witnesses. In consequence, this claim must be rejected.
Due Process --
Plaintiff has two complaints about the restitution penalties imposed on him. First, he claims that they were levied by the hearing officers in retaliation for his frequent litigation against DOCS. This argument has no merit. Plaintiff would have the burden of proving at trial that the defendants would not have imposed restitution but for a retaliatory motive. Howard v. Leonardo, 845 F. Supp. 943, 948 (S.D.N.Y. 1994); Hilliard v. Scully, 648 F. Supp. 1479 (S.D.N.Y. 1986); Majid v. Henderson, 533 F. Supp. 1257, 1270 (N.D.N.Y.), aff'd, 714 F.2d 115 (2d Cir. 1982). The defendants have shown on this motion, on the undisputed facts, that plaintiff would be unable to carry this burden. Plaintiff has failed even to suggest that the amounts imposed as restitution would not have been imposed if the hearing officers had possessed no retaliatory purpose. Indeed, there is no evidence that the amounts of restitution were incorrect valuations of the damage plaintiff caused. Moreover, plaintiff does not deny that he damaged the items that he was convicted of damaging. This claim therefore is rejected.
Plaintiff next complains that there was no evidence to support the amount of restitution imposed against him. As noted above, there was no such evidence except at Hearings G and I. Plaintiff claims that the imposition of restitution without this evidence violated the Fourteenth Amendment, both in itself and because it prevented him from challenging any such evidence at the hearing and resulted in a written record devoid of any statement that would permit an outside authority to review the accuracy and fairness of the awards.
Plaintiff cannot complain that the lack of evidence deprived him of an ability to challenge the bases of the awards at the hearings because prisoners have no right to confrontation or cross-examination. Wolff, 418 U.S. at 567-68. However, plaintiff's other two contentions have some merit, as Wolff requires a written record of the basis of a decision against an inmate, 418 U.S. at 564-65, and Superintendent of Massachusetts v. Hill, 472 U.S. 445, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985), requires that such decisions be based on at least "some evidence." Construing the total lack of evidence in plaintiff's favor, as it is required to do insofar as defendants are moving for summary judgment, the Court cannot conclude that plaintiff will be incapable of making a prima facie claim on this basis at trial.
Defendants argue nonetheless that three alternative theories warrant summary judgment in their favor. First, they maintain that qualified immunity shields them from liability. But the right to have findings based on "some evidence" was clearly established at the time of these hearings, and the hearing officers should reasonably have known of that right. Similarly, plaintiff was clearly entitled to a written record of the basis of their decisions, pursuant to Wolff and the hearing officers reasonably should have known of this right at the time of these hearings. Defendants therefore are not protected by qualified immunity.
Defendants next contend that Patterson, as an outside attorney not employed by GMCF, is entitled to absolute judicial immunity. The Court previously has rejected this argument in Payne, 871 F. Supp. at 1553.
Moreover, defendants say they are protected by Zinermon, 494 U.S. 113, 108 L. Ed. 2d 100, 110 S. Ct. 975. As noted above, Zinermon held that no procedural due process right is violated if there is an adequate post-deprivation remedy for the alleged violation, where additional pre-deprivation procedures could not reasonably have prevented the deprivation. Mere entry of evidence into the hearing record concerning the cost of the items at issue reasonably could have prevented the alleged errors. Defendants' argument under Zinermon therefore is rejected.
Finally, although defendants do not argue the point, it is obvious from the record that plaintiff's claim against DSP Carpenter cannot stand with respect to some of the hearings at issue. Officials may be liable under Section 1983 only if they were personally involved in the alleged deprivation of constitutional rights. Monell v. Department of Social Services, 436 U.S. 658, 691-95, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); Al-Jundi v. Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989). An officer who learns of a violation on appeal and fails to remedy the wrong may be liable. Wright, 21 F.3d at 501; Williams v. Smith, 781 F.2d 319, 324 (2d Cir. 1986); see, e.g., United States ex rel. Larkins v. Oswald, 510 F.2d 583, 589 (2d Cir. 1975). Here, the undisputed evidence shows that Carpenter did not review Hearings F, G and I. In consequence, Carpenter cannot be liable for any procedural errors that might have occurred at those hearings. With respect to the other hearings, the evidence is either that Carpenter did review them or it is inconclusive on the issue. In sum, Carpenter is entitled to summary judgment with respect to plaintiff's claims regarding the imposition of restitution in Hearings F, G and I.
While defendants are not entitled to summary judgment on some aspects of this claim, it does not follow that plaintiff must prevail. Insofar as plaintiff is moving for summary judgment, the Court must construe the evidence in favor of the defendants. The awards are consistent throughout the hearings in the amounts exacted for damage to identical objects. For example, plaintiff was charged $ 93.44 for the three times he broke the plexiglass on his cell bars. Therefore, although there is no direct evidence of the value of the items in question the consistency of the fines permits an inference that the defendants referred to an as yet unidentified schedule of costs when setting restitution. Such a schedule could be some evidence of the amount of damage caused by plaintiff. Moreover, if such a schedule exists, then it would provide all of the documentation that plaintiff is entitled to for purposes of outside review of a hearing officer's actions. Plaintiff's motion for summary judgment on this claim therefore is denied.
The First Amendment --
The Postage Policy
Plaintiff argues that the State is required to provide postage to permit inmates to conduct non-legal correspondence and that the elimination of DOCS' free non-legal postage policy therefore is unconstitutional. Inmates, upon commitment to prison, retain the constitutional rights of free citizens to the extent permitted by prison life. Like free citizens, inmates have a constitutionally protected interest in conducting non-legal correspondence. See Thornburgh v. Abbott, 490 U.S. 401, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989); Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974). However, the Constitution does not require the State to subsidize inmates to permit such correspondence to be conducted by mail when other means of communication are available to the general prison population. Such an entitlement would expand upon the rights of free citizens, and there is no reason in this context for such an expansion.
Hershberger v. Scaletta, 33 F.3d 955, 956 (8th Cir. 1994).
In this case, however, plaintiff says that he had no alternative means of communication because his confinement in SHU and the lien on his account prevent him from using the telephone and buying stamps. He therefore claims that the State, which put him in this position, must bear the costs of maintaining a conduit for him to communicate with the outside.
The Court disagrees. These incidental restrictions on First Amendment freedoms are justified if the they are necessary to serve a legitimate government interest such as that in order, security or rehabilitation. Procunier, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800; Thornburgh, 490 U.S. 401, 104 L. Ed. 2d 459, 109 S. Ct. 1874. Plaintiff does not claim that the restrictions were unnecessary or illegitimate. Indeed, given that they are the result of valid punishments for misbehavior, the restrictions appear to have been directly related to the State's interest in order and security. Plaintiff's claim on this basis therefore is without merit.
Finally, plaintiff complains that he was not given a monthly stamp pursuant to 7 N.Y.C.R.R. § 720.8(5)(d) (1993). Plaintiff had no constitutional right to that stamp. A person has a liberty or property entitlement to government largess to the extent the government enactment creating the alleged entitlement contains language that limits official discretion in disbursing the largesse. Here, the pertinent regulation explicitly says that a stamp may be given to an inmate in the specified circumstances once per month. 7 N.Y.C.R.R. § 720.8(5)(d) (1993). As a result, plaintiff cannot claim an entitlement to the stamp because its disbursement is within the discretion of DOCS officials. Deane v. Dunbar, 777 F.2d 871, 875 (2d Cir. 1985).
Defendants' motion is denied with respect to plaintiff's claims based on the lack of evidence for the imposition of restitution payments at Hearings A, B, C, D, E, F, and H, and based on Lt. Shovah's alleged denial of assistance at Hearing A, but otherwise is granted in all respects. Carpenter is granted summary judgment with respect to plaintiff's claims of error in Hearings F, G and I. Plaintiff's motion is denied.
Dated: June 19, 1995
Lewis A. Kaplan
United States District Judge