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JORDAN v. GARVIN

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 ...


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