under the Fourteenth Amendment because it fails to provide him with adequate notice of the prohibited conduct. I construe this allegation as a claim that the regulation is unconstitutionally vague, but reject the claim as meritless.
Courts have recognized prisoners' substantive due process claims that allege that prison rules failed to provide adequate notice of prohibited conduct. Rios v. Lane, 812 F.2d 1032, 1037-39 (7th Cir.), cert. denied, Lane v. Rios, 483 U.S. 1001, 97 L. Ed. 2d 729, 107 S. Ct. 3222 (1987); Richardson v. Coughlin, 763 F. Supp. 1228, 1235 (S.D.N.Y. 1991). The underlying rationale for such holdings is that inmates must be free to avoid prohibited conduct, and prison regulations must therefore place them on notice of the actions that could subject them to discipline. Richardson, 763 F. Supp. at 1235.
In the instant case, however, the facts demonstrate that Leitzsey was not deprived of his substantive due process rights when he was disciplined for violating Rule 105.12. Defendants contend in their motion for summary judgment that Rule 105.12 was adopted on February 22, 1994 and that the inmates were provided with notice of its adoption. Leitzsey, having filed no response to the motion for summary judgment, does not dispute that assertion. Although the manifesto was written in 1991, Leitzsey received notice of the passage of Rule 105.12 in 1994 with sufficient time to dispose of the unauthorized materials or to seek authorized status.
It is apparent that Leitzsey had at least a minimal awareness upon writing the manifesto that such an organization was of an unauthorized nature. Leitzsey also acknowledged at his Tier II hearing that he had not taken steps to make the BKKN an authorized organization. (Docket # 14, Hearing Tr. of 1/8/95 at 7). Still further, he stated at his deposition that the BKKN was not an organization authorized by DOCS. I find Leitzsey's substantive due process claim to be without merit and grant defendants' motion for summary judgment.
III. The Fourth Amendment Claim
Leitzsey alleges that defendant Urban's search of his cell violated his Fourth Amendment right to privacy. Defendants contend in their motion for summary judgment that Leitzsey, an incarcerated person, has no expectation of a right to privacy. I find that defendants are entitled to summary judgment regarding plaintiff's cell-search claim.
The Supreme Court has held that searches of prison cells do not implicate protected constitutional rights; prisoners have no reasonable expectation of privacy within the confines of their cells. See Hudson v. Palmer, 468 U.S. 517, 526-27, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984) (holding that shakedown search of inmate's cell did not violate Fourth Amendment because recognition of such a right would be irreconcilable with the concept of incarceration and the objectives of prisons). In the prison setting, a cell search is reasonable as long as it is related to legitimate security concerns. Block v. Rutherford, 468 U.S. 576, 588, 82 L. Ed. 2d 438, 104 S. Ct. 3227 (1984).
In this case, the search of Leitzsey's cell was conducted as a matter of course when his belongings were being transferred to his new cell in the SHU unit. Certainly, Leitzsey had no reasonable expectation of privacy under these circumstances and, therefore, his Fourth Amendment claim is meritless. Hudson, 468 U.S. at 524-26. I grant defendants' motion for summary judgment on the Fourth Amendment claim.
IV. The Loss of Property Claim
Leitzsey alleges that his constitutional rights were violated when defendants took his bag of documents and personal items and later destroyed it.
I find that Leitzsey's loss-of-property claim fails to rise to the level of a constitutional claim. This is because a claim for the loss of property does not lie in federal court if the state courts offer an adequate remedy for such a deprivation. Hudson, 468 U.S. at 533; Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir. 1988). In the state of New York, such a remedy exists in § 9 of the New York Court of Claims Act. See Gadson v. Goord, 1997 U.S. Dist. LEXIS 18131, 1997 WL 714878, at *7 (S.D.N.Y. November 17, 1997) (dismissing inmate's claim in § 1983 action for deprivation of legal documents and medical records). Leitzsey's deprivation of property claim is not properly before this Court and must be dismissed.
V. The Claim against Defendant Patricia Priestley
Leitzsey's complaint alleges that defendant Patricia Priestley, an Inmate Records Coordinator, denied his requests for copies of the confiscated documents, thereby preventing him from preparing an adequate argument on appeal from the hearing officer's decision to defendant Superintendent Kelly. Leitzsey also claims that defendant Priestley violated his rights under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Defendants contend that Leitzsey has failed to allege conduct on this defendant's part that would give rise to a violation of the Constitution or federal law.
Leitzsey's claims against defendant Priestley are dismissed. First, he has failed to allege a constitutional violation by this defendant. The record before me indicates that defendant Priestley denied Leitzsey access to a copy of the BKKN manifesto because it had been deemed contraband and he was not permitted to have the document. (Exh. to Pl.'s Compl.). Leitzsey was not, however, deprived of access to the hearing tapes from his Tier II hearing, as indicated in a memorandum from defendant Priestley, in which she outlined the rules governing release of hearing tapes to inmates.
Moreover, it does not appear that Leitzsey's appeal was affected by his inability to access the contraband documents, because the Superintendent's decision was based upon a review of the hearing records, which contained numerous quotations from and references to the documents at issue. Even assuming that Leitzsey did suffer some procedural defect because of his lack of access to the documents, he had a constitutionally adequate post-deprivation remedy available to him through an Article 78 proceeding in state court. Campo v. NYC Employees' Retirement System, 843 F.2d 96, 102 (2d Cir. 1988), cert. denied, 488 U.S. 889, 102 L. Ed. 2d 211, 109 S. Ct. 220 (1988).
Additionally, Leitzsey's FOIA claim against defendant Priestley has no merit, because the statute does not apply to individuals. The FOIA applies only to federal agencies. 5 U.S.C. § 551(1); see also Mamarella v. County of Westchester, 898 F. Supp. 236, 237 (S.D.N.Y. 1995). The statute does not create a cause of action against individuals. Mamarella, 898 F. Supp. at 238. Leitzsey's FOIA claim is therefore dismissed.
For all of the above reasons, defendants' motion for summary judgment (Docket # 23) is granted. The complaint is dismissed in its entirety.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
February 23, 1998.