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April 22, 1991


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


Plaintiff, an inmate in the New York State prison system, sues defendants under 42 U.S.C. § 1983, claiming that they violated his due process and First Amendment rights by seizing papers, including a petition, from his cell and punishing him under prison disciplinary rules for circulating the petition. Plaintiff has moved for partial summary judgment, and defendants have cross-moved for summary judgment.


Plaintiff Kevin Richardson was incarcerated at Attica Correctional Facility ("Attica") when the challenged disciplinary charges were lodged against him, and was incarcerated at Sullivan Correctional Facility ("Sullivan") during the disciplinary hearing at which the challenged punishment was imposed. (Complaint, ¶ 5.)

Defendant Thomas A. Coughlin III is the Commissioner of the New York State Department of Correctional Services ("DOCS"). (JPTO, ¶ 3.)*fn1 Defendant Donald Selsky is and was during the events complained of the Director of Inmate Discipline for DOCS. (JPTO, ¶ 5.) He is legally responsible for the administrative review of determinations made at prisoners' disciplinary hearings, known as Superintendent's Hearings. (Complaint, ¶ 8.) Defendant Wayne Wilhelm was a Captain at Sullivan in May, 1987 and was the hearing officer for the Superintendent's Hearing at which the punishment that Richardson challenges was imposed. (Complaint, ¶ 10; JPTO, ¶ 7.) Defendant John Block, a Lieutenant at Attica in May of 1987, authorized the seizure of Richardson's petition from his cell and the bringing of disciplinary charges for circulating it. (JPTO, ¶ 10.)


In early April of 1987 Richardson was transferred to Attica from Auburn Correctional Facility. (JPTO, ¶ 11.) Attica is a maximum security correctional facility. (JPTO, ¶ 12.) On or about May 5, 1987, Officers Nappo and Bea, two Attica correction officers, searched Richardson's cell in his absence. (JPTO, ¶ 15-17.) The search was authorized by defendant Block. (JPTO, ¶ 18.)

During this search, Officers Nappo and Bea seized some written materials from Richardson's cell. These materials included: a copy of a New York Times article headlined, "US Court Finds for Prisoner in Rights Case;" an unfinished letter to a journalist, Tony Farina; a paper containing handwritten notes; and a letter addressed to Richardson as the Powerful Shaktir Richardson. (JPTO, ¶ 20.) Also among these materials was a handwritten document written and signed by Richardson and also signed by nine other inmates ("the petition"). (JPTO, ¶ 20.) The petition states:

To Whom it May Concern:

    Attica, [t]he word means resistance, rebellion,
  courage and solidarity. In 1971 2000 prisoners
  took the prison over and held it for over a week
  to demand that they be treated "as men and not
  beast." The Attica Rebellion told the world about
  the conditions that prisoners faced at Attica.
  Thirty-nine people were murdered by New York
  State and hundreds were savagely beaten. In 1976
  1700 of 2200 prisoners called a general strike to
  protest inhuman conditions, the administration
  broke the strike by transferring over a hundred
  prisoners keeping hundreds locked in their cells.
  Today the situation in Attica Prison is unchanged
  in fact it is even wors[e]. The prison's response
  to demands for basic human rights has been to
  increase repression in the name of "security" and
  to insure this the officers go around and beat up
  on prisoners for no reason at all. The number of
  guards has doubled since 1971. Racist guards,
  many believed to be Ku Klux Klans harass beat and
  threaten the lives of prisoners daily. Attica is
  in very high tension right now as the officers
  continue to push, press, and beat up prisoners. A
  Block is the worst of all as if it's the police
  strong[hold], A-7 Company is like a reception
  company no one on this gallery goes to chow.
  Everyone is fed up in their cells, the food is
  filthy and goes through 10 hands before it is
  given to us, always cold. And most of the time
  everything is not there. I Kevin Richardson the
  writer of this was sent back to Attica on 4-7-87
  and placed on A-7 Company. I am not keylock yet
  I've never been to the mess hall I've been fed
  keylock meals. In 1983 a correction officer
  handed the Black Book (a book about Black
  history). Inside prisoners' names were
  handwritten onto pictures of lynched Black men
  and African tribesmen. My name (Whip) was written
  over one of the lynched men. Yet I'm back in
  Attica again.
    Prisoners here on A-7 Company face the most
  inhumane and degrading conditions that one could
  think of. Here is a list of the things that we
  are faced with each and every day

1) Cold food and short rations of meals.

  2) Forced to live in filthy cells — The[re] is no
  cell clean up on A-7.
  3) People have seen C.O.'s playing with the mail
  4) Constant verbal harassment and threats and
  5) The C.O.'s take anybod[y's] rec, showers and
  phone calls at will.
  6) Everybody must take the blanket off the bed
  and go get their property and drag their property
  in their blanket on the floor.
  7) Assaults are very common in A Block and
  8) Unjustified disciplinary reports against
  9) Keylocks are burned for their rec at will and

10) The attitude of the C.O.'s is very barbaric.

People who have [encountered] the above (Plaintiff's Ex. 3.)

Beneath the last line, the petition has spaces numbered one to sixteen. Richardson had signed in the first space, and nine other inmates had signed in spaces two through ten. (Id.)

Officer Bea gave the seized written materials, including the petition, to defendant Block. (JPTO, ¶ 21.) Officers Bea and Nappo prepared a cell search slip dated May 5, 1987 that indicated that a belt, a buckle, and a pair of gloves had been taken from Richardson's cell. (JPTO, ¶ 22.) On May 7, Officer Bea wrote another slip that listed a belt, ...

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