WHITE v. SASSI

MIRIAM GOLDMAN CEDARBAUM, United States District Judge.

Freddy J. White filed an action pursuant to 42 U.S.C. § 1983 alleging that in violation of his Fourteenth Amendment right to due process of law corrections officers falsely accused him of breaking prison rules and that in violation of his Eighth Amendment right to be free from cruel and unusual punishment corrections officers used excessive force. All defendants move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons that follow, the motion is granted in part and denied in part.

On January 3, 1998, at Sing Sing Correctional Facility in Ossining, New York, ("Sing Sing") where plaintiff was incarcerated, plaintiff alleges that defendants Sassi, Tabone, and Toussaint entered his cell, frisked him, and searched his cell. Officer Sassi then allegedly pushed plaintiff without provocation and plaintiff fell to the floor. Sassi ordered plaintiff to stand up and pushed him again. The complaint states that the other officers then began assaulting plaintiff.

The group of officers then took plaintiff to the hospital where photographs were taken of his injuries. After his release from the hospital, plaintiff was held in isolation for two days, then moved to the Special Housing Unit ("S.H.U.").

After the incident in plaintiff's cell, a misbehavior report was filed. Plaintiff was charged with three rules violations. A tier three hearing was held on these charges. Plaintiff was found in violation of prison rules. He was sentenced to six months in S.H.U. and three months loss of good time. Plaintiff appealed this decision, and on March 18, 1998 the finding of guilt was reversed.

In deciding defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12 b)(6), the factual allegations of the complaint must be accepted as true, Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993), and all reasonable inferences must be drawn in favor of plaintiff, Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999).

Plaintiff asserts two claims. First, plaintiff contends that his right to due process was violated because he was falsely charged with breaking prison rules. Second, plaintiff contends that his Eighth Amendment right to be free from cruel and unusual punishment was violated because prison guards attacked him in his cell without provocation.

Plaintiff claims that he was deprived of liberty without due process of law when he was falsely accused of violating three prison rules. Plaintiff does not allege that any aspect of the tier three hearing itself was unfair.

Plaintiff's due process claim fails because a "prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest." Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986). Plaintiff was granted a hearing at which he was afforded the opportunity to refute the charges against him. He appealed the findings against him and was ultimately cleared of the charges. This procedure protected plaintiff's right to due process of law.

Defendants contend that plaintiff's Eighth Amendment claim should be dismissed for failure to exhaust administrative remedies. The Prison Litigation Reform Act ("PLRA") provides in pertinent part that:

no action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted.

Plaintiff has not exhausted his administrative remedies with respect to this claim. However, the Second Circuit has recently held that "[i]n light of the text, structure, and legislative history of the PLRA, . . . § 1997e(a) does not encompass particular instances of excessive force or assault." Nussle v. Willette, No. 99-0387, 2000 WL 1199957, at *4 (2d Cir. Aug. 24, 2000). Thus, plaintiff is not required to exhaust administrative remedies for his assault claim prior to bringing an action under § 1983. Defendants' contention that plaintiff's claim should be dismissed for failure to exhaust administrative remedies is without merit.

It is well-settled that the Eleventh Amendment bars a suit for damages brought in federal court by a private individual against a state unless Congress has explicitly abrogated the state's sovereign immunity or the state has waived it. Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984); Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 3107, 87 L.Ed.2d 114 (1985). New York state has not consented to be sued nor has it waived its immunity in § 1983 actions. Thus, plaintiff's claims against the state are barred by the Eleventh Amendment. Plaintiff's claims against the individual defendants in their official capacities are similarly barred. The Eleventh Amendment bars any suit for monetary damages against a state official in his official capacity because such a suit is "not a suit against the official but rather is a suit against the official's office." Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989) (citations omitted).

For the foregoing reasons, the motion to dismiss plaintiff's claims against the State of New York and the individual defendants in their official capacities is granted. The motion to dismiss plaintiff's due process claim is also granted. The motion to dismiss plaintiff's claim against defendants in their individual capacities for the violation of his Eighth Amendment right to be free from cruel and unusual punishment is denied.

SO ORDERED.