Full opinion text
DECISION AND ORDER ARCARA, District Judge. INTRODUCTION On July 18, 1996, plaintiffs, Amy Fisher (“Fisher”), an inmate at the Albion Correctional Facility (“Albion”), and her mother Roseann Fisher (“Mrs.Fisher”), commenced this action in the Eastern District of New York. The case was subsequently transferred to this Court. Plaintiffs allege that, while Fisher has been incarcerated in Albion, she has been raped and sexually abused by several correction officers. They claim that they complained about the correction officers’ conduct to various officials in the New York State Department of Correctional Services (“DOCS”), but their complaints were not acted upon, and Fisher was, in fact, retaliated against as a result of the complaints. Plaintiffs’ complaint asserts claims under the Civil Rights Act of 1871, 42 U.S.C. § 1983; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a); the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. § 651 et seq.; the Copyright Revision Act of 1976,17 U.S.C. § 101 et seq.; the New York State Constitution; N.Y. Exec. L. § 290; and the New York common law. Plaintiffs seek compensatory and punitive damages, declaratory judgment and injunctive relief. The defendants in this case are Glenn S. Goord, the Acting Commissioner of DOCS and former Deputy Commissioner; Thomas A. Coughlin, III, former Commissioner of DOCS; Philip Coombe, former Assistant Deputy Commissioner and Acting Commissioner of DOCS; Anthony J. Annucci, Deputy Commissioner and Counsel of DOCS; Anginell Andrews, Superintendent of Albion; Gary Stevens, Deputy Superintendent of Albion; Brian Malone, Inspector General (“IG”) of DOCS; Barbara D. Leon, an IG investigator; Martin Kearney, Acting Captain at Albion; and Robert Schwartz, Gary DiSalvo, Frederick Hemley, Ira Stiles, Michael Galbreath, Dean A. Schmidt, Bruce Kuttner, Richard Shimley, Mark Taylor, and Dean Thomas, all of whom are present or former correction officers at Albion. After the ease was transferred to this Court, plaintiffs moved for a temporary restraining order (“TRO”), pursuant to Fed. R.Civ.P. 65, requiring the defendant prison officials to surrender Fisher to the United States Marshal for the Western District of New York for the purpose of transporting her to the Danbury Federal Correctional Institute in Danbury, Connecticut (“Danbury”), where she would be incarcerated during the pendency of this litigation. Oral argument was held on the TRO motion on July 26, 1996. The Court denied the motion orally from the bench and scheduled a date for a preliminary injunction hearing. On August 9, 1996, plaintiffs filed their motion for a preliminary injunction, seeking: (1) an order requiring that Fisher be transferred to Danbury during the pendency of this action; and (2) an order requiring defendant Kuttner to provide a blood sample. Because plaintiffs had problems effecting service upon all the defendants, the original date for the preliminary injunction hearing had to be adjourned. Plaintiffs subsequently reported to the Court that they had not effected service on defendant Kuttner, but agreed to proceed with the preliminary injunction hearing on the condition that Kuttner would not be bound by any injunction issued. In light of plaintiffs’ request that the Court order Fisher transferred to a federal correctional facility, and because neither the United States nor the Federal Bureau of Prisons (“FBP”) is a named party in this action, the Court contacted the United States Attorney’s Office and alerted it to the situation. The United States requested and was granted permission to appear amicus curiae. The United States argues that the relief requested by plaintiffs, i.e., transfer to a federal facility pending resolution of this case, is improper and contrary to 18 U.S.C. § 3626(a), because the prospective relief extends further than necessary to correct the alleged wrong. The United States also argues that the Court lacks authority to order FBP to accept a state prisoner into its custody under the circumstances present here. In response to the position of the United States, plaintiffs argue, inter alia, that 18 U.S.C. § 3626 is unconstitutional. Accordingly, pursuant to 28 U.S.C. § 2403, the Court has issued an order allowing the United States to intervene regarding the question of the constitutionality of 18 U.S.C. § 3626. However, because the Court’s decision on the instant motion is not based on 18 U.S.C. § 3626, the Court has not required, up to this point, any additional briefing on the issue of the constitutionality of the statute. The Court held a hearing on plaintiffs’ preliminary injunction motion on September 24, 25, 26, 27 and 30, and October 21, 22 and 23,1996. In addition to the evidence offered at the hearing, the parties offered various affidavits and exhibits. Following the hearing, the parties were given an opportunity to brief their respective positions, and oral argument was held on December 3,1996. After carefully considering the evidence adduced at the hearing and the various affidavits and exhibits, reviewing the submissions of the parties, and hearing argument from counsel, the Court denies plaintiffs’ motion for a preliminary injunction. The following constitutes the Court’s findings of fact and conclusions of law pursuant to Fed. R.Civ.P. 52(a). FINDINGS OF FACT I. General Background Plaintiff Amy Fisher is currently an inmate at Albion, serving a sentence of five to fifteen years for assault in the first degree. The criminal case resulting in her incarceration received extensive media coverage, which resulted in Fisher, herself, attaining significant notoriety. Albion is a women’s medium security facility located in Albion, New York, about midway between Buffalo and Rochester. Fisher has been housed at Albion since December 1992, except for two brief periods when she was transferred to the Bedford Hills Correctional Facility (“Bedford Hills”), located in Westchester County, so that she could attend other court proceedings downstate. Fisher claims that throughout the time she has been incarcerated at Albion, she has been raped and sexually abused by several of the defendant correction officers. She claims that she complained about her treatment to DOCS authorities, including the Superintendent at Albion and the DOCS IG, but they took no action on her complaints and, in fact, retaliated against her by confining her in Albion’s special housing unit (“SHU”). In general, defendants deny Fisher’s allegations of rape and sexual abuse. Defendants Galbreath, DiSalvo, and Hemley have submitted sworn affidavits denying Fisher’s allegations of rape and sexual abuse. Defendant Schwartz testified at the hearing that he never had any sexual relations with Fisher. The defendant prison officials deny that Fisher was placed in SHU for retaliatory purposes, and claim instead that Fisher was initially placed in SHU for disciplinary reasons after she violated a rule of inmate behavior by sending “love letters” to a correction officer, and that she was placed in involuntary protective custody (“IPC”) in SHU following her disciplinary confinement in order to protect her from other inmates. II. Plaintiffs’ Witnesses A. Hearing Testimony of Amy Fisher 1. Schwartz Plaintiff Amy Fisher testified that she arrived at Albion in December 1992. Hearing Transcript (“T.”) 12. About two weeks after her arrival, she first met defendant Schwartz, who was a sergeant at Albion. T. 8. She testified that Schwartz called her to the grievance office in B block, introduced himself, and told her he wanted to talk to her. T. 12-13. Fisher testified that Schwartz was “very nice” and asked her how she was getting along at Albion. T. 12-13. Fisher testified that, initially, she talked to Schwartz only about once or twice a week, but as things progressed, she got to know him better and they talked every day. T. 14. She testified that Schwartz spoke to her about the relationship between inmates and correction officers, and told her that “it’s always good to have friends wherever you go and, you know, that he’s my friend and that he wants to make sure that I’m all right. And, if I have a problem, to come to him.” T. 14. She stated that Schwartz told her that she would have to behave and cooperate, and that if she did not, the correction officers would not help her or protect her from other inmates. T. 15. Fisher testified that Schwartz told her about misbehavior reports (called “tickets”) and that if she were to get a number of tickets, the parole board would not grant her parole. T. 16-17. She said that he explained to her that “the system is like a game, and if you play their game, you’ll go home, if you buck the system or you don’t cooperate and play their game, they keep you longer and they may make your life miserable while they’re keeping you. They don’t protect you.” T. 17. Fisher testified that for about five or six months, Schwartz was “just [her] friend.” T. 17. She thought he “was really nice” and she felt safe. T. 1 7. She testified that Schwartz took care of tickets she received from other correction officers and resolved problems she had with other correction officers. T. 1 7-18. Fisher testified that, during this five or six-month period, she had no sexual contact with Schwartz. T. 19. She further testified, however, that in the summer of 1993 she had sexual relations with Schwartz on two or three occasions in the administration building at Albion. T. 19. While testifying, Fisher never used the word “rape” to describe her sexual interactions with Schwartz. She also never stated that Schwartz forced, threatened or coerced her to have sex with him. Nor did she state that she refused to have sex with him, or that she told him no. In fact, she admitted that she did not resist Schwartz. T. 249-50. She never tried to fight him off, scream or yell. T. 21. Fisher testified that, in September 1993, she was transferred to Bedford Hills, and returned to Albion at the end of November 1993. T. 21. When asked whether she had any further physical contact with Schwartz after returning from Bedford Hills, she answered, “I can’t even answer honestly. I don’t remember. I don’t know why I don’t know. I just don’t.” T. 22. Fisher testified that her relationship with Schwartz changed after she returned from Bedford Hills. T. 22. She tried to distance herself from him by not talking to him or being friendly toward him. T. 22-23. She testified that Schwartz initially expressed concern, but then became jealous and asked her if she was involved with another correction officer. T. 23. She testified that Schwartz would pull her hair, make her talk to him, ask her if she loved him, scream at her, and make her repeat over and over again “I love you, I love you, Bobby, things like that.” T. 23. Fisher testified that this happened on more than one occasion and made her feel scared. T. 23-24. She testified that the reason she ended her relationship with Schwartz was because “when I was away from him I really — I didn’t miss him.” T. 24. Fisher testified that, through her attorney, she reported Schwartz’ conduct to officials at Albion. T. 24. She spoke to the DOCS IG in January 1994 and the next day Schwartz was transferred. T. 25. Fisher testified that after she complained in January 1994, “[her] life became unbearable and [she] didn’t report anything again for quite a while.” T. 176. 2. Hemley Fisher testified that after she returned to Albion from Bedford Hills in November 1993, she had sexual relations with defendant Hemley, a correction officer at Albion, on three occasions. T. 29-37. The first time she had sexual relations with Hemley was at the end of November or the beginning of December 1993. She testified that Hemley came by her bed during the night, put his hand over her mouth and told her to be quiet. He then motioned to her to come with him and directed her to go into the staff bathroom. She testified that, once in the bathroom, Hemley started kissing her and “[she] ended up having sex with him.” T. 29. Fisher testified that the second occasion occurred in January 1994. T. 34. Once again, Hemley approached her during the night and they had sexual relations. T. 34-35. With regard to the second occasion, Fisher testified, “I don’t know why I did it, I just did it because I did it. I didn’t think about it. I didn’t want to do it, but felt like — -like I just — if I didn’t do it, he wouldn’t be my friend anymore.” T. 36. Fisher testified that after the second occasion, she was “a little uncomfortable with it.” T. 29. Fisher testified that when she reported Schwartz to the DOCS IG in January 1994, as discussed above, the IG asked her if she ever had sexual relations with any other correction officer and she told him “yes, Officer Hemley.” T. 38. Fisher testified that she had sexual relations with Hemley a third time, on or about April 15, 1994. T. 36. She stated that she had sex with him because “[she] didn’t know how to say no.” T. 29. While testifying, Fisher never used the word “rape” to describe her sexual interactions with Hemley. She also never stated that Hemley forced, threatened or coerced her to have sex with him. Nor did she state that she refused to have sex with him, or that she told him no. In fact, she admitted that she did not resist Hemley. T. 252-53. She did not try to fight Hemley off, scream or yell. T. 33. When asked why not, she responded, “[b]eeause he always acted like he was our friend and everything and I just — I liked it that he was my friend and, you know, he was there and he used to joke and play with us and I just — I don’t know. I didn’t know how to — like I just wanted him to be my friend.” T. 34. 3. Shimley Fisher testified that she first met defendant Shimley in 1993. T. 38. Shimley was the correction officer in charge of the gym at Albion during the day shift. T. 38. Fisher testified that, at first, Shimley “was really nice and polite.” T. 60. She testified that at the end of 1994, or the beginning of 1995, Shimley showed her pictures of himself in which he was naked or semi-naked. T. 51-53. Fisher testified that her relationship with Shimley changed in about February 1995. T. 60. At that point, Shimley became angry with her. T. 57-60. Fisher testified that from February to May 1995, Shimley routinely called her names, such as “whore” and “slut,” and exposed himself to her and asked her to perform sexual acts. T. 58-60. Fisher testified that in May or the beginning of June 1995, Shimley called her into the recreation office, grabbed her arm and tried to write on it with a permanent black marker. T. 47-48. She asked him what he was doing and he said he was going to “brand” her a “slut.” T. 47. She then pulled away and left the area. T. 48. Fisher testified that sometime in July 1995, she was required to report to the gym as part of a fire drill. T. 48. She had just gotten out of the shower and reported wearing only her bathrobe. T. 48. Fisher testified that Shimley walked up to her, grabbed her breast and “twisted it real hard.” T. 48. Fisher also testified that in November 1995, Shimley kicked her in the shin. T. 62-63. Fisher testified that she reported her problems with Shimley to prison authorities at Albion in the fall of 1995. T. 61-63. Her complaints were forwarded to the DOCS IG, and she spoke with IG investigator Leon about Shimley in December 1995. T. 61-63. 4. DiSalvo Fisher testified that she first met defendant DiSalvo, a correction officer at Albion, in January 1993, when she was placed in protective custody in SHU. T. 65. She testified that while in SHU, DiSalvo kept coming to her door and demanding that she give him her autograph. T. 66. Fisher testified that when she refused, DiSalvo called her names and made sexual comments to her. T. 66. Fisher testified that she reported DiSalvo’s conduct to prison authorities. T. 66. Fisher testified that she did not see DiSalvo again until September 1994. T. 67. She testified that, at that time, she asked DiSalvo for a roll of toilet tissue so that she could cover the window to her cubicle while she was using the toilet, but DiSalvo refused and stared at her through the window while she was using the toilet. T. 68. Fisher testified that she told DiSalvo to leave her alone, but he told her that she had gotten him into trouble when she complained about his previous conduct in January 1993, and called her a “bitch.” T. 69. Fisher testified that, on October 14, 1994, she was raped by DiSalvo in a stairwell at Albion. T. 71-72,253. She testified that she did not fight or scream, but did resist and told DiSalvo to stop. T. 72, 254. She testified that nobody else witnessed the incident. T. 172. Fisher admitted that she never brought this incident to the attention of anyone at Albion or DOCS. T. 73. When asked why not, she stated “[bjecause I told my attorney who was representing me at the time, because I was trying to bring about a lawsuit like this at that time.” T. 73. 5. Kuttner Fisher testified that she first met defendant Kuttner, a correction officer at Albion, in May 1993. T. 107. She testified that, on July 26, 1995, she had sexual relations with Kuttner. T. 108-09. She stated that she was joking around with Officer Kuttner and Officer Kuttner, he’s always been, you know, flirtatious but he’s always been all right, and he kept making sexual comments, this was going on for years and, you know, I would just laugh at him because it went on for years, I didn’t really think anything of this and he told me to go into the bathroom ... I thought he was playing and I was calling his bluff and I did and he came in behind me and closed the door and he started kissing me and taking off my clothes. T. 108-09. Fisher and Kuttner then had sex. T. 109-10. While testifying, Fisher never used the word “rape” to describe her sexual encounter with Kuttner. She also never stated that Kuttner forced, threatened or coerced her to have sex with him. Nor did she state that she refused to have sex with him, or that she told him no. She testified that she did not try to stop Kuttner and never tried to fight him off, yell or scream. T. 109, 255. When asked whether she wanted to have sex with Kuttner, she testified, “[njot really, no, I was just, you know, he was joking with me and I thought it was a joke and I went in there and it wasn’t a joke and I didn’t know how to get out of it.” T. 110. When asked whether she thought she could have fought him off, she responded, “I probably could have screamed or something, I don’t know, I didn’t think about it at the time.” T. 110. Fisher testified that she brought the incident regarding Kuttner to the attention of prison authorities at Albion in the beginning of April 1996, approximately nine months after the incident occurred, and that a representative from the IG’s office came to speak to her about the incident at the end of April 1996. T. 110-11. 6. Schmidt Fisher testified that she came to know defendant Schmidt while he was working as a correction officer at Albion. T. 111-12. Fisher testified that, at approximately 3:00 p.m. on April 8,1996, she was ordered to go to the library to pick up legal mail. T. 11 5. She was told that the order came from Schmidt. T. 115. Fisher testified that when she went to the library at 3:00 p.m. to pick up her legal mail, she was accompanied by inmate Lillian Nieves. T. 192, 296. Fisher testified that she and Nieves were good friends. T. 182, 297. They lived together, did everything together, talked together every day, and confided in each other. T. 181, 192. Fisher admitted that she told Nieves on numerous occasions that she wanted to get out of Albion, but denied telling Nieves that she had a “plan” for getting out. T. 181-82. Fisher did admit, however, that she had a “plan” to get out of Albion by filing a lawsuit. T. 182. Fisher also admitted that, on the way to the library, she and Nieves had a conversation, but denied that she ever discussed with Nieves a “plan” to “set up” Schmidt so that she could get out of Albion. T. 192-93. Fisher testified that Nieves was no longer her friend because Nieves had made up lies about her, manipulated the system for favors at Albion, and lied about her in a formal affidavit. T. 183. Fisher testified that, when she arrived at the library at 3:00 p.m., Schmidt told her that he was busy and that she should return at 8:00 p.m. T. 11 6. Fisher testified that she returned to the library at 8:00 p.m., but Schmidt told her she would have to wait. T. 118. At approximately 8:30 p.m., Schmidt let all the other inmates, except Fisher, out of the library. T. 11 8-1 9. Fisher testified that she then asked Schmidt for her legal mail, but he replied, “come on, you know you don’t have' any legal mail,” and started making sexual comments to her. T. 119. Fisher testified that she tried to walk out of the library, but Schmidt grabbed her and stated that “it would be a shame” if he had to call-in and report that she was hiding in the library and tried to assault him. T. 120. Fisher testified that Schmidt then raped and sodomized her. T. 121, 256. Later that evening, after the incident, she spoke with Nieves about it. T. 295, 298-99. When receiving legal mail, inmates are required to sign a log book. Although Fisher initially denied signing the log book on April 8, 1996, T. 272, she later admitted that she had signed the book. T. 274. See Defendants’ Exhibit 13. Fisher testified that even though she signed the log book that day, she did not receive legal mail. She explained that she was “just playing around” when she wrote her name at the top of the page of the log book. T. 274,281. Fisher testified that she reported the incident involving Schmidt to prison authorities at Albion a few days after it happened. T. 122, 202. She did not report the rape to Albion medical personnel. T. 203. Fisher testified that, in late April 1996, she spoke with IG investigator Leon about the incident. T. 123-24. 7. Thomas Fisher testified that she first met defendant Thomas in March 1995. T. 128. He was the night-shift housing officer in her cell block. T. 128. Fisher testified that in September 1995, she awoke one night and found Thomas stroking her hair. T. 129. She found it irritating and told him to stop. T. 184-85. She testified that this happened again on a number of other occasions. T. 130. She further testified that at the end of December 1995, or possibly January 1996, Thomas came into her cubicle while she was asleep and began kissing her. T. 131-32. She stated that, at first, she did not realize what was happening and kissed him back until she finally woke up. T. 132. She testified that she never brought Thomas’ conduct to the attention of anyone at Albion or DOCS. T. 133. Fisher testified that she was not scared of Thomas. T. 184. 8. Bailey Fisher testified that shortly after arriving at Albion in 1992 or 1993, she met correction sergeant William Bailey. T. 261. She testified that over the years they got to know each other better and became close in 1995. T. 262. She described their relationship as a “personal ... [and] loving friendship,” but nonsexual. T. 262. Fisher stated that she wrote Bailey “many, many letters.” T. 259. In particular, she admitted writing two letters to Bailey in May 1996, about one month after the incident involving defendant Schmidt, in which she expressed her strong feelings toward Bailey. T. 257, 260-61, 268, 300. See Defendants’ Exhibit 4 at pp. 7-9. These letters are now in the possession of DOCS. T. 260. In one letter, dated May 1, 1996, Fisher states, “I miss you a lot [and] wish that you could be here with me. I’d make you lie down next to me so I could fall asleep on your chest.” She states later in the same letter, “I love you Billy.” Both letters are signed, “love me.” The Court finds that these letters can best be described as “love letters” from Fisher to Bailey. Indeed, Fisher admitted at the hearing that she was in love with Bailey. T. 300. 9. Other Complaints/Grievances Fisher testified that she was placed in disciplinary confinement in SHU from June 26, 1996 to August 26, 1996, for writing the love letters to Bailey. T. 134-35, 268, 270, 300-02. While in disciplinary confinement in SHU, she was locked in her cell for 23 hours a day and was allowed only one hour a day of recreation outside. T. 135. She was allowed a shower every other day and her meals were provided to her in her cell. T. 1 35. Fisher testified that, while she was in disciplinary confinement in SHU, she was not allowed to recreate with other inmates. T. 136-39. She testified that it was her experience that other inmates in SHU were allowed to recreate together. T. 137-39. She was told that Superintendent Andrews had ordered that she must recreate alone. T. 136, 138-39. She testified that her one hour of recreation was spent in a large recreation yard that all the other inmates in SHU were allowed.to use, but at a different time. T. 139. Fisher testified that she filed a formal grievance complaint, through the inmate grievance office, about the requirement that she recreate alone. T. 139. See Defendants’ Exhibit 37. She testified that after she filed her grievance, she was no longer allowed to recreate in the large recreation yard, but was forced to use a smaller area behind her cell, and that she was still required to recreate alone. T. 139-40. Fisher testified that she filed another grievance regarding this same issue. T. 140. She testified that she eventually received a reply from Superintendent Andrews stating that the Superintendent felt that, due to Fisher’s published allegations, it was more prudent to have her recreate alone. T. 141. Fisher testified that at the end of 60 days of disciplinary confinement, she was not released from SHU. T. 141. Instead, her status was changed to IPC and she remained in SHU. T. 141. Fisher testified that Captain Sherlock, a prison official at Albion, filled out an IPC form stating that other inmates in the general population could or would cause her harm. T. 141. While in IPC, Fisher was allowed one hour of recreation and two hours of television a day. T. 142. She was also allowed to have her personal property with her, including her clothes and cosmetics, and ten minutes a day for telephone calls. T. 142,144. Fisher testified that, while she was in SHU, attempts were made by prison officials to tape record her telephone calls. T. 144-50. See Defendants’ Exhibit 2 (Memorandum to Watch Commander from Correction Officer Hurcarella, dated September 4, 1996, describing unsuccessful attempt to tape record one of Fisher’s phone calls). Fisher testified that while she was confined in SHU, she was denied virtually all human contact. T. 151. Fisher admitted, however, that while in IPC, she specifically asked not to recreate ■with the only other inmate in protective custody, inmate Figueroa. T. 312. See Defendants’ Exhibit 28. Fisher explained that she did not want to recreate with Figueroa because Figueroa was a friend of Nieves, and she did not want to be placed in a position where Figueroa could say something about her that was not true. T. 351. Fisher testified that she was assaulted by other inmates at Albion on at least three occasions. On August 11, 1993, she was punched in the mouth by another inmate. On September 15, 1993, another inmate tried to strangle her in the phone room. On September 23,1994, another inmate punched her while she was sleeping. T. 173-74. Fisher testified that in mid-1994, while at Albion, she received a tattoo on her right shoulder that says “Sexy.” T. 203-04. Fisher testified that she wants to be transferred to another correctional facility, regardless of its location. T. 154-55. After observing Fisher’s demeanor while testifying, and carefully hstening to and considering her testimony, the Court finds that she is not a credible witness. Many of her answers to simple, straightforward questions were evasive and nonresponsive. Her testimony was also inconsistent at times. For example, she initially testified that she was planning to bring a lawsuit as early as 1994. Later, however, she testified that she did not plan to bring a lawsuit until April or May 1996. Fisher’s testimony about the alleged rapes was uncorroborated. Plaintiffs did not present any other witnesses to the alleged rapes. Nor did they offer any other physical evidence to support Fisher’s testimony. Further, Fisher’s testimony was contradicted in many important aspects by other witnesses, especially by Nieves, whom the Court found to be a credible witness. In the Court’s view, Fisher did not come across as someone who suffered a series of rapes. This view is based on a number of factors. First, Fisher’s testimony regarding the rape allegations was very matter of fact and general in nature. Second, her descriptions of some of the sexual encounters, even if taken as true, could only reasonably be described as consensual. Third, at the same time Fisher was allegedly being sexually abused by correction officers at Albion, she received a tattoo saying “Sexy.” Fourth, only a month after an alleged rape by a correction officer, Fisher was writing love letters to another officer. This conduct — receiving the tattoo and writing the love letters — would appear to be inconsistent with someone who was being raped and sexually abused by correction officers. Simply put, the Court finds Fisher’s allegations of rape to be highly suspect and unsupported by the record currently before the Court. The evidence tends to show that this lawsuit is part of a “plan” by Fisher to make false allegations against correction officers in order either to obtain a transfer out of Albion to a facility closer to home, or to assist her somehow in obtaining parole. B. Hearing Testimony of Dr. Charles Patrick Ewing Charles Patrick Ewing, Ph.D., was called as an expert witness by plaintiffs regarding Fisher’s current mental state. Dr. Ewing is both a lawyer and a psychologist whose clinical practice consists primarily of doing evaluations of individuals who are involved in litigation and testifying as an expert witness. T. 316-17. Dr. Ewing testified that, in preparation for his evaluation of Fisher, he “quickly” reviewed her medical records and proceeded to interview her. T. 320. Dr. Ewing only reviewed Fisher’s medical records for the period of her incarceration and did not review any of Fisher’s mental health records. T. 318-19. He interviewed Fisher on August 21, 1996, at Albion, for approximately three hours. T. 317, 320. Dr. Ewing testified that he did a history and a mental status examination of Fisher. T. 320. He testified that Fisher related to him a history of being physically, sexually and psychologically abused as a child. T. 321, 325. She also related a history of having been a witness to many instances of domestic violence as she was growing up. T. 325. Fisher went on to relate the history of her relationship with a man that led to the difficulties that she had with the law and her criminal acts. T. 325. She then related a history of being raped, sexually abused and sexually harassed at Albion. T. 325. Fisher told Dr. Ewing that many of her problems at Albion stemmed from her notoriety. T. 326. Dr. Ewing testified that Fisher appeared to him to be depressed. T. 328. Fisher indicated to him that she does, from time to time, think of suicide, but has no immediate plans to kill herself. Fisher told him that unless she was moved from her present situation, that being disciplinary confinement in SHU, she would eventually take her own life. T. 328. Dr. Ewing candidly admitted, however, that he was not an expert in the area of the effects of solitary confinement. T. 329-30. Dr. Ewing testified that his diagnosis of Fisher’s clinical condition, at the time he interviewed her, was that of major depressive disorder. T. 333-34. Dr. Ewing testified that Fisher told him that she feared remaining in solitary confinement and that she would lose her mind and ultimately take her own life if she remained there. T. 334. Dr. Ewing also testified, however, that Fisher did not express to him any specific fears related to the things that allegedly happened to her at Albion. T. 334-35. The Court does not find the testimony of Dr. Ewing to be persuasive. His opinion that Fisher suffered from major depressive disorder appeared to be based almost exclusively on his interview with Fisher. Unlike defendants’ expert, Dr. Ciccone, Dr. Ewing failed to examine any of Fisher’s numerous mental health records, which date back several years. Further, although Dr. Ewing testified that Fisher’s depressed mental state was related to her confinement in SHU, he admitted that he was not an expert in the mental health effects of solitary confinement. The Court does not question Dr. Ewing’s qualifications and skills, but nevertheless finds his opinion in this case to be less than thorough, because it was based only on a “quick” review of her medical records and a three-hour interview, and not on a full review of her entire mental health history. C. Hearing Testimony of Roseann Fisher Plaintiff Roseann Fisher testified that she is the mother of plaintiff Amy Fisher. Mrs. Fisher lives in Merrick, New York, on Long Island. She testified that she first visited her daughter in Albion in December 1992. T. 389-90. She stated that in February 1993, she saw a television program showing footage of Fisher’s living area at Albion. T. 390. The program also showed other inmates making threats against Fisher. T. 390. Mrs. Fisher said that she lodged a complaint about this incident through Fisher’s attorney. T. 391, 393. She testified that she received a response from DOCS, stating that it was inappropriate to have allowed the television cameras into Fisher’s living area, and that it would not happen again. T. 393. Mrs. Fisher testified that in May 1993, she first met defendant Schwartz during a visit with Fisher at Albion. T. 393. She testified that she met Schwartz again in June 1993, when he invited himself to join them during a visit. T. 395. Mrs. Fisher testified that, in the summer of 1993, Fisher told her for the first time that she had a sexual relationship with Schwartz. T. 494-95, 595. Fisher told her that when she first got to Albion, Schwartz befriended her and, eventually, the relationship progressed to the point where she had sex with him. T. 595. Mrs. Fisher testified that there came a point, however, when Fisher no longer wanted to continue the relationship. T. 596. Mrs. Fisher admitted that Fisher never used the word “raped” when describing her relationship with Schwartz. T. 596. Mrs. Fisher testified that Fisher told her that she was afraid of Schwartz because he had a bad temper, and that she felt trapped by Schwartz and could not get away from him. T. 597. Mrs. Fisher testified that she was furious when Fisher told her about her relationship with Schwartz. T. 598. She contacted her attorney and immediately formulated a “plan” to get Fisher out of Albion. T. 491-94, 521, 598-99. She did not, however, at least at this point, contact or complain to anyone at Albion or DOCS about Schwartz. T. 521, 598. Mrs. Fisher testified that Fisher was transferred from Albion to Bedford Hills at the beginning of September 1993, and that a few days later, she, Mrs. Fisher, received a telephone call from Schwartz. T. 398, 423-24. Mrs. Fisher testified that she never asked Schwartz to call her and was “surprised,” “shocked,” and “taken completely off balance” by his call. T. 399. Mrs. Fisher stated that, during this telephone call, Schwartz introduced himself, explained who he was, asked how Fisher was doing at Bed-ford Hills, and told her that he cared a great deal about Fisher. T. 399. Despite being “taken completely off balance,” Mrs. Fisher tried to tape record this call, but was unsuccessful. T. 424, 438-39, 525. Mrs. Fisher testified that she continued to receive telephone calls from Schwartz from September 1993 until just before Fisher was transferred back to Albion from Bedford Hills in mid-November 1993. T. 400. She stated that there were approximately twenty-two calls in all. T. 400. Mrs. Fisher testified that all the calls were initiated by Schwartz and that he always called her from a pay phone. T. 400. Mrs. Fisher testified that, during this time, she discussed the telephone calls with her attorney and received direction, guidance and instructions from him. T. 490, 532, 613. He told her it was a good idea to keep Schwartz calling and to tape record his calls. T. 554, 613. Mrs. Fisher testified that she tape recorded several, but not all, of the telephone calls she received from Schwartz. T. 399, 424, 439. She did not record approximately eight of the calls. T. 439. She could not recall the dates of the unrecorded calls. T. 439-40. The tape recorded telephone conversations were not offered by the plaintiffs at the hearing, but the Court directed that the tapes be produced. Twelve tapes consisting of fourteen telephone calls were played in Court during the hearing. These tapes consisted of telephone calls from Schwartz to Mrs. Fisher on September 13, 17, 24 and 26; October 3, 6, 11, 12 or 13, 18, 22 and 26 and November 8, 9 and 11, 1993. Plaintiffs’ Exhibits 15-26. Plaintiffs’ complaint characterizes the telephone calls from Schwartz to Mrs. Fisher as “harassing and foreboding” and as constituting “deliberate threats and intimidation.” Complaint at ¶¶82, 283(a). The complaint also alleges that Schwartz told Mrs. Fisher that an inmate who reported the misconduct of any Correctional Officer would not stand a chance of a fair hearing, but rather instead such inmate would be put on a “Burn” — i.e. her life would become a “living hell” at the prison and she would be subjected to extreme “physical pain” and unfounded pretextual disciplinary action “tickets” from all correctional officers on a regular basis. Complaint at ¶83. The complaint further alleges that Schwartz communicated to Mrs. Fisher that she should not inform prison officials that he was contacting her or retaliation would be inflicted upon Fisher. Complaint at ¶ 85. At the hearing, Mrs. Fisher repeated these allegations about, and characterizations of, the Schwartz telephone calls. T. 552, 569, 576, 620, 623. After carefully reviewing the tape recorded conversations, the Court finds that the plaintiffs’ complaint and Mrs. Fisher’s testimony totally mischaraeterize the nature and content of the telephone calls from Schwartz to Mrs. Fisher. No reasonable person, after having listened to these tapes, could possibly characterize them as harassing, foreboding, intimidating, or threatening in nature. Indeed, rather than being intimidating or threatening, Schwartz sounds like a lovesick school boy, pining for his sweetheart and boasting to her mother about what a great guy he is. Although Schwartz’ conduct in making the telephone calls to Mrs. Fisher was unquestionably inappropriate and in violation of the rules regarding correction officer contact with inmates and their families, T. 707, there is no indication that he made the calls for the purpose of threatening or intimidating the plaintiffs. Nor do these tapes in any way corroborate Fisher’s claims that she was raped by Schwartz. What the tapes do show is a devious, sordid and calculated “plan” by plaintiffs to set up Schwartz for the purpose of forcing a transfer of Fisher to a prison closer to home. Their scheme was to encourage Schwartz to call and to tape record his calls for use as leverage in gaining a transfer. In fact, the tapes themselves reveal, to some extent, plaintiffs’ actual motivation. During one call, Mrs. Fisher, even though she knows she is being recorded, cannot help but complain about the distance she must travel in order to visit Fisher at Albion, and comment on how much easier it would be to make the much shorter trip to Bedford Hills to visit her. During another call, Mrs. Fisher states that she likes Bedford Hills better than Albion, because there are less “hassles” there. T. 608-11. On the tapes, Mrs. Fisher gives every indication of encouraging and welcoming Schwartz’ calls. Throughout their conversations, Schwartz repeatedly asked Mrs. Fisher if his calls to her were bothering her and if she wanted him to stop. T. 553, 614, 618. She always said no and encouraged him to continue calling. T. 548, 602. She even told him at one point that she was “thrilled” that he called. T. 547-48. During the September 17th call, he asked her if it bothered her to talk about the parole board and she said, “no, I like hearing about this.” T. 594. Later in the same conversation, he asked her if she was sure he was not being a nuisance and she assured him he was not, asking that he “please call.” During the October 22nd call, Mrs. Fisher stated to Schwartz that she thought it was a “good idea” that he was calling. Mrs. Fisher admitted that she lied to Schwartz to get him to keep calling. T. 578-79. For example, she told Schwartz that Fisher had asked about him when, in fact, she had not. Mrs. Fisher also encouraged Schwartz to write to Fisher. For instance, during the September 17th call, she told him that he should write Fisher a letter, because Fisher was not satisfied with her mother carrying messages. Even after Schwartz sent Fisher a card, Mrs. Fisher continued telling him that Fisher wanted a personal letter from him. Plaintiffs’ complaint completely distorts the October 22nd call, which contains the conversation regarding the term “the burn.” Rather than a foreboding or intimidating conversation calculated to intimidate Mrs. Fisher, the tape reveals that the conversation about “the burn” was initiated and invited by Mrs. Fisher. Schwartz’ description of “the bum” was in response to Mrs. Fisher’s questioning and her direction of the conversation. His description of “the burn” was not of correction officers fabricating complaints, but of them choosing not to ignore actual infractions. The tape of the October 22nd call clearly shows that certain statements allegedly made by Schwartz and purportedly quoted in the complaint, for example “living hell,” were actually made by Mrs. Fisher. T. 566-67, 569. The tape also shows that Schwartz’ reference to “pain,” quoted in the complaint, was with regard to male inmates at Attica and was not directed at Fisher or the other female inmates at Albion. Another example of the distortion contained in plaintiffs’ complaint is the allegation that Schwartz referred to Fisher by demeaning names such as “gerbil.” Complaint at ¶ 81. During the October 3rd call, Schwartz explained to Mrs. Fisher that “gerbil” was a term of affection that he used for Fisher because she had wanted a pet gerbil while she was at Albion. Clearly, Schwartz was not using the term “gerbil” in a demeaning way and Mrs. Fisher knew or should have known that at the time she filed her complaint. Schwartz repeated several times during the telephone conversations that he never had any physical or sexual involvement with Fisher. During one conversation, he stated, “the most we’ve ever done is shake hands.” During another conversation about media reports that Fisher was pregnant, Schwartz stated that if the media was blaming him for impregnating Fisher, it would be “an immaculate conception.” Although Schwartz did ask Mrs. Fisher on several occasions to tell Fisher that he loved her and to give her his love, there is no admission or indication on the tapes that he had a sexual relationship with Fisher. In sum, it is clear from Mrs. Fisher’s testimony, the instructions she received from her attorney, and the tenor of her conversations with Schwartz, that she was trying to set up Schwartz in order to further her “plan” to have Fisher transferred to a closer facility. Ironically, during one telephone call, Mrs. Fisher stated that “betrayal is a hurtful thing,” to which Schwartz replied, “I won’t betray her, I’m as loyal as a puppy.” Mrs. Fisher testified that the calls from Schwartz stopped after Fisher returned to Albion on or about November 15, 1993. T. 484. Mrs. Fisher testified that she and her attorney met with DOCS IG Brian Malone in January 1994, at her attorney’s office. T. 484-88. At the meeting, Mrs. Fisher complained to Malone about Schwartz’ relationship with her daughter and the telephone calls from Schwartz. T. 486, 502-04. She told Malone that Fisher and Schwartz had a “sexual relationship as well as a coercive relationship” and that Fisher no longer wanted Schwartz to be around her. T. 488. Mrs. Fisher told Malone that she wanted Fisher transferred out of Albion in order to “break up the relationship.” T. 487-88. Mrs. Fisher brought with her to the meeting with Malone the tape recordings of her telephone conversations with Schwartz. T. 503. Malone asked Mrs. Fisher to give him the originals of all the tapes, but Mrs. Fisher refused because Malone would not give her adequate assurances that Fisher would be safe from retaliation. T. 504-06, 544. In November 1995, Mrs. Fisher called Albion complaining that Fisher had been kicked by defendant Shimley. T. 508. According to Mrs. Fisher, Fisher was subsequently interviewed by a person from the IG’s office. T. 508. Mrs. Fisher testified that, in January 1996, she called IG Malone about the Shimley incident. Mrs. Fisher continued to maintain contact with Malone throughout the Spring of 1996. T. 513. Her last call to Malone was in April 1996. T. 514. After observing Mrs. Fisher’s demeanor while testifying, and carefully listening to and considering her testimony, the Court finds that she is not a credible witness. Her answers to questions, especially on cross-examination, were evasive and nonresponsive, sometimes to the point of refusing to answer the question at all. T. 577. On numerous occasions it appeared that Mrs. Fisher feigned being unable to understand simple, straightforward questions put to her by defense counsel. T. 556-57, 562-63, 577, 657-58. She had no such trouble understanding similar questions put to her by her own attorneys. The tape recorded conversations between Mrs. Fisher and Schwartz show that Mrs. Fisher can be a devious, cunning and calculating person, who has the ability to he convincingly, even under difficult and pressured circumstances. Her lack of credibility is also reflected by her complaint in this case. As discussed above, several statements of purported fact included in the complaint by Mrs. Fisher are not supported by the evidence adduced at the hearing. For example, her description of Schwartz’ calls as “harassing and foreboding” is spurious. In fact, her miseharacterization of the content and nature of these telephone calls is so blatant that it clearly must have been intentional. The Court finds that Mrs. Fisher’s true motivation in this case is to have her daughter transferred out of Albion to a prison closer to their home because it will be more convenient and may perhaps hasten her daughter’s parole. To accomplish this goal, she, her daughter and their attorney concocted a “plan” to set up Schwartz by asking him to call Mrs. Fisher and then recording his conversations with her. D. Hearing Testimony of Robert Schwartz Plaintiffs called defendant Robert Schwartz, who testified that he has been a correction officer for DOCS for fifteen years and a sergeant since 1988. T. 706-07. Schwartz testified that he first met Fisher six or seven weeks after she arrived at Albion. T. 682. He stated that, when Fisher arrived at Albion, she was viewed as a “novelty” by some of the inmates and a “freak” by others. T. 683. Schwartz testified that he never had sex with Fisher. T. 703. He stated that he thought of himself as “more of a father figure” to Fisher and that she came to him for advice. T. 706. He denied that he ever felt “in love” with Fisher or that he was infatuated with her. T. 693, 701. Schwartz testified that he was never alone with Fisher while she was at Albion, ie., where he could not be seen by others in the prison. T. 687, 1209-10. Schwartz admitted that he made telephone calls to Mrs. Fisher during the time Fisher was being held in Bedford Hills in 1993. The day before Fisher was transferred to Bed-ford Hills, she asked him to telephone her mother. T. 1 208-09. Schwartz admitted that he improperly obtained Mrs. Fisher’s telephone number from the DOCS computer. T. 1 206-08. Schwartz viewed his telephone calls to Mrs. Fisher as “two adults having a conversation about a child.” T. 692. When he was talking to Mrs. Fisher, he asked for a photograph of Fisher because Fisher told him that she wanted him to have one. T. 701-02. Schwartz testified that, during the time in question, he was drinking too much and was on prescription drugs. T. 702. He always called from a pay phone because he did not want his family or DOCS to find out that he was calling. T. 703. Schwartz also admitted that he wrote a letter to Fisher while she was at Bedford Hills and that such conduct was “dead wrong.” T. 694-95, 707. Schwartz testified that there came a time while Fisher was at Bedford Hills that he became aware of allegations that she was pregnant. T. 687. He read these allegations in the local newspaper. T. 687. Schwartz testified that a tabloid newspaper called Albion and mentioned that he was suspected of impregnating Fisher. T. 687-89. Schwartz then called Mrs. Fisher in order to try to assure her that he had not had a sexual relationship with Fisher. T. 689-90. During his testimony, Schwartz defined the term “the bum” as follows: Say you have an inmate doesn’t make the bed and things, just don’t go with the flow. Constantly disrespectful. You follow the rule book to the letter. All right ... The inmates gave it that word. “You’re on the burn.” You know, when you get tickets for not — things like — normally, if the inmate goes with the flow, I would call you back and tell you, you forgot to make your bed. If you’re consistently doing this stuff, I will issue a misbehavior report for — -so the inmates say, “You’re on the burn.” ... And you have an inmate constantly gives you problems, naturally your rec officer is going to be with [sic] there with you, or your rover. What you want to do is get this inmate to get his head screwed on straight and start following the rules. T. 696-97. Schwartz testified that, in January 1994, he was questioned by IG Malone and another IG investigator about his relationship with Fisher. T. 678-79. Schwartz admitted to Malone that he had written a letter to Fisher and that he had called Mrs. Fisher. T. 707-OS. As a result, he was transferred out of Albion. T. 707. Schwartz testified that he again spoke with IG Malone and several other investigators at the IG office in Albany, at the end of March, or in April 1994, about Fisher. T. 675. He was questioned under oath about his relationship with Fisher and his telephone conversations with her mother. T. 675-76. After observing Schwartz’ demeanor while testifying, and carefully listening to and considering his testimony, the Court finds that, for the most part, he is a credible witness. His testimony appeared to be consistent with statements he made on the tapes of his telephone calls to Mrs. Fisher, especially his description of the term “the burn.” Schwartz admitted that his conduct was inappropriate, but consistently denied that he had any sexual relations with Fisher. The part of his testimony that the Court finds suspect is his denial that he was infatuated or in love with Fisher. The tapes tend to show that he was, at least, infatuated with Fisher. III. Defendants’ Witnesses A. Hearing Testimony of Lillian “Lucky” Nieves At the time of the hearing, Lillian “Lucky” Nieves was an inmate at Albion. T. 779. She was confined at Albion as a result of a felony drug conviction in the State of New York. T. 779, 81 8-1 9. Nieves testified that she has two felony convictions. T. 816. Nieves testified that she first met Fisher in 1994 when they were housed in the same housing block at Albion. T. 780-81. At that time, Nieves was at Albion on a parole violation. T. 780. Nieves testified that, in 1994, she associated and spoke with Fisher, but they did not confide in each other. T. 781. Nieves testified that she returned to Albion in 1995 after a new conviction. T. 781. At that time, she was housed in a cubicle directly across from Fisher and they became “very, very close.” T. 781. She stated that she and Fisher “shared everything. Our clothing, our footwear, food, everything.” T. 781. Nieves testified that Fisher was like her “little sister.” T. 782, 846. Nieves testified that Fisher had a difficult time with other inmates and that she sometimes had to protect Fisher from being beaten up by the other inmates. T. 782-83, 846. Nieves described Fisher as “very flirtatious” and “conniving.” T. 790. She stated that Fisher “has her way of getting around people regardless of what sex they are, man or woman.” T. 790. Nieves also described Fisher as “very theatrical ... she dramatized everything.” T. 803. At one point, Nieves testified that Fisher is “supposed to become a movie star, this is her debut right here, you’re going to see this in the movies.” T. 859. Nieves also implied that Fisher is promiscuous. She stated that Fisher “has sex with everything that moves.” T. 845. She also stated, with regard to Fisher, that “[y]ou can’t rape the willing.” T. 828. Nieves testified that Fisher’s inmate “lover” in Albion was a woman nicknamed “Sexy.” T. 905. Nieves testified that she and Fisher knew everything about each other and that the dominant topic of their conversations was getting out of Albion. T. 783. Nieves testified that Fisher’s “biggest worry” was going before the parole board at Albion. T. 783. She stated that Fisher felt that there was more of a chance of being denied parole at Albion than there would be at another prison. T. 783. Nieves testified that Fisher came up with a “plan” for getting out of Albion in order to avoid the Albion parole board. T. 784-85, 859. Nieves testified that she discussed the “plan” with Fisher in January 1996. T. 785-86. Fisher told her that, about a year earlier, she had sex with a correction officer, defendant Kuttner, and was able to get his semen on her underwear. T. 786. Fisher never told or indicated to Nieves that Kuttner raped her. T. 789, 868. Fisher told her that she smuggled the underwear out of Albion through a visitor and had it sent to a laboratory for DNA testing. T. 785-86. Fisher hoped that, when the underwear came back testing positive for semen, she would be given an administrative move. T. 785-87. However, Fisher became impatient because the “plan” was taking too long. T. 786-87. Fisher told Nieves that she needed to obtain additional semen from another correction officer so that she could claim that she was raped. T. 787. Fisher told Nieves that she needed another “vie” or victim. T. 787-88. In other words, she was going to have sex ■with another correction officer in order to obtain more semen. T. 788. Fisher identified defendant Thomas as a possible “victim.” T. 789. Nieves testified that she did not think Fisher would target Sergeant Bailey because she was “intrigued” and “infatuated” with him. T. 789, 888. Nieves testified that, on April 8, 1996, Fisher accompanied her to the library. T. 791. On the way, Fisher told Nieves that defendant Schmidt was on duty at the library and that he was going to be her “victim,” the one from whom she would obtain the semen. T. 791. Nieves objected to Fisher’s plan, because, in her view, Schmidt was “disgusting.” T. 792. Fisher explained to her that she had to do it because she was losing her mind, and did not want to go before the parole board at Albion. T. 792. Nieves testified that when they entered the library, Fisher went over and sat on Schmidt’s desk and conversed with Schmidt the entire time they were in the library— about a half hour. T. 793-96. On their way back to the housing area from the library, Fisher told Nieves that she was going to return to the library that evening when everybody was gone in order to obtain semen from Schmidt. T. 796. Nieves testified that she saw Fisher again at approximately 9:00 p.m. that evening and Fisher was “heated, angry.” T. 798. Fisher told her that she had returned to the library and had sexual relations with Schmidt, but failed to obtain any semen from him. T. 798. Fisher further told her, however, that despite her failure to obtain semen, she would go ahead with her “plan” and claim that she was raped by Schmidt. T. 798. Nieves testified that she told Fisher that she did not want to become involved in her “plan,” and when she refused to assist Fisher, Fisher falsely reported to correction officers that Nieves had stolen some of her personal belongings. T. 826-27. See Defendants’ Exhibit 36 (Inmate Claim Form from Fisher, dated July 9, 1996). Nieves admitted that she felt animosity toward Fisher as a result of Fisher’s false accusations against her. T. 897. Nieves discussed several other instances of Fisher making false accusations against other inmates. T. 800-03. Nieves testified that Fisher admitted to her that she had planted contraband on other inmates. T. 902-03. Nieves testified that she is a heroin addict and that, in the summer of 1996, she received a Tier III disciplinary ticket for testing positive for drugs. T. 820-21. Nieves testified that she received 90 days “in lock” as a result of that violation, but did not serve the entire time because she informed on another inmate (not Fisher). T. 823-25. Nieves testified that she was promised nothing in exchange for her testimony at the preliminary injunc-' tion hearing. T. 807. After observing Nieves’ demeanor while testifying, and carefully listening to and considering her testimony, the Court finds that she is a credible witness. Despite her criminal history, her drug addiction and her admitted animosity toward Fisher, the Court finds that Nieves answered questions truthfully and that her testimony was corroborated by other evidence, including the testimony of Fisher herself. Fisher admitted that Nieves was a close friend and that she had confided in her. She also admitted that Nieves accompanied her to the library on April 8, 1996, the date she was allegedly raped by Schmidt. For the most part, Nieves’ testimony was both internally consistent and consistent with other evidence adduced at the hearing. While there may have been present some motive for Nieves to lie, the Court does not believe that she did so. Nieves’ description of Fisher as “flirtatious,” “conniving,” “theatrical,” and promiscuous is consistent with her description of Fisher’s “plan” to be transferred from Albion. Simply put, the Court finds Nieves to be a believable witness and credits her version of events. B. Hearing Testimony of Dr. John Patrick Fernandez Dr. John Patrick Fernandez testified that he has been the Health Services Director at Albion for approximately 25 years. T. 907. As the Health Services Director, Dr. Fernandez delivers direct patient care and acts as supervisor and administrator for the remainder of the Health Services Department at Albion. T. 907. Dr. Fernandez testified about the procedures used at Albion for inmates to receive medical care. T. 908-09. In particular, he testified about the health services provided to inmates confined in SHU or protective custody at Albion. T. 909. In SHU, a nurse makes rounds every day and checks each inmate and, once a week, a physician makes rounds as well. T. 909-10. Dr. Fernandez described Fisher’s current medical condition as good. T. 908. He testified that Fisher’s medical records did not reflect any weight loss, and that the last time her weight was taken, it was exactly the same, 100 pounds, as when she entered the facility in 1992. T. 913-14. Dr. Fernandez testified that Fisher has refused to be