containing determinations of misconduct, not in accord with required procedures. In Wolff, the flawed determinations of misconduct had never been expunged. By contrast, in the case before us, plaintiff is not asking the Court to order that new procedures be retroactively applied to disciplinary hearings as a way of curing flawed determinations of misconduct. Rather, the plaintiff is seeking prospective relief by requesting that the Court enjoin defendants to expunge misbehavior reports which have previously been ordered expunged although officials have not complied with such orders; to amend inaccurate transfer codes to reflect actual determinations already made; and to grant a new parole hearing based on the corrected records.
A related matter involves our ruling, at trial, that evidence of post-1988 conduct would be excluded because we found it to be irrelevant to an inquiry into transfers and medical care during the period covered by the suit, 1981-1988. Tr. 466. This ruling was conditioned on the Court's assumption that plaintiff was dropping all claims for prospective relief. That plaintiff, in fact, does still seek certain forms of prospective relief does not change our ruling. We can determine which pre-1988 records need to be expunged or amended without inquiring into post-1988 conduct.
B. Qualified Immunity
The doctrine of qualified immunity does not shield the defendants, except with regard to plaintiff's due process claims regarding the sheer number of transfers and the assignment of transfer codes without a hearing. A state official is immune from liability for damages under § 1983 unless the official "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [person] affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the [individual]." Wood v. Strickland, 420 U.S. 308, 322, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975); Liffiton v. Keuker, 850 F.2d 73 (2d Cir. 1988) ("qualified immunity is available only if the defendant's actions were objectively reasonable under the legal rules that were clearly applicable at the time of the actions") (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). Many of the rights plaintiff claims were violated were "clearly established constitutional rights," Strickland, 420 U.S. at 322, during the relevant time period, 1981-1988.
First, plaintiff claims that defendants engaged in retaliatory conduct in response to plaintiff's exercise of constitutionally protected rights. The allegedly retaliatory conduct included transfers, segregated confinement, a cell search, and deprivation of adequate medical care in response to plaintiff's exercise of rights. The Second Circuit has stated that "retaliatory transfers were clearly illegal in 1980." Meriwether v. Coughlin, 879 F.2d 1037, 1046 (2d Cir. 1989) (citing cases). See also Haymes v. Montanye, 547 F.2d 188 (2d Cir. 1976) (on remand from Supreme Court, which held that there was no constitutional right to hearing before transfer, Second Circuit held that it was constitutionally impermissible to transfer in retaliation for exercise of constitutional rights), cert. denied, 431 U.S. 967, 53 L. Ed. 2d 1063, 97 S. Ct. 2925 (1977). That retaliatory segregated confinement is unconstitutional has been settled law in this circuit since 1979. Hohman v. Hogan, 597 F.2d 490 (2d Cir. 1979) (retaliatory transfer and segregated confinement impermissible). Indeed a range of retaliatory conduct in reaction to a prisoner's exercise of constitutionally protected rights has long been established as unconstitutional by courts of this circuit. See Jones v. Coughlin, 696 F. Supp. 916, 920 (S.D.N.Y. 1988) (citing several cases going back to 1976).
Second, as regards plaintiff's deprivation of medical care claim, the Supreme Court held in 1976 that "deliberate indifference to serious medical needs of prisoners [violates] the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). In the Second Circuit, it has been clearly established since 1977 that a prison official's denial of access to medical care or interference with prescribed treatment constitutes cruel and unusual punishment. Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977) (following Estelle). In Todaro, the Second Circuit opined:
Noting that inmates are utterly dependent upon their custodians, the [Estelle] Court was careful to observe that the Eighth Amendment forbids not only deprivations of medical care that produce physical torture and lingering death, but also less serious denials which cause or perpetuate pain. To assert otherwise would be inconsistent with contemporary standards of human decency.
Third, plaintiff claims he had a right to have accurate information reflected in his prison records when they were presented to the parole board. Plaintiff contends his prison records contained inaccurate information regarding misbehavior reports which had actually been expunged or dismissed, as well as mis-typed transfer codes. Under standards articulated in Paine v. Baker, 595 F.2d 197 (4th Cir.) cert. denied, 444 U.S. 925, 62 L. Ed. 2d 181, 100 S. Ct. 263 (1979), and adopted in this district in Farinaro v. Coughlin, 642 F. Supp. 276 (S.D.N.Y. 1986), a plaintiff has a clearly established constitutional right to have accurate information in his prison file when such information is relied on in a parole hearing. See also Pruett v. Levi, 622 F.2d 256, 258 (6th Cir. 1980) (following Paine).
Fourth, plaintiff claims the defendants' practice of attaching negative transfer codes to plaintiff's transfer forms without affording him a hearing violated his right to due process. Plaintiff has not cited a single case, and we know of none, clearly establishing a right to a hearing before receiving negative transfer codes. In fact, one of the cases plaintiff cites in his post-trial brief undercuts his argument that the Due Process clause is implicated by assignment of transfer codes. That case, Pugliese v. Nelson, 617 F.2d 916 (2d Cir. 1980), holds that federal prisoners' interests in avoiding classification of "Central Monitoring Case," which precluded or delayed enjoyment of such benefits as furloughs, transfers, work releases and even early parole, did not entitle them to due process protection. Critical to this holding was the court's reasoning that "the fact remains that these freedoms are mere possibilities," and that "a prisoner's mere expectation of benefits . . . does not amount to a statutory or constitutional entitlement sufficient to trigger due process protections." Id. at 923 & 925.
Finally, plaintiff claims that the sheer number of transfers whereby defendants continually moved plaintiff from one facility to another violated his right to due process because such frequency was, per se arbitrary and capricious. Again, plaintiff fails to cite a single case, and we know of none, clearly establishing a right to be free of numerous transfers. While it is well-established that retaliatory transfers based on a prisoner's exercise of constitutional rights is impermissible, see supra, it is equally well-settled that "the transfer of a prisoner from one institution to another does not invoke the protection of the Due Process Clause." Meriwether v. Coughlin, 879 F.2d 1037, 1047 (2d Cir. 1989) (citing Meachum v. Fano, 427 U.S. 215, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976)).
C. Service and Appearance
Before and during trial, the Attorney General's office appeared for, and purported to represent, all of the defendants found liable herein. John Kaplon Affidavit; Tr. 94-102. After all the evidence had been presented, the Assistant Attorney General, on the basis of revised information he received from his office and DOCS, asserted that he actually had not been authorized by certain defendants to appear on their behalf. See February 18, 1994 Letter from Richard Mathieu. These defendants included Former Superintendents Robert Henderson, Harold Smith, Everett Jones, and James Sullivan; as well as Dr. Ira Weiner and Deputy Superintendents of Security ("D.S.S.") Joseph Costello and Howard Novak. Id. Indeed, the Attorney General's Office raised questions, well after the close of trial, whether some of these defendants had ever been served or had been timely served.
January 31, 1994 Letter from Kathie Ann Whipple.
Assuming that the Attorney General's office was not in fact authorized to appear on behalf of these individuals, no basis exists to impose liability on these defendants personally. However, since plaintiff reasonably relied on the Attorney General's representations throughout these lengthy proceedings, we find that the State, on whose behalf the Attorney General defended this action and which has agreed to indemnify these defendants, is equitably estopped from denying that it did in fact appear for them. Accordingly, as to these defendants, we find that although they are not personally liable, the State, which purported to appear on their behalf and to indemnify them for any liability arising out of their actions as state employees, is liable for the damages found herein arising by virtue of their actions.
The only other option is to order a new trial as to these defendants. Since the Court has already heard all of the evidence as to them in a trial in which the Attorney General purported to represent them, the only likely consequence of such a new trial would be to increase significantly the State's ultimate liability with respect to counsel fees.
Section 1983 imposes liability for acts under color of state law which deprive a plaintiff of "rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. The "plain words" of this statute impose liability "only for conduct which 'subjects, or causes to be subjected' the complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode, 423 U.S. 362, 370-71, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976). In order to prevail on a § 1983 claim, the plaintiff must prove that the defendant: (1) acted; (2) under color of state law; and (3) in a matter that deprived the plaintiff of constitutional rights. Candelaria v. Coughlin, 787 F. Supp. 368 (S.D.N.Y. 1992) (Sand, J.). It is clear that the authority of the defendants, employees and officials within the state prison system, arises under color of state law. The issue remains whether these defendants acted in a manner that violated plaintiff's constitutional rights.
A claim of deprivation of constitutional rights is cognizable under both § 1983 and § 1985 of Title 42. Plaintiff has alleged that defendants' conduct was motivated by anti-Muslim sentiment. This contention meets the threshold pleading requirement for § 1985, under which plaintiffs must aver racial or class-based discriminatory animus.
By contrast, § 1983 does not require a showing of class-based discrimination as a prerequisite to liability.
In a § 1983 action, the doctrine of respondeat superior does not apply and a "showing of some personal responsibility of the defendant is required." Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989) (citations omitted). See also Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (§ 1983 plaintiff must demonstrate "personal involvement" of state commissioner of corrections and superintendent of prison, not mere "linkage in the prison chain of command"); Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987) ("Absent some personal involvement by [the Superintendent of a DOCS facility] in the allegedly unlawful conduct of his subordinates, he cannot be held liable under section 1983"). Proof of a defendant's personal involvement in the alleged constitutional violation is a prerequisite to recovery of damages. Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986).
A defendant may be "personally involved" in causing a constitutional deprivation if: (1) defendant participated directly in the alleged infraction; or (2) acting in a supervisory capacity, defendant (a) failed to remedy a continuing or egregious wrong after learning of a violation, (b) created a policy or custom under which the unconstitutional practices occurred or allowed such policy or custom to continue, or (c) was "grossly negligent" in managing subordinates who actually caused the constitutional deprivation. Candelaria v. Coughlin, 787 F. Supp. at 372 (citing Williams v. Smith, 781 F.2d at 323-24). See also Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1066 (2d Cir. 1986) (a "supervisory official may be personally liable if he or she has actual or constructive notice of unconstitutional practices and demonstrates gross negligence or deliberate indifference by failing to act") (citations omitted).
While plaintiff in the instant case claims the medical defendants directly participated in the constitutional deprivations, for the most part he seeks to prevail against the other defendants regarding the retaliatory transfer claim under a supervisory liability theory, by alleging that Commissioner Coughlin and the superintendents and deputy superintendents of the various facilities were put on notice and were therefore made aware of the constitutional violations, yet failed to rectify the wrong, despite their ability to do so. In many instances, plaintiff has amply demonstrated that defendants were placed on notice of the violations when plaintiff wrote or spoke directly to defendants, or when they indicated their knowledge by signing or initialing PSAS forms. In other instances, finding no such involvement, we have found the defendants not liable.
A. The Retaliatory Transfers and Segregated Confinement
Applicable Legal Principles
Plaintiff claims his First Amendment rights were violated when defendants transferred him on numerous occasions and placed him in various forms of segregated confinement in retaliation for plaintiff's exercise of his rights to practice his religion and speak freely, to be free from cruel and unusual punishment, to petition the courts, and to file grievances and pursue complaints through internal prison grievance processes. While prisoners have no independent expectation that they will never be transferred or placed in segregated confinement during incarceration, prison officials nevertheless deprive an inmate of his constitutional rights by transferring him, Meriwether v. Coughlin, 879 F.2d 1037, 1046 (2d Cir. 1989), or by placing him in segregated confinement, Morrison v. LeFevre, 592 F. Supp. 1052, 1071 (S.D.N.Y. 1984), in retaliation for exercising constitutionally-protected rights. See also Hohman v. Hogan, 597 F.2d 490 (2d Cir. 1979) (retaliatory transfer and segregated confinement impermissible); Jones v. Coughlin, 696 F. Supp. 916, 920 (S.D.N.Y. 1988) ("action taken by prison officials which would otherwise be constitutional becomes unconstitutional if such action was taken as reprisal for the prisoner's exercise of constitutionally protected rights"). Cf. N.Y. Correc. Law § 135 (4) (McKinney 1987) ("Inmates shall not be disciplined for making written or oral statements, demands, or requests involving a change of institutional conditions, policies, rules, regulations, or laws affecting an institution").
Language from Judge Sofaer's opinion in Morrison with regard to retaliatory segregation is instructive here:
Although segregation may be a form of confinement which prisoners should expect to experience because of various justifiable administrative needs, prisoners in this nation should not fear the imposition of solitary confinement because they have engaged in litigation and prison reform activities. "Even though a prisoner has no 'right' to remain in the general prison population. . . there are some reasons upon which the government may not rely." Retaliation for his litigation and prison reform activities is such an impermissible reason. Morrison's federally created liberty interest, then, does not rest on his right not to be confined in SHU [,the Special Housing Unit,] absent good cause; rather, it rests on his rights not to suffer any "grievous loss," because he exercised his federal constitutional rights.