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