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June 29, 1990


The opinion of the court was delivered by: Sand, District Judge.


A pro se prison inmate brings this action under 42 U.S.C. § 1983, claiming that two prison officials engaged in a pattern of harassment in retaliation for his commencement of law suits. The prison officials move for summary judgment, claiming that their actions were undertaken at least in part for valid institutional reasons, that they are entitled to qualified immunity, and that plaintiff is collaterally estopped from raising parts of his claim. Defendants also move to amend their answer.

I. Background

Plaintiff Baker is an inmate confined to the Green Haven Correctional Facility. Defendant Raymond Morgan, a civilian employee of the New York State Department of Correctional Services, works under the Superintendent of Industry at Green Haven overseeing the operations of all the Industries Shops, which are components of a profit-making corporation which employs inmates. Defendant Bernard Zlochower (sued herein as "Zlochowon"), also an employee of the New York State Department of Correctional Services, works under defendant Morgan as the General Industrial Training Supervisor at Green Haven.

According to plaintiff, he has been employed in the prison upholstery shop since July 6, 1983, first as an upholsterer and then as a clerk. In this capacity, plaintiff had reached a pay grade of 4.3. When plaintiff learned that the point value system for the shop was to be changed, he filed a grievance along with other inmates. Some time thereafter, plaintiff noticed that "his hours of work were short." Plaintiff's supervisor, Mr. Tinsley, informed him that defendant Morgan had deducted an hour of pay because plaintiff had failed to punch his time card in or out. Plaintiff alleges that pursuant to defendant Morgan's own rules only a half an hour should have been deducted. Baker Affidavit ("Baker") at 1. Defendant Morgan affirms that two hours of pay were deducted from plaintiff's paycheck, one for not punching in his time card on August 16, 1987 and another for punching in other inmates' cards on September 6, 1987. Morgan Affidavit ("Morgan") ¶ 7. Though the rules suggest that an inmate is to lose 1/2 hour for his first infraction and 1 hour for a second infraction, Morgan Exhibit B, the record does not indicate whether plaintiff's August 16, 1987 infraction was his first.

Plaintiff alleges that on October 21, 1987 defendant Zlochower came to the shop with forms for several other inmates to sign for failing to punch in or out. In Zlochower's presence, plaintiff then assisted these other inmates with grievance forms, writing Zlochower's name on the forms. Later, when plaintiff and other inmates were discussing Morgan's behavior with respect to the pay deductions, Zlochower allegedly "rushed over, stating 'you all are no lawyer, I give you all a direct order to get to work.'" Plaintiff also indicates that he had several other similar confrontations with Zlochower in October 1987.

By petition dated May 26, 1988, plaintiff and other inmates instituted a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules in state court to challenge the time card penalties as violative of their due process rights. The petition was dismissed on July 14, 1988, and the dismissal was affirmed by the Appellate Division on January 16, 1990.

Plaintiff maintains that on February 10, 1988, Morgan watched him prepare part of his complaint for the Article 78 proceeding, asked if he was getting a copy, and then responded that it would come to him to answer anyway. Months later, Morgan apparently came to the shop, handed plaintiff an envelope with his answer to the complaint and told plaintiff that he had told him it would come back to him to answer. Plaintiff further contends that some time in May 1988 Morgan told him that he hoped plaintiff's family had money because he would sue them if plaintiff put "his name on another paper." Another inmate coroborates plaintiff's account of this last confrontation. See Cook Affidavit at 2.

Plaintiff alleges on the week of October 18, 1987 his bonus pay was $1.91 short. He indicates that he was assured by Mr. Tinsley that Morgan had said it would be in his next paycheck. When plaintiff did not see the money in his next paycheck, he spoke with Morgan who allegedly told him "he was on first names with the Governor and Commissioner, that I was not getting paid until he was ready and that might be never." Morgan contends that he investigated the complaint, found the error, and learned that the amount had already been added to plaintiff's salary. Morgan ¶ 8.

Plaintiff alleges that beginning the week of June 12, 1988 he stopped receiving pay for time spent participating on an "Inmate Liaison Committee." When plaintiff complained to Commissioner Coughlin, he apparently started to get paid again. Plaintiff maintains that the payment stopped again when defendant Morgan was served with the complaint in this action. Morgan points out that pursuant to a prison directive inmates are to be paid for absences due to participation on a "grievance committee," but not for absences due to participation on a "liaison committee." Morgan ¶ 10; Exhibit F at 5.

Plaintiff alleges that several more confrontations with Morgan took place during August of 1988. On one occasion Morgan allegedly told the staff at the shop that plaintiff was to make chairs, not do clerk work. On another occasion, Morgan allegedly threatened plaintiff that if he did not make a chair, his pay grade would be reduced.

From August 19, 1988 until September 12, 1988 petitioner was absent from the shop because he was serving a sentence of confinement in the Special Housing Unit at Green Haven for a disciplinary violation. Plaintiff alleges that he specifically asked that he be given 25 days confinement, not 30, so he would not lose his job. During plaintiff's absence, Zlochower allegedly started telling inmates that plaintiff was "not coming back to the shop."

Another inmate, Juan Pacheco, affirms that he and Mr. Tinsley agreed that Pacheco would work in plaintiff's job until plaintiff returned. Pacheco also affirms that on one occasion Morgan raised the possibility of Pacheco keeping the job permanently and that he rejected Morgan's suggestion. Pacheco further affirms that after plaintiff's confinement ended Zlochower asked Pacheco to keep the job and that he again refused citing the agreement with Tinsley. Pacheco also indicates that at a subsequent meeting with Morgan and Zlochower, Morgan told him explicitly that the shop could have a clerk and that it could be Pacheco but not plaintiff. The parties do not dispute that at some point it was decided that the shop would no longer employ a full time clerk. While Morgan states that this decision was made for the sake of "efficiency," Morgan ¶ 10, plaintiff argues that it was to prevent him from having the job. It is also undisputed that when plaintiff returned to the shop, he was assigned to work at upholstery tables with a salary grade level of 2.3, instead of 4.3. Morgan suggests that this was the highest grade position for which there was a vacancy at the time. Morgan ¶ 10.

Petitioner filed a grievance in connection with his job change and received a response indicating that his grievance had been researched and that the investigator agreed that "grievant [was] much more valuable as a upholsterer than a clerk." Plaintiff proceeding pro se commenced this action on October 31, 1988 pursuant to 42 U.S.C. ยง 1983, ...

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