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November 3, 1999


The opinion of the court was delivered by: Kahn, District Judge.


Plaintiff Kenneth L. Gaston, an inmate in the custody of the New York State Department of Correctional Services, brings this action because he alleges that in 1988 Defendants John B. Calhoun and Jeffrey A. Marcus, who are Correction Officers employed by the State, imposed disciplinary sanctions on him in retaliation for Constitutionally protected activities. Specifically, the Plaintiff, who then worked (principally as a cook) in the mess hall of Eastern Correctional Facility, in Napanoch, says that he brought to the attention of prison authorities a provision in State law governing the conditions of inmate labor, told the authorities that the work schedules they required of the inmates violated that law, and asked the authorities to reduce inmate work schedules accordingly. The Plaintiff was soon afterwards restricted from mess hall work, and transferred to another correctional facility. He claims that prison authorities imposed these sanctions in retaliation for his raising the issue of inmate work schedules; the Defendants assert that, to the contrary, sanctions were imposed because the Plaintiff committed disciplinary infractions. Plaintiff states that the sanctions harmed him by depriving him of a favored work assignment, by depriving him of wages, by forcing him to delay and alter his educational plans and incur additional educational costs, and by placing adverse reports (including a Program and Security Assessment Summary ("PSAS")) in his Department of Correctional Services inmate file — reports to the effect that he was a security risk and an inappropriate influence on the inmate population.

Plaintiff, in his third amended complaint, asserted claims under 42 U.S.C. § 1983, 1985(3) and 1986 for deprivation under color of State law of rights secured by the Constitution of the United States, alleging three causes of action: (1) conspiracy, (2) retaliation in violation of the First and Fourteenth Amendments, and (3) violation of due process. Previously, this Court, the late Judge Con. G. Cholakis presiding, granted summary judgment (26 July 1993, Doc. 83) to five Defendants, excluding Sergeant Silas Countryman ("Countryman"), Correction Officer John B. Calhoun ("Calhoun") and Correction Officer Jeffrey A. Marcus ("Marcus"), who were not part of that unopposed summary judgment motion (15 Jan. 1993, Doc. 73).

Those remaining Defendants subsequently moved for summary judgment (10 Apr. 1998, Doc. 101), which this Court granted in part and denied in part. (Memorandum-Decision and Order at 13-14 (8 Oct. 1998, Doc. 134).) The action against Countryman was dismissed in its entirety; against Calhoun and Marcus, the retaliation claim alone survived. (Id.) This Court also denied the Defendants' motion for summary judgment on the ground of qualified immunity. (Id.) Accordingly, Plaintiff brings this action under 42 U.S.C. § 1983*fn1 alleging that the Defendants violated his rights under the First and Fourteenth Amendments*fn2 by filing false reports about him in retaliation for his complaints about work conditions. The Court's Order of 8 July 1998 (Doc. 115) granted the Plaintiff's request for a bench trial, to which the Defendants subsequently consented and stipulated (6 Oct. 1998, Doc. 129). Trial was held before the Court on 15 October 1998 at the United States District Courthouse in Syracuse, New York.

For relief, Plaintiff seeks a declaratory judgment that the Defendants' acts have violated Plaintiff's Constitutional rights, a permanent injunction against further retaliation against Plaintiff or against other inmates who have submitted affidavits on behalf of Plaintiff, compensatory damages in the amount of $5,000.00 against each of the Defendants and punitive damages in the amount of $15,000 against each of the Defendants, back pay for lost wages, Plaintiff's costs for this action, and such other and further relief as the Court deems just, proper and equitable.

I. Background

Plaintiff is an inmate in the custody of the New York State Department of Correctional Services. In 1988 he was a worker in the mess hall at Eastern Correctional Facility. On 22 or 23 February 1988 he discussed with Correction Officer James P. Dennin*fn3 the issue of whether the inmate workers in the mess hall should have a day off, and be required to work no more than eight hours a day, in conformity with N.Y.Correct.Law § 171.*fn4 Subsequently, Plaintiff met with inmate Xavier Jackson, the President of the Inmate Liaison Committee ("ILC"), and proposed that the ILC present the prison administration with a complaint at the next Executive Committee Meeting, alleging that they were in violation of this State law. Plaintiff then filed an ILC administrative complaint on the basis of Section 171.

On or about 26 or 27 February 1988, Plaintiff met with Robert J. Fleming, Deputy Superintendent for Programs at the prison, inmate John Green (who had initially informed Plaintiff of the substance of Section 171) and two other Correction Officers (neither of whom has been a Defendant in this case). He discussed certain work conditions, and his opinion that the mess hall schedule was not in compliance with Section 171 because that schedule did not limit inmates to eight hours' work per day and give them a day off each week, but instead required them to work twelve to sixteen hours a day, seven days a week. Fleming, according to Plaintiff's testimony, responded that he could not give mess hall workers a day off because he was understaffed. In the Plaintiff's view, Fleming appeared at first not to understand that reducing the work schedules was mandatory under state law, and instead treated Plaintiff's petition as a generic request for easier conditions that he could not accommodate. Plaintiff persisted, showing Fleming the text of Section 171. Fleming, seeing that the limits on work schedules were required by law, said that he would have to look into the matter further. (Trial Tr. at 20 lines 5-18 (Doc. 138); see also Pl.'s Third Am.Compl. at 4 (11 May 1992, Doc. 49).)

Four or five days later, on 2 March 1988, Countryman, who was kitchen sergeant, informed Plaintiff that he was being restricted from working in the kitchen. The reasons for this restriction are in dispute. The Plaintiff testified that Countryman did not answer his specific questions as to what misconduct he was being restricted for, and who had accused him of misconduct. Nor, he said, did any other Correction official inform him at that time why he was being disciplined. He further testified that no misbehavior report was filed against him. (Id. at 25 line 5 to 26 line 4, 26 line 18 to 27 line 3.) Two days after he was restricted from working in the kitchen, Plaintiff filed a grievance in which he asked who ordered the action and what the basis for the action was. As a result, he was informed that William Costello, Deputy Superintendent of Security Services, ordered the removal.

Notwithstanding Countryman's apparent failure to give Plaintiff full details of the reasons for the sanctions against him, on 2 March 1988 he wrote a memo to Costello. (Pl.'s ex. 8.) He said that he had received a memo from Calhoun and Marcus referring to information from a confidential source, to the effect that Plaintiff was "an instigator in trying to organize a work stoppage in the Kitchen complex." Accordingly, he had informed Plaintiff that he was restricting him indefinitely from working in the kitchen complex.

While Countryman's memo indicated (perhaps by virtue of a typographical error) that he had received a single memo jointly authored by Calhoun and Marcus, no jointly authored memo was entered into evidence. Instead, the parties submitted copies of memos written individually by Defendants. In his memo, Marcus alleged that on 26 February 1988 he was conducting the noon meal in the mess hall when he overheard a group of inmates discussing a new kitchen work rule. (See also Def. 7.1(f) Statement ¶ 1 (10 Apr. 1998, Doc. 102).) Marcus noted that the discussion was very "heated," that it continued at the instigation of Plaintiff and stopped every time Marcus came close to the inmates. (Id. ¶ 3.) However, he alleged he did overhear Plaintiff state: "We're just working here because we want to work here. If we all decided not to work, what would they do then?!. . . . [W]hen we decide not to work, then they'll have the problem, not us!" (See also Marcus Aff. ¶ 8, Ex. A (10 Apr. 1998, Doc. 103).) He further alleged that the next day, 27 February 1988, there was a sit-down work stoppage in two of the facility mess halls.

Calhoun alleged in his memo that on that very day (2 March 1988), he had overheard Plaintiff state to another inmate that "if they all walked out he would propably [sic] stay behind." (Defs.' Ex. 2; see also Calhoun Aff. ¶ 6 (10 Apr. 1998, Doc. 103).) He said he felt this was significant because once before he had heard a couple of inmates say that Plaintiff was talking about a slowdown in the kitchen.

Neither memo mentions information from a confidential source, as referred to in Countryman's memo.

Plaintiff maintains that the information in both memos is false. He also asserted in his testimony and in an affidavit that there was no work stoppage on 27 February 1988. (See Trial Tr. at 21 line 20 to 22 line 4; Gaston Aff. ¶ 7 (15 May 1998, Doc. 109).) His complaint, too, asserts that there was no work stoppage that day, although it notes that, as Plaintiff testified at trial, one inmate working in the mess hall, Mr. Green, walked out of the mess hall complex that day in protest of unresolved working conditions, following the meeting he and the Plaintiff had with the Correction officials. (See Pl.'s Third Am.Compl. ¶¶ 35-40; Trial Tr. at 22 line 5 to 25 line 4; supra page 384.)

II. Discussion

A. Standard of Review

To establish a retaliation claim under § 1983, Plaintiff must show that his conduct was protected by the First Amendment and that Defendants retaliated against him for engaging in the protected conduct. See Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996); Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994). The Plaintiff must prove his allegations by a fair preponderance of the credible evidence. If he meets this burden, the Defendants may prevail by showing by a fair preponderance of the credible evidence that they nonetheless had sufficient proper reasons for filing the adverse memos against Plaintiff. See Graham, 89 F.3d at 79.

B. Plaintiff's Case

The right to complain to public officials and to seek administrative relief is protected by the First Amendment. Gagliardi, 18 F.3d at 193. Thus, Plaintiff's attempts to obtain redress of a perceived violation of State law are protected conduct. Further, it is established that the filing of false accusations, when done in retaliation for protected conduct, is actionable under § 1983. See Taylor v. Sullivan, 980 F. Supp. 697, 704 (S.D.N.Y. 1997) (citing Franco v. Kelly, 854 F.2d 584, 585 (2d Cir. 1988)). Plaintiff thus states a claim upon which relief can be granted.

In addition, the Court notes that New York law specifically protects the right of inmates to petition authorities for redress of grievances within the Correction system.

  Inmates shall not be disciplined for making written
  or oral statements, demands, or requests involving a
  change of institutional conditions, policies, rules,
  regulations, or laws affecting an institution.

N YCorrect.Law § 138(4) (McKinney 1993). Plaintiff apparently did not ask this Court to exercise pendent jurisdiction over any State law claim based on this provision. He did, however, cite this law in Plaintiff's Proposed Findings of Fact and Conclusions of Law at 12 (13 Oct. 1998, Doc. 132), and Plaintiff's Trial Memorandum of Law at 4 (13 Oct. 1998, Doc. 133).

Plaintiff does not allege any evidence that directly suggests a retaliatory animus in Marcus or Calhoun, nor does he allege any evidence that directly demonstrates that Marcus or Calhoun were aware of his protected conduct. The Plaintiff does deny the conduct alleged in the memos by Marcus and Calhoun, and it is not disputed that he raised the issue of the Section 171 restrictions on work schedules with various prison officials, and thus engaged in protected conduct. Plaintiff did not attempt to hide these activities. Within a week of Plaintiff's protected conduct, Marcus and Calhoun filed memos reporting against Plaintiff. The closeness in time between the two events and the fact that Plaintiff informed at least four prison officials of his objections, including three Correction Officers and Fleming, the Deputy Superintendent, is sufficient to allow a reasonable trier-of-fact to infer that Marcus and Calhoun learned of Plaintiff's objections to prison policy and retaliated against him for it. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (holding that "temporal proximity" between an inmate's protected conduct and the adverse action may serve as "circumstantial evidence of retaliation").

The Court further found that Plaintiff's demeanor while testifying at trial, under direct and cross examination, was forthright. He demonstrated by a fair preponderance of the credible evidence that he had engaged in Constitutionally protected activity, that for that activity he had been the target of retaliation by the Defendants, and that he had not engaged in the misconduct that the Defendants had accused him of.

C. Defendants' Response

The Plaintiff having sustained his burden of proving by a fair preponderance of the credible evidence that the Defendants retaliated against him for his exercise of protected activities, the crux of this case becomes the credibility of the memos by Marcus and Calhoun, which constitute the primary accusations of misconduct against Plaintiff, and were the foundation for the disciplinary measures imposed on the Plaintiff.

Marcus's memo asserts that on 27 February 1988 — the day after he overheard Gaston in a "heated" discussion with other inmates in which, Marcus implies, Gaston was inciting the others to misconduct — "there was a sit-down work stoppage in Mess Halls # 1 and # 2, at approximately 7:45 AM, five (5) minutes before the meal was to run." (Pl.'s Ex. 7.) The evidence, however, strongly suggests that no such event occurred. The kitchen logbook is kept by the Correction Officers in order to — among other reasons — provide a means for recording problems and incidents that might be significant enough to require a review at a later time. The kitchen logbook, as Marcus admitted (Trial Tr. at 94 lines 13-16), has no record of any work stoppage on that day. (Def.Ex. 6 at 285.)

A work stoppage is clearly the type of event that is meant to be recorded in the logbook. The 11:10 a.m. entry for 27 February 1988 reads as follows: "[I]nmates this a.m. at approx. 8:30 AM were thinking of not scouring items used on serving line. Discussion with Lt Kinney & inmates involved & inmates agreed to return to work." (Id.; Trial Tr. at 83 lines 1-12.) If Correction Officers entered an account of inmates thinking about not doing part of their work, then one must conclude that Officers would be much more likely to have entered an account of an actual sit-down strike of the sort described in Marcus's memo. The absence of any entry remotely corresponding to the event alleged in the memo corroborates the Plaintiff's assertion that no such work stoppage occurred. Moreover, Sergeant Tony Giammichele, who was on duty in the mess hall 27 February 1988, and who made the 11:10 a.m. logbook entry quoted above, testified that he knew of no work stoppage that occurred that day. (Trial Tr. at 112 lines 18-19.) Accordingly, the Court cannot conclude that Defendants have shown by a fair preponderance of the credible evidence that Marcus had sufficient proper reason for accusing the Plaintiff of misconduct.

The Defendants also adduce as evidence that Plaintiff was "attempting to instigate a work stoppage," or a slowdown (Defs.' Trial Mem. of Law at 9), Defendant Calhoun's undated memo*fn5 to Sgt. Countryman (Ex. D-2). "I heard Inmate Gaston tell Inmate Sellers that if they all walked out he would propably [sic] stay behind. The reason I feel this is significant is because once before I heard a couple of inmates say Inmate Gaston was talking about a slow down in the kitchen." The most plausible initial interpretation of the Plaintiff's purported 2 March remark, however, is that he would probably not participate in a walkout. Accordingly, an attempt to associate that remark with earlier hearsay, that Gaston was talking about a slowdown, is mere speculation.

Defendant Calhoun had an opportunity at trial to illuminate the meaning of his memo. Instead, he engaged in persistent efforts to be unresponsive on cross-examination; the most reasonable inference the Court can draw from this is that he could not set forth an explanation of his memo that would help his case. Plaintiff's attorney observed that, according to the memo, the Plaintiff said that if the other inmates walked out he would stay behind. Counsel asked Defendant Calhoun what Gaston meant by that. Calhoun replied, "I have no idea what he meant by it."*fn6 (Trial Tr. at 105 line 3.)

To the contrary, in his very next answer, Calhoun does show that he has some idea of what the remark meant: "No, that didn't mean he would stay working, just meant he would stay behind." (Id. lines 6-7 (emphasis added).) Alas, however, after providing that glimmer of hope ...

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