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JORDAN v. GARVIN

United States District Court, S.D. New York


February 17, 2004.

FLANDERS JORDAN, Plaintiffs -v- HENRY GARVIN, Superintendent, Mid-Orange Correctional Facility; FRANK ALCOCK, Captain Mid-Orange Correctional Facility; JOHN DOE, Lieutenant, Mid-Orange Correctional Facility; J. RIVERA, Correction Officer, Mid-Orange Correctional Facility; P. ZACCAGNINO, Correction Officer, Mid-Orange Correctional Facility, Defendants

The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge Page 2

OPINION AND ORDER

Plaintiff pro se Flanders Jordan, an inmate at the Mid-Orange Correctional Facility in Warwick, New York, brings this action seeking a declaratory judgment that defendants have violated his rights under the First and Fourteenth Amendments, and seeking injunctive relief prohibiting defendants from interfering with his communications with certain recording companies. Plaintiff also seeks damages, punitive damages, costs and attorneys' fees. Defendants moved to dismiss the complaint. Because the Court has considered matters outside the pleadings, the Court issued an Order, dated March 31, 2003, notifying the parties that defendants' motion will be treated as a motion for summary judgment pursuant to the last sentence of Rule 12(b) of the Federal Rules of Civil Procedure. Plaintiff then filed a cross-motion for partial summary judgment in connection with his claim alleging that his First and Fourteenth Amendment rights were violated when he was not permitted to: 1) record certain songs he had written, 2) possess a contract he had been offered in connection with certain songs he had written, and 3) pay money so that he could have certain songs he had written recorded. For the reasons explained below, defendants' motion is granted, plaintiffs motion for partial summary judgment in denied, and plaintiff's motion for a preliminary injunction is denied as moot.

  FACTS*fn1

  Plaintiff alleges that he has written short stories, poems, essays and articles during his incarceration. Verified Complaint ("Complaint"), ¶ 8. Plaintiff also contends that he has Page 3 written two collections of songs. Id.

  In or about January 2001, plaintiff received correspondence from two record companies who expressed interest in recording his songs. Id. ¶ 9; Defendant's Brief In Support of Motion to Dismiss at 3. In order to record plaintiffs songs, however, the record companies required that he pay a fee and sign a contract. Complaint, ¶ 9; Defendant's Brief In Support of Motion to Dismiss at 3. Plaintiff alleges that, on January 10, 2001, a prison official informed plaintiff that he could enter into one of the contracts, but that he would have to pay the record company in one lump sum instead of monthly installments. The prison official allegedly gave plaintiff a copy of the contract. Complaint, ¶ 10.

  Plaintiff alleges that on February 4, 2001, a different prison official showed him a contract from another record company and told plaintiff that he could not enter into the contract. The prison official placed the contract in custody along with plaintiff's personal property. Id. ¶ 11. Plaintiff filed an Inmate Grievance Complaint concerning the prison's refusal to allow him to pay for the recordings. Defendant Garvin denied plaintiffs application. Id. ¶ 12; Affidavit of Superintendent Henry Garvin, sworn to September 10, 2001 ("Garvin Aff."), ¶ 7. Plaintiff appealed the decision to the Inmate Grievance Program's Central Office Review Committee. The committee affirmed defendant Garvin's decision. Complaint, ¶ 12; Garvin Aff, ¶ 7.

  On February 16, 2001, defendants Rivera and Zaccagnino searched plaintiffs cell pursuant to an order issued by defendant Alcock. Defendant Alcock had directed Rivera and Zaccagnino to find the contract from the record company given to plaintiff by the first prison official. Defendants did not find the contract, but seized a letter and other documents from that Page 4 record company. Complaint, ¶ 13, Affidavit of Lieutenant Frank Alcock, sworn to September 10, 2001 ("Alcock Aff'), ¶ 5; Affidavit of Dominick Zaccagnino, sworn to September 10, 2001 ("Zaccagnino Aff."), ¶ 4.

  Plaintiff alleges that, on February 20, 2001, a third prison official informed plaintiff that the letter taken from his cell would be placed in custody with his personal property and that, pursuant to DOCS Directive 4422, plaintiff was prohibited from engaging in mail order or any other type of business. Id. ¶ 14.

  Plaintiff contends that, on February 23, 2001, defendant John Doe informed plaintiff that, because DOCS Inmate Behavior Rule 103.20 prohibited plaintiff's conduct, plaintiff's grievance was baseless and should be withdrawn. Plaintiff alleges that defendant John Doe threatened plaintiff, stating that he would be accused of violating DOCS Inmate Behavior Rule 103.20 if he did not withdraw the grievance.

 

Directive 4422 provides, in pertinent part, as follows:
Inmates shall not conduct a mail order or other business while under the custody of the Department. Superintendents may direct Administrative Services, Program Services, or Security Services Deputies to monitor correspondence patterns and financial accounts to detect any irregularities which would indicate this type of activity. Violation of this policy by an inmate may result in disciplinary action and/or the monitoring of outgoing correspondence for a specified period of time.
Garvin Aff., Ex. F, ¶ 15.

  Inmate Behavior Rule 103.20 provides as follows:

  Inmates shall not request or solicit goods or services from any business or any person other than immediate family members without the consent and approval of the facility Superintendent or designee. Page 5

 Garvin Aff, Ex. G, at 11.

  According to Defendant Superintendent Garvin, the foregoing regulations are designed to prevent inmate fraud upon the public, to prevent inmates from accumulating debt, and to prevent the use of inmate funds for illegal purposes. In addition, the regulations are designed to prevent the prison mail facilities from being overburdened. Garvin Aff. ¶ 10. According to Defendant Superintendent Garvin, the prison facility is not capable of monitoring the business enterprises of approximately 70, 153 inmates and the prison staff would be overwhelmed by the task of processing inmate mail. Id. ¶ 11. Plaintiff does not dispute these assertions, but contends that the regulations, as applied to him, have violated his First Amendment rights. See Plaintiff's Mem. Opp. at 2.

  DISCUSSION

  Because the Court has considered matters outside the pleadings, the Court treats defendants' motion to dismiss as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Upon being notified that the Court would treat the defendant's motion as a summary judgment motion, Plaintiff filed a cross-motion for partial summary judgment and declined to file any further evidentiary material (see Plaintiff's May 5, 2003 letter to Court).

  Under Federal Rule of Civil Procedure 56(c), summary judgment may be granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). There is a genuine issue of material fact if a disputed factual issue can "reasonably be resolved in favor of either party." Anderson v. Page 6 Liberty Lobby. Inc., 477 U.S. 242, 250 (1986). A fact is material if it affects the outcome under the applicable substantive law. Id. at 248. When deciding cross-motions for summary judgment, "the court applies the same standard as that for individual motions and treats the facts in the light most favorable to the non-moving party." American Ins, Co. v. New York City Health and Hospitals Corp., 265 F. Supp.2d 434, 437-38 (S.D.N.Y. 2003).

  Plaintiff's First Amendment Claims

  It is well settled that "`[a] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.' " Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125 (1977) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)).

  The standard for determining whether a prison regulation has an adverse impact on an inmate's constitutional rights was articulated by the Supreme Court in Turner v. Safley, 482 U.S. 78 (1987). A prison regulation is "valid if it is reasonably related to legitimate penological interests." Id. at 89. In Turner, the Supreme Court set forth the following four-part test:

First, there must be a "valid rational connection" between the prison regulation and the legitimate governmental interest put forward to justify it. . . . Moreover, the governmental objective must be a legitimate and neutral one . . . A second factor. . . . is whether there are alternative means of exercising the right that remain open to prison inmates. . . . A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally. . . . Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation.
id. at 89-90.

  DOCS Directive 4422 prohibits inmates from conducting business while in the Page 7 custody of DOCS. In addition, Inmate Behavior Rule 103.20 provides that inmates shall not request goods or services from any business . . . without the consent and approval of the . . . Superintendent. See Ex. D, Garvin Aff. at ¶ 7.

  As a threshold matter, the DOCS regulations prohibiting plaintiff from conducting business do not prevent plaintiff from exercising his First Amendment rights. While plaintiff may not conduct a business, he is not otherwise prevented from disseminating his work. Even if the DOCS regulations did prevent plaintiff from exercising his rights under the First Amendment, however, the regulations in question are related to a legitimate penological interest.

  The Second Circuit has found that a "valid, rational connection" exists between Directive 4422 and the legitimate governmental interests that the directive was designed to promote. See Rodriguez v. James, 823 F.2d 8, 12 (2d Cir. 1987). In Rodriguez, the Second Circuit found that Directive 4422 served "to prevent inmates from committing fraud on businesses or from obligating funds beyond their means." Id As such, the regulation promoted the penological objectives of "security, order, and rehabilitation." Id. (quoting Procunier v. Martinez, 416 U.S. 396, 413 (1974)).

  In addition, defendants have proffered undisputed evidence that the impact on prison employees, inmates and prison resources of permitting inmates to conduct business would be significant. Monitoring inmates' business ventures would involve substantial prison resources and would have a substantial impact on the prison personnel who would monitor such activity. For these reasons, there is no alternative regulation that could accommodate plaintiff's rights at a de minimis cost to DOCS. See Turner, 482 U.S. at 90-91. Accordingly, the Court finds that DOCS Directive 4422 and Inmate Behavior Rule 103.20 are consistent with the requirements set Page 8 forth in Turner and that the regulations are reasonably related to a valid penological interest.

  Plaintiff, in fact, concedes that the regulations "may, on their face, be constitutional," but contends that "[t]he regulations are not constitutional as applied to Plaintiff." See Plaintiffs Mem. Opp. at 2 (emphasis in original). Plaintiff asserts that there is no rational relationship between the goal of maintaining discipline and the imposition of limitations on his ability to enter into contracts for the publication of his songs. See Plaintiffs Aff. in Supp. of Motion for Prelim. Inj. at ¶ 7. Plaintiff points out that he writes his songs in the privacy of his personal living space, or in the prison library, during off times when he is not required to be performing a prison assignment. Id. According to plaintiff, his entering into contracts to have his songs published would have no more than a de minimis impact upon the prison; namely, that prison officials would have to process both his mail and his requests to have funds disbursed from his inmate account.

  The Court, however, finds that the reasons articulated above as to why the regulations on their face are related to a valid penological interest apply in full force to the issue of whether the restrictions as applied to plaintiff relate to a valid penological interest. DOCS' concerns about inmates committing fraud on businesses and obligating funds beyond their means are in no way less applicable to plaintiff than the general population of inmates who seek to conduct business while in the custody of DOCS. Similarly, plaintiff has failed to demonstrate how or why permission to do business could be extended solely to him, or how the impact on prison employees, inmates and prison resources of his doing business would be any less severe than in the case of any other prisoner. Further, plaintiff has not made, nor is there any basis in the record for, any allegation that the prison's application of Directive 4422 to plaintiff is Page 9 somehow related to the content of the intended expression. For all these reasons, the Court finds that the prison's content-neutral application of its business rule to plaintiff is reasonably related to a legitimate penological interest and therefore is not violative of plaintiff's First Amendment rights.

  Plaintiffs Fourteenth Amendment Claims

  Plaintiff also contends that DOCS deprived him of his liberty and property interests without due process. In order to state a due process claim under the Fourteenth Amendment, a plaintiff must show the existence of a protected liberty interest or property interest that was denied without being afforded due process of law. See Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996). Plaintiff has the burden of demonstrating that he has been deprived of a liberty or property interest. See Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996).

  It is well settled that inmates do not have a liberty or property interest in their ability to conduct business while incarcerated. See Procunier v. Martinez, 416 U.S. 396, 414 n. 14 (1974), rev'd on other grounds by Thornburgh v. Abbott, et al., 490 U.S. 410 (1989) (federal bureau of prisons regulation providing that "no inmate may be permitted to direct his business while he is in confinement" found to pass constitutional muster): see also Matter of Cooper v. Smith, 63 N.Y.2d 615 (1984) (inmates in New York State do not have a constitutional right to do business); accord, Nachtigall v. Board of Charities and Corrections, 590 F. Supp. 1223, 1225 (S.D. South Dakota 1984); Valentine v. Gray, 410 F. Supp. 1394, 1396 (S.D. Ohio 1975). Plaintiff thus has no claim for deprivation of a constitutionally-protected right by reason of the prison officials' refusal to permit him to engage in business with the recording companies. Page 10

 Plaintiff's Retaliation Claim

  Plaintiff claims that, two days after he filed an Inmate Grievance Complaint challenging DOCS' refusal to allow him to enter into a contract to pay for the recording of songs, Defendants Rivera and Zaccagnino searched plaintiff's cell pursuant to orders from Defendant Alcock in an effort to find and confiscate the recording contract given to plaintiff by a prison official in January 2001. Plaintiff contends that defendants carried out the cell search in retaliation for his decision to exercise his constitutionally protected right to file a grievance.

  In order to establish that defendants retaliated against plaintiff for exercising a constitutional right, plaintiff bears the burden of showing that the conduct at issue is protected under the Constitution and that the protected conduct was a substantial or motivating factor in the prison officials' decision to undertake the action complained of. Mount Healthy Sch. Dist. v. Doyle, 429 U.S. 274, 287 (1977). If the plaintiff meets this burden, defendants must establish by a preponderance of the evidence that they would have taken the action "even in the absence of the protected conduct." Id Accordingly, "if taken for both proper and improper reasons, state action may be upheld if the action would have been taken based on the proper reasons alone." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1995) (citing Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994); Mount Healthy Sch. Dist., 429 U.S. at 287; Sher v. Coughlin, 739 F.2d 77, 82 (2d Cir. 1984)). Courts have recognized that "prison officials have broad administrative and discretionary authority." Lowrance, 20 F.3d at 535 (quotation marks omitted).

  Thus, plaintiff must show that his conduct was constitutionally protected, and that the alleged retaliatory act performed by prison officials was motivated, in whole or in part, by his Page 11 conduct. If plaintiff makes such a showing, defendants may still prevail if they show that there is no genuine issue of fact as to whether plaintiff "would have received the same [treatment] even if they had not been improperly motivated." Graham, 89 F.3d at 80.

  The conduct at issue here, namely, plaintiff's filing of a grievance, does qualify as constitutionally protected activity. See id. at 80 ("retaliation against a prisoner for pursuing a grievance violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments"). There is a triable issue of fact as to whether the alleged retaliatory motive was a substantial or motivating factor in the decision to search Plaintiff's cell. "In determining whether a causal connection exists between the plaintiff's protected activity and a prison official's actions, a number of factors may be considered, including: (i) the temporal proximity between the protected activity and the alleged retaliatory act. . . ." Baskerville v. Blot, 224 F. Supp.2d 723, 732 (S.D.N.Y. 2002). While other factors, such as the prisoner's good prior disciplinary record, vindication at a hearing on the matter, and statements by the defendant relating to his motivation, may also be considered in deciding whether a plaintiff has met his burden of establishing the requisite causal connection, see id, the existence of a temporal connection as close as the one present here — just two days — is sufficient by itself to establish the requisite inference of a causal connection. See Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (causal connection can be established indirectly by showing that protected activity was followed closely in time by the adverse action).

  Defendants are nonetheless entitled to summary judgment, however, because they have satisfied their burden of establishing that they would have carried out the search of plaintiffs cell based on proper reasons alone. The Affidavit of Frank Alcock explains that DOCS Page 12 Directive 4910, "Control and Search for Contraband" provides that "[a]n unscheduled search of the living quarters of an inmate shall be conducted only when there is a reasonable suspicion that contraband is contained in the housing unit." Alcock Aff. ¶ 4. Contraband is defined as "any article that is possessed by an inmate without authorization." Id. There is no dispute that plaintiff possessed a contract from a recording company and there is no dispute that Directive 4422 and Inmate Rule 103.20 prohibit inmates from conducting business. Thus, the contract is contraband as defined by prison regulations, and prison regulations authorize search of an inmate's cell when there is a reasonable suspicion that contraband is contained therein. There is no dispute that the prison authorities were aware that plaintiff had retained the initial contract prior to the time plaintiff filed his grievance. See Plaintiffs Aff. in Supp. of Motion for Prelim. Inj. at ¶¶ 4-6; Complaint, ¶ 10, Alcock Aff. ¶ 4. Defendants' actions in searching plaintiff's cell and seizing his recording contracts were therefore consistent with DOCS regulations regarding unscheduled searches for contraband. Thus, defendants had reasonable suspicion to believe that contraband would be present in plaintiff's cell apart from any information they received in connection with the filing of plaintiff's grievance.

  In light of the foregoing, the Court concludes that defendants have satisfied their burden of establishing that they would have conducted the search based solely on proper motivations. Page 13

  CONCLUSION

  In light of all of the above, defendants' motion for summary judgment is granted, plaintiff's motion for partial summary judgment is denied, and plaintiff's motion for a preliminary injunction is denied as moot.

  IT IS SO ORDERED.


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