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:
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
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.
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, ...