The opinion of the court was delivered by: Kahn, District Judge.
Defendant Calhoun's testimony was contradictory, often evasive,
and time and again he avoided giving answers to pertinent
questions. Defendants have thus failed to show by a preponderance
of the evidence that Calhoun had a proper reason for accusing the
Plaintiff of misconduct.
There is another difficulty with the 2 March memos and the
accusations against Gaston. State Rules and Regulations specify
that each incident of inmate misconduct
that poses a danger to "life, health, security or property" must
be reported in writing without delay. This section of the Rules
and Regulations covers in great detail who is to make the report,
how it is to identify the nature and time of the incident, the
rule violated, and the inmate involved; it also mandates precise
language to be included in the report, advising the subject
inmate of his rights in any hearing connected with the
misbehavior report. The text of this section in pertinent part is
Section 251-3.1 — Misbehavior report.
(a) Every incident of inmate misbehavior involving
danger to life, health, security or property must
be reported, in writing, as soon as practicable.
(b) The misbehavior report shall be made by the
employee who has observed the incident or who has
ascertained the facts of the incident. Where more
than one employee has personal knowledge of the
facts, each employee shall make a separate report
or, where appropriate, each employee shall endorse
his/her name on a report made by one of the
(c) The misbehavior report shall include the
(1) a written specification of the particulars of
the alleged incident of misbehavior involved;
(2) a reference to the inmate rule book number
allegedly violated by the inmate, and a brief
description of the rule;
(3) the date, time and place of the incident;
(4) when more than one inmate was involved in an
incident, the report should, to the extent
practicable under the given circumstances,
indicate the specific role played by each inmate.
Where two or more incidents are involved, all of
them may be incorporated into a single
misbehavior report. However, each incident must
be separately stated.
(d) All misbehavior reports shall also contain the
(1) "You are hereby advised that no statement made
by you in response to the charge, or information
derived therefrom may be used against you in a
(2) "You will be permitted to call witnesses on
your behalf provided that doing so does not
jeopardize institutional safety or correctional
(3) "If restricted pending a hearing for this
misbehavior report, you may write to the Deputy
Superintendent of Security or his/her designee
prior to the hearing to make a statement on the
need for continued prehearing confinement."
N YComp.Codes R. & Regs. tit. 7, § 251-3.1 (1999).
The Plaintiff testified that he never received a misbehavior
report in connection with the sanctions he was subject to (Trial
Tr. at 26 line 22 to 27 line 3), Marcus admitted that apparently
no misbehavior report was ever prepared in Plaintiff's
disciplinary proceedings (id. at 92 lines 11-20), and no
evidence of the existence of any such misbehavior report was ever
submitted to the Court. The memos by Marcus, Calhoun and
Countryman do not come close to fulfilling the requirements
mandated by the Rules and Regulations, as counsel for Plaintiff
made abundantly clear in his cross-examination of Marcus (id.
at 88 line 20 to 92 line 20). Even Marcus's memo, which was
longer and more detailed than Calhoun's, fell well short of the
misbehavior report requirements. It was dated five days after the
incident it reported; that cannot be construed as "as soon as
practicable." It failed to refer to any inmate rule book number
that Plaintiff allegedly violated, much less describe the rule.
It also failed to incorporate the advisory language prescribed by
the Rule and Regulation. Calhoun's memo was apparently written on
the day he says he observed the
conversation between Plaintiff and inmate Sellers, but it is even
less successful in specifying that the behavior it purports to
report was an instance of misconduct.
On the basis of the accusations Calhoun and Marcus made against
the Plaintiff, the State Rules and Regulations required that they
make misbehavior reports against him. Mess hall strikes such as
he was accused of inciting would not be minor incidents, but
would pose a danger at least to health and security, two of the
criteria the law contemplates. Defendants themselves assert that
they believed at that time that Plaintiff's "activism" posed a
danger to "the facility's safety and security." (Defs.'
Proposed Findings of Fact and Conclusions of Law at 4, 8 (5 Oct.
1998, Doc. 125) (emphasis added); see also Defs.' Trial Mem. of
Law at 9 (5 Oct. 1998, Doc. 128).)
Defendants' counsel's attempts to elicit testimony that the
Defendants had observed Plaintiff engaged in conduct that was too
minor to warrant a full misbehavior report are unavailing. (Trial
Tr. at 96 line 12 to 97 line 5.) The distinctions counsel for
Plaintiff made on re-cross — that incidents of misconduct that do
not pose a danger to life, health, security or property are the
ones Correction officials do not write up, but that otherwise
the law requires that officials report the infraction in writing
(id. at 97 line 15 to 98 line 11) — are well taken. Moreover,
the efforts by counsel for the Defendants to draw a picture of
the atmosphere in the mess hall at that time as tense and
volatile, and hence as justifying heightened vigilance by
Correction officials for acts or speech inciting misconduct
(id. at 78 line 10 to 86 line 11), are at cross-purposes with
the aforesaid attempt to show that the Defendants did not make
out misbehavior reports against the Plaintiff because they did
not see his misconduct as rising to the level of a serious
The differences between the law's detailed requirements for a
misbehavior report, and the memos the Defendants submitted, were
latent with adverse consequences for the Plaintiff. The law
insists that a misbehavior report be written without delay.
Instead, there was a five-day delay between the incident Marcus
alleges and his writing of the memo. The law also requires that a
misbehavior report state which rule the inmate is accused of
breaking, and the specific role each accused inmate played. This
would have provided most salutary discipline for Calhoun's memo,
and perhaps his testimony. It would have required Calhoun to
commit himself to a position that he was accusing the Plaintiff
of committing a discrete wrongdoing, and that he could identify
it positively, rather than accusing the Plaintiff by vaguely
associating him with comments made about him at some uncertain
point in the past.
The requirements of misbehavior reports protect Correction
officials, inmates, and the interests of justice. Defendants'
failure to abide by those requirements should not undermine the
effect of those protections for the Plaintiff.
E. Qualified Immunity
The Court holds that the Defendants are not entitled to
qualified immunity to liability in this action. The crucial issue
is whether the right or rights that Plaintiff claims Defendants
violated was clearly established. It cannot be seriously disputed
that the First Amendment right to petition government for redress
of grievances is clearly established. Moreover, as noted above,
New York State law affirms that right for prisoners, and protects
them from sanctions imposed for their exercise of that right. The
text bears requoting:
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). Correction Officers are
be familiar with such laws governing the Correction system; by
virtue of that principle the right protected by Section 138 must
be taken as "clearly established."
The Court also refers to the decisions of the Second Circuit,
which has held that "a prisoner has a substantive due process
right not to be subjected to false misconduct charges as
retaliation for his exercise of a [C]onstitutional right such as
petitioning the government for redress of his grievances. . . ."
Jones v. Coughlin, 45 F.3d 677, 679-80 (2d Cir. 1995) (per
curiam). Qualified immunity may not stand as an insurmountable
bar to the vindication of such rights, when the claim to
qualified immunity rests on factual assertions that the Court
rejects in favor of Plaintiff's denials that he engaged in such
conduct, and Plaintiff's assertions that he was instead engaging
in protected conduct.
F. Observations on New York Attorney General's Legal and
The Attorney General of the State of New York, with the
Assistant Attorney General of counsel on this case, submitted the
Defendants' Proposed Findings of Fact and Conclusions of Law
(Doc. 125) on behalf of the Defendants. Among the proposed
findings of fact, number 10 stated, "Plaintiff admits that he had
several conversations, along with other inmates, regarding a
mandatory day off for inmate mess hall workers pursuant to § 171
of the Correction Law. . . ." (Id. at 3; Defs.' Trial Mem. of
Law at 4 (Doc. 128).) The proposed conclusions of law include the
assertions, "Defendants' actions were legitimate responses to
what they perceived as a threat to the good order of the prison
mess hall operations. Plaintiff himself admits he made statements
to other inmates regarding their right to refuse to work in the
mess hall beyond six days a week." (Defs.' Proposed Findings of
Fact and Conclusions of Law at 7-8; Defs.' Trial Mem. of Law at
It is true that the topic of an inmate's speech could encompass
clearly protected matters, and the speech nonetheless warrant
sanctions against the inmate, if the inmate spoke to incite
others to acts against the safety or good order of prison
operations. The submissions of the Attorney General quoted above
do not, however, make that distinction. Instead, the Attorney
General appears to suggest that the Plaintiff was wrong to have
brought up the issue of the State law that prohibits State
prisons from working inmates longer than eight hours a day, and
more than six days a week.
It is not disputed that the Plaintiff made a concerted effort
to address Correction officials about this matter, discussing
Section 171 with C.O. Dennin (Trial Tr. at 18 line 23 to 19 line
3); with ILC president Jackson, requesting that the ILC present
the issue to facility administrative staff (id. at 16 line 12
to 18 line 2); and with Deputy Superintendent Fleming and two
other Correction Officers (id. at 20 lines 5-18). Not only is
raising such an issue protected activity under the United States
Constitution, Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct.
3194, 82 L.Ed.2d 393 (1984) ("prisoners have the constitutional
right to petition the Government for redress of their
grievances"), but, as noted above, New York State law
specifically provides for the protection of that right for
inmates at all correctional facilities. "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). Notably, the law does
not require that such statements be addressed to prison
officials, although Plaintiff did address officials many, if not
most, of the occasions he raised the issue.
Prison inmates are — rightly and necessarily — deprived of or
restricted in many liberties that the general population consider
their birthright. Nonetheless, though prisoners' Constitutional
rights are qualified, they are not extinguished altogether. See
Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 41
L.Ed.2d 935 (1974); cf. Frazier v. Ward, 426 F. Supp. 1354,
1365-66 (N.D.N.Y. 1977) (Foley, C.J.) (observing that prisoners
retain Fourth Amendment protections against unreasonable search
and seizure, and a qualified right to privacy). This Court
rejects any suggestion that an inmate's contemplation and
discussion of his Constitutional and legal rights may be adduced
as evidence of a transgression of the necessary discipline and
order of a prison.
G. Conclusions of Fact
For the foregoing reasons, the Court as trier of fact finds by
a fair preponderance of the credible evidence that Defendants
Calhoun and Marcus are liable to Plaintiff Gaston for retaliation
against his Constitutionally protected activities.
III. Damages and Other Relief
Declaratory relief: It is the verdict and judgment of this
Court that the Defendants' acts violated the Plaintiff's
Constitutional rights, and rendered the Defendants liable to the
Plaintiff pursuant to 42 U.S.C. § 1983.
Injunctive relief: The injunctive relief Plaintiff seeks
against prospective retaliation is not appropriate at this point,
and accordingly is DENIED.
The injunctive relief sought with respect to the Plaintiff's
prison files and records is hereby GRANTED. The Court orders
that the memos associated with, and records of, this incident,
found in Plaintiff's inmate file or other Correctional Services
records, are to be expunged from his records.
Educational costs: The Court finds, on the basis of
Plaintiff's testimony (Trial Tr. at 40 line 19 to 41 line 2),
that because of the Defendants' acts of retaliation the Plaintiff
incurred extra educational costs of $500.00.
Other educational harm: The Plaintiff was delayed in earning
his Master's degree, and rather than earning it in sociology, his
preferred field, he had to pursue the degree in African American
studies and American studies. In some respects it does not appear
that these modest adjustments can have been especially onerous
for the Plaintiff to bear. A limited delay in earning one's
degree, and a degree in a field not terribly far removed from
one's original goal, at first blush appear trifling burdens. The
value of educational goals, however, is not readily quantifiable
by simple arithmetic. The value of a degree in one field as
opposed to another, the value of time spent studying one thing
instead of another, are highly personal matters. They will not
mean the same things for different people. In the more important
respects, the assessment of such damages relies at least as much
on intuition as on any standard equation. In the Court's view, in
contemplation of the Plaintiff's requested damages, a fair
assessment of these other educational harms is $1500.00.
Lost wages: The Plaintiff was restricted from work from 2
March to at least 30 March 1988, when a transfer request was made
by a Counselor for the Plaintiff. (Plaintiff's Proposed Findings
of Fact and Conclusions of Law at 6 (Doc. 132); see also Trial
Tr. at 41 lines 9-14.) Thus, for at least 28 days, Plaintiff lost
$1.55 per day. That amounts to $43.40.
Since approximately 30 March 1988, Plaintiff has worked at
5-day per week jobs, which pay $1.45 per day. He has thus lost
$1.55 per day on the weekends, and $0.10 per day during the week,
or $3.60 per week. From 30 March 1988 to 3 November 1999 is 605
weeks; that number of weeks times $3.60 is $2178.00.
Accordingly, Plaintiff's total lost wages are: $2221.40.
Punitive damages: The law does not warrant a finding of
punitive damages in this case. The Plaintiff has not shown by a
fair preponderance of the credible
evidence that the Defendants were "motivated by evil motive or
intent," or acted with "reckless or callous indifference to the
federally protected rights of others." See Smith v. Wade,
461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); see also
Arroyo Lopez v. Nuttall, 25 F. Supp.2d 407, 410 (S.D.N.Y. 1998).
Plaintiff's costs: Plaintiff's claim for costs of his suit is
Other relief: The Court finds that Plaintiff is entitled to
pre-judgment compounded interest on the monetary awards for
educational costs incurred because of loss of financial aid after
Plaintiff's transfer from Eastern Correctional Facility, and for
lost wages. See Gierlinger v. Gleason, 160 F.3d 858, 873-74 (2d
Cir. 1998). Pre-judgment interest shall be at the "adjusted prime
rate" established by the Secretary of the Treasury pursuant to
26 U.S.C. § 6621 (1999), calculated from the time at which Plaintiff
had to pay the registration fee following the loss of his federal
financial aid, and from the midpoint of the period for which back
wages were due. See E.E.O.C. v. County of Erie, 751 F.2d 79,
80, 82 (1984).
The Court further finds that Plaintiff is entitled to
post-judgment interest on all monetary awards, in accordance with
28 U.S.C. § 1961. All interest shall be compounded.
The Court takes this opportunity to express its gratitude to
Salvatore J. Piemonte, Esq., for his pro bono service as standby
trial counsel for the Plaintiff. Such assignments are difficult
ones, affording attorneys limited resources and time with which
to prepare challenging cases. Mr. Piemonte's thorough preparation
for the trial and the high quality of his representation of his
client were exemplary, and the Court thanks him for this service.
It is hereby ORDERED that Defendants are found liable to
Plaintiff for damages of $4221.40, plus pre-judgment interest
and post-judgment interest as described above; and
IT IS FURTHER ORDERED that each Defendant be equally liable for
a share of fifty percent of the damages; and
IT IS FURTHER ORDERED that the memos associated with, and
records of, this incident, found in Plaintiff's inmate file or
other Correctional Services records, are to be expunged from his
IT IS FURTHER ORDERED that the Clerk serve a copy of this order
on all parties by regular mail.
IT IS SO ORDERED.