The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff Edward J. Heelan, Jr., a former Correctional Officer with the New York State Department of Correctional Services, commenced this action pursuant to 42 U.S.C. § 1983 alleging violations of his First and Fourteenth Amendment rights. He seeks monetary damages as well as declaratory and injunctive relief based on his allegations that certain DOCS workplace regulations violated his constitutional rights. The central facts of the case are not in dispute, and both Plaintiff and Defendant*fn1 cross-move for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons that follow, Defendant's motion is granted and the action is dismissed.
From 1983 until 2004, Plaintiff was employed as a Correctional Officer ("CO") with the New York State Department of Correctional Services ("DOCS"). Def. Stat. of Mat. Facts ("Def. SOMF") ¶¶ 3-7. All COs are bound by certain employee rules designed to promote the safety and security of the prisons, including rules prohibiting unauthorized relationships with inmates and ex-inmates and requiring COs to report contacts between themselves and inmates and ex-inmates. Id. ¶¶ 15-16. In 1993, Plaintiff formed a music recording and producing business called "High Wire Records." Id. ¶ 8. In his business, Plaintiff contracted with musical performers, at least some of whom had been convicted of felonies in New York and had served time in DOCS prisons. Id. ¶¶ 10-11. Although Plaintiff was aware of the DOCS regulations and of the criminal histories of his clients, he did not notify DOCS officials of his business or of his contacts with these individuals. Id. ¶¶ 4-5, 9, 12.
On December 24, 2002, with his attorney present, Plaintiff was interviewed by the DOCS Inspector General regarding an investigation into Plaintiff's violations of DOCS' employee rules. Id. ¶ 13. On December 26, 2002, the DOCS Office of Labor Relations served Plaintiff with a Notice of Discipline ("NOD"). The NOD alleged, inter alia, that Plaintiff maintained improper relationships with inmates and former inmates and that he failed to report a series of contacts with inmates and former inmates in violation of DOCS Employee Manual §§ 2.7,*fn2 2.14,*fn3 and 2.15.*fn4 On December 26, 2002, DOCS notified Plaintiff of its intent to dismiss him from his employment as a CO for the reasons stated in the NOD.
Pursuant to the terms of the applicable Collective Bargaining Agreement ("CBA"), Plaintiff grieved the NOD and sought formal binding arbitration. An arbitration hearing was scheduled to address the charges levied in the NOD, but on March 11, 2003, prior to this arbitration taking place, Plaintiff filed suit in this court alleging that the disciplinary regulations cited above violated his rights secured under the First and Fourteenth Amendments to the United States Constitution. See Compl., dkt # 1, in Heelan v. Goord, 03-CV-0292 (N.D.N.Y.)("Heelan I").*fn5 The defendant in Heelan I, "Glenn S. Goord in his official capacity as Commissioner of [DOCS]," moved to dismiss that action arguing, inter alia, that the Court should abstain under the doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971). See Def. Mot. to Dismiss, dkt. # 6 in Heelan I. The arbitration hearing was postponed by agreement of the parties pending the determination of Defendant's motion to dismiss. See Dec. 27, 2003 Decision & Order, dkt. # 16 in Heelan I.
After a searching inquiry to determine whether a state judicial forum was available to review Plaintiff's constitutional challenges if the Court abstained, the Court determined that such a forum was available. See Dec. 27, 2003 Decision & Order, Heelan I, pp. 4-14. In this regard, the Court found that even though the governing CBA otherwise prevented state court review of the substantive merits of an arbitrator's decision, New York law allowed state court review of an arbitration decision that resulted in a violation of a grievant's constitutional rights. See Dec. 27, 2003 Decision & Order at pp. 9-13 ("While the terms of the CBA may bar the arbitrator from considering Plaintiff's defenses based on constitutional and statutory authority, and while the terms of the CBA and the law in the State of New York may bar a review of the substantive merits of the arbitrator's determination, the New York Court of Appeals has made clear that even when the parties have contracted for final and binding arbitration, a court may vacate an arbitral award 'when it violates a strong public policy ... embodied in constitutional, statutory or common law [that] prohibit a particular matter from being decided or certain relief from being granted by an arbitrator.'")(quoting Matter of New York State Correctional Officers & Police Benevolent Assn., 94 N.Y.2d at 326-27; and citing United Federation of Teachers, Local 2, AFT, AFL-CIO v. Board of Educ. of City School Dist. of City of New York, 2003 WL 22725405, at * 2003 N.Y. Slip Op. 18511 (N.Y., Nov. 20, 2003)(same); Matter of New York City Tr. Auth. v Transport Workers Union of Am. Local 100, AFL-CIO, 99 N.Y.2d 1, 9-11 (2002) (establishing a two-prong test for determining whether an arbitration award violates public policy); Matter of Port Jefferson Sta. Teachers Assn. v. Brookhaven-Comsewogue Union Free School Dist., 45 N.Y.2d 898, 899 (1978)(a binding arbitration award may be set side "when the award contravenes a strong public policy, almost invariably involving an important constitutional or statutory duty or responsibility."). Accordingly, the Court abstained under Younger and dismissed the action. Id.
After abstaining, the underlying disciplinary proceeding then went forward. Before the arbitration commenced, the parties entered a stipulation that provided: "The grievant will pursue arbitration. If he does not get the relief sought in that forum, he may then go back to Federal Court." April 13, 2004 Arbitration Award, p. 4. "At his February 19, 2002 arbitration hearing the plaintiff did not controvert the material allegations underlying the charges contained in the NOD; rather, plaintiff's defense at his arbitration was based upon the challenges to DOCS employee rules which he pursues in this action." Def. SOMF ¶
25. The arbitrator "considered, and rejected, plaintiff's facial and 'as applied' challenges to DOCS rules." Id. ¶ 28; see April 13, 2004 Arbitration Award, pp. 14-16. Plaintiff was found guilty of engaging in "unauthorized associations in violation of Manual § 2.15 and had unjustifiably failed to report inmate contacts to his employer." Def. SOMF ¶ 27 (citing, inter alia, the April 13, 2004 Arbitration Award). The arbitrator found that the proper penalty under the circumstances was termination, and, given that determination, Plaintiff was then formally discharged by DOCS. Id. ¶ 29. There is no indication that Plaintiff made any attempt to obtain state court review of the arbitrator's decision.
On April 26, 2005, Plaintiff commenced the instant action asserting the same constitutional violations with regard to the DOCS Employee Manual as asserted in Heelan I, and requesting declaratory and injunctive relief as well as monetary damages. See Compl. [dkt. # 1]; fn. 5, supra. As noted in the caption, Plaintiff brings claims against Commissioner Goord in both his individual and official capacities.
a. Jurisdiction to Address Constitutional Challenges to the DOCS Employee Manual
First, although not raised by the parties, the Court raises sua sponte the question whether the abstention decision in Heelan I divests the Court of jurisdiction to adjudicate Plaintiff's current claims that the challenged provisions of the DOCS Employee Manual violate his constitutional rights. See Thompson v. New York Cent. R. Co., 361 F.2d 137, 144-45 (2d Cir.1966) ("[T]he District Court ... is duty bound to ... sua sponte [raise the question of jurisdiction ] whenever it appears that jurisdiction ... is lacking."); Rohrer v. FSI Futures, Inc., 981 F. Supp. 270, 276 (S.D.N.Y. 1997) ("[A]ll parties may agree among themselves that the district court has subject matter ...