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MALSH v. GARCIA

July 15, 1997

Luxley George Malsh, Plaintiff, against Correction Counsel Madeline Garcia, Sergeant Frank DenHollander, Phillip Coombe, Jr., Ms. Lynn Carroll, Acting Superintendent Robert Hanslmaier, Defendants.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 The plaintiff, Luxley George Malsh, brought this action pursuant to 42 U.S.C. §§ 1983, 1985(3), and 1986, alleging that the defendants, who are prison officials and employees, violated his constitutional rights under the First, Eighth, and Fourteenth Amendments. The parties have now cross-moved for summary judgment.

 I.

 The plaintiff was incarcerated at the Sullivan Correctional Facility ("SCF") beginning shortly after September 13, 1993. (Complaint Statement of Facts, P5; Affidavit of Madeline Garcia ("Garcia Aff.") at P4). The plaintiff was involved in a paternity suit in the Schenectady County Family Court at the time of his incarceration. (Complaint Statement of Facts, PP4-5).

 On or about October 4, 1993, Teresa Thrasher, the plaintiff's former common-law wife, wrote to an official at SCF requesting that the plaintiff be prohibited from corresponding with her, her son Dominique (who the plaintiff alleges is his son), and her two daughters. (October 4, 1993 letter, attached as Exh. A to Garcia Aff.). In response to Thrasher's request, her name was placed on the plaintiff's negative correspondence list, (Negative Correspondence List, attached as Exh. B to Garcia Aff.), and both Thrasher and the plaintiff were informed of this fact. (October 13, 1993 Memorandum, attached at Exh. C to Garcia Aff). The plaintiff was explicitly advised that disciplinary action could be taken against him if he continued to correspond with Thrasher. (Id.).

 On or about February 3, 1994, the plaintiff was transferred to the Woodbourne Correctional Facility ("WCF"). (Complaint Statement of Facts, P10). In March 1994, the plaintiff began writing to Claudette Nelson, a woman whose picture he saw in a newspaper. (Id.). Nelson contacted WCF and requested that the plaintiff be prohibited from writing to her. (Chronological Entry Sheet, attached as Exh. H to Garcia Aff.). Defendant Sergeant Frank DenHollander of WCF directed the plaintiff to stop writing to Nelson. (Complaint Statement of Facts, P 10; Garcia Aff., P14.)

 The plaintiff alleges that DenHollander refused to disclose the name of a second woman, presumably Thrasher, to whom the plaintiff was not supposed to write. (Complaint Statement of Facts, P10.) The plaintiff further alleges that he then contacted several prison officials, including defendants Madeline Garcia and Superintendent Robert Hanslmaier, in an unsuccessful attempt to gain access to his negative correspondence list. (Complaint, Statement of Facts, PP10-12).

 In early December 1994, the plaintiff received correspondence from the New York State Department of Health containing a form affidavit to amend a birth certificate, which was to be completed and signed by both parents. (Affidavit for Birth Certificate, attached as Exh. E to Garcia Aff.). The plaintiff completed his portion of the affidavit in order to amend the birth certificate of "Dominique Travis Price" to indicate that he was the father. (Id.) The plaintiff attempted to forward the affidavit to Thrasher by sending it to the Schenectady County Department of Social Services. (Id.) The plaintiff mailed this correspondence in an envelope with the name and identification number of another inmate, George Lawrence. (Id.) This type of so-called "kiting" of correspondence is expressly prohibited by DOCS Directive No. 4422. (DOCS Directive No. 4422(III)(B)(19), attached at Exh. F to Garcia Aff.).

 On December 12, 1994, Garcia received a telephone call from Thrasher informing her that she had received the birth certificate affidavit from the plaintiff. (Inmate Misbehavior Report, attached as Exh. D to Garcia Aff.). After confirming Thrasher's allegations with the Schenectady County Department of Social Services, (Garcia Aff., P9), Garcia notified WCF's Senior Mail and Supplies Clerk, defendant Lynn Carroll, of the plaintiff's violation, (Garcia Aff., P11).

 At that time, Carroll showed Garcia a piece of mail addressed by the plaintiff to Thrasher. (See Inmate Misbehavior Report, attached as Exh. D to Garcia Aff.; December 7, 1994 Correspondence, attached as Exh. E to Garcia Aff.). Because Thrasher was on the plaintiff's negative correspondence list, Garcia instructed Carroll not to mail the envelope. (See Inmate Misbehavior Report, attached as Exh. D to Garcia Aff.). The plaintiff's attempted correspondence with a person on his negative correspondence list constituted a violation of DOCS Directive No. 4422. (DOCS Directive No. 4422(III)(B)(4), attached at Exh. F to Garcia Aff.).

 On December 13, 1994, Garcia wrote an inmate misbehavior report charging the plaintiff with two violations of Inmate Rule 180.11, which states that inmates shall comply with and follow the guidelines and instructions given by prison staff regarding facility correspondence procedures. (Chronological Entry Sheet, attached at Exh. D to Garcia Aff.). On December 19, 1994, Lieutenant Anthony DiBartolo conducted a Tier III hearing concerning Garcia's report, found the plaintiff guilty of the charges, and gave him a penalty of 60 days' keeplock as well as 60 days' loss of recreation, packages, commissary, phones, special events, and movies. (Hearing Packet, attached at Exh. A. to Affidavit of Anthony DiBartolo ("DiBartolo Aff."). On December 23, 1994, DiBartolo reversed the charges based on his belief that the plaintiff could not be prohibited from corresponding with Thrasher absent a court order. (Memorandum, attached as Exh. B. to DiBartolo Aff.; DiBartolo Aff., P3). However, DiBartolo need not have reversed these charges, because a court order is required only when a facility seeks to prohibit correspondence between an inmate and that inmate's child. (See Note to DOCS Directive No. 4422(III)(B)(3), attached at Exh. F to Garcia Aff.).

 The plaintiff asserts that these events were the product of a conspiracy against him undertaken by the defendants in retaliation for complaints made by the plaintiff against various members of the prison staff. (Complaint Statement of Facts, P13.) As further evidence of this conspiracy, the plaintiff cites a July 27, 1994 incident in which a corrections officer encountered the ...


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