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March 14, 2000


The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.


Plaintiff, a prison inmate who claims that he was improperly subjected to prison discipline in violation of his federal constitutional rights, objects to the report and recommendation of Magistrate Judge Ellis, dated January 27, 2000, which recommended that defendants' motion for summary judgment be granted and plaintiff's cross-motion for partial summary judgment be denied.


The facts material to this disposition of these motions may be stated briefly. At all relevant times, plaintiff was an inmate at New York's Woodbourne Correctional Facility in consequence of his conviction for manslaughter in the first degree and possession of a dangerous weapon. He is Caucasian and professes the Muslim religion.

Plaintiff's regular work assignment at Woodbourne was in the business office in the administration building, which was outside the secured area of the prison. On each day on which plaintiff was scheduled to report to work, he presented himself to Correction Officer Clayton Cook, a defendant here, was pat frisked, and then proceeded to the office where Cook, among others, was responsible for supervising plaintiff during his employment. The office contained State-owned computers, and plaintiff claims that he had used those computers for personal work without objection from defendants.*fn1

At some point, plaintiff began wearing a kufi, headgear associated with the profession of the Muslim religion. On September 10, 1995, he wore the kufi to his work assignment for the first time.*fn2 When he presented himself to Officer Cook on September 13, 1995, Cook questioned his right to wear the kufi to his job and brought plaintiff to Deputy Superintendent Budd for a determination.*fn3 According to plaintiff's account, Budd told Cook to "take care of it."*fn4

On September 14, 1995, plaintiff reported to Cook for the pat frisk prior to going to work in the administration building. During the pat frisk, Cook discovered that plaintiff was carrying personal legal papers. He told plaintiff that such papers were not allowed in the business office and to remove them by the end of the day.*fn5 Later that day, Cook observed plaintiff entering his personal legal work on one of the computers in the office and saw other legal documents unrelated to plaintiff's work assignment at his desk.*fn6 He then prepared an Inmate Misbehavior Report charging plaintiff, inter alia, with misuse of state property in violation of New York State Department of Correctional Services ("DOCS") Rule 116.10 by his use of State-owned computers to do his personal work. Plaintiff was placed in keeplock on the same day and subjected to a Tier III disciplinary hearing at which he was convicted of the Rule 116.10 violation and, as modified on subsequent administrative appeal, sentenced to 60 days in keeplock with loss of certain privileges.

Insofar as is relevant here, plaintiff claims that he was disciplined in violation of his right to due process of law in that (a) DOCS Rule 116.10 is unconstitutionally vague as applied to this case, (b) he was not given sufficient notice of the disciplinary charge against him, and (c) the hearing officer improperly prejudged the case against him. In addition, plaintiff claims that the disciplinary proceeding was brought against him in retaliation for his wearing a kufi to work and/or because the work he was doing was legal in nature, that he was confined prior to adjudication of the disciplinary complaint because he attempted to have the legal work that was seized from him returned, and that the penalty imposed upon him was increased because he defended vigorously against the charges.

The Due Process Claims

The Magistrate Judge found the existence of genuine issues of fact as to whether plaintiff had a protected liberty interest, and there is no need to revisit that issue. The question is whether he correctly recommended the entry of judgment for the defendants on the merits of the due process claims.


The charge of which plaintiff was found guilty was violation of DOCS Rule 116.10, which states that "inmates shall not lose, destroy, steal, misuse, damage or waste any type of State property." The basis for the charge was plaintiff's use of a computer in the administration building at Woodbourne Correctional Facility, to which he had proper access as part of his prison work assignment, to do personal legal work.

As the Magistrate Judge concluded, this Circuit employs a two-pronged test in determining whether a statute or rule is unconstitutionally vague as applied. The court first must determine whether the statute gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited and then whether the law affords sufficiently explicit standards for those who must apply it.*fn7

Plaintiff was afforded access to the State-owned computer in the administration building for the purpose of performing his work assignment. A person of ordinary intelligence had a reasonable opportunity to know that the use of that computer to prepare papers for his personal litigations was inappropriate. Nor would anyone charged with applying Rule 116.10 be afforded excessive discretion in these ...

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