The opinion of the court was delivered by: LEONARD B. SAND
This is an action brought by plaintiff, a Muslim prisoner who was incarcerated in New York State prisons from 1977 to 1994. Plaintiff is also known as Ya'Qub Shanisid-Deen, but is referred to in all New York State Department of Correctional Services ("DOCS") records by the name under which he was incarcerated, Jory Lowrance. Claiming violations of the First, Eighth, and Fourteenth Amendments, plaintiff brings this suit pursuant to 42 U.S.C. §§ 1983 and 1985 and 28 U.S.C. §§ 1331 and 1343 (a)(3).
In general, plaintiff claims that the named defendants, individually and jointly, acted under color of state law to deprive him of constitutionally protected rights guaranteed by the First, Eighth, and Fourteenth Amendments of the United States Constitution, including the right of free exercise of religion, the right to free speech, the right to petition the government for redress and have equal access to the courts, and the right to be free from cruel and unusual punishment. Specifically, plaintiff avers that defendants transferred plaintiff from prison to prison and carried out other punitive and wrongful actions -- such as placement in segregated confinement, a cell search, and deprivation of adequate medical care -- in retaliation for plaintiff's exercise of the rights described above. As a separate violation, plaintiff alleges that he was deprived of adequate medical treatment for an injured knee, whether as a retaliatory act or not, in violation of the Eighth Amendment. These actions, plaintiff contends, were planned, ordered, and carried out with the actual or constructive knowledge of Commissioner Thomas Coughlin as well as those named defendants who were Superintendents, medical personnel, or "John Does" (Deputy Superintendents of Security).
Plaintiff requests that the Court declare that the transfers ordered by defendants violated plaintiff's constitutional rights, and that the Court award plaintiff damages accordingly. Additionally, plaintiff requests an order stating that all written records of plaintiff's prior transfers either be expunged or be amended to indicate that those transfers were not implemented as a result of misconduct on the part of plaintiff; requiring that those new records be sent to appropriate prison and parole board personnel; and requiring that plaintiff be granted a new parole hearing based on records containing accurate information.
Defendants contest the allegations, both on legal and factual grounds. They deny any personal involvement in the allegedly retaliatory acts and claim that the transfers and confinement in segregation were predicated on valid, nonretaliatory motives. Characterizing plaintiff as an "agitator", defendants argue that some of plaintiff's transfers were due to his disciplinary record, while others were based on neutral administrative reasons relating to reassignment within the overall prison population. Additionally, defendants argue that adequate medical care was provided, and that, in any event, plaintiff's knee injury was not serious.
We held an eight day trial, involving substantial documentary evidence. In support of his case, plaintiff's counsel called three witnesses including plaintiff, plaintiff's wife, and a doctor testifying as an expert. The defense called four witnesses, all employees of the New York State Department of Corrections. The evidence adduced at trial illustrated, inter alia, that plaintiff was transferred seventeen times during a seven year period.
Many of those transfers sent him back to prisons where he had been previously held. He was sent to Attica four separate times and was incarcerated at Auburn and Great Meadow on three occasions during this period. On nine occasions, plaintiff was transferred after having been at an institution for less than 90 days. One year, between April 1984 and April 1985, plaintiff was shuttled from prison to prison seven times.
This decision constitutes the Court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52. As set forth below, we find that nine out of the seventeen transfers, as well as four out of six placements in segregative confinement were retaliatory. Moreover, the defendants subjected plaintiff to a cell search in retaliation for plaintiff's legal and religious activities and deprived him of adequate medical care.
We do not decide whether an apparent policy to frequently transfer a prisoner perceived to be a "troublemaker" in order to lessen his influence on the prisoner population in any particular institution in and of itself constitutes a constitutional violation, even though one may well disagree whether this is sound as a policy matter. Our focus in this case is on whether constitutional violation occurs when the motivation behind frequent transfers is to retaliate against the exercise of protected rights.
The Eleventh Amendment bars suits for compensatory or other retroactive relief against states and state officials in their official capacity, absent a waiver or consent, neither of which is present here. However, because the principle of sovereign immunity does not apply to actions for prospective, equitable, or injunctive relief against state officials charged with violating federal law, such suits are not prohibited by the Eleventh Amendment. See Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908); Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Will v. Michigan Dep't of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). A lawsuit brought under the doctrine established in Ex parte Young is not deemed to be an action against the state. Instead, such an action proceeds against the state officer who, by acting contrary to federal law, acts without authority and therefore, under these circumstances, does not act in a representative capacity.
While creating "the 'well-recognized irony' that an official's unconstitutional conduct constitutes state action under the Fourteenth Amendment but not the Eleventh Amendment[,]" clearly the Ex parte Young doctrine rests on the need "to permit the federal courts to vindicate federal rights and hold state officials responsible[.]" Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 105, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984).
At trial in the instant case, plaintiff abandoned his claim for injunctive relief with regard to future retaliatory transfers. However, plaintiff still seeks the following relief: 1) monetary damages; 2) an order requiring defendants to amend inaccurate transfer codes in plaintiff's record and expunge these records of misbehavior reports that have been previously ordered expunged; and 3) an order that plaintiff be granted a new parole hearing that encompasses those amendments or expungements. At trial and in their post-trial brief, defendants moved to dismiss that portion of the action which seeks relief against defendants in their official capacity. Tr. at 467. Defendants' motion is granted only insofar as we dismiss that portion of the action as against the state agency and as to any claim for monetary damages against the defendants in their official capacity. See Edelman v. Jordan, 415 U.S. 651, 677-78, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974). However, plaintiff may still pursue the claims regarding his records and new parole hearing against defendants in their official capacity, as well as the claim for monetary damages against defendants in their personal capacity.
Since plaintiff seeks prospective relief with regard to his records and a new parole hearing, there is no Eleventh Amendment problem. In this sense, this case is distinguishable from Wolff v. McDonnell, 418 U.S. 539, 573, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), in which the Court ruled that due process requirements could not be imposed on disciplinary hearings retroactively so as to compel prison officials to expunge prison records 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.
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).
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.
Morrison, 592 F. Supp. at 1071 (citations omitted).
In their post-trial briefs, the parties recognize that this case is controlled by Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977). In that case, the Supreme Court established standards for a claim of retaliatory conduct by a government entity in response to the exercise of constitutional rights. The Court indicated that the initial burden is "properly placed upon [plaintiff] to show that his conduct was constitutionally protected, and that this conduct was a 'substantial factor' -- or, to put it in other words, that it was a 'motivating factor'" in the decision made regarding the plaintiff. Id. at 287. Once the plaintiff has carried that burden, a court should then determine "whether the [defendant] had shown by a preponderance of the evidence that it would have reached the same decision as to [plaintiff] . . . even in the absence of the protected conduct." Id. Even though Mount Healthy addressed the issue of a school board's failure to rehire a non-tenured teacher, courts of this circuit have applied similar reasoning to cases involving prisoners' rights both before and after Mount Healthy. See Jones v. Coughlin, 696 F. Supp. at 920 (citing cases).
"To maintain a claim of retaliation for the exercise of constitutional rights, the prisoner bears the burden of proving that the action would not have been taken but for the exercise of such rights." Id. If the facts "demonstrate that the challenged action would have been taken on the valid basis alone, and such a conclusion will frequently be readily drawn in the context of prison administration where we have been cautioned to recognized that 'prison officials have broad administrative and discretionary authority over the institutions they manage,'" the court should find that the prisoner was not denied his constitutional right. Sher v. Coughlin, 739 F.2d 77 (2d Cir. 1984) (quoting Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983)).
"The ultimate issue in this case is whether plaintiff's transfer was reasonably motivated to further legitimate prison objectives. If not, it was in violation of the [Constitution]." Respress v. Coughlin, 585 F. Supp. 854, 857-58 (S.D.N.Y. 1984). Cf. Salahuddin v. Harris, 657 F. Supp. 369, 376 (S.D.N.Y 1987) (observing, based on Correction Law § 138(4), that "New York views the broad exercise of inmates' First Amendment rights as consistent with its own penological interests and the order and security of the inmate population"). However, no action will lie if an administrative decision legitimately exists apart from any purported illegitimate motivation. See, e.g., Baker v. Zlochowon, 741 F. Supp. 436 (S.D.N.Y. 1990).
"Prisoners have been held to enjoy substantial religious freedom under the First and Fourteenth Amendments." Wolff v. McDonnell, 418 U.S. 539, 556, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). Prisoners are protected, inter alia, under the Due Process, Equal Protection, Free Exercise, and Free Speech clauses, and they retain right of access to the courts. Id; Morrison v. LeFevre, 592 F. Supp. 1052, 1071 (S.D.N.Y. 1984); McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979) ("While the discretion afforded prison administrators in transfer decisions is extremely broad, it does not swallow the inmate's fundamental right of access to the courts") (internal quotes omitted). "Otherwise, prison administrators would be free to accomplish exactly what plaintiff alleges here, the transfer of successful and, therefore, troublesome litigants for no reason other than their legal activities." Id.
Based on the evidence presented at trial, we conclude that nine out of the seventeen transfers, and that four out of the six placements in segregation were retaliatory. Furthermore, we find that plaintiff was subjected to a cell search in retaliation for exercising constitutionally protected rights and was deprived of adequate medical care.
Plaintiff held several leadership roles in the Muslim community while in prison, including Imam, or prayer leader. He also held positions related to the inmate grievance process at several prisons, including such jobs as prison library clerk and grievance committee representative. During his incarceration, plaintiff filed and prosecuted several grievances and lawsuits on his own behalf, and aided other inmates in such endeavors. Several of the named defendants in this action have been named as defendants in plaintiff's prior lawsuits.
1. Auburn to Attica, April 21, 1981
Plaintiff has successfully demonstrated that the exercise of his First Amendment rights was a substantial factor motivating this transfer, and that the justification offered by the defendants was a pretext. During plaintiff's incarceration at Auburn, several incidents occurred demonstrating hostility by DOCS personnel toward plaintiff's exercise of his right to religious freedom and free speech. See, e.g., Pl. Ex. 3 (indicating memos from Superintendent of Auburn ridiculing Muslim (and plaintiff's) eating restriction concerning pork); Tr. 56 & 61 (DOCS officials rebuking plaintiff for making religious speech and bringing guest speakers to religious classes).
A transfer request stated that plaintiff "believes he is part of staff instead of an inmate" and that for this reason he should be transferred. Pl. Ex. 6; Def. Ex. A. There is no evidence that plaintiff used his status as a leader in the inmate community to challenge the authority of corrections staff or that he posed a threat. No witness at trial had personal knowledge of any specific incident of misbehavior or threat posed by plaintiff at Auburn.
Documentary evidence introduced at trial illustrated that the justification provided in the transfer request was a pretext. A February 27, 1981 memorandum from John Cacciotti, plaintiff's correction counselor, to James McDermott, a classification analyst in the DOCS central office, says of plaintiff, "Subject has been suspected of being a behind-the-scenes leader of the Muslim Community[.]" Defs.' Ex. BD at 3. The memorandum also makes reference to the fact that a misbehavior report was nullified, yet still impermissibly relies on the allegation of misbehavior by stating:
Lowrance was able to have the report nullified because of a technicality, however, it is this type of behavior and attitude toward authority that the Administration feels it would be best if he were separated from our staff.
Id. Once stripped of the improper reference to the nullified misbehavior report, we are left with a conclusory statement regarding plaintiff's "attitude toward authority" which echoes the unsupported language used in the transfer request form.
Cacciotti's reference to the nullified misbehavior report is one instance, among many others, in which prison staff and DOCS officials improperly referred to and ultimately relied on dismissed or expunged charges against plaintiff.
We conclude that Commissioner Coughlin is liable under a supervisory liability theory, because he received adequate notice that the transfer was retaliatory. Pl. Ex. 7 (letter from Commissioner Coughlin responding to letter from plaintiff regarding transfer). Former Superintendent Henderson is directly liable for having participated directly in the retaliatory conduct. See, e.g., Pl. Ex. 3 (indicating memos from Superintendent of Auburn ridiculing Muslim (and plaintiff's) eating restriction concerning ...