person could conclude that Cuyler was adequately put on notice of misconduct by his subordinates.
There is no allegation that Cuyler knew of the alleged conduct towards plaintiff. Neither is there any allegation that similar conduct had occurred in the past. Cuyler's deposition testimony is uncontradicted and establishes that he had no actual knowledge of the events which form the basis of plaintiff's complaint. Neither could he recall similar complaints being lodged in the past. Plaintiff presents no evidence to suggest otherwise. In fact, even after an opportunity to conduct discovery on these matters, plaintiff cites only the isolated acts of misconduct involving him, and presents no evidence to suggest that such practices are or were commonplace. Without more, Cuyler cannot be said to have had notice of, or to have acquiesced in, a series of improprieties committed by his subordinates. Curtis v. Everette, 489 F.2d 516, 521 (3d Cir. 1973), cert. denied, 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1974), Orpiano v. Johnson, 632 F.2d 1096 (4th Cir. 1980), cert. denied, 450 U.S. 929, 101 S. Ct. 1387, 67 L. Ed. 2d 361 (1981); McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979).
Thus, the plaintiff's second theory does not state a valid claim against Superintendent Cuyler and defendants' motion for summary judgment is granted as to him.
Defendant Korick also seeks summary judgment, claiming that the plaintiff has failed to show he participated in any of the alleged incidents. First, Korick argues that he was not the ranking officer on duty at the time of the search, that he did not order the search, that strip searches are not violative of an inmate's constitutional rights, and that the search was conducted within the provisions of the Institute's administrative rules and did not violate plaintiff's constitutional rights. Alternatively, Korick claims that even if the search were improper, mere presence at the scene of the search is an insufficient ground on which to impose liability under § 1983.
As to defendant's first contention, there are disputed issues of material fact to be resolved regarding the propriety of the search. As to defendant's second contention, liability under § 1983 may be imposed upon an official who knowingly acquiesces in the misconduct of others. Although the defendant is correct that mere presence is an insufficient basis on which to impose liability for an unconstitutional act, it nevertheless may be evidence of actual knowledge of and acquiescence in the improper behavior. Bracey v. Grenoble, 494 F.2d 566 (3d Cir. 1974). In the present case, the plaintiff has provided facts in his affidavit which, if proved, would be sufficient to impose liability on Korick. According to the plaintiff, not only was Korick present at the time he was allegedly framed, but he also conducted the second strip search of the plaintiff and acquiesced in the deliberate placement of the marijuana near the desk where the plaintiff's clothes were placed.
Furthermore, Korick's claim that he was merely carrying out the orders of his superior officer does not provide a basis for granting summary judgment, since, nevertheless, he may have had a duty to intervene to prevent the alleged violation of plaintiff's rights. Putman v. Gerloff, 639 F.2d 415 (8th Cir. 1981).
There remains a question of fact concerning the behavior of Lieutenant Korick which, if proved, could impose liability on him. Therefore, granting summary judgment on his behalf at this time would be improper and defendant Korick's motion is denied.