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LEITZSEY v. COOMBE

February 23, 1998

ELDRED E. LEITZSEY, Plaintiff,
v.
PHILIP COOMBE, JR., et al., Defendants.



The opinion of the court was delivered by: LARIMER

 Plaintiff, Eddie Leitzsey, appearing pro se, commenced this action on August 24, 1995, pursuant to 42 U.S.C. ยง 1983. Plaintiff, who is currently an inmate at Southport Correctional Facility, alleges that on or about December 27, 1994, while he was incarcerated at Attica Correctional Facility ("Attica"), defendants violated his constitutional rights under the First, Fourth, and Fourteenth Amendments. The defendants, Philip Coombe, Walter Kelly, M. Giambruno, T. Dixon, Eric Urban, and Patricia Priestley, were employees or agents of the New York State Department of Correctional Services ("DOCS"). Pending before the Court is the defendant's motion for summary judgment. *fn1"

 Plaintiff alleges that a search of his cell on December 27, 1994 by prison officials led to the discovery and seizure of a bag of his documents, the contents of which were deemed to be contraband under DOCS Standards of Inmate Behavior Rule 105.12., and destroyed after plaintiff was found guilty at a Tier II disciplinary hearing of violating the rule. Plaintiff seeks relief in the form of a declaratory judgment that Rule 105.12 violates his rights under the First and Fourteenth Amendments. He also seeks expungement from his disciplinary record of the Tier II proceedings, and compensatory and punitive damages for the confiscation and destruction of certain items in his cell at Attica. For the reasons discussed infra, defendants' motion for summary judgment is granted.

 The facts, as alleged by Leitzsey, are as follows: Leitzsey was an inmate housed at Attica on December 27, 1994. On that date, at approximately 4:15 p.m., while in his cell, he was issued an Inmate Misbehavior Report, charging him with assault upon another inmate. At approximately 5:40 p.m., as a consequence of the assault charge, he was removed from his cell and taken to the Special Housing Unit ("SHU").

 Defendant Correction Officer Eric Urban was directed to conduct a cell frisk of Leitzsey's cell and pack and move the inmate's possessions to SHU. During this search, defendant Urban found a bag containing, inter alia, documents written by plaintiff, that referred to an organization, the Black-A-Moor-Kings, or "BKKN" (standing for Black-A-Moor Kings and Queens Knights Nation), an organization that is not listed as a recognized organization by DOCS. The documents seized from Leitzsey's cell set forth specific rules and an ideology for members of the BKKN, and stated in part:

 
The BKKN, is a unified organization composed of Black's [sic] (only) . . . . We are a unified nation, a revolutionary organization of African descent fighting together.
 
. . . .
 
WE ARE NOT LATIN KING'S [sic] (Latinos or Puerto Ricans) and, WE ARE NOT WHITE. . . . it is not befitting that a Black-A-Moor King or Queen, associate his [sic] or herself with an outsider.
 
. . . .
 
The question, is not how many are willing to die for the nation, but how many are willing to 'kill' for the nation, by stricking [sic] down your enemies on impulse, when, and wherever you shall see them.
 
. . . .
 
IF, you are a member of the BKKN, and you become a Black-a-Moor King while in jail, (prison,). . . you are supposed to report, and make yourself known to the first crown in that facility. You are to introduce yourselves respectfully to the Black-a-Moor Kings as soon as you arrive into any (and all) correctional facilities wherein there is a division or family of Kings.

 (Docket # 14, Exh. to Hearing Tr. of 1/8/95). This bag also contained letters, photographs, lists of addresses and phone numbers, and Leitzsey's diary. Defendant Urban determined that the entire contents of the bag were contraband, confiscated the bag, and transferred it to his supervisors.

 On December 28, 1994, while housed in SHU, Leitzsey was served with a misbehavior report that charged him with a violation of DOCS Standards of Inmate Behavior Rule 105.12. That rule provides in relevant part as follows: "Inmates shall not engage . . . in unauthorized organizational activities, . . . possess . . . unauthorized organizational . . . materials. An unauthorized organization is any . . . organization which has not been approved by the Deputy Commissioner for Program Services."

 On December 28, 1994, Leitzsey met with Correctional Officer R. Connors, who assisted him in the preparation of his defense to the misbehavior charges. At that time, Leitzsey requested that the contraband be present at the hearing. On January 2, 1995, Leitzsey wrote to Deputy Superintendent Donnelly, requesting to have "all unauthorized material [that was] confiscated from my personal property sent home, at the cost of my own expense."

 Leitzsey appeared for the hearing before defendant Lieutenant Dixon. He was found guilty of violating Rule 105.2 and sentenced to a 30-day loss of telephone privileges. The hearing officer further directed the destruction of the items in the bag that related to the unauthorized organization. Items of a legal nature and other authorized personal belongings, to the extent that they existed, were to be returned to Leitzsey.

 Leitzsey appealed the hearing officer's decision, claiming that the items in the bag did not relate to unauthorized organizational activity, but instead were legitimate documents pertaining to Black Studies research material and Afro-American culture. On January 18, 1995, defendant Michael Giambruno, First Deputy Superintendent, affirmed defendant Dixon's decision. In preparing for the appeal, Leitzsey requested the seized documents from defendant Patricia Priestley, an Inmate Records Coordinator at Attica. Leitzsey received a memorandum in response to his request from Priestley, as follows:

 
I have reviewed the five pages of documents used as evidence against you. I am denying your request for copies as the documents are considered contraband which you are not allowed to have.
 
When your Article 78 is accepted by the Court, this office will provide the court with a copy of the entire hearing packet, ...

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