it is unnecessary to address this alternative theory of
1. Punishment for Circulating the Petition
Defendants have also moved for summary judgment on
plaintiff's claim that punishing him for circulating the
petition violated his First Amendment rights. Whether or not
the First Amendment prohibited defendants from punishing
Richardson for circulating the petition, the punishment did
not "violate clearly established . . . rights of which a
reasonable person would have known" in 1987 and defendants are
thus immune from damages on this claim. Richardson has not
cited any case that held, as of May of 1987, the First
Amendment barred prison officials from regulating the
circulation through the prison of a petition with language
such as Richardson's. See, e.g., Bell v. Wolfish, 441 U.S. 520,
99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Jones v. North Carolina
Prisoners' Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629
(1977); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41
L.Ed.2d 495 (1974). Thus petitioner has not shown a violation
of a clearly established right and defendants have qualified
immunity from damages on the First Amendment claim.
2. Removal of Papers
Defendant Block seeks summary judgment on Richardson's claim
against him that the removal and retention of Richardson's
documents, other than the petition for which he was
disciplined, from his cell violated his First Amendment
rights. The other documents taken were a newspaper article,
the start of a letter from Richardson to a journalist,
handwritten notes, and a letter to "the Powerful Shaktir
Richardson." The transcript of Richardson's hearing and the
Superintendent's Hearing Disposition Rendered form show that
these documents were not the basis for his punishment.
Defendants argue that this seizure during a lawful search
raises no First Amendment issue. In opposing summary judgment
on this claim, Richardson argues that the seizure chilled his
First Amendment rights and that it cannot meet the
reasonableness test of Turner v. Safley, 482 U.S. 78, 107 S.Ct.
2254, 96 L.Ed.2d 64 (1987), which requires prison rules that
impinge on inmates' constitutional rights to be reasonably
related to legitimate penological interests. Id. at 89, 107
S.Ct. at 2261. Richardson has cited no support for his
contention that the removal of non-legal papers from a prison
cell violates the First Amendment.*fn2 The failure to return
the papers to him may constitute negligence, but negligence
does not rise to the level of a constitutional violation.
Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88
L.Ed.2d 662 (1986). Therefore, summary judgment for defendant
Block on this claim is granted.
Lack of Personal Involvement of Defendant Coughlin
Defendant Coughlin seeks summary judgment on all claims
against him on the ground that Richardson has shown no
personal involvement by him. Richardson contends that Coughlin
is liable for ratifying and adopting the punishment without
ascertaining whether Richardson's rights had been violated and
for failing to promulgate more specific rules.
Richardson has not raised a material issue of fact with
respect to any personal involvement in his punishment by
defendant Coughlin. Liability under 42 U.S.C. § 1983 requires
that the defendant be personally involved in a constitutional
deprivation. Monell v. Department of Social Services,
436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978); Al-Jundi
v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989). A
plaintiff can show the required personal involvement of a
supervisor such as Coughlin by showing that the supervisor 1)
directly participated; 2) failed to remedy the wrong after
learning of it through a report or appeal; 3) created
or continued a policy or custom under which unconstitutional
practices occurred; or 4) was grossly negligent in managing
the subordinates who caused the violation. Al-Jundi v. Estate
of Rockefeller, 885 F.2d at 1066; Williams v. Smith,
781 F.2d 319, 323-24 (2d Cir. 1986).
Richardson alleges that Coughlin "ratified and adopted" his
punishment. (Plaintiff's Supplement to JPTO.) In support,
Richardson offers only the failure of Coughlin to deny, in his
answer, the allegation in the amended complaint that "in
refusing to reverse the Superintendent's Hearing, . . .
Coughlin ratified and adopted the disposition against and
punishment of the plaintiff challenged herein." (Complaint,
¶ 97.) Richardson, however, has offered no evidence that the
hearing disposition was appealed to Coughlin or that Coughlin
was even aware of the disposition. The cases cited by
Richardson in support of Coughlin's personal involvement are
cases in which Coughlin himself affirmed a disciplinary
hearing. See Patterson v. Coughlin, 905 F.2d 564, 568 (2d Cir.
1990); Young v. Kihl, 720 F. Supp. 22, 23 (W.D.N.Y. 1989).
Nor does the fact that Coughlin received and responded to a
letter from Richardson complaining about conditions in Attica
show involvement by Coughlin in the punishment. Richardson
wrote to Coughlin before the events at issue here occurred,
and Coughlin's response addresses Richardson's complaints and
request for a transfer, not his disciplinary hearing.
Richardson also does not allege that Coughlin received any
report concerning the disciplinary hearing on which he failed
to act or that he reviewed or affirmed the discipline.
Finally, Richardson points to the New York Correction Law
§ 138(6) (McKinney's 1987) requirement that the Commissioner
review annually all rules and regulations pertaining to inmates
and the New York Correction Law § 138(3) requirement that all
such rules be "specific and precise." Richardson argues that
Coughlin is liable under § 1983 for failing a duty imposed upon
him by state law, thereby creating a policy under which
unconstitutional practices occurred. The fact that state law
requires Coughlin to review all prison rules, however, is not
evidence that Rules 100.20 or 104.12 constituted an improper
custom or policy and does not support liability of Coughlin
under § 1983 for an instance of their improper application.
Lack of Personal Involvement of Defendant Block
Defendant Block moves for summary judgment on Richardson's
claim that he is liable for the punishment eventually imposed
because he directed Officer Nappo to write out a misbehavior
report charging Richardson with violating Rules 100.20 and
104.12. Richardson argues that Block knew or should have known
that those charges violated the First Amendment and that the
rules did not give adequate notice that Richardson could be
punished for circulating the petition.
The filing of wrongful or even false charges against an
inmate is not a constitutional violation, as long as the
inmate is accorded a hearing in connection with the charges.
Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986), reh'g en
banc denied, 826 F.2d 194 (2d Cir. 1987), cert. denied,
485 U.S. 982, 108 S.Ct. 1273, 99 L.Ed.2d 484 (1988). The one
exception is that the filing of false disciplinary charges in
retaliation for an inmate's exercise of his substantive
constitutional rights may support a § 1983 claim. Franco v.
Kelly, 854 F.2d 584, 590 (2d Cir. 1988); Anderson v. Sullivan,
702 F. Supp. 424, 427 (S.D.N.Y. 1988).
Richardson's claim against defendant Block does not fall
within the narrow "retaliation" exception created by
Franco. Richardson does not allege that Block intentionally
caused a false misbehavior report to be issued. In Franco, by
contrast, the plaintiff claimed that "prison officials
intentionally filed false disciplinary charges against him in
retaliation for his cooperation with a state administrative
investigation of alleged incidents of inmate abuse at the
prison." Franco, 854 F.2d at 589. Here, Richardson does not
dispute that he
possessed the petition and other papers described in the
misbehavior report. Whether or not his possession of them was
protected by the First Amendment, Block's misbehavior report
did not constitute either an intentionally false charge or
"retaliation" of the kind found actionable in Franco. Thus,
Block's motion for summary judgment on Richardson's § 1983
claim against him for directing Officer Nappo to write the
misbehavior report is granted.
Claim for Damages for Transfer from Sullivan
Finally, defendant Wilhelm has moved for summary judgment
dismissing Richardson's claim against him for damages for the
distress caused Richardson by his transfer from Sullivan to
Great Meadow in July of 1987.*fn3 Because Richardson has
raised a genuine issue of material fact as to whether his
transfer from Sullivan resulted from the disposition at his
hearing, summary judgment for defendant Wilhelm on this claim
must be denied.
Richardson's motion for partial summary judgment on the
issue of lack of notice is granted against defendants Wilhelm
and Selsky to the extent that they are directed to expunge the
disciplinary charges and disposition from his records.
Defendants' cross-motion for summary judgment is granted with
respect to the First Amendment claims and denied with respect
to the due process claims because there is a genuine issue of
material fact as to whether Wilhelm and Selsky are entitled to
qualified immunity from liability for all damages claimed
against them, and the complaint is dismissed against
defendants Coughlin and Block.
Plaintiff's remaining requests for relief, suspension of
enforcement of Rule 104.12 and transfer back to Sullivan, have
not been addressed by either side on these motions.