dist. LEXIS 6644, 1996 WL 257578, at *3 (granting motion on the pleadings and holding that 150 days of confinement in SHU does not impose atypical or significant hardship). In fact, the Second Circuit recently noted that the longest confinement in normal SHU conditions ruled constitutional was 101 days. Colon, 215 F.3d 227, 2000 U.S. App. LEXIS 12725, 2000 WL 739245, at *4 (citing Sealey, 197 F.3d at 589-90).

Accordingly, plaintiff's 75-day confinement cannot, as a matter of law, be unconstitutional. n3



n3 Because I find that plaintiff did not possess a liberty interest, it is unnecessary for me to address the procedural protections that were afforded.


[**20] [*290]

B. Claim II: First Amendment

Plaintiff alleges that Portz issued a false misbehavior report in retaliation for his grievances against Portz. Plaintiff also alleges that Sanok, Smithy and Brickner denied him one hour of exercise in retaliation for his grievances against Portz.

A prison inmate has "no general constitutional right to be free from being falsely accused in a misbehavior report." Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997). Nevertheless, it is well established that prison officials may not retaliate against inmates for exercising their constitutional rights. See, e.q., Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

In order to survive summary judgment on a retaliation claim under § 1983, a prisoner "bears the burden of showing (1) that the conduct at issue was constitutionally protected; and (2) that the protected conduct was a substantial or motivating factor in the prison officials' decision to discipline" him. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citing Mt. Healthy Sch. Dist. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977)). Because claims of [**21] retaliation are easily fabricated, courts must "examine prisoners' claims of retaliation with skepticism and particular care." Colon, 58 F.3d at 872. "In recognition of the reality that 'retaliation claims can be fabricated easily, plaintiffs bear a somewhat heightened burden of proof, and summary judgment can be granted if the claim appears insubstantial.'" Gill v. PACT Org., 1997 U.S. Dist. LEXIS 13063, 95 Civ. 4510, 1997 WL 539948, at *12 (S.D.N.Y. Aug. 28, 1997) (quoting Justice v. Coughlin, 941 F. Supp. 1312, 1317 (N.D.N.Y. 1996)).

Here, plaintiff has satisfied the first part of his burden by pointing to a specific grievance he filed against Portz. The filing of prison grievances is constitutionally protected conduct. See, e.g., Graham, 89 F.3d at 80 ("This court has held that retaliation against a prisoner for pursuing a grievance . . . is actionable under § 1983."). Plaintiff, however, has not met the second part of his burden, because he fails to show that his protected conduct was a substantial or motivating factor in his discipline.

Plaintiff's sole evidence of retaliation is that he filed a grievance against Portz on August 2, 1998, and [**22] three days later Portz lodged a purportedly false misconduct report against him. Although the temporal proximity of the filing of the grievance and the issuance of the misbehavior report is circumstantial evidence of retaliation, such evidence, without more, is insufficient to survive summary judgment. See, e.g., Ayers v. Stewart, 1996 U.S. App. LEXIS 15375, No. 96-2013, 1996 WL 346049, at *1 (2d Cir. June 25, 1999) (Plaintiff's "reliance on circumstantial evidence of retaliation -- namely, the proximity of the disciplinary action to his complaint where no misbehavior reports were previously filed against him -- does not suffice to defeat summary judgment.").

In addition, plaintiff has not sufficiently alleged that the conduct of Sanok, Smithy and Brickner was motivated by plaintiff's activities. Plaintiff fails to plead specific facts or to assert any causal connection between his filing of grievances against Portz and his alleged denial of exercise by Sanok, Smithy and Brickner.

Accordingly, because plaintiff has failed to present sufficient evidence of retaliation, defendants' motion for summary judgment on plaintiff's First Amendment retaliation claim is granted.

C. Claim III: Eighth [**23] Amendment

Plaintiff contends that defendants deprived him of his right to exercise in violation of the Eighth Amendment when they placed him in mechanical restraints for 28 days during his one hour of daily exercise. According to plaintiff, the restraints severely restricted his range of body movement. Plaintiff alleges that this [*291] lack of exercise caused him mental and emotional injury and was threatening to his physical health. n4 Compl. P 14.



n4 Defendants argue that plaintiff's § 1983 suit to recover money damages for an alleged denial of exercise must be dismissed as a matter of law under the Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. Pursuant to the PLRA, "no Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental and emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). Defendants maintain that plaintiff here has failed to allege sufficient physical injury in connection with his Eighth Amendment claim.

There is no statutory definition of "physical injury" as used in § 1997e(e). Nevertheless, exercise, by its very nature, is "physical." Deprivation of exercise for an extended period of time is potentially injurious to physical health. Plaintiff here alleges that, as a result of the mechanical restraints, he was denied the opportunity to exercise for 28 consecutive days. Although plaintiff testified at his deposition that he had suffered "no physical injury" as a result of this deprivation, he also testified that his physical health had been "threatened" because exercise is necessary to "stay in shape, stay healthy." Dep. at 61-62, 95. Plaintiff's apparently inconsistent testimony indicates his confusion over the term "physical injury"; it does not necessarily mean that he did not suffer physical injury. For example, plaintiff may believe that "physical injury" refers to a permanent or traumatic injury such as the loss of a limb or a cut requiring stitches. He may not understand that physical injury encompasses less permanent harms such as exposure to asbestos, see Crawford v. Artuz, 1999 U.S. Dist. LEXIS 9552, 98 Civ. 0425, 1999 WL 435155, at *6 (S.D.N.Y. June 24, 1999), and allegations of sexual assault, see Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999).

Reading the pleadings of a pro se plaintiff liberally, as I must, see Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), there are issues of fact here that preclude summary judgment on the issue of whether plaintiff suffered a physical injury sufficient to satisfy the PLRA.


[**24]

The Eighth Amendment prohibits punishments that involve the unnecessary and wanton infliction of pain. See Rhodes v. Chapman, 452 U.S. 337, 346, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981). A prisoner's conditions of confinement fall within the ambit of the Eighth Amendment. See id. at 345. "When the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being." Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999) (internal quotations omitted).

To prevail on a claim that the conditions of confinement constitute cruel and unusual punishment, a plaintiff must satisfy both an objective element and a subjective element. See Farmer v. Brennan, 511 U.S. 825, 834, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994); Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996). To satisfy the objective element, a "plaintiff must demonstrate that the conditions of his confinement result 'in unquestioned and serious deprivations of basic human needs.'" Jolly, 76 F.3d at 480 (quoting [**25] Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985)); see also Farmer, 511 U.S. at 834 (holding that prison official's acts must deprive inmate of "the minimal civilized measure of life's necessities"). The subjective element requires a plaintiff to show that the prison official acted with a "sufficiently culpable state of mind." Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991)). In cases involving prison conditions, that state of mind is one of "deliberate indifference." Id. (quoting Wilson, 501 U.S. at 302-03); see also May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997); Jolly, 76 F.3d at 480. A prison official's conduct does not rise to the level of deliberate indifference unless he "knows of and disregards an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837. In other words, the "official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. The subjective [**26] element "entails something [*292] more than mere negligence." Id. at 835.

1. Objective Prong: Deprivation of a Basic Need

Because exercise is one of the basic human needs protected by the Eighth Amendment, prisoners must be afforded some opportunity for exercise. See Williams v. Greifinger, 97 F.3d 699, 704 (2d Cir. 1996); Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985); see also Sostre v. McGinnis, 442 F.2d 178, 193 & n.25 (2d Cir. 1971)(noting that availability of exercise is an important consideration in determining whether conditions of segregated confinement violate the Eighth Amendment).

A court faced with the task of determining whether a particular deprivation falls below the objective requirements of the Eighth Amendment should consider (1) the duration of the deprivation; (2) the extent of the deprivation; (3) the availability of other out-of-cell activities; (4) the opportunity for in-cell exercise; and (5) the justification for the deprivation. See Davidson v. Coughlin, 968 F. Supp. 121, 130 (S.D.N.Y. 1997).

Plaintiff alleges that during the 28 days he was placed in mechanical restraints [**27] on his hands and waist, he was severely restricted in his range of body movement and therefore unable to exercise. When restrained, plaintiff's arms and hands were placed in cuffs and fastened to his waist. See Pl. Dep. at 51. No restraints were placed on his legs. See id. Plaintiff was required to exercise in a solidly secured, ten by fourteen feet, one-man cage surrounded by four brick walls with an open grated ceiling. See Pl. Mem. at 26. The cage provided a slot in the door which allowed mechanical restraints to be removed and placed on an inmate without the cage ever being opened. See id. Of course, plaintiff alleges that prison officials never utilized this slot; rather they simply left plaintiff in restraints during the time he was in the cage.

Other than his one hour of daily exercise, plaintiff's out-of-cell activities were restricted. In addition, he was unable to exercise in-cell due to lack of proper ventilation or windows. See Pl. Dep. at 46.

Defendants assert that mechanical restraints were implemented for staff safety precautions. See Portz Aff. PP 14-16. In response to plaintiff's complaint regarding the imposition of mechanical restraints [**28] during his exercise period, Aidala stated:


The application of mechanical restraints is in no way a punishment. Mechanical restraints are an insurance that you will be moved safely from your cell to the exercise area and back to your cell without any need or possibility of having to use physical force. This procedure is as much for your safety and well being as it is for all other parties concerned.


8/21/98 Memorandum, Ex. 11 to Pl. Dep. Defendants' penological justification in no way addresses the need for plaintiff to be placed in mechanical restraints while in the exercise cage. Because the restraints could be placed on plaintiff through a slot in the cage, it appears that plaintiff, in fact, posed no safety concern to staff, himself, or others during his one-hour exercise period.

2. Subjective Prong: Deliberate Indifference

To meet the subjective element of an Eighth Amendment claim, plaintiff must prove that defendants had the necessary level of culpability, shown by actions characterized by "wantonness." Wilson, 501 U.S. at 298-99. The definition of "wantonness" varies according to the circumstances alleged. "The wantonness of conduct does [**29] not depend upon its effect on the prisoner, but rather 'upon the constraints facing the official.'" Davidson v. Flynn, 32 F.3d 27 at 30 & n.2 (quoting Wilson, 501 U.S. at 303)). The deliberate indifference standard does not require a showing "that a prison official acted or failed to act believing [*293] that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer, 511 U.S. 825, 842, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994).

Here, plaintiff provides adequate evidence that Goord, Healy, Aidala and Kuhlmann knew of and failed to remedy plaintiff's Eighth Amendment violation. Plaintiff claims, and it appears likely, that Goord approved the "Use of Restraints Directive" which stated that "'The inmate will remain shackled during the entire period he/she is out of SHU cell.' This will include the SHU recreation area." 3/17/98 Memorandum, Ex. F to Portz Aff. See also Williams v. Greifinger, 918 F. Supp. 91 at 96 ("Defendant, by helping to formulate and then approving the challenged policy, was deliberately indifferent to the excessive risk that this deprivation [**30] posed to the plaintiff's health."). Healy sent this directive to all SHU staff and inmates on March 17, 1998. See Ex. F to Portz Aff.

Aidala initially ordered that plaintiff be placed in mechanical restraints for seven days. Both Aidala and Healy renewed plaintiff's seven-day restraint order four times. When plaintiff appealed to Kuhlmann via letter dated August 17, 1998, Kuhlmann referred plaintiff's letter to Aidala, who officially responded to plaintiff with a signed memorandum explaining that the mechanical restraints were "in no way a punishment" but meant to insure that plaintiff would "be moved safely from [his] cell to the exercise area and back to [his] cell." 8/21/98 Memorandum, Ex. 11 to Pl. Dep. Neither Kuhlmann nor Aidala ever directly addressed the need for plaintiff to be placed in mechanical restraints while in the exercise cage.

It cannot be said that no reasonable jury could find in favor of plaintiff on the facts as alleged. Goord, Healy, Aidala and Kuhlmann therefore, are not entitled to summary judgment on plaintiff's Eighth Amendment claim.

D. Personal Involvement

Defendants contend that the Complaint should be dismissed against Goord, Healy [**31] and Kuhlmann because plaintiff fails to adequately allege personal involvement. See Defendants' Motion for Summary Judgment at 30-32. It is well-settled in the Second Circuit that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1997). See also Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

A defendant who occupies a supervisory position may be "personally involved" in the alleged deprivation in several ways other than direct participation, such as: (1) failing to remedy the wrong after learning of it through a report or appeal; (2) creating a policy or custom under which unconstitutional practices occurred, or allowing such a policy or custom to continue; and (3) grossly negligent management of subordinates who caused the unlawful condition or event. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986). In addition, "supervisory liability may be imposed where an official demonstrates 'gross negligence' or 'deliberate indifference' [**32] to the constitutional rights of [plaintiff] by failing to act on information indicating that unconstitutional practices are taking place." Wright, 21 F.3d at 501 (citation omitted).

As noted above, plaintiff offers evidence that Goord, Healy and Kuhlmann were personally involved in plaintiff's Eighth Amendment claim. Having alleged and substantiated the existence of the requisite personal involvement, a summary judgment motion seeking dismissal of plaintiff's claim on this ground must fail.

E. Eleventh Amendment Immunity

In assessing whether the Eleventh Amendment bars recovery in this action, it is necessary to decide whether [*294] plaintiff sued the defendants in their personal or official capacities. See Kentucky v. Graham, 473 U.S. 159, 165-68, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). Personal or individual capacity suits seek to impose personal liability upon a government official for actions he or she took under color of state law. Id. at 165. Official capacity suits, on the other hand, are suits against a government entity. Id. at 165-66. Plaintiff's Complaint names Kuhlmann, Healy and Aidala in "both [**33] their individual and official capacities."

The Eleventh Amendment bars suits for compensatory and other retroactive relief against a state and its officials in their official capacities, absent a waiver or consent, neither of which is present here. Plaintiff's official-capacity suit seeks compensatory and punitive damages -- precisely the relief barred by the Eleventh Amendment. See Edelman v. Jordan, 415 U.S. 651, 677-78, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974). Accordingly, plaintiff cannot proceed against Goord, Healy, Aidala and Kuhlmann in their official capacities. However, plaintiff may still pursue his Eighth Amendment claim for monetary damages against defendants in their individual capacities. Id. at 663.


V. Conclusion

For the foregoing reasons, defendants' motion for summary judgment is granted in part and denied in part. Plaintiff's Fourteenth and First Amendment claims are dismissed against all defendants. In addition, plaintiff's Eighth Amendment claim is dismissed against all defendants except Goord, Healy, Aidala and Kuhlmann. Plaintiff may pursue an Eighth Amendment claim against Goord, Healy, Aidala and Kuhlmann in their [**34] individual capacities. A conference is scheduled for August 8, 2000 at 3:30 p.m.

SO ORDERED:

Shira A. Scheindlin

U.S.D.J.


Dated: New York, New York

July 28, 2000