The opinion of the court was delivered by: Kahn, District Judge.
MEMORANDUM-DECISION AND ORDER
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
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.
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.)
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.
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.
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 ...