The opinion of the court was delivered by: SWEET
This motion for summary judgment dramatically returns the parties and the court to the immediate post-revolutionary period. It was in 1791 that the simple and direct prohibition contained in the Third Amendment to the United States Constitution was adopted:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The colonists' outrage over the Quartering Act of 1765 and its successor of 1774 (one of the Intolerable Acts) gave rise to this provision, which can be traced to the English Bill of Rights of 1689 and the constitutions of the newly organized states.
From the time of its adoption until September 10, 1979, the date of the filing of this action, as far as can be determined, no citizen has found it necessary to invoke the Amendment to protect his dwelling from use by the military. In an extraordinary demonstration of the vitality and versatility of our Constitution, just such a claim is here made for the first time, albeit unsuccessfully.
Plaintiffs Marianne A. Engblom ("Engblom") and Charles E. Palmer ("Palmer"), correction officers at Mid-Orange Correctional Facility ("Mid-Orange") in Warwick, New York, brought this action under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343(3) and (4) alleging, most significantly, violation of their Third and Fourteenth Amendment rights. The claims arise out of a series of events occurring in April, 1979 when, in response to a statewide strike by correction officers, Governor Carey activated the New York National Guard ("the Guard") to perform security-related functions at state prison facilities, including Mid-Orange. Defendants, besides Governor Carey, are Richard D. Hongisto, Acting Commissioner of the Department of Correctional Services; Joseph C. Snow, Superintendent at Mid-Orange; Mayor General Vito J. Castellano, Chief of Staff to the Governor, New York National Guard; Lieutenant Colonel Justin M. Quelly and Captain Thomas N. Drew, responsible officers of the National Guard contingent ordered to Mid-Orange; as well as other unnamed officers and enlisted men of that contingent. Each plaintiff seeks $ 1 million compensatory and $ 1 million punitive damages. After completing discovery the defendants now move for summary judgment. For the reasons set forth below, the bulk of the complaint will be dismissed.
Plaintiffs were among the 35 to 73 Mid-Orange correction officers out of a total force of some 210 who resided in April, 1979 on the grounds of the facility in the so-called upper and lower staff buildings.
Both Engblom and Palmer had resided at the upper staff building as employees of the Department for nearly two years antedating the events here at issue. As is apparent from the numbers involved, Mid-Orange correction officers were not required to live on the grounds of the facility as a condition of employment. This housing space had been made available, however, to assure adequate attendance of correction officers at the facility at all times. Engblom and Palmer had applied for and been granted housing space, and the staff building at Mid-Orange became their residence.
The living space at Mid-Orange is akin to a dormitory, consisting of rooms or apartments with semi-private or private baths, and common kitchens. The prison provides the fixtures and standard bed and dresser, with all other furnishings and accessories, from curtains to toilet paper and light bulbs, supplied by the occupants. The occupants apparently were also responsible for cleaning their own rooms. There was a rental charge of $ 36 per month, which was deducted from payroll checks. Engblom and Palmer, as all staff housing applicants, were given and did sign a document entitled Facility Housing Rules and Regulations ("the Rules").
The Rules apparently were promulgated pursuant to a certain Department Directive # 4005 dated January 29, 1976 ("the Directive").
These are the only documents brought to the attention of the court in the nature of a "lease" or otherwise, setting forth the conditions of plaintiffs' occupancy of the staff building premises.
On the morning of April 19, 1979, all but a few correction officers at Mid- Orange joined in a state-wide strike called by the Security and Law Enforcement Employees Council 82, AFL-CIO, in apparent violation of New York Civil Service Law § 210 ("the Taylor Law"). By executive order, Governor Carey thereupon mobilized the Guard, which was then ordered to provide security at various state correctional facilities, including Mid-Orange. Plaintiffs were among those who were not on the job from that morning and for the duration of the strike until May 3.
Neither plaintiff denies defendants' contention, set forth in the affidavit of Snow, that both were active participants in the work stoppage and on the picket line.
Soon after the strike began on April 19 or April 20 after receiving reports that strikers had been using staff housing to contact, threaten and disrupt the work of personnel still on duty, and that certain acts of vandalism including the destruction of personal property and cutting of a facility TV cable had been committed,
Superintendent Snow issued an order barring access to Mid-Orange by correction officers without his permission, except for the purpose of reporting for duty.
Officers of the New York State Police, who had been called in to help with security, enforced this order at the prison entrances. On April 21, Snow declared a state of emergency at the prison. As a result of Snow's actions, plaintiffs, among others, were denied access to their apartments, as well as to the administration building where mail was distributed, and the arsenal where their personal weapons were stored.
The Guard, executing "Operation Gold Plum" under the command of Captain Drew, arrived at Mid-Orange on April 19-20, and thereafter. The force reached a maximum of approximately 260 men during the strike. They were initially housed on floors of various rooms in the facility school and administration buildings. There were discussions between National Guard and prison officers about these housing arrangements.
On April 20 Engblom was granted permission to enter her room for a few minutes to retrieve some personal effects. At some time before April 25 the decision was made by Snow to order possessions cleared from the rooms of the absent correction officers, and simultaneously, or shortly thereafter, following consultation with the office of Hongisto in Albany, it was determined that National Guardsmen could occupy the vacated rooms. On April 25 the striking correction officers, including plaintiffs, were allowed into the staff buildings to remove their belongings. Plaintiffs at that time packed their belongings and placed them in a locked storage area in the building. Both claim that their personal effects had been noticeably disturbed, and some things taken, during their absence. Snow asserts that the belongings of officers who did not report to pack their own material were subsequently packed by inmates supervised one on one by Department personnel.
Plaintiffs urge that the striking resident correction officers were ordered to clear out their rooms specifically to provide quarters for the Guard, and this contention is supported by the deposition testimony of Deputy Superintendent Thomas K. Andrews and of defendant Drew.
The National Guardsmen occupied vacant rooms in the staff buildings on April 28. On that same day plaintiffs entered the facility with permission to retrieve belongings stored by them three days earlier. Again, there is the claim that storage cabinets had been broken into and items removed in the interim, allegedly by the members of the Guard. Plaintiffs claim that from on or about April 25 to May 5, their apartments were used without their consent to quarter soldiers of the Guard, and that despite requests, they continued to be denied access to their mail and weapons through most or all of this period.
Snow states that no troops were quartered in the staff housing buildings until after all personal belongings had been packed and removed from rooms, and that payroll deductions for staff housing rental were cancelled effective April 19. He states further that Engblom's personal property was never packed nor was her room used. He explains that "packing operations were discontinued at upper staff housing because there were females, both correction officers and civilians, who had rooms (there) and we did not want the inmates in the females' rooms." Snow asserts that weapons were not specifically ordered withheld, and that several of the striking employees withdrew theirs from the arsenal upon leaving the facility after the strike started. On April 22 the Department did revoke the striking officers' authority to carry firearms by virtue of their peace officer status. In the general confusion of the first days of the strike no arrangement was made for the absent personnel to pick up their mail, which normally was sorted into personal boxes at the facility administration building. On April 25, an agreement was reached among prison, union and Warwick post office officials whereby the absent correction officers' mail was returned to and held at the post office, and was available for pick-up, according to Snow, beginning on May 1.
Plaintiffs and other absent correction officers returned to work on May 5, not having been discharged. The Guardsmen left the facility that day. Both Engblom and Palmer still are employed as correction officers at Mid-Orange, but apparently neither now lives at staff housing.
Summary judgment is appropriate when, resolving all factual disputes and drawing all reasonable inferences in favor of the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. S.E.C. v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978); Fed.R.Civ.P. 56(c). "While constitutional issues should not be decided on an incomplete factual basis, "summary judgment may be rendered ... where the record is adequate for the constitutional question presented and there is no genuine issue of material fact.' " Keeler v. Joy, 641 F.2d 1044, at 1047 (2d Cir. 1981) (Tenney, J. concurring), quoting 6 Moore's Federal Practice P 56.17 (10) at 56-772 to -776 (2d ed. 1976). I conclude even assuming, as is claimed, that troops ...