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January 31, 1985


The opinion of the court was delivered by: CANNELLA



 Defendants' motion to dismiss the complaint is granted in part and denied in part. Fed. R. Civ. P. 12(b)(6).


 Plaintiff Pinchas Balabin commenced this action by pro se complaint on September 15, 1983. *fn1" Defendants filed a notice of motion to dismiss the complaint on December 13, 1983. *fn2" Before that motion was decided, however, counsel was appointed by this Court, see Order, 83 Civ. 6778 (JMC) (S.D.N.Y. Jan. 11, 1984), the motion was withdrawn, and the complaint was amended. *fn3" Defendants now move to dismiss the amended complaint.

 In the amended complaint, plaintiff alleges that defendants violated his civil rights under 42 U.S.C. § 1983 and unlawfully converted his property in violation of state law. The defendants are or were employees of the Green Haven Correctional Facility ["Green Haven"], except Thomas Coughlin, III, who is the New York State Commissioner of Correction. This Court has jurisdiction over the federal constitutional claims under 28 U.S.C. §§ 1331, 1343. Whether the Court has jurisdiction over the state claim under the principles of pendent jurisdiction is an issue raised in this motion.

 The facts leading to the current dispute are as follows: On June 3, 1983, plaintiff's cell at Green Haven was searched, without warning. Plaintiff claims that the cell was left in "shambles" and that some personal property was damaged or destroyed. *fn4" Certain other property was confiscated, including, according to plaintiff, a transcript of plaintiff's criminal trial, other legal papers and notes, lawbooks, letters to and from attorneys, three bibles, prayer books, a prayer shawl, a tefillin, a yarmulke and some personal letters. Plaintiff was given a receipt indicating that the following property had been taken: "All paperwork, All contraband wood, Exacto knife, 8 track Radio and Realistic Radio, medical supplies, and misc. contraband." *fn5" Apparently at least some of the items taken were contraband. Plaintiff claims that the property was "scrutinized", including the letters to and from attorneys. *fn6"

 At some time after the search and confiscation, a disciplinary proceeding was held and plaintiff was "found guilty" of possessing certain contraband items: "a print of a helicopter that allegedly contained drawings of certain keys, sand paper, an allen wrench and a map of the world." *fn7" This ruling was later overturned on procedural grounds.

 There is some dispute as to whether plaintiff has been offered access to his property or merely been allowed to inspect it. Apparently, the only property that has been returned to plaintiff is one bible, one prayer book, certain nonlegal books and personal correspondence.


 Plaintiff raises claims based on the first, fourth, fifth, sixth, eighth and fourteenth amendments to the United States Constitution, and a state law claim of conversion. Each of these claims, and the defendants' objections to each, will be discussed in turn.

 First and Fourteenth Amendments

 Plaintiff claims that the confiscation and failure to return certain religious items -- bibles, prayer books, a prayer shawl, tefillin and a yarmulke -- has "curtailed" his religious activities, *fn8" in violation of his first amendment rights. Defendants have moved to dismiss the claim on the ground that the confiscation is within the discretion of the prison officials and that the complaint insufficiently states the way in which plaintiff's religious activities have been curtailed.

 Prisoners are not automatically stripped of first amendment rights by virtue of their incarceration. See Wolff v. McDonnell, 418 U.S. 539, 555-56, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); Pell v. Procunier, 417 U.S. 817, 822, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974); Moorish Science Temple of Am., Inc. v. Smith, 693 F.2d 987, 990 (2d Cir. 1982); Phillips v. Coughlin, 586 F. Supp. 1281, 1283 (S.D.N.Y. 1984). See also Heimerle v. Attorney General, 753 F.2d 10, slip op. at 1323-1325 (2d Cir. 1985) (discussing first amendment restrictions on prison mail censorship). On the contrary, a prisoner retains all first amendment guarantees "not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. at 822. Prison officials may thus interfere with those rights only for important penological purposes, where the "restraint on religious liberty is reasonably adapted to achieving [the] objective." LaReau v. MacDougall, 473 F.2d 974, 979 (2d Cir. 1972), cert. denied, 414 U.S. 878, 94 S. Ct. 49, 38 L. Ed. 2d 123 (1973), quoted in Moorish Science Temple, 693 F.2d at 990.

 In certain circumstances, the Supreme Court has shown great deference to prison officials' enunciations of their motives in restricting prisoners' first amendment rights, see Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 128, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977) (where prisoners sought to form union, district court erroneously required prison officials to prove that it would be detrimental to proper penal objectives); see also St. Claire v. Cuyler, 634 F.2d 109, 112-15 (3d Cir. 1980) (discussing burden of proof and compiling cases). Even assuming that prison officials may not be required to prove that their motives are valid or their means the least restrictive, however, they must, at the very least, allege an important purpose for imposing a restriction. See Moorish Science Temple, 693 F.2d at 990 (plaintiff need only plead that his first amendment rights were restricted to overcome sua sponte dismissal); Burgin v. Henderson, 536 F.2d 501, 504 (2d Cir. 1976) (counsel's unsupported assertion that religious hats might conceal weapons held insufficient to permit affirmance of district court's sua sponte dismissal).

 Defendants have given plaintiff no explanation whatever for retaining his religious items for a year and a half and have also failed to allege any purpose in their motion papers before this Court. The only suggestion that counsel has presented is the equivocal statement that "[i]t is not inconceivable that an inmate might use religious articles to conceal contraband and that prison officials would occasionally be ...

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