anyone else claims that Alnutt created an emergency situation at Wende which required his removal and transfer. The procedure for transferring an inmate who is an IGRC representative is quite clear and specific. What is also quite clear is that the correct procedure was not followed concerning Alnutt's transfer.
However, a violation of a state regulation does not invariably involve a liberty interest protected by the Constitution. In the present case, if Alnutt did have such a liberty interest it would necessarily derive from a state created liberty interest because "...no Due Process Clause liberty interest of a duly convicted prison inmate is infringed when he is transferred from one prison to another within the State, whether with or without a hearing, absent some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the occurrence of other specified events." Montanye v. Haymes, 427 U.S. 236, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976).
Absent the recent Supreme Court decision in Sandin v. Conner, 132 L. Ed. 2d 418, U.S. , 115 S. Ct. 2293 (1995), Alnutt's argument that the State had created a liberty interest by virtue of 7 N.Y.C.R.R. § 701.5 might have been persuasive. Prior to Sandin, courts, in determining whether a state created a liberty interest, asked "whether the State had gone beyond issuing mere procedural guidelines and had used 'language of an unmistakably mandatory character' such that the incursion on liberty would not occur 'absent specified substantive predicates.'" Sandin, supra at 2299, quoting Hewitt v. Helms, 459 U.S. 460, 471-472, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983).
Under pre-Sandin analysis, the state in the present case might very well have created a liberty interest in the right of an IGRC representative to be free from transfer unless certain procedures were followed, given the mandatory language employed in the regulation.
However, Sandin has dramatically changed the landscape concerning these issues. Sandin expressly rejected the distinction between mandatory and discretionary language previously relied upon by courts. The focus now under Sandin is whether the challenged state action imposes an atypical and significant hardship upon a prisoner's liberty that is distinguishable from the normal restrictions on liberty that are to be expected as the result of a sentence of incarceration. Sandin, 115 S. Ct. at 2300.
I find that under the new standards adopted by the Supreme Court in Sandin, the State's regulation limiting the transfer of IGRC representatives did not create a liberty interest and does not provide a basis for a civil rights action if that policy is violated. Alnutt's transfer was neither atypical nor did it impose a significant hardship beyond that expected as part of a sentence of imprisonment. Violation of this regulation does not give rise to a state created liberty interest subject to Due Process protections. Alnutt's claim concerning the transfer must be dismissed.
III. Plaintiff's Retaliation Claims
Alnutt claims, in his first cause of action against Cleary, Kenner, White and Gruver, that the verbal harassment he endured and the false disciplinary ticket issued against him were in retaliation for his activities as an IGRC representative. Likewise, in his second cause of action, Alnutt alleges that Gruver, Lamb and Anderson improperly administered his urinalysis test in accordance with DOCS directives, all in retaliation for his IGRC activities.
To establish a claim for retaliation under § 1983, Alnutt must initially show that his conduct was protected by the First Amendment and that defendants' conduct was motivated by or substantially caused by an exercise of his First Amendment rights. Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d. Cir 1994).
I find that Alnutt's conduct was protected by the First Amendment. "There is no question ... that an inmate may resort to section 1983 in attempting to vindicate substantive rights arising out of... the First Amendment..." Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988). In Franco, a prisoner alleged that he was issued a disciplinary report as part of a pattern of false disciplinary actions taken against him in retaliation for his cooperation with an investigation by New York's Inspector General concerning abuse of inmates at the Attica Correctional Facility. The Court found that the allegations in the complaint implicated the prisoner's right to petition government for redress of grievances, as guaranteed by the First and Fourteenth Amendments. Franco, supra at 589.
Franco recognized that prisoners must be permitted the "free and uninhibited access" to both administrative and judicial forums for the purpose of seeking redress of grievances. Franco, supra at 589; See also Sostre v. McGinnis, 442 F.2d 178, 200 (2d Cir. 1971)(in banc), cert. denied, 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740 (1972). Furthermore, "like the right of access to the courts, the right to petition is substantive rather than procedural and therefore 'cannot be obstructed regardless of the procedural means applied.'" Franco, supra at 589, quoting Morello v. James, 810 F.2d 344 (2d Cir. 1987).
There are numerous cases which have found that an inmate stated a cause of action under § 1983 where the inmate alleged that he was retaliated against because he petitioned for redress of grievances. Jones v. Coughlin, 45 F.3d 677 (2d Cir. 1995) (inmate stated cause of action where he alleged retaliation as result of administrative complaint he filed against corrections officer); Morrison v. LeFevre, 592 F. Supp. 1052 (S.D.N.Y. 1984) (inmate stated cause of action where he alleged retaliation, due, in part, to assistance he provided to other prisoners in filing lawsuits); McCorkle v. Walker, 871 F. Supp. 555 (N.D.N.Y. 1995)(inmate stated a claim where he alleged that a prison nurse filed false charges against him in retaliation for his informing prison officials that she was nurse on duty when another inmate nearly drowned in infirmary); Payne v. Axelrod, 871 F. Supp. 1551 (N.D.N.Y. 1995) (inmate stated cause of action where he alleged that a razor blade was planted in his cell in retaliation for reporting that a corrections officer set a fire in an inmate's cell); Cale v. Johnson, 861 F.2d 943 (6th Cir. 1988) (inmate stated cause of action by alleging retaliation for complaining to associate warden concerning the poor quality of the food); McDonald v. Hall, 610 F.2d 16 (1st Cir. 1979)(inmate stated cause of action where he alleged that he was transferred in retaliation for filing suits against prison officials, and for giving legal assistance to other inmates).
Admittedly, the facts of the present case are somewhat different from some of the cases involving an inmate's right to petition the government. However, the principles established in those cases support the concept that Alnutt has a protected First Amendment right to engage in his duties as IGRC representative without fear of reprisal or retaliation.
The establishment of IGRCs in correctional facilities is mandated by New York State Corrections Law § 139, which provides that:
"...The commissioner shall establish ... grievance resolution committees to resolve grievances of persons within such correctional institution. Such grievance resolution committees shall consist of five persons, four of whom shall be entitled to vote, two of whom shall be inmates of such correctional institution, and a non-voting chairman." N.Y.S. Corr. Law § 139(1).