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July 15, 1983

HUGH L. CAREY, Governor of the State of New York, RICHARD D. HONGISTO, Acting Commissioner, New York State Department of Correctional Services, JOSEPH C. SNOW, Superintendent of the Mid-Orange Correctional Facility, MAJOR-GENERAL VITO J. CASTELLANO, Chief of Staff to the Governor of New York, New York National Guard, LIEUTENANT-COLONEL JUSTIN M. QUEALLY, an officer of the 106th Maintenance Battalion of the New York National Guard, CAPTAIN "JOHN" DREW, an officer of the 101st Signal Battalion of the New York National Guard and Various Officers and Enlisted Men, Members of the New York National Guard, Defendants

Sweet, D.J.

The opinion of the court was delivered by: SWEET


Plaintiffs Marianne E. Engblom and Charles E. Palmer, two correction officers at the Mid-Orange Correctional Facility ("Mid-Orange"), brought this action seeking damages under 42 U.S.C. ยง 1983 against the Governor of New York and various prison officials of the State of New York (collectively "the defendants"). Currently before the court is the defendants' motion for summary judgment pursuant to Rule 56 Fed.R.Civ.P. For the reasons set forth below, the motion is granted and the complaint dismissed.

 The complaint in this action alleged that the plaintiffs' Due Process and Third Amendment rights were violated during a statewide strike of correction officers in April and May of 1979 when they were evicted from their facility-residences without notice or hearing and their residences were used to house members of the National Guard without their consent. The facts and circumstances of this case are set forth in prior opinions, Engblom v. Carey, 522 F. Supp. 57 (S.D.N.Y. 1981), aff'd in part, rev'd in part, 677 F.2d 957 (2d Cir. 1982), and familiarity with these opinions is assumed.

 Initially, this court granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiffs did not have a sufficient possessory interest in their facility-residences to entitle them to protection under the Third Amendment and Due Process Clause of the Fourteenth Amendment. The Second Circuit affirmed the dismissal of the Due Process claim on the ground that adequate post-deprivation proceedings were afforded to protect the plaintiffs' rights. Engblom v. Carey, supra, 677 F.2d at 965-66. The Court of Appeals agreed with this court's conclusion that the National Guardsmen are "Soldiers" within the meaning of the Third Amendment and that they are generally state employees under the control of the Governor. Id. at 961. The Court of Appeals also agreed that the Third Amendment is incorporated into the Fourteenth Amendment for application to the states. Id. However, the Second Circuit reversed the dismissal of the Third Amendment claim, finding that it could not say as a matter of law that the plaintiffs' possessory interests in their living quarters were not entitled to the protection of the Third Amendment. Id. at 964. The court reversed and remanded the dismissal of the Third Amendment claim for proceedings not inconsistent with its opinion. Id. at 966.

 On remand, the defendants have moved for summary judgment asserting the qualified or "good faith" immunity defense, see Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982); Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975), and in the alternative, asserting that the defendants are shielded from damage liability due to the absence of any personal involvement, see McKinnon v. Patterson, 568 F.2d 930 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 55 L. Ed. 2d 792, 98 S. Ct. 1282 (1978). Indeed, the Second Circuit recognized that these issues had not been decided by this court in its prior decision since it had concluded that there were no protectable interests involved. See Engblom v. Carey, supra, 677 F.2d at 961 n.10.

 Qualified or "good faith" immunity is an affirmative defense that must be pleaded by a defendant official. Harlow v. Fitzgerald, supra, 102 S. Ct. at 2737 (1982) (citing Gomez v. Toledo, 446 U.S. 635, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980). At argument, counsel for defendants represented that the affirmative defense was inadvertently omitted in the answer with respect to defendant Hongisto. The plaintiffs were on notice, of course, that the defense would be raised with respect to all of the defendants. For the purposes of this motion, the answer is deemed to have been amended to assert the defense against all of the defendants.

 In its most recent pronouncement on the qualified immunity doctrine, the United States Supreme Court stated:

We conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

 Harlow v. Fitzgerald, supra, 102 S. Ct. at 2738 (citations and footnote omitted) (emphasis added). In Fitzgerald, the Court recognized that its prior decisions had established that the "good faith" defense had both an "objective" and a "subjective" aspect, the objective element involving a "presumptive knowledge and respect for 'basic, unquestioned constitutional rights'" and the subjective element referring to "'permissible intentions.'" At 2737 (citing Wood v. Strickland, 420 U.S. 308, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975)). In Fitzgerald the Court adjusted the "good faith" standard established by its prior decisions by rejecting the subjective aspect. The Court explained the ramifications of its decision as follows:

Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to "know" that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors.

 Id. at 2739 (footnotes omitted) (emphasis added). The inquiry, then, is what the currently applicable law is and whether the law was "clearly established" during April and May of 1979 when the events in question took place. *fn1"

 On appeal, the Second Circuit noted that "for the first time a federal court is asked to invalidate as violative of the Third Amendment the peacetime quartering of troops 'in any house, without the consent of the Owner.'" Engblom v. Carey, supra, 677 F.2d at 959. *fn2" The Court acknowledged that aside from this court's prior opinion in this case, "there are no reported opinions involving the literal application of the Third Amendment," and that "several far-fetched, metaphorical applications have been urged and summarily rejected." Id. at n.1 (citations omitted).

 The Second Circuit opened its discussion of the Third Amendment claim with the following introduction: "We first address the novel claim based on the Third Amendment, a provision rarely invoked in the federal courts." Id. at 961. The court set forth the issue to be decided and noted the absence of any case law on point:

The crux of appellants' Third Amendment claim depends on whether the nature of their property interest in their residences is sufficient to bring it within the ambit of the Third Amendment's proscription against quartering troops "in any house, without the consent of the Owner." The absence of any case law directly construing this provision presents a serious interpretive problem, and little illumination can be gleaned from the debates of the ...

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