Gill v. Defrank

Full title: ANTHONY G. GILL, Plaintiff, v. JANICE DEFRANK, R.N., et al., Defendants

Court: United States District Court, S.D. New York

Date published: Mar 9, 2000

98 Civ. 7851 (JSR)(AJP) (S.D.N.Y. Mar. 9, 2000)

Opinion

98 Civ. 7851 (JSR)(AJP)

March 9, 2000

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge:

To the Honorable Jed S. Rakoff, United States District Judge:

Pro se plaintiff Anthony G. Gill brings this § 1983 action alleging that, in May 1997: (1) Sergeant Casimir Tybrowski and Sergeant Jack Spafford of Woodbourne Correctional Facility violated his First Amendment free exercise rights by refusing his request to attend Jehovah's Witness religious services; (2) Sgt. Tybrowski violated his Eighth Amendment right to be free from cruel and unusual punishment by ordering him to perform work which was contrary to his posted medical restrictions; (3) Nurses Janice DeFrank and Elizabeth Sweeney and Corrections Officer Steven Stenros violated his constitutional right to privacy by disclosing without his permission information contained in his medical records about his HIV status; (4) Nurse DeFrank filed a false misbehavior report against him in retaliation for his filing a prison grievance against her and other corrections staff; and (5) Sgt. Spafford filed false disciplinary charges against him resulting in his keeplock confinement. Gill also asserts various state law claims based on the same incidents. Defendants have moved for summary judgment.

For the reasons set forth below, defendants' summary judgment motion should be: (1) denied on Gill's First Amendment claim against Sgt. Tybrowski and Sgt. Spafford; (2) granted on Gill's Eighth Amendment claim against Sgt. Tybrowski; (3) denied on Gill's privacy claim against Nurses DeFrank and Sweeney and C.O. Stenros; (4) granted on Gill's retaliation claim against Nurse DeFrank; (5) granted on Gill's due process claim against Sgt. Spafford; and (6) denied on Gill's state law claims.

FACTS

Gill, who is currently incarcerated at Auburn Correctional Facility, was an inmate at Woodbourne Correctional Facility when the events at issue took place in May 1997. (Gill 56.1 Stmt. ¶ 1; Defs. 56.1 Stmt. ¶¶ 1-2.) Gill is a Jehovah's Witness. (Gill 56.1 Stmt. ¶ 3; Defs. 56.1 Stmt. ¶ 10; Gill 11/17/99 Aff. ¶ 3; Gill Dep. at 31.)

Each of the defendants was employed at Woodbourne in May 1997 — Janice DeFrank as a Registered Nurse, Elizabeth Sweeney as a Staff Nurse, Steven Stenros as a Corrections Officer, and Casimir Tybrowski and Jack Spafford as Sergeants. (Gill 56.1 Stmt. ¶ 2; Defs. 56.1 Stmt. ¶¶ 3-7; DeFrank, Sweeney, Stenros, Tybrowski and Spafford Interrog. Resp. Nos. 2-3.)¹ On May 2, 1997, Sgt. Tybrowski conducted a Tier I disciplinary hearing² against Gill concerning charges of Gill's unauthorized possession of a chair in his cell.³ (Gill 56.1 Stmt. ¶¶ 4-5; Defs. 56.1 Stmt. ¶ 8; Gill Aff. ¶¶ 6-8; Tybrowski Interrog. Resp. No. 4; Cplt. Ex. C: 5/1/97 Inmate Misbehavior Report.) Sgt. Tybrowski found Gill guilty and imposed a penalty of thirteen days loss of recreation and seven days extra work detail to be performed between May 2 and May 14, 1997. (Gill 56.1 Stmt. ¶ 6; Defs. 56.1 Stmt. ¶ 8; Cplt. Ex. D: 5/2/97 Hearing Disp. Sheet; Gill Aff. ¶ 8; Duisin Aff. Ex. F: Gill Dep. at 59-60; Tybrowski Interrog. Resp. Nos. 5-6.) Gill was ordered to report to the basement corrections officer at 6:30 P.M. for work assignment each day. (Cplt. Ex. D: 5/2/97 Hearing Disp. Sheet.) Gill told Sgt. Tybrowski that he was unable to do work detail because he was asthmatic and had medical restrictions. (Gill 56.1 Stmt. ¶ 7; Defs. 56.1 Stmt. ¶ 9; Gill Aff. ¶¶ 9-10; Gill Dep. at 60; Tybrowski Interrog. Resp. No. 8.) Gill also told Sgt. Tybrowski that he was on his way to Jehovah's Witness religious services which were in progress. (Gill 56.1 Stmt. ¶ 7; Defs. 56.1 Stmt. ¶ 10; Gill Aff. ¶ 10; Gill Dep. at 31, 63; Tybrowski Interrog. Resp. No. 13.)⁴

1 The DeFrank, Sweeney, Stenros, Tybrowski and Spafford Interrogatory Responses are attached as Exhibits A, B, C, D and E, respectively, to Assistant Attorney General Christine Duisin's September 22, 1999 Affidavit.

2 "New York conducts three types of disciplinary hearings for its inmates. Tier I hearings address the least serious infractions and have as their maximum punishment loss of privileges such as recreation." Hynes v. Squillace, 143 F.3d 653, 655 n. 1 (2d Cir.), cert. denied, 119 S.Ct. 246 (1998); see 7 N.Y.C.R.R. § 270.3(a)(1); 7 N.Y.C.R.R. Part 252. At a Tier I hearing, "the maximum penalty that may be imposed is loss of privileges for up to 13 days and one additional work task a day."Silva v. Sanford, 91 Civ. 1776, 1998 WL 205326 at *6 (S.D.N Y April 24, 1998) (Peck, M.J.).

3 A chair was the subject of a previous dispute between Gill and prison authorities. See Gill v. Gilder, 95 Civ. 7933, 1997 WL 53187 at *2-4, *7 (S.D.N.Y. Feb. 10, 1997).

4 Jehovah's Witness services were offered three times a week at Woodbourne in May 1997. (Gill Aff. ¶ 4; Cplt. Ex A: Program Schedule.) Gill claims that it is a tenet of the Jehovah's Witnesses that as a baptized Witness he needed to attend all religious services. (Gill Aff. ¶ 5.)

Sgt. Tybrowski told Gill that he was not going to religious services. (Gill 56.1 Stmt. ¶ 8; Defs. 56.1 Stmt. ¶ 11; Gill Aff. ¶ 11; Gill Dep. at 63.) Sgt. Tybrowski called the clinic to verify Gill's medical restrictions. (Gill 56.1 Stmt. ¶ 8; Defs. 56.1 Stmt. ¶ 12; Gill Aff. ¶ 11; Gill Dep. at 63; Tybrowski Interrog. Resp. Nos. 9-10.) Gill has submitted three documents that on their face indicate they should have been part of Gill's medical chart, and show that he was medically restricted from pushing, pulling and heavy lifting due to lower back pain. (SeeGill Aff. Ex. 2: Note to Program Committee dated 1/30/97, Medical Excuse from Program Activities marked "duration: 3/27/97 to 3/27/98," and Medical Permit for Bed Board dated 2/20/97.) Nurse DeFrank, however, informed Sgt. Tybrowski that Gill had no medical restrictions. (Gill 56.1 Stmt. ¶ 8; Defs. 56.1 Stmt. ¶ 12; Gill Aff. ¶¶ 11, 28; Gill Dep. at 63, 66.) Sgt. Tybrowski ordered Gill to report to the "big basement" for work duty assignment. (Gill 56.1 Stmt. ¶ 8; Defs. 56.1 Stmt. ¶ 13; Gill Aff. ¶ 11; Tybrowski Interrog. Resp. No. 15.)

Gill reported to Corrections Officer Moore in the big basement. (Gill 56.1 Stmt. ¶ 9; Defs. 56.1 Stmt. ¶ 14; Gill Dep. at 66-67.)⁵ Gill told C.O. Moore that he wished to attend religious services, and also informed him of his medical restrictions. (Id.) C.O. Moore told Gill that he could not attend his religious services and ordered him to sweep the basement. (Gill 56.1 Stmt. ¶ 10; Defs. 56.1 Stmt. ¶ 15; Gill Dep. at 67.)

5 C.O. Moore is not a defendant in this suit. (See, e.g., Gill Dep. at 66, 72.)

After Gill finished sweeping, he again asked C.O. Moore to allow him to go to religious services. (Gill 56.1 Stmt. ¶¶ 11-12; Defs. 56.1 Stmt. ¶¶ 16-17; Gill Dep. at 69.) C.O. Moore refused Gill's request and ordered him to mop the basement. (Gill 56.1 Stmt. 6 12; Defs. 56.1 Stmt. ¶ 18; Gill Dep. at 69-72.) Gill refused and again informed C.O. Moore that he was asthmatic and under medical restrictions. (Gill 56.1 Stmt. ¶ 12; Gill 56.1 Stmt. ¶ 19; Gill Dep. at 71.) C.O. Moore told defendant Corrections Officer Stenros to escort Gill to the clinic to verify his medical restrictions. (Gill 56.1 Stmt. ¶ 13; Defs. 56.1 Stmt. ¶ 20; Gill Aff. ¶ 23; Gill Dep. at 72.)

At the clinic, C.O. Stenros asked Nurses DeFrank and Sweeney if he (Stenros) could look at Gill's medical folder to verify his medical status. (Gill 56.1 Stmt. ¶ 15; Defs. 56.1 Stmt. ¶ 21; Gill Dep. at 73-74.) Gill claims that he is not HIV-positive. (Gill Aff. ¶ 29; Gill Dep. at 109; see also Defs. 56.1 Stmt. ¶ 22.) However, he has submitted a document with his inmate number at the top, marked "confidential — restricted to inmate medical folder," that indicates, in an entry dated 12/7/94, that Gill was HIV-positive but asymptomatic. (Gill Aff. Ex. 9.) Gill's prison medical records contain conflicting information as to whether Gill is or is not HIV positive. (See Cplt Ex. E (entry of 7/2/97 that Gill was HIV negative); Gill Dep. at 109; Gill Aff. ¶ 29.)

Nurses DeFrank and Sweeney admit that they are not authorized to show an inmate's medical records to security personnel. (DeFrank Interrog. Resp. No. 17; Sweeney Interrog. Resp. No. 16.) According to Gill, Nurse DeFrank closed the door to the clinic office but, through the medication window, he saw Nurses DeFrank and Sweeney and C.O. Stenros go through Gill's medical folder page by page. (Gill 56.1 Stmt. ¶ 16; Defs. 56.1 Stmt. ¶ 22; Gill Dep. at 80; see Gill Aff. ¶ 24-26, 28-29.)⁶ When Gill objected to the disclosure of his medical records, Nurses Sweeney and DeFrank closed the medication window gate. (Gill Aff. ¶¶ 25-26; Gill 56.1 Stmt. ¶ 16; Gill Dep. at 80, 83). Gill pressed his ear to the door and heard Nurse DeFrank tell C.O. Stenros that Gill was HIV positive. (Gill. Dep. at 83; Gill 56.1 Stmt. ¶ 17; Gill Aff. ¶ 29.) C.O. Stenros then made a telephone call in which he disclosed that Gill was HIV positive and asthmatic. (Gill Dep. at 84; Gill 56.1 Stmt. ¶ 18; see Gill Aff. ¶¶ 27, 29; Defs. 56.1 Stmt. ¶ 23.)⁷ After the telephone call, C.O. Stenros ordered Gill to return to the big basement. (Gill 56.1 Stmt. ¶ 18; Defs. 56.1 Stmt. ¶ 23; Gill Dep. at 84.)

6 While defendants' Rule 56.1 Statement admits that "Defendants DeFrank, Sweeney and Stenros went through plaintiff's medical folder page by page" (Defs. 56.1 Stmt. ¶ 22), C.O. Stenros denies seeing Gill's medical folder (Stenros Interrog. Resp. No. 9), Nurse Sweeney denies that she or Nurse DeFrank showed Stenros Gill's medical folder (Sweeney Interrog. Resp. Nos. 11-13), and Nurse DeFrank claims she does not recall the alleged incident (DeFrank Interrog. Resp. Nos. 12-16).

7 In their Rule 56.1 Statement, defendants concede that C.O. Stenros "telephoned someone and disclosed plaintiff's medical condition," but do not specify what precisely he disclosed. (Defs. 56.1 Stmt. ¶ 23.)

When Gill returned to the basement, he again asked C.O. Moore, this time in Sgt. Spafford's presence, to attend religious services, and C.O. Moore again refused. (Gill 56.1 Stmt. ¶ 19; Gill Aff. ¶ 19.) Sgt. Spafford received a call from C.O. Stenros stating that Gill had no medical restrictions. (Spafford Interrog. Resp. No. 6.) Sgt. Spafford ordered Gill to sweep and mop and said he could attend services upon completion of the work detail. (Gill 56.1 Stmt. ¶ 20; Gill Dep. at 86-87; Defs. 56.1 Stmt. ¶ 24.)⁸

8 Sgt. Spafford admits that he ordered Gill to sweep, denies knowledge of Gill's request to attend religious services, and claims that "if inmate Gill had made such a request, he would have been informed of the proper procedure for such a request." (Spafford Interrog. Resp. Nos. 7, 11. 12.)

Gill refused to perform the work detail. (Gill 56.1 Stmt. 6 21; Defs. 56.1 Stmt. ¶ 24; Gill Aff. ¶ 19.) Sgt. Spafford filed an inmate misbehavior report charging Gill with refusing to obey a direct order and failing to comply with a hearing disposition, and placed Gill in keeplock confinement.⁹ (Gill 56.1 Stmt. ¶ 22; Defs. 56.1 Stmt. ¶ 24; Gill Dep. at 87; Spafford Interrog. Resp. No. 12; Cplt. Ex F: 5/2/97 Inmate Misbehavior Report.)¹⁰ Gill claims that he never received a disciplinary hearing for this misbehavior report. (Gill Aff. ¶ 19 n. 2.)

9 "The Second Circuit has described keeplock as "'a form of administrative [or disciplinary] segregation in which the inmate is confined to his cell, deprived of participation in normal prison routine, and denied contact with other inmates."'" Silva v. Sanford, 1998 WL 205326 at *6 n. 7 (quoting Soto v. Walker, 44 F.3d 169, 171 (2d Cir. 1995) (quoting Gittens v. LeFevre, 891 F.2d 38, 39 (2d Cir. 1989))); see also, e.g., Wright v. Coughlin, 132 F.3d 133, 135 (2d Cir. 1998) ("Keeplock is a form of administrative segregation in which an inmate is confined to his cell and denied participation in normal prison activities, as well as telephone and commissary privileges"); Green v. Bauvi, 46 F.3d 189, 191 (2d Cir. 1995) ("Keeplock is a form of disciplinary confinement segregating an inmate from other inmates and depriving him of participation in normal prison activities; it is also used as an administrative confinement for prehearing housing of inmates facing disciplinary hearings.").

10 The misbehavior report reads as follows:

On 5/2/97, inmate Gill 94-A-8206 received a tier I hearing disposition which included a work detail. At 7:35 p.m. this date, while in the big basement, I ordered inmate Gill to complete his work detail (sweeping the basement floor). Gill stated "I have asthma, I'm not sweeping." (106.10)

At the time of this incident, inmate Gill had already completed approximately half of his assigned sweeping. When I informed Gill that I had just observed him sweeping without complaint, Gill stated "I did that as a favor to the officer — I'm not sweeping anymore." (106.10) (181.10)

As a result of inmate Gill's refusal to obey my direct order, and his failure to comply with a tier I disposition, he was placed in keeplock status.

(Cplt. Ex. F: 5/2/97 Inmate Misbehavior Report.)

On May 5, 1997, Gill filed a prison grievance against Nurses DeFrank and Sweeney and C.O. Stenros for disclosing his medical records. (Gill 56.1 Stmt. ¶ 23; Defs. 56.1 Stmt. ¶ 25; Gill Aff. ¶ 41; Gill Dep. at 101, 105.) On May 8, 1997, there was an incident at the medication window between Gill and Nurse DeFrank. (Defs. 56.1 Stmt. ¶ 26; Gill Dep. at 96.) Later that day, Nurse DeFrank filed an inmate misbehavior report charging Gill with interfering with and harassing an employee, and creating a disturbance. (Gill 56.1 Stmt. ¶ 24; Defs. 56.1 Stmt. ¶ 26; Gill Aff. ¶ 42; Gill Dep. at 96; Cplt. Ex. G: 5/8/97 Inmate Misbehavior Report.)¹¹ Gill claims that Nurse DeFrank filed the misbehavior report in retaliation for Gill's having filed a grievance against her. (Gill Aff. ¶¶ 42-43.)

11 The misbehavior report describes the incident as follows:

At approximately 1:00 p.m. on 5/8/97, inmate Gill 94A8208 came to the medication window (under keeplock escort) in the Health Care Unit. This nurse, J. DeFrank, issued inmate Gill his medication. Inmate Gill was observed using his medication while sitting on the bench in the Health Care Unit. When he finished, he came back to the medication window and forcibly threw his medication through the small opening in the medication window at this nurse. Inmate then yelled, in a loud voice, "this is not mine!", then walked away from the medication window. When I checked the label on the medication, it was noted that the container had inmate Gill's correct name, number and locking location printed on it.

(Cplt. Ex. G: 5/8/97 Inmate Misbehavior Report.)

On May 16, 1997, a hearing was held and Gill was found guilty of creating a disturbance, but the other two charges were dismissed. (Defs. 56.1 Stmt. ¶ 27; Gill Dep. at 96; Gill Aff. ¶ 42; Cplt. Ex. G-1: 5/16/97 Hearing Disp. Sheet.) Gill was given twelve days of keeplock. (Cplt. Ex. G-1: 5/16/97 Hearing Disp. Sheet.) The disposition was affirmed on administrative appeal. (Defs. 56.1 Stmt. ¶ 27; Gill Dep. at 99.)

ANALYSIS I. SUMMARY JUDGMENT STANDARDS IN A § 1983 CASE A. Summary Judgment Standards

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).¹²

12 See also, e.g., Greenfield v. City of New York, 99 Civ. 2330, 2000 WL 124992 at *3 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.);Salahuddin v. Coughlin, 999 F. Supp. 526, 534 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.); Watson v. McGinnis, 981 F. Supp. 815, 817 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *6 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendants. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).¹³ The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.

13 See also, e.g., Greenfield v. City of New York, 2000 WL 124992 at *3; Salahuddin v. Coughlin, 99 9 F. Supp. at 534;Watson v. McGinnis, 981 F. Supp. at 817; Ruiz v. Selsky, 96 Civ. 2003, 1997 WL 137448 at *3 (S.D.N.Y. March 24, 1997).

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986);Salahuddin v. Coughlin, 999 F. Supp. at 534. Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513.¹⁴ The Court draws all inferences in favor of the nonmoving party — here, Gill — only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987); Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535;Watson v. McGinnis, 981 F. Supp. at 818.; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7. "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37; see, e.g., Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

14 See also, e.g., Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534;Watson v. McGinnis, 981 F. Supp. at 818; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *6.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine the existence of any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 1907 S.Ct. 1570 (1987); Greenfield v. City of New York, 2000 WL 124992 at *4;Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3. To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510; Greenfield v. City of New York, 2000 WL 124992 at *4;Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3. While "disputes over facts that might affect the outcome of a suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510 (citations omitted); see, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12;Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.

"The Court recognizes that it must extend extra consideration to pro se plaintiffs" such as Gill and that "pro se parties are 'to be given "special latitude on summary judgment motions."'"Salahuddin v. Coughlin, 999 F. Supp. at 535 (citing cases);accord, e.g., Watson v. McGinnis, 981 F. Supp. at 818; see also, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "'to raise the strongest arguments that they suggest'"). "Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment and a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases).

B. § 1983

To prevail in a § 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that the deprivation occurred under color of state law.See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55 (1988); Greenfield v. City of New York, 99 Civ. 2330, 2000 WL 124992 at *4 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.).¹⁵ "Section 1983 itself," however, "creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied, 512 U.S. 1240, 114 S.Ct. 2749 (1994).¹⁶ II. DEFENDANTS' SUMMARY JUDGMENT MOTION ON GILL'S FREE EXERCISE OF RELIGION CLAIM SHOULD BE DENIED

15 See also, e.g., Ali v. Szabo, 98 Civ. 0424, 2000 WL 60879 at *3 (S.D.N.Y. Jan. 13, 2000) (Pauley, D.J. Peck, M.J.);Jackson v. Johnson, 15 F. Supp.2d 341, 355 (S.D.N.Y. July 23, 1998) (Kaplan, D.J. Peck, M.J.); Silva v. Sanford, 91 Civ. 1776, 1998 WL 205326 at *8 (S.D.N.Y. April 24, 1998) (Peck, M.J.); Williams v. Keane, 95 Civ. 0379, 1997 WL 527677 at *3 (S.D.N.Y. Aug. 25, 1997) (Peck, M.J.).

16 Accord, e.g., Ali v. Szabo, 2000 WL 60879 at *3; Jackson v. Johnson, 15 F. Supp.2d at 255-56; Silva v. Sanford, 1998 WL 205326 at *8; Williams v. Keane, 1997 WL 527677 at *3; Ruiz v. Selsky, 96 Civ. 2003, 1997 WL 137448 at *4 (S.D.N.Y. March 24, 1997) (Peck, M.J.); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1109 (S.D.N.Y. 1995) (Sotomayor, D.J. Peck, M.J.).

Gill claims that his First Amendment right to free exercise of religion was violated when, on May 2, 1997, after a disciplinary hearing sentenced him to seven days work detail to be performed over a thirteen-day period, Sergeants Tybrowski and Spafford ordered him to immediately begin his work detail, despite his requests to attend a Jehovah's Witness religious service. (Gill Aff. ¶¶ 6-13, 18-22.) Defendants argue that Gill's First Amendment claim fails because defendants' actions were reasonably related to a legitimate penological interest. (Defs. Br. at 6; Defs. Supp. Br. at 1-2; Defs. Reply Br. at 2-3.) Defendants also move for summary judgment on this claim on qualified immunity grounds. (Defs. Br. at 11-13.)

A. Legal Standards

Since long before the incidents in this case, it has been "well-established that prisoners have a constitutional right to participate in congregate religious services." Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993) (citing cases);accord, e.g., Salahuddin v. Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.); see also, e.g., O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404 (1987); Cruz v. Beto, 405 U.S. 319, 322 n. 2, 92 S.Ct. 1079, 1081-82 n. 2 (1972). As one court noted, "courts in this Circuit have been 'especially solicitous' of the religious rights of prisoners." Leon v. Harris, 489 F. Supp. 221, 224-25 (S.D.N.Y. 1980).¹⁷

17 Indeed, decisions in this Circuit have held that the denial of access to even a single religious service may constitute a violation of a prisoner's First Amendment right to the free exercise of religion. See, e.g., Harris v. Lord, 957 F. Supp. 471, 475 (S.D.N.Y. 1997); Dingle v. Lowery, No. CV 88-2648, 1995 WL 302508 at *1 (E.D.N.Y. May 5, 1995); Muhammad v. McMickens, 86 Civ. 7376, 1988 WL 7789 at *4 (S.D.N.Y. Jan. 25, 1988); but cf. Troy v. Kuhlmann, 96 Civ. 7190, 1999 WL 825622 at *15 (S.D.N.Y. Oct. 15, 1999) (granting defendants summary judgment on First Amendment claim because inmate missed only one religious service); Boomer v. Irvin, 963 F. Supp. 227, 231 (W.D.N.Y. 1997) (same).

An inmate's right to attend religious services, however, is subject to limitations that arise from valid penological objectives including institutional security. See, e.g., O'Lone v. Estate of Shabazz, 482 U.S. at 348, 107 S.Ct. at 2404;Salahuddin v. Coughlin, 993 F.2d at 308; Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir.), cert. denied, 498 U.S. 951, 111 S.Ct. 372 (1990); Ali v. Szabo, 98 Civ. 0424, 2000 WL 60879 at *19 (S.D.N.Y. Jan. 13, 2000) (Pauley, D.J. Peck, M.J.);Salahuddin v. Coughlin, 999 F. Supp. at 535; Dingle v. Lowery, 1995 WL 302508.

The standard to determine whether a prison official's conduct violates an inmate's First Amendment free exercise rights is "one of reasonableness, taking into account whether the particular [act] affecting [the] right . . . is 'reasonably related to legitimate penological interests.'" Benjamin v. Coughlin, 905 F.2d at 574; accord, e.g., O'Lone v. Estate of Shabazz, 482 U.S. at 349, 107 S.Ct. at 2404-05; Young v. Coughlin, 866 F.2d 567, 569 (2d Cir.), cert. denied, 492 U.S. 909, 109 S.Ct. 3224 (1989). In evaluating the constitutionality of a restriction on an inmate's religious rights, four factors are considered:

"1) whether there is a rational relationship between the regulation and the legitimate government interests asserted; 2) whether the inmates have alternative means to exercise the right; 3) the impact that accommodation of the right will have on the prison system; and 4) whether ready alternatives exist which accommodate the right and satisfy the governmental interest."

Salahuddin v. Coughlin, 993 F.2d at 308-09 (quoting Benjamin v. Coughlin, 905 F.2d at 574); accord, e.g., Ali v. Szabo, 2000 WL 60879 at *19; Salahuddin v. Coughlin, 999 F. Supp. at 535; see also, e.g., Street v. Maloney, No. 92-1822, 991 F.2d 786 (table), 1993 WL 125396 at *3 (1st Cir. April 23, 1993) (assuming these four factors apply to individualized decisions as well as prison regulations).¹⁸

18 While Gill was ordered to perform a work detail as a result of a disciplinary hearing (see page 3 above), he was not in keeplock or other disciplinary confinement when he asked to go to religious services. Even if he were, however, it is clear that confinement in keeplock or other disciplinary confinement, without more, does not deprive a prisoner of his right to attend religious services. See, e.g., Salahuddin v. Coughlin, 993 F.2d at 308; Young v. Coughlin, 866 F.2d at 570; Cowart v. Pico, 95 Civ. 9069, 1998 WL 213192 at *1 (S.D.N.Y. April 30, 1998);Salahuddin v. Coughlin, 999 F. Supp. at 536; Dingle v. Lowery, 1995 WL 302508 at *1; Campbell v. Coughlin, 88 Civ. 0697, 1994 WL 114831 at *5 (S.D.N.Y. March 31, 1994).

In order to obtain summary judgment dismissing an inmate's claim that he has been unjustifiably denied access to religious services, prison officials must "proffer an explanation as to why [the inmate] was denied access to religious services, or articulate a particular penological interest that was served by denying [the inmate] such access." Young v. Coughlin, 866 F.2d at 570; accord, e.g., Ali v. Szabo, 2000 WL 60879 at *20; Cowart v. Pico, 1998 WL 213192 at *1.

B. Reasonableness of Defendants' Actions Here

Defendants' brief states conclusorily that Sergeants "Tybrowski and Spafford acted reasonably and in furtherance of a legitimate penological interest by ordering [Gill] to perform the work detail to which he was sentenced, instead of attending a religious service." (Defs. Br. at 6.) In response to an Order by this Court warning defendants that their motion was likely to fail in light of the absence of evidentiary support for this conclusory assertion (see Dkt. No. 23), defendants submitted a supplemental brief citing to N.Y. Comp. Codes R. Regs. tit. 7, § 250.2 which states, inter alia, that "[a] sound disciplinary program relies upon certainty and promptness of action." (Defs. Supp. Br. at 2.)¹⁹ Defendants, however, did not submit any affidavits from the corrections personnel who made the decisions at issue. Defendants have presented no evidence that ordering Gill to immediately perform the work detail, rather than waiting until after he attended that evening's religious services, advanced any interest in effective discipline. Defendants argument about "discipline" is contained only in a lawyer's brief, and not in an affidavit from any defendant. Defendants have offered no explanation of why Gill could not be allowed to go to services that evening and then perform work; no explanation of why Gill could not be allowed to go to services after he swept the basement floor but before he also mopped it; and no explanation of why, since his discipline was to perform work detail for seven days out of thirteen, the first day had to be one on which Jehovah's Witness services were being conducted. To the extent defense counsel relies upon the regulations calling for "certain and prompt" disciplinary action, defendants do not even attempt to explain the interplay between those regulations and the regulations guaranteeing inmates freedom of religion and the right to attend congregate religious services. (See Gill Aff. ¶ 12, citing e.g., 9 N.Y.C.R.R. § 7024.2(a) and N Y Correction Law § 610(1).)²⁰

19 Those regulations provide as follows:

(a) Disciplinary action is one of many essential elements in correctional treatment. When applied reasonably and with fairness it not only assists in protection of the health, safety and security of all persons within a correctional facility, but also is a positive factor in rehabilitation of inmates and the morale of the facility.

. . . .

(e) Disciplinary measures should not be overly severe. A sound disciplinary program relies upon certainty and promptness of action rather than upon severity.

7 N.Y.C.R.R. § 250.2 (emphasis added).

20 Correction Law § 610(1)(3) provides that inmates "are hereby declared to be and entitled to the free exercise and enjoyment of religious profession and worship" and "[t]he rules and regulations established for [prisons] shall recognize the right of the inmates to the free exercise of their religious belief . . . [and] shall be allowed such religious services. . . ." The regulations provide that "[p]risoners are entitled to exercise their religious beliefs in any manner that does not constitute a threat to the safety, security or good order of a local correctional facility. . . ." and "[c]onsistent with [those] requirements . . . , all prisoners shall be permitted to congregate for the purpose of religious worship and other religious activities." 9 N.Y.C.R.R. § 7024.1(b), § 7024.2(a).

Thus, even giving proper deference to the judgment of prison authorities, based on this record the Court cannot conclude that ordering Gill to immediately perform his work detail instead of allowing him to attend religious services served any valid penological interest. See, e.g., Salahuddin v. Coughlin, 993 F.2d 306, 309 (2d Cir. 1993) (defendant prison officials' conclusory assertion that congregate religious services could not have been accommodated insufficient basis for summary judgment);Benjamin v. Coughlin, 905 F.2d 571, 576-77 (2d Cir.) (conclusory assertions of penological interests insufficient to justify requiring Rastafarian inmates to submit to initial haircut),cert. denied, 498 U.S. 951, 111 S.Ct. 372 (1990); Young v. Coughlin, 866 F.2d 567, 569-70 (2d Cir.) ("At no point . . . did appellees set forth any specific reasons in an affidavit or otherwise for their decision to restrict [prisoner's] exercise of his first amendment rights. . . . Since appellees made no effort to justify their restriction of appellant's free exercise rights, they were not entitled to summary judgment . . . "), cert. denied, 492 U.S. 909, 109 S.Ct. 3224 (1989); Cowart v. Pico, 95 Civ. 9069, 1998 WL 213192 at *1 (S.D.N.Y. April 30, 1998) (defendant prison officials not entitled to summary judgment where "defendants have not addressed the First Amendment claim at all"); Breland v. Goord, 94 Civ. 3696, 1997 WL 139533 at *3 (S.D.N.Y. March 27, 1997) ("'defendants cannot merely brandish the words "security" and "safety" and expect that their actions will automatically be deemed constitutionally permissible conduct.' . . . There must be some showing by defendants that the regulation does promote the claimed penological objective.");Harris v. Lord, 957 F. Supp. 471, 475 (S.D.N.Y. 1997) (denying motion to dismiss where "[d]efendants assert no reason . . . as to why plaintiff was denied access to attend her religious services"); Dingle v. Lowery, No. CV-88-2648, 1995 WL 302508 at *2 (E.D.N.Y. May 5, 1995) (denying motion to dismiss "[since defendant has not proffered any reason why the restrictions on plaintiff's first amendment rights were reasonably related to any penological interests"); Ross v. Coughlin, 669 F. Supp. 1235, 1239 (S.D.N.Y. 1987) (denying prison's motion to dismiss inmate's claim that beard-trim requirement violated his First Amendment rights because, inter alia, prison failed to show that regulation was "logically related to legitimate governmental interest");Leon v. Harris, 489 F. Supp. 221, 225 (S.D.N.Y. 1980).

Defendants' summary judgment motion on Gill's First Amendment claim should be denied.

C. Qualified Immunity

Defendants also have moved for summary judgment on this claim based on qualified immunity grounds. (Defs. Br. at 11-13.)

As the Second Circuit has explained, government actors are entitled to qualified immunity from liability for civil damages when they perform discretionary functions "if either (1) their conduct 'did not violate clearly established rights of which a reasonable person would have known,' or (2) 'it was objectively reasonable to believe that [their] acts did not violate these clearly established rights.'" Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998); accord, e.g., Martinez v. Simonetti, No. 99-7154, 2000 WL 129188 at *7 (2d Cir. Feb. 4, 2000); see also, e.g., Ali v. Szabo, 98 Civ. 0424, 2000 WL 60879 at *10-11 (S.D.N.Y. Jan. 13, 2000) (Pauley, D.J. Peck, M.J.);Jackson v. Johnson, 15 F. Supp.2d 341, 351 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Salahuddin v. Coughlin, 999 F. Supp. 526, 536-37 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.). "The availability of the defense depends on whether a reasonable officer could have believed his action to be lawful, in light of clearly established law and the information he possessed."Weyant v. Okst, 101 F.3d 845, 858 (2d Cir. 1996) (internal quotation marks omitted); see also, e.g., Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536 (1991); Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040 (1987); Martinez v. Simonetti, 2000 WL 129188 at *7.

Defendants do not argue that an inmate's right to attend congregate religious services was not clearly established in May 1997; it clearly was. E.g., Salahuddin v. Coughlin, 88 Civ. 5754, 1996 WL 492994 at *4 (S.D.N.Y. Aug. 26, 1996) ("the right of prisoners to attend congregate religious services was established well before the date of the constitutional deprivations here alleged") (citing cases); accord, e.g., Harris v. Lord, 957 F. Supp. 476, 476 (S.D.N.Y. 1997) ("Defendants' argument that it was not clear in 1995 that denying plaintiff access to congregate religious services on one occasion violated plaintiff's constitutional rights is unpersuasive."); see also cases cited in Point II.A, above. Rather, defendants argue that, under the second prong of the qualified immunity test, "it was objectively reasonable for [them] to believe they were acting in a fashion that did not violate a clearly established right." (Defs. Br. at 12.)

"The objective reasonableness test is met — and the defendant[s] [are] entitled to immunity — if 'officers of reasonable competence could disagree' on the legality of the defendant[s'] actions." Lennon v. Miller, ¶¶ F.3d 416, 420 (2d Cir. 1995). However, defendants are entitled to summary judgment on qualified immunity grounds only if, viewing the evidence in the light most favorable to and drawing all reasonable inferences in favor of the plaintiff, no rational jury could conclude that it was objectively unreasonable for defendants to believe that their actions did not violate a clearly established right. See, e.g., Williams v. Greifinger, 97 F.3d 699, 706 (2d Cir. 1996);In re State Police Litigation, 88 F.3d 111, 123 (2d Cir. 1996);Lennon v. Miller, ¶¶ F.3d at 420-21. "In other words, if any reasonable trier of fact could find that the defendants' actions were objectively unreasonable, then the defendants are not entitled to summary judgment." Lennon v. Miller, ¶¶ F.3d at 420.

Defense counsel argues, without evidentiary support, that "[a]t a medium security facility like Woodbourne, defendants could reasonably believe that immediate performance of a portion of the work detail imposed as a sentence after a disciplinary hearing furthered legitimate penological interests . . . and overrode plaintiff's right to attend one religious service." (Defs. Br. at 12.) Nonetheless, "[b]ased on this court's review of the record under [the above] standards, I find that a reasonable jury could conclude that it was objectively unreasonable for [Sgts. Tybrowski and Spafford] to refuse plaintiff's request to attend [religious] services." Boomer v. Irvin, 919 F. Supp. 122, 126 (W.D.N.Y. 1995); accord, e.g., Harris v. Lord, 997 F. Supp. at 476; see also, e.g., Salahuddin v. Coughlin, 999 F. Supp. at 535-39 n. 13; Salahuddin v. Coughlin, 1996 WL 492994 at *5. The right to attend religious services was clearly established. Defendants have offered no evidence as to why it was objectively reasonable to prevent Gill from attending services. Counsel's argument in a brief is no substitute for evidence. Accordingly, "[w]ithout a more substantial showing than that currently before the Court, the defendants are not entitled to [summary judgment] on the ground of qualified immunity at this time." Jackson v. Johnson, 15 F. Supp.2d at 351.

Defendants' summary judgment motion on Gill's free exercise claim based on qualified immunity grounds should be denied.

III. DEFENDANTS' SUMMARY JUDGMENT MOTION ON GILL'S EIGHTH AMENDMENT CLAIM SHOULD BE GRANTED

Gill claims that defendant Sgt. Tybrowski violated his Eighth Amendment right to freedom from cruel and unusual punishment by forcing him to sweep despite the fact that he was asthmatic and medically restricted from performing strenuous work, including pushing, pulling and heavy lifting. (Gill Aff. ¶¶ 9-10, 17.)

The Eighth Amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials. E.g., Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 2323 (1991); Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291 (1976); Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925 (1976); see also, e.g., Ali v. Szabo, 98 Civ. 0424, 2000 WL 60879 at *4-5 (S.D.N Y January 13, 2000) (Pauley, D.J. Peck, M.J.).

Courts have held that a prison official's requiring an inmate to perform work inappropriate to his or her medical condition may constitute an Eighth Amendment violation. See, e.g., Jackson v. Cain, 864 F.2d 1235, 1245-46 (5th Cir. 1989) ("If prison officials knowingly put [the inmate] on a work detail which they knew would significantly aggravate his serious physical ailment such a decision would constitute deliberate indifference to serious medical needs."); Toombs v. Hicks, 773 F.2d 995, 997 (8th Cir. 1985); Howard v. Headly, 72 F. Supp.2d 118, 123-25 (E.D.N Y 1999); Black v. Ciccone, 324 F. Supp. 129, 133 (W.D.Mo. 1970).

To establish an Eighth Amendment violation based on a claim that a prison official has placed an inmate's health in danger, the inmate must show that the prison official acted with "deliberate indifference" to the inmate's serious medical needs.See, e.g., Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 2480 (1993); Estelle v. Gamble, 429 U.S. at 104-05, 97 S.Ct. at 291; Howard v. Headly, 72 F. Supp.2d at 123.

As the Second Circuit has explained, "the deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). "Objectively, the deprivation must be 'sufficiently serious.'" Id. "A plaintiff may satisfy the objective prong by [show]ing that his prison work duties created a serious risk of serious injury."

Howard v. Headly, 72 F. Supp.2d at 123-24 (objective prong satisfied on motion to dismiss where inmate alleged, inter alia, that "because of his sciatica and injuries to his back and neck, he could not safely perform sanitation duties, and that when he was required to do so, he suffered pain and agony"); see also, e.g., Jackson v. Cain, 864 F.2d at 1245-46 (inmate properly alleged Eighth Amendment violation when he claimed that, due to syphilis, he was not supposed to work in sun, but was forced to do strenuous outdoor labor that "caused his nose to bleed, his hair to fall out and his face to break out in sores"). "Subjectively, the charged official must act with a sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d at 553. "The required state of mind, equivalent to criminal recklessness, is that the official "'knows of and disregards an excessive risk to inmate health or safety; 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."'" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 99 F.3d at 553 (quotingFarmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994))); see also, e.g., LaBounty v. Coughlin, 137 F.3d 68, 72-73 (2d Cir. 1998) ("To succeed in showing deliberate indifference, [plaintiff] must show that the acts of defendants involved more than lack of due care, but rather involved obduracy and wantonness in placing his health in danger.").

Gill has failed to satisfy the subjective component of the deliberate indifference standard; he has presented no evidence from which a reasonable juror could conclude that Sgt. Tybrowski acted with "deliberate indifference" to Gill's well-being. Rather, it is undisputed that after Gill informed Sgt. Tybrowski that his asthma and other medical restrictions prevented him from performing the work detail, Sgt. Tybrowski called the clinic to verify Gill's medical condition and was told there were no medical restrictions; only then did Sgt. Tybrowski order Gill to report to the big basement to begin his work detail. (Gill 56.1 Stmt. ¶¶ 7, 8; Defs. 56.1 Stmt. ¶¶ 9, 11-13; Gill Aff. ¶¶ 9-11; Gill Dep. at 60, 63; Tybrowski Interrog. Resp. Nos. 8-10, 15). This Court agrees with defendants that "[b]ecause defendant Tybrowski checked to ensure that there were no medical restrictions, he demonstrated concern for plaintiff rather than deliberate indifference." (Defs. Br. at 8.) Because Gill has failed to satisfy the subjective component of the deliberate indifference standard, this Court need not address its objective component. See, e.g., Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (affirming district court's dismissal of previous Eighth Amendment claim by Gill without addressing objective prong where Gill failed to satisfy subjective prong);²¹ Williams v. M.C.C. Institution, 97 Civ. 5352, 1999 WL 179604 at *6 (S.D.N.Y. March 31, 1999) ("I need not decide whether [the inmate's thumb injury] is . . . objectively serious . . . , however, because plaintiff raises no genuine issue of fact that [defendant] manifested deliberate indifference . . ."); Jordan v. Coughlin, No. 93-CV-0752, 1994 WL 584710 at *3 (W.D.N.Y. Oct. 18, 1994) (The plaintiff "having failed to allege facts sufficient to support the subjective component of the test, the objective component need not be addressed.").

21 In Mooney, Gill alleged that a corrections officer had "forced him to paint despite his complaints that paint fumes made him 'dizzy and nauseous.'" 824 F.2d at 195. The Second Circuit held that "[i]n the absence of any medical proscriptions known to [the corrections officer], [the officer's] decision to ignore Gill's complaints amounted to nothing more than a mere negligent act, which is not a violation of . . . the Eighth Amendment." Id. Gill's present claim is even weaker because, rather than ignoring Gill's complaints, Sgt. Tybrowski investigated them and was told there were no medical restrictions on Gill working.

Accordingly, because no reasonable juror could conclude that Sgt. Tybrowski acted with deliberate indifference to Gill's health and safety, Sgt. Tybrowski's summary judgment motion should be granted on Gill's Eighth Amendment claim.

IV. DEFENDANTS' SUMMARY JUDGMENT MOTION ON GILL'S PRIVACY CLAIM SHOULD BE DENIED

Gill claims that Nurses DeFrank and Sweeney and C.O. Stenros violated his constitutional right to privacy: Nurse DeFrank by showing his medical records which contained information regarding his HIV status to C.O. Stenros, a non-medical corrections officer, and by telling C.O. Stenros that Gill was HIV-positive; Nurse Sweeney by showing Gill's medical records to C.O. Stenros; and C.O. Stenros by disclosing that Gill was HIV-positive to an unknown person. (Gill Aff. ¶¶ 24-29; Cplt. ¶ IV(35).) Defendants argue that: Gill waived the confidentiality of information contained in his medical records by claiming to be unable to work due to medical reasons; defendants had a legitimate interest in the contents of Gill's medical records; and defendants are entitled to qualified immunity. (Defs. Br. at 6-7; Defs. Reply Br. at 5-6, 9-10.)

A. Legal Standard

Inmates have a constitutional right to privacy protecting against the unwarranted disclosure of medical records and information. See, e.g., Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999); Taylor v. Macomber, 97 Civ. 4127, 1999 WL 349696 at *2 (S.D.N.Y. May 27, 1999) (citing cases); Colon v. Arrabito, 97 Civ. 7146, 1998 WL 305636 at *2-3 (S.D.N.Y. June 9, 1998);Clarkson v. Coughlin, 898 F. Supp. 1019, 1041 (S.D.N.Y. 1995);Nolley v. County of Erie, 776 F. Supp. 715, 729-31 (W.D.N Y 1991); Rodriguez v. Coughlin, No. CIV.-87-1577, 1989 WL 59607 at *3 (W.D.N.Y. June 5, 1989); Doe v. Coughlin, 697 F. Supp. 1234, 1238 (N.D.N.Y. 1988). "[P]rison officials can impinge on that right only to the extent that their actions are 'reasonably related to legitimate penological interests.'" Powell v. Schriver, 175 F.3d at 112;²² accord, e.g., Taylor v. Macomber, 1999 WL 349696 at *3; Nolley v. County of Erie, 776 F. Supp. at 731-32; Doe v. Coughlin, 697 F. Supp. at 1239-40.²³

22 In Powell, the Second Circuit explained:

It is easy to think of circumstances under which disclosure of an inmate's HIV-positive status would further legitimate penological interests. Several circuits have upheld against constitutional challenge the practice of segregating HIV-positive prisoners from the rest of the prison population, on the theory that such segregation is a reasonable anti-contagion measure even though it incidentally and necessarily effects disclosure. . . . And the Seventh Circuit has held that the constitutional rights of an HIV-positive inmate are not infringed when prison officials undertake to warn prison officials and inmates who otherwise may be exposed to contagion, even if those warnings are administered on an ad hoc basis.

175 F.3d at 112-13.

23 Gill's actual HIV status has no bearing on whether Gill had a right to privacy protecting against the disclosure that he allegedly was HIV-positive. See, e.g., A.L.A. v. West Valley City, 26 F.3d 989, 990 (10th Cir. 1994) ("the actual validity of [plaintiff's] HIV test results . . . is entirely irrelevant to whether [plaintiff] has a reasonable expectation of privacy in the results . . . The fact that the test results ultimately turned out to be false is simply immaterial to the question of whether plaintiff sustained a personal injury as a result" of defendants stating he was HIV positive).

B. Gill Did Not Waive His Right to Privacy as to His HIV Status

Defendants contend that, having put his medical condition at issue by claiming to be unable to work due to medical problems, Gill waived his right to privacy. (Defs. Br. at 7; Defs. Reply Br. at 5-6.) "The holder of a privacy right may waive it through a variety of acts, including by written authorization or by instituting a lawsuit." Crawford v. Manion, 96 Civ. 1236, 1997 WL 148066 at *2 (S.D.N.Y. March 31, 1997); see also, e.g., Powell v. Schriver, 175 F.3d at 112 n. 1; Doe v. Marsh, 105 F.3d 106, 111 (2d Cir. 1997); Doe v. City of New York, 15 F.3d 264, 269-70 (2d Cir. 1994); Taylor v. Macomber, 1999 WL 349696 at *3; Gill v. Gilder, 95 Civ. 7933, 1997 WL 419983 at *3 (S.D.N.Y. July 28, 1997).

Defendants, however, have cited no authority for the proposition that an inmate waives his right to privacy in all information contained in his medical file, including his HIV status, by informing corrections officers that he is unable to work due to posted medical restrictions (here, asthma and back problems) unrelated to his HIV status. The Court sees no reason why a claim that condition "X" prevents an inmate from working should be a waiver of privacy as to other medical conditions, especially HIV-status.²⁴ Moreover, any belief defendants may have had as to a possible waiver should have been dispelled by Gill's immediate objection when the nurses began showing his medical file to C.O. Stenros. Defendants are not entitled to summary judgment based on their waiver argument.

24 Cf., e.g., Cerro Gordo Charity v. Fireman's Fund Ins. Co., 623 F. Supp. 877, 880 (D.Minn. 1985) ("[W]hen a waiver of medical privilege occurs, it is not a general wholesale waiver of the entire privilege. For example, a waiver of the privilege as to one medical problem is not a waiver for an unrelated medical problem."); Carter v. Fantauzzo, 684 N.Y.S.2d 384, 385, 256 A.D.2d 1189 (4th Dep't 1998) ("'The waiver of the physician-patient privilege made by a party who affirmatively asserts a physical condition in its pleading does not permit discovery of information involving unrelated illnesses and treatments.'"); Sgambellone v. Wheatley, 165 Misc.2d 954, 958, 630 N.Y.S.2d 835, 838-39 (Sup.Ct., Schenectady Co. 1995) (plaintiff did not waive privileged status of medical records containing her gynecological and reproductive history by instituting lawsuit seeking recovery for back, leg, arm and hand injuries sustained in car accident).

C. Reasonableness of Defendants' Actions

Defendants contend that they "had a legitimate penological interest in the contents of [Gill's] medical records." (Defs. Br. at 7.) Defendants, however, have failed to explain how having non-medical personnel review Gill's medical file served any legitimate penological interest, when nurses were available to review the file in order to determine whether Gill had any posted medical restrictions. Similarly, defendants have failed to identify what interest was advanced by Nurse DeFrank allegedly telling C.O. Stenros that Gill was HIV-positive or by C.O. Stenros allegedly relaying that information to an unknown person over the telephone, since Gill's HIV status was unrelated to his posted medical restrictions arising from a history of lower back pain and asthma.

In sum, having failed to establish the reasonableness of their actions, defendants are not entitled to summary judgment on Gill's privacy claim.

D. Qualified Immunity

Defendants also have asserted the defense of qualified immunity on the ground that an inmate's right to privacy concerning his or her HIV status was not clearly established in May 1997 because it was not until Spring 1999 that the Second Circuit, in Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999), first recognized that an individual's constitutional right to privacy concerning confidential medical information extended to prisoners. (Defs. Reply Br. at 9-10.) "In determining whether a particular right was clearly established at the time defendants acted, [the Second Circuit] has considered three factors: (1) whether the right in question was defined with 'reasonable specificity'; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful."Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert. denied, 503 U.S. 962, 112 S.Ct. 1565 (1992); accord, e.g., Powell v. Schriver, 175 F.3d at 113; Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998); Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989). "Typically, [the Second Circuit] puts significant weight on whether or not the law was governed by controlling precedent of this Circuit." Young v. County of Fulton, 160 F.3d at 903. "Even in the absence of binding precedent, a right is clearly established if '[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . . [T]he unlawfulness must be apparent.'" Id. (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039 (1987)).

In January 1994, in Doe v. City of New York, 15 F.3d 264 (2d Cir. 1994), the Second Circuit held that individuals with HIV "clearly possess a constitutional right to privacy regarding their condition." Id. at 267. Since this decision was rendered more than three years before the incidents in this case, defendants' qualified immunity defense turns on whether they could reasonably have concluded that the right recognized in Doe did not extend to prisoners.

Inmates retain those constitutional rights not inconsistent with incarceration. See, e.g., Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198 (1984) ("We have repeatedly held that prisons are not beyond the reach of the Constitution. No 'iron curtain' separates one from the other. . . . Indeed, we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration."); accord, e.g., Hernandez v. Coughlin, 18 F.3d 133, 135 (2d Cir.) ("Prison inmates do not shed all fundamental protections of the Constitution at the prison gates."), cert. denied, 513 U.S. 836, 115 S.Ct. 117 (1994).

By May 1997, there were at least three district court decisions in this Circuit holding that inmates possess a constitutional right to privacy regarding their HIV status. Nolley v. County of Erie, 776 F. Supp. 715, 731 (W.D.N.Y. 1991) ("prison inmates are protected by a constitutional right to privacy from the unwarranted disclosure of their HIV status"); Rodriguez v. Coughlin, No. CIV-87-1557, 1989 WL 59607 at *3 (W.D.N.Y. June 5, 1989) (constitutional right to privacy "precluded New York's corrections officers from disclosing to other inmates that [plaintiff] suffers from AIDS"); Doe v. Coughlin, 697 F. Supp. 1234, 1237-38 (N.D.N.Y. 1988) (constitutional right to privacy protected against nonconsensual disclosure of HIV status; "Within the confines of the prison the infected prisoner is likely to suffer from harassment and psychological pressures. Beyond the prison walls, the person suffering from AIDS is often subject to discrimination . . . There is little question but that the prisoner identified as having AIDS will be severely compromised in his ability to maintain whatever dignity and individuality a prison environment allows.").

Moreover, prior to May 1997 another district court in this Circuit had held that "[p]rison inmates retain a constitutional right to privacy concerning medical information about them." Clarkson v. Coughlin, 898 F. Supp. at 1041. "Quite obviously, this medical information includes HIV." Colon v. Arrabito, 97 Civ. 7146, 1998 WL 305636 at *3 (S.D.N.Y. June 9, 1998) (discussing Clarkson). In addition, at least one federal appellate court, without reaching the constitutional question, had recognized the significant privacy interests that inmates have in maintaining the confidentiality of their HIV status.Harris v. Thigpen, 941 F.2d 1495, 1513 (11th Cir. 1991) ("We nevertheless believe . . . that seropositive prisoners enjoy some significant constitutionally-protected privacy interest in preventing the non-consensual disclosure of their HIV-positive diagnoses to other inmates . . ."). Moreover, in 1991 the New York Court of Claims had held that the New York statute requiring that HIV-related information be kept confidential and permitting disclosure only in narrowly defined need-to-know circumstances (N.Y. Pub. Health L. §§ 2780-87) created a private right of action for an inmate's claim of improper access to records and disclosure of the inmate's HIV status by corrections officers.Matter of V. v. State, 150 Misc.2d 156, 158-59, 160, 566 N.Y.S.2d 987, 988-89, 990 (Ct.Cl. 1991).

Given all of this case law, no reasonable officer could have concluded, in May 1997, that the right to privacy regarding HIV-related medical information (and other medical information) was inconsistent with incarceration and not among the constitutional rights retained by prisoners. Defendants therefore are not entitled to qualified immunity. See Colon v. Arrabito, 1998 WL 305636 at *2-4 (holding that it was clearly established in April 1997 that constitutional right to privacy extended to inmate's HIV status).²⁵

25 Defendants have not sought summary judgment on Gill's privacy claim based on the second prong of the qualified immunity test — an issue that obviously involves disputed questions of fact as to what the corrections personnel did — and the Court thus need not address that issue.

Accordingly, defendants' summary judgment motion on Gill's privacy claim should be denied.

V. DEFENDANTS' SUMMARY JUDGMENT MOTION ON GILL'S RETALIATION CLAIM SHOULD BE GRANTED

Gill claims that Nurse DeFrank filed false disciplinary charges against him in retaliation for his filing a prison grievance accusing Nurses DeFrank and Sweeney and C.O. Stenros of disclosing his confidential medical information without permission. (Gill Aff. ¶¶ 41-50; Cplt. ¶ IV(37).) The standard for a § 1983 claim that a prison official retaliated against an inmate for exercising a constitutionally protected right is as follows:

The plaintiff bears the burden of showing that the conduct at issue was constitutionally protected and that the protected conduct was a substantial or motivating factor in the prison officials' decision to discipline the plaintiff. If the plaintiff carries that burden, the defendants must show by a preponderance of the evidence that they would have disciplined the plaintiff 'even in the absence of the protected conduct.' Thus, if taken for both proper and improper reasons, state action may be upheld if the action would have been taken on the proper reasons alone.

Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citations omitted); accord, e.g., Davidson v. Chestnut, 193 F.3d 144, 148-49 (2d Cir. 1999); Ali v. Szabo, 98 Civ. 0424, 2000 WL 60879 at *15 (S.D.N.Y. Jan. 3, 2000) (Pauley, D.J. Peck, M.J.); Jackson v. Johnson, 15 F. Supp.2d 341, 364 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.) ( cases cited therein).

Gill has satisfied the first part of his burden by pointing to a specific grievance he filed against Nurse DeFrank. The filing of prison grievances is constitutionally protected conduct. See, e.g., Graham v. Henderson, 89 F.3d at 80 ("This court has held that retaliation against a prisoner for pursuing a grievance . . . is actionable under § 1983."); Jones v. Coughlin, 45 F.3d 677, 679-80 (2d Cir. 1995); Higgins v. Artuz, 94 Civ. 4810, 1997 WL 466505 at *5 (S.D.N.Y. Aug. 14, 1997) (Sotomayor, D.J.); Justice v. Coughlin, 941 F. Supp. 1312, 1316 (N.D.N.Y. 1996) (Pooler, D.J.); Mitchell v. Keane, 93 Civ. 6024, 1994 WL 689076 at *5 (S.D.N.Y. Dec. 8, 1994).

Gill, however, has failed to carry the second part of his burden, by failing to show that his protected conduct was a substantial or motivating factor in his discipline. As Judge Preska noted in granting summary judgment dismissing a previous retaliation claim brought by Gill, "[i]n 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 Organization, 95 Civ. 4510, 1997 WL 539948 at *12 (S.D.N.Y. Aug. 28, 1997) (quoting Justice v. Coughlin, 941 F. Supp. at 1317 (quoting Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("[W]e examine prisoners' claims of retaliation with skepticism and particular care.")).)²⁶

26 Accord, e.g., Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) (heightened pleading standard applies to inmate retaliation claims); Ali v. Szabo, 2000 WL 60879 at *15; Jackson v. Johnson, 15 F. Supp.2d at 364 ("Prisoners' claims of retaliation must be examined with skepticism and particular care because they are "'prone to abuse" since prisoners can claim retaliation for every decision they dislike.'"); Higgins v. Artuz, 1997 WL 466505 at *3; Benitez v. Beneway, 93 Civ. 3132, 1995 WL 489694 at *5 (S.D.N.Y. Aug. 15, 1995).

Gill's only evidence of retaliation is that he filed a grievance against Nurse DeFrank on May 5, 1997 and three days later, on May 8, 1997, Nurse DeFrank lodged a purportedly false misconduct report against him. (Gill 56.1 Stmt. ¶¶ 23-24; Defs. 56.1 Stmt. ¶¶ 25-26; Gill Aff. ¶¶ 41-43; Gill Dep. at 96, 101, 105.) While 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, No. 96-2013, 101 F.3d 687 (table), 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."); Benitez v. Beneway, 1995 WL 489694 at *6 ("While the temporal proximity between the mailing of the complaint to defendant and the issuance of the [allegedly false] misbehavior report is some circumstantial evidence of retaliation, this evidence alone is simply not enough" to defeat summary judgment.); cf. Blue v. Koren, 72 F.3d 1075, 1085 (2d Cir. 1995) ("a temporal sequence . . . may fuel . . . suspicions, [but] it does not satisfy the heightened evidentiary standard").²⁷

27 Compare, e.g., Colon v. Coughlin, 58 F.3d at 872-73 (circumstantial evidence of clean prison record and temporal proximity of filing of lawsuits and issuance of allegedly false misbehavior report, along with direct proof of retaliation, sufficient to withstand summary judgment); Jones v. Coughlin, 45 F.3d at 680 (plaintiff's testimony that retaliatory threats had been made, together with sequence of events, made summary judgment inappropriate); Higgins v. Artuz, 1997 WL 466505 at *4 (temporal proximity between protected conduct and issuance of allegedly false misbehavior reports, together with plaintiff's status as an honor block inmate, sufficient to survive summary judgment); Mitchell v. Keane, 1994 WL 689076 at *4 (chronology of events, together with dispute as to merit of charge, precluded summary judgment).
The Court is troubled that defense counsel did not submit an affidavit from Nurse DeFrank as to her reasons for issuing the misbehavior report. Counsel's failure to do so, however, will not allow Gill to avoid summary judgment.

Gill "does not even attempt to allege any additional evidence of retaliation, such as a 'clean' prison record or incriminating statements made by defendant." Benitez v. Beneway, 1995 WL 489694 at *6. Moreover, Gill offers no evidence to support his characterization of the misbehavior charges as false. While two of the three charges were dismissed, the third charge based on the same incident was sustained. (See Cplt. Ex. G: 5/8/97 Inmate Misbehavior Report, quoted at page 9 n. 11 above.)

Accordingly, because Gill has not met his burden of demonstrating a genuine issue as to retaliatory motive, Nurse DeFrank should be granted summary judgment on Gill's retaliation claim.

VI. DEFENDANTS' SUMMARY JUDGMENT MOTION ON GILL'S DUE PROCESS CLAIM SHOULD BE GRANTED

Gill claims that Sgt. Spafford "submitted false and unfounded disciplinary charges against [him], without probable cause, leading to punitive segregation, loss of liberty interest." (Cplt. ¶ IV(41).) Gill appears to be referring to the misbehavior report filed by Sgt. Spafford on May 2, 1997 and Gill's placement in keeplock for an unspecified time period. (See pages 7-8 n. 10 above.)

Defendants' summary judgment motion on Gill's keeplock due process claim turns on the application of the Supreme Court's decision in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293 (1995), which significantly changed the prisoner due process landscape. The Supreme Court there held:

[W]e believe that the search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause. The time has come to return to the due process principles we believe were correctly established and applied in Wolff and Meachum. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

515 U.S. at 483-84, 115 S.Ct. at 2300 (fns. citations omitted).

In Sandin, the prisoner was charged with a disciplinary infraction for physical interference with a correction officer, for using abusive or obscene language and for harassing employees. Id. at 475-76, 115 S.Ct. at 2295-96. The disciplinary committee refused the prisoner's request to present witnesses, found him guilty of the alleged misconduct and sentenced him to 30 days disciplinary segregation in the prison's Special Holding Unit ("SHU"). Id. The Supreme Court found that the inmate was not entitled to the procedural protections set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963 (1974). Sandin v. Conner, 515 U.S. at 487, 115 S.Ct. at 2302. The Supreme Court stated:

We hold that Conner's discipline in segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest. The record shows that, at the time of Conner's punishment, disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody. We note also that the State expunged Conner's disciplinary record with respect to the "high misconduct" charge nine months after Conner served time in segregation. Thus, Conner's confinement did not exceed similar, but totally discretionary confinement in either duration or degree of restriction. Indeed, the conditions at Halawa [prison] involve significant amounts of "lockdown time" even for inmates in the general population. Based on a comparison between inmates inside and outside disciplinary segregation, the State's actions in placing him there for 30 days did not work a major disruption in his environment.

Id. at 486, 115 S.Ct. at 2301 (fns. omitted).

As a result of Sandin, the Second Circuit has announced a two-part standard which prisoners must satisfy to establish a procedural due process claim due to segregated confinement:

To prevail, [the plaintiff inmate] must establish both that [1] the confinement or restraint creates an "atypical and significant hardship" under Sandin, and that [2] the state has granted its inmates, by regulation or statute, a protected liberty interest in remaining free from that confinement or restraint.

Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996); accord, e.g., Cruz v. Gomez, No. 99-0129, 2000 WL 85202 at *3 (2d Cir. Jan. 26, 2000); Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999); Arce v. Walker, 139 F.3d 329, 333-34 (2d Cir. 1998);Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir. 1998); Jackson v. Johnson, 15 F. Supp.2d 341, 356-57 (S.D.N.Y. July 23, 1998) (Kaplan, D.J. Peck, M.J.); Silva v. Sanford, 91 Civ. 1776, 1998 WL 205326 at *9-10 (S.D.N.Y. April 24, 1998) (Peck, M.J.).²⁸

28 See also, e.g., Williams v. Keane, 95 Civ. 0379, 1997 WL 527677 at *4 (S.D.N.Y. Aug. 25, 1997) (Peck, M.J.); Ruiz v. Selsky, 96 Civ. 2003, 1997 WL 137448 at *5 (S.D.N.Y. March 4, 1997) (Peck, M.J.); Santana v. Keane, 90 Civ. 6309, 1996 WL 465751 at *3 (S.D.N.Y. Aug. 14, 1996).

A prisoner who satisfies both of these elements would be entitled to the procedural due process protections enunciated byWolff v. McDonnell, 418 U.S. at 556-58, 94 S.Ct. at 2974-75, and its progeny. See, e.g., Jackson v. Johnson, 15 F. Supp.2d at 357; Silva v. Sanford, 1998 WL 205326 at *10; Foxworth v. Selsky, No. 95-CV-1168, 1998 WL 59448 at *2, *4 (N.D.N.Y. Feb. 9, 1998);Charles v. Coughlin, 985 F. Supp. 88, 93 (E.D.N.Y. 1997);Nicholas v. Remillard, No. 92-CV-900, 1997 WL 711385 at *5 (N.D.N.Y. Nov. 13, 1997); Williams v. Keane, 1997 WL 527677 at *3 n. 1; Ruiz v. Selsky, 1997 WL 137448 at *5; Pacheco v. Vanwyck, No. 94-CV-456, 1997 WL 642540 at *8 (N.D.N.Y. Oct. 15, 1997);Barnes v. Starks, 95 Civ. 4891, 1996 WL 648956 at *3 n. 4 (S.D.N.Y. Nov. 6, 1996); Santana v. Keane, 1996 WL 465751 at *3 n. 1.²⁹

29 Because there is no allegation that Gill lost any good time credit as a result of Sgt. Spafford's misbehavior report, his Sandin due process claim is not barred by the Supreme Court's decision in Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1554 (1997). See, e.g., Jenkins v. Haubert, 179 F.3d at 25; Davis v. State of New York, No. 99-CV-0307, 1999 WL 1390247 at *4 n. 1 (W.D.N.Y. Dec. 14, 1999); Porter v. Coombe, 97 Civ. 2394, 1999 WL 587896 at *3 (S.D.N.Y. Aug. 4, 1999); Ramirez v. McGinnis, 75 F. Supp.2d 147, 151 (S.D.N.Y. 1999); Jackson v. Johnson, 15 F. Supp.2d at 347-50, 357-60; Silva v. Sanford, 1998 WL 205326 at *10-13. Indeed, defendants did not even raise the Edwards issue in moving for summary judgment.

The Second Circuit has clearly instructed that the Sandin analysis requires a factual inquiry as to the length and conditions of confinement:

The language and analysis in Sandin make clear that the Court did not intend to suggest that discipline in segregated confinement could never present such an "atypical, significant deprivation." . . . [W]e now state explicitly: Sandin did not create a per se blanket rule that disciplinary confinement may never implicate a liberty interest. . . . [D]istrict courts must examine the circumstances of a confinement to determine whether that confinement affected a liberty interest.

Miller v. Selsky, 111 F.3d 7, 9 (2d Cir. 1997); see also, e.g., Kalwasinski v. Morse, No. 99-0142, 1999 WL 1223881 at *2 (2d Cir. Dec. 22, 1999); Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir. 1998); Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir. 1997) (noting the "desirability of fact-finding before determining whether a prisoner has a liberty interest in remaining free from segregated confinement"); Brooks v. DiFasi, 112 F.3d 46, 48-49 (2d Cir. 1997); Troy v. Kuhlmann, 96 Civ. 7190, 1999 WL 825622 at *11 (S.D.N.Y. Oct. 15, 1999); Ramirez v. McGinnis, 75 F. Supp.2d at 151; Giano v. Selsky, 37 F. Supp.2d 162, 167 (N.D.N.Y. 1999);Jackson v. Johnson, 15 F. Supp.2d at 345-46, 360 n. 7 ( cases cited therein); Silva v. Sanford, 1998 WL 205326 at *15; Williams v. Keane, 1997 WL 527677 at *5-6; Wright v. Miller, 973 F. Supp. 390, 394 (S.D.N.Y. 1997) ("district courts are required to make factual findings with respect to the conditions of confinement at issue in each case").

The factors a district court should consider in determining whether an inmate has suffered "atypical and significant" hardship under Sandin include:

(1) the effect of disciplinary action on the length of prison confinement; (2) the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions; and (3) the duration of the disciplinary segregation imposed compared to discretionary confinement.

Wright v. Coughlin, 132 F.3d at 136; see also, e.g., Kalwasinski v. Morse, 1999 WL 1223881 at *3; Welch v. Bartlett, 196 F.3d 389, 393-94 (2d Cir. 1999); Jackson v. Johnson, 15 F. Supp.2d at 360-61 ( cases cited therein); Silva v. Sanford, 1998 WL 205326 at *15; Foxworth v. Selsky, No. 95-CV-1168, 1998 WL 59448 at *1 n. 2 (N.D.N.Y. Feb 9, 1998).

Duration is one of the most important factors in that analysis.See, e.g., Scott v. Albury, 156 F.3d 283, 287 (2d Cir. 1998);Arce v. Walker, 139 F.3d at 336-37; Wright v. Coughlin, 132 F.2d at 136-37; Brooks v. DiFasi, 112 F.3d at 48-49; Jackson v. Johnson, 15 F. Supp.2d at 360-61 ( cases cited therein); Silva v. Sanford, 1998 WL 205326 at *15.³⁰

30 See also, e.g., Husbands v. McClellan, 990 F. Supp. 214, 217 (W.D.N.Y. 1998); Warren v. Irvin, 985 F. Supp. 350, 353 (W.D.N.Y. 1997); Kingwood v. Coombe, 96 Civ. 0432, 1997 WL 323913 at *4 (S.D.N.Y. June 13, 1997); Zaire v. Mitchell, No. 95-CV-1172, 1997 WL 176309 at *3 (N.D.N.Y. April 10, 1997) ("Most courts look to the actual length of the sentence imposed in the disciplinary hearing to determine whether a liberty interest exists."), aff'd, 131 F.3d 132 (2d Cir. 1997) (table).

Gill has presented minimal evidence as to the length of his keeplock confinement and no evidence as to the conditions of his confinement; defendants also have failed to address these factual issues. Gill alleges that he was in "punitive keeplock confinement at Woodbourne . . . [from] May 8, 1997 [to] May 22, 1997." (Gill Aff. ¶ 5 n. 1.)³¹ He does not, however, allege that he was in keeplock during that time period because of Sgt. Spafford's May 2, 1997 misbehavior report — and it is possible that all or some of that keeplock period is attributable to Nurse DeFrank's May 8, 1997 misbehavior report. In any event, the evidence at most supports a claim for 15 days in keeplock.

31 However, in the complaint he alleges that he was transferred out of Woodbourne "[o]n or about May 19, 1997." (Cplt. ¶ IV(30).)

While the Second Circuit has instructed the district courts to examine the specific circumstances of confinement, see cases cited above, those cases involved relatively lengthy periods of confinement, and do not apply here. As the Second Circuit explained in Hynes v. Squillace:

Miller, Brooks and Wright all involved relatively long periods of SHU confinement, and specific articulation of the factual findings underlying the district court's liberty interest analysis was necessary. However, in cases involving shorter periods of segregated confinement where the plaintiff has not alleged any unusual conditions, the district court need not provide such detailed explanation of its reasoning. For example, in Arce v. Walker, 139 F.3d 329 (2d Cir. 1998), we considered Brooks and Miller and held that the district court had adequately specified its findings by stating that the confinement at issue in Sandin was 30 days, and that the "combined effects of [the plaintiff's 18] day segregation plus exercise deprivation and verbal harassment" did not distinguish the plaintiff's circumstances from Sandin. Id. at 336 (quoting Arce v. Walker, 907 F. Supp. 658, 662 n. 3 (W.D.N.Y. 1995)).

Here, Hynes offered no evidence in support of his argument that his 21-day keeplock confinement was atypical or significant, notwithstanding his familiarity with the conditions of his own confinement, while the defendants submitted detailed evidence on the typicality of Hynes' confinement. Noting that "[p]laintiff has not presented any evidence demonstrating that his pre-hearing confinement in keeplock for twenty-one (21) days extended his sentence in an unexpected manner, or was atypical in any way," the district court concluded that Hynes had not been deprived of a liberty interest. . . . Given plaintiff's failure of proof, including his failure to allege any unusual conditions, the short span of the confinement at issue, and previous decisions (including Sandin) holding that comparable periods and conditions of segregation do not amount to a deprivation of a liberty interest, we think the district court sufficiently articulated the factual predicates underlying its liberty interest analysis.

Hynes v. Squillace, 143 F.3d 653, 658-59 (2d Cir. 1998); see also, e.g., Dabney v. Ricks, No. 98-2227, 175 F.3d 1007 (table), 1998 WL 1013102 at *1 (2d Cir. March 3, 1998) ("Sandin held that a period of confinement of 30 days, not involving unusual conditions, did not infringe a protected constitutional liberty interest . . . The district court, therefore, correctly dismissed [plaintiff]'s claims based on the periods of five, seven and 21 days. However, with respect to the longer periods, we have held that a court must make factual findings as to whether a prisoner's confinement was an atypical and significant hardship."); but cf. Spaight v. Cichon, No. 98-2357, 166 F.3d 1201 (table), 1998 WL 852553 at *2 (2d Cir. Dec. 8, 1998) (39 days of confinement not so short as to allow summary judgment without detailed evidence of conditions of confinement, and refers to statement in Hynes as dicta).

Hynes v. Squillace is controlling here. Gill's 15 days (or less) of keeplock confinement was shorter than the 21 days involved in Hynes v. Squillace. Like Hynes, Gill presented no evidence as to the conditions of his keeplock confinement, "notwithstanding his familiarity with the conditions of his own confinement." Hynes v. Squillace, 143 F.3d at 658. Moreover, "the decisions in the Second Circuit are unanimous that keeplock or SHU confinement of 30 days or less . . . is not 'atypical or significant hardship' under Sandin." Williams v. Keane, 1997 WL 527677 at *6 ( 30 cases cited therein); see also, e.g., Garcia v. Miller, No. 99-0009, 1999 WL 1212651 at *3 (2d Cir. Dec. 10, 1999 ("Since plaintiff's complaint contains no allegation that would indicate that either his seven-day or thirty-day confinement was 'atypical' or 'significant,' he has failed to state a due process claim."); Arce v. Walker, 139 F.3d at 336 (18 days in SHU); Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (12 days in SHU plus loss of privileges); Davis v. State of New York, 1999 WL 1390247 at *3-4 (thirty days in keeplock with loss of telephone, commissary and package privileges); Rodriguez v. McGinnis, 1 F. Supp.2d 244, 248 (S.D.N.Y. 1998) (Rakoff, D.J. Grubin, M.J.) (17 days in keeplock); Gill v. PACT Organization, 95 Civ. 4510, 1997 WL 539948 at *6, 8-9 (S.D.N.Y. Aug. 28, 1997) (18 days in administrative lock-up while "in-transit").

Accordingly, defendants' summary judgment motion should be granted on Gill's due process claim against Sgt. Spafford.³²

32 Because federal claims remain against each defendant, the Court can, and should, exercise supplemental jurisdiction over Gill's state law claims pursuant to 28 U.S.C. § 1367. Defendants offer no reason to dismiss the state claims except if the Court were to dismiss all the federal claims. (See Defs. Br. at 10; Defs. Reply Br. at 1 n. 1.)

CONCLUSION

For the reasons set forth above, defendants' summary judgment motion should be: (1) denied on Gill's First Amendment claim against Sgt. Tybrowski and Sgt. Spafford; (2) granted on Gill's Eighth Amendment claim against Sgt. Tybrowski; (3) denied on Gill's privacy claim against Nurses De Frank and Sweeney and C.O. Stenros; (4) granted as to Gill's retaliation claim against Nurse De Frank; (5) granted on Gill's procedural due process claim against Sgt. Spafford; and (6) denied on Gill's state law claims.

The Pretrial Order shall be submitted by April 10, 2000. The case is considered trial ready thereafter on 24-hours' notice on Judge Rakoff's trial calendar.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

Copies to: Anthony G. Gill David Camuzo, Esq. Judge Jed S. Rakoff