The opinion of the court was delivered by: P. Kevin Castel, District Judge
Plaintiff Mujahid Farid, suing under 42 U.S.C. § 1983, alleges that he was deprived of rights protected by the First Amendment to the U.S. Constitution when he was disciplined by state prison officials at the Woodborne Correctional Facility ("WCF") for possessing and distributing a booklet, "The Politics of Parole," of which he was the principal author. This Court concludes that the catch-all contraband rule, Rule 113.23, and the anti-smuggling rule, Rule 114.10, pursuant to which discipline was imposed, were unconstitutionally vague as applied to his actions.*fn1 A permanent injunction will be entered ordering defendant Goord to reinstate plaintiff's lost good-time credit and strike the finding of a violation from his disciplinary record. The Court grants defendants' motion for summary judgment on grounds of qualified immunity, which precludes any award of monetary relief.
This action was commenced on September 5, 2001 and reassigned to the undersigned on December 2, 2003. Plaintiff asserted six claims for relief: first, Due Process and state law violations based on the filing and conduct of a disciplinary hearing (Compl. ¶ 99); second, a First Amendment violation based upon disciplinary violations against him for conduct which he alleged was constitutionally-protected (Compl. ¶ 101); third, constitutional and state law violations based upon alleged seizure of his documents (Compl. ¶ 103); fourth, constitutional violations arising out of his transfer amid a course of medical treatment (Compl. ¶ 105); fifth, constitutional and state law violations arising out of the alleged deprivation of "follow-up medical treatment" (Compl. ¶ 107); and, sixth, constitutional violations arising out of the alleged transfer of plaintiff that disrupted a scheduled trial(Compl.¶ 109).
This Court dismissed the third and sixth claims without prejudice for failure to exhaust available administrative remedies, as required by the Prison Litigation Reform Act of 1995 (the "PLRA"), 42 U.S.C. § 1997e(a). Farid v. Ellen, 2003 WL 23018805 (S.D.N.Y. Dec 23, 2003)(Farid I).*fn2 After the close of discovery, the Court granted defendants' motion for summary judgment (and denied plaintiff's cross-motion) on the first, fourth and fifth claims because, in opposition to the defendants' motion, plaintiff had failed to come forward with evidence from which a reasonable jury could find in his favor on those claims. Farid v. Ellen, 2006 WL 59517 (S.D.N.Y. Jan 11, 2006) ("Farid II").
In Farid II, this Court denied summary judgment as to plaintiff's First Amendment claim without prejudice to the right of either party to move on more fully developed briefing. This Court remarked that "[t]he briefs submitted by the parties have left many questions unanswered" as to this claim and urged the plaintiff to "explain precisely what speech or conduct he argues was constitutionally protected and precisely what adverse action he suffered." 2006 WL 59517 at *8. Defendants were directed to address Shakur v. Selsky, 391 F.3d 106, 113 (2d Cir. 2004). Id.
Following Farid II, plaintiff endeavored to take an interlocutory appeal to the Second Circuit. The appeal was dismissed and a mandate issued. (Doc # 93) Thereafter, defendants again moved for summary judgment on the First Amendment claim. In an Order filed on July 26, 2007 (Doc # 98), I invited the parties to submit further argument on the vagueness-as-applied issue.
Summary Judgment Standard
The standards governing a motion for summary judgment are addressed in Farid II and will not be repeated here. 2006 WL 59517 at *4. In connection with the renewed motion for summary judgment, defendants served plaintiff with the notice to pro se litigants, required by Local Rule 56.2, which explains the nature of a summary judgment motion and the actions a party must take to oppose such a motion. (Doc # 89)
A motion for summary judgment searches the record and, if there is no genuine dispute over a material fact and the non-movant is entitled to judgment in his favor, then summary judgment may be awarded to the non-movant. See New England Health Care Employees Union, Dist. 1199, SEIU AFL-CIO v. Mount Sinai Hosp., 65 F.3d 1024, 1030 (2d Cir. 1995). "Care should, of course, be taken by the district court to determine that the party against whom summary judgment is rendered has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried, and that the party for whom summary judgment is rendered is entitled thereto as a matter of law." 6 J.W. Moore, Moore's Federal Practice ¶ 56.12, at 56-165 (2d ed. 1995) (quoted with approval in Ramsey v. Coughlin, 94 F.3d 71, 73 -74 (2d Cir. 1996)).
In this case it is appropriate for this Court to consider summary judgment in favor of the non-movant. The plaintiff did, indeed, move for summary judgment on the second claim for relief (Doc # 70, 72); that motion was fully briefed and decided in Farid II with the denial of each side's summary judgment motions. In responding to plaintiff's earlier motion, defendants did not assert that they had been deprived of a full and fair opportunity to develop the factual record or that there were reasons why they could not then oppose the motion. Rule 56(f), Fed. R. Civ. P. Defendants treat their present motion for summary judgment as if it were a continuation of their prior motion describing it as a "supplemental" motion. They characterize the Court's ruling in Farid II as "deferring final ruling on the parties summary judgment motions regarding plaintiff's First Amendment claim . . . ." (D. Mem at 3) Putting aside whether that characterization is apt, defendants view the plaintiff's summary judgment motion on the second claim for relief as if it were still pending.
Finally, the facts supporting plaintiff's First Amendment claim are not disputed by either side. The disciplinary charges against the plaintiff, the by-laws of the voluntary organization of which he was a member, the booklet which assertedly was "contraband" and was "smuggle[d]" or an attempt was made to "smuggle" are all part of the record before this Court. The basis for imposing discipline is set out in a transcription of the disciplinary hearing.
From December 1997 to June 2000, plaintiff was incarcerated at WCF, a state prison in Woodbourne, New York. (Farid Dep. at 40) During this period, plaintiff was a member of an inmate organization known as the Long Termers Committee ("LTC"). (Farid Aff't ¶ 20) The New York Department of Corrections ("DOCS") recognized and approved the existence of this organization. (Farid Aff't ¶ 19)
Prison officials regulate group and organizational activities. Thus, inmates are not permitted to engage or encourage others to engage in unauthorized organizational activities or meetings or possession or distribution of unauthorized materials. DOCS Institutional Rule of Conduct 105.12 provides that:
An inmate shall not engage or encourage others to engage . . . . in unauthorized organization activities or meetings, or . . . possess, distribute or use unauthorized organizational . . . materials. An unauthorized organization is any gang or any organization which has not been approved by the deputy commissioner for program services.
On or about April 7, 2000, while plaintiff was at his work assignment, corrections officers at WCF searched his cell and confiscated written materials belonging to Farid. (Farid Aff't, Nov. 26, 2006 at ¶ 8-9) Among the papers seized and confiscated were "2 envelopes of papers and approx[imately] 150 pages of parole related articles". Also confiscated from his person were 7 copies of a booklet entitled "The Politics of Parole -- An Analysis by The Woodbourne Long Termers" which criticized parole policies and practices and contained profiles of nine prisoners, including plaintiff. (Id. at ¶ 10) Other seized materials were "multiple letters to civilians explaining [the] book[let] and its distribution, envelopes addressed to civilians that coincide with letters [and a] list of addresses that correspond to envelopes and letters." (Id.)
The 21-page booklet (excluding appendix) is dated April 2000 and lists the WCF address of the LTC on its cover page. The booklet has the appearance of a professionally formatted document. It features a table of contents, justified margins, bullet points, a graphic of the scales of justice and other small graphic art touches. As to substance, it asserts, among other things, as follows:
* ". . . the present Parole Board is prone to corruption, political influence and conducts its business in an arbitrary and capricious manner as to be infirm, unequal and discriminatory. . . ." (p. 19)
* "The weight of the injustice of the criminal justice system falls disproportionately on communities of color." (p. 18)
* "Sure, [the Governor's] agenda sounds good, is easy to sell and sells well, but it is cruel and repressive against those who should have a chance at redemption." (p. 15)
* "Long Termers are proof positive that rehabilitation is possible in prison." (p. 21)
* Ways to help include "Register to Vote" and "Contact representatives in your area . . . ." (p. 20)
At his deposition, Farid acknowledged that he was the principal author of "The Politics of Parole" and that he created it "working with" the LTC. (Farid Dep. at 47-48) He accepts the characterization of the work as having been prepared by the LTC. (Id. at 48) Farid further acknowledged that the work was not "authorized" by DOCS. (Id.)
On April 8, 2000, plaintiff received an Inmate Misbehavior Report ("IMR") alleging that plaintiff had committed several disciplinary violations by possessing, without authorization, copies of the booklet, letters and envelopes. (Farid Aff't ¶¶ 8-9; Def. Ex. B at 1, 24) Specifically, Farid was charged with seven violations based upon the foregoing seized materials: (1) unauthorized organizational materials in violation of Rule 103.12; (2) possession of "The Politics of Parole" and associated items which were assertedly "contraband" under the catch-all provision, Rule 113.23; (3) smuggling or attempting to smuggle in violation of Rule 114.10; (4) unauthorized legal assistance in violation of Rule 103.20; (5) soliciting foods or services in violation of Rule 103.20; and (6) violation of Rule 180.11 which provides that "[a]n inmate shall comply with and follow the guidelines and instructions given by staff regarding facility correspondence procedures . . . ."
Then Deputy Superintendent of Administration Thomas Miller, a defendant in this action, presided at the April 12, 2000 disciplinary hearing on the charges set forth in the April 8, 2000 IMR. (Farid Aff't ¶¶ 5, 15; Def. Ex. C at 41) Plaintiff was provided with an opportunity to choose an individual to assist him in the hearing, and he chose ...