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.
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
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
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."),
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
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
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.
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.
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
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
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
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
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
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
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
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
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.
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.