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GILLIAM v. QUINLAN

February 25, 1985

WALTER JAMES GILLIAM, Plaintiff,
v.
J. MICHAEL QUINLAN, JOHN MICHAEL BROWN, ANN D. BARTOLO, CAROLYN V. RICKARDS, MICHAEL PUGH, Defendants



The opinion of the court was delivered by: EDELSTEIN

ORDER

EDELSTEIN, District Judge:

WHEREAS on March 14, 1984, plaintiff, then an inmate at the Federal Correctional Institute at Otisville, New York ("FCI"), commenced this action, pro se, pursuant to 42 U.S.C. § 1983, for damages and injunctive relief against five officials and employees of FCI; and

 WHEREAS on March 27, 1984, the court referred the case to Magistrate Michael H. Dolinger, pursuant to 28 U.S.C. § 636, to make findings and recommendations with respect to the complaint; and

 WHEREAS plaintiff is his complaint alleges that: (1) defendants on two occasions wrongfully denied plaintiff a furlough; (2) defendants wrongfully denied plaintiff an earned vacation; (3) beginning January 20, 1984, defendants denied plaintiff mailing privileges and repeatedly tampered with plaintiff's outgoing mail; (4) defendant Michael Pugh altered plaintiff's legal documents to deprive plaintiff of privileges to which he was otherwise entitled; (5) defendants harrassed plaintiff by removing a typewriter from his room and by searching his cell almost daily; and (6) the above actions were taken because of defendants' hostility towards plaintiff's religious beliefs; and

 WHEREAS defendants have moved for summary judgment or, in the alternative, to dismiss, and plaintiff has cross-moved for a preliminary injunction; and

 WHEREAS by Report and Recommendation dated January 15, 1985, the Magistrate recommended that plaintiff's claim based on the denial of furlough and vacation requests be dismissed because they do not state a constitutional claim; and

 WHEREAS the due process clause of the fourteenth amendment does not provide a liberty interest to prisoner furloughs and vacations, cf. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979) (no "constitutional or inherent" right to parole); Wolff v. McDonnel, 418 U.S. 539, 557, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974) ("Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison"); and

 WHEREAS the regulations governing the grant of furloughs, 28 C.F.R. § 570.30 et seq., and vacations, 28 C.F.R. § 345, do not provide the type of discretion-limiting standards that would give an inmate a liberty interest, cf. Marciano v. Coughlin, 510 F. Supp. 1034, 1037 (E.D.N.Y. 1981) (no liberty interest created by New York furlough statute); Wright v. Cuyler, 517 F. Supp. 637, 641-42 (E.D. Pa. 1981) (no liberty interest created by Pennsylvania furlough statute; and

 WHEREAS the Magistrate recommended that plaintiff's claim based on defendants' denial of outgoing mail privileges be dismissed; and

 WHEREAS prison regulations that infringe on a prisoner's right to communicate with others by mail must "further an important or substantial government interest unrelated to the suppression of expression," and "be no greater than is necessary or essential to the protection of the particular government interest involved," Procunier v. Martinez, 416 U.S. 396, 413, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974); and

 WHEREAS the Magistrate found that based on the Martinez standard, plaintiff has stated a constitutional claim, because the defendants could have furthered the government's substantial interest by simply prohibiting plaintiff's correspondence with Ms. McGill, the woman he allegedly threatened; and

 WHEREAS the Magistrate recommended, however, that these claims be dismissed on the ground of defendants' qualified or good faith immunity; and

 WHEREAS the defense of qualified immunity is "available to prison officials as a defense form liability for damages for actions taken in their official capacities," Security & Law Enforcement Employees, District Council 82 v. Carey, 737 F.2d 187, 210 (2d Cir. 1984), provided the prison officials can show that "their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known," Harlow v. Fitzgerald, 457 ...


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