The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #18.
Currently before the Court is defendants' motion (Dkt. #46), for summary judgment and plaintiff's motion (Dkt. #59), for sanctions and payment of expenses. For the following reasons, Lt. Breckon's motion for summary judgment is granted; C.O. Smalok's motion for summary judgment is denied; C.O. Magyar's motion for summary judgment is denied and plaintiff's motion for sanctions is denied, but his request for payment of expenses is granted.
Plaintiff, an inmate of the New York State Department of Corrections ("DOCS"), since 1990, was transferred from the Greenhaven Correctional Facility to the Attica Correctional Factility ("Attica"), on November 12, 1999. Dkt. #28, ¶ ¶ 7-8. On December 3, 1999, two bags of plaintiff's personal property arrived at Attica and were inspected by Corrections Officer ("C.O."), Foley, who observed a document entitled "William Lynch Lectures -- How to Keep a Black Man Down from One White Slave Owner to Another" and imprinted with the following attribution:
"Willie Lynch Lectures" Copyright 1997 the AFC (c)
No copies or reproductions may be produced, distributed or generated without the transcribers [sic] written permission. For reproduction details contact the AFC research dept.
Dkt. #49, Exh. A. On December 22, 1999, C.O. Foley issued an inmate misbehavior report charging plaintiff with violating Rule 105.12, which provides that
An inmate shall not . . . possess . . . unauthorized organizational insignia or materials. An unauthorized organization is any gang or any organization which has not been approved by the deputy commissioner for program services.
7 N.Y.C.R.R. § 270.2. The misbehavior report provides that plaintiff's property contained a copy of the William Lynch document with a copyright stamp of the AFC on the bottom right hand corner of the last page. The AFC (Amfrican Freedom Communion) is an unauthorized group in this department. This report was written after further investigation, keeplocking him at this time.
Dkt. #49, Exh. A. Plaintiff was placed in keeplock and served with a copy of the misbehavior report at 10:45 a.m. on December 24, 1999. Dkt. #28, ¶ 22; Dkt. #49, Exh. A.
On December 23, 1999, plaintiff alleges that he asked C.O. Smalok if he could attend recreation, but was told "that inmates don't get keeplock recreation while in D-Block." Dkt. #28, ¶ 22. On December 24, 1999, plaintiff alleges that he showed C.O. Smalok the portion of the Attica Inmate Orientation Guideline Manual which "specifically requires that all inmate[s] in Attic[a] receive one hour of recreation outside of their cell per day," but C.O. Smalok walked away without responding. Dkt. #28, ¶ 23. Plaintiff's request for recreation was also denied by C.O. Magyar. Dkt. #28, ¶ 24.
Lieutenant Thomas Breckon, the Superintendent's designee, conducted the inmate disciplinary hearing between December 28, 1999 and January 4, 2000. Dkt. #49, ¶¶ 2, 6. During the course of the hearing, plaintiff objected that the confiscated document did not indicate its origin and that the initials AFC could stand for an authorized organization. Dkt. #49, Exh. B, p.9. Plaintiff also requested a list of unauthorized organizations, but was informed by Lt. Breckon that unless the Deputy Commissioner of Program Services authorizes a group to operate within a facility, it is an unauthorized group. Dkt. #49, Exh. B., p.10. Lt. Breckon noted that although the particular document obtained from plaintiff did not spell out "Amfrican Freedom Communion," the document had been commonly associated with that group. Dkt. #49, Exh. B, p.10. Plaintiff then complained that Lt. Breckon was not being fair and impartial, because he had obviously predetermined that the document was affiliated with an unauthorized organization. Dkt. #49, Exh. B, p.10.
Plaintiff proffered that the document in his possession was delivered to him at Greenhaven by mail after he requested it from the Library of Congress six years ago. Dkt. #49, Exh. B, p.11. Plaintiff explained that he requested the document after reviewing it during the course of a black studies class taught by an inmate at Greenahven and questioned how he could be disciplined for possessing information disseminated through the Black Studies Group at Greenhaven. Dkt. #49, Exh. B, pp.19 & 28. Lt. Breckon informed plaintiff that "just because something is handed out through a class that's run by inmates doesn't mean that it's legal for them to hand it out." Dkt. #49, Exh. B, p.28.
When Lt. Breckon pointed out that the document contained a 1997 copyright, plaintiff stated that he had written his family and they had responded that the copyright belonged to Soft Line Information Incorporation. Dkt. #49, Exh. B, p.29. Lt. Breckon questioned how plaintiff could have written his family and received a response within one week, including Christmas holidays. Dkt. #49, Exh. B, pp.11-12. In any event, Lt. Breckon noted that plaintiff's copy of the document was stamped with a copyright from AFC Dkt. #49, Exh. B, p.14.
Plaintiff complained that he should not be punished for possession of a document that had gone through mail review at Greenhaven. Dkt. #49, Exh. B, p.12. Plaintiff also complained that officials at Greenhaven had conducted several thorough searches of his cell, including his documents, and had not confiscated this document as contraband. Dkt. #49, Exh. B, p.21.
Lt. Breckon noted that he was in the process of "doing quite a number of hearings on this same paperwork that has been confiscated from various inmates throughout the facility" and presented plaintiff with a copy of the same speech, which had been taken from another inmate, which indicates that it was produced by the Amfrican Freedom Communion, and then it has in brackets A.F.C., published by Amfrican America's Freedom Party. Distributed by the Freedom School of Liberation Studies.
Dkt. #49, Exh. B, p.16. Plaintiff objected that this document was "outside the record" and complained that Lt. Breckon should not be basing his decision upon a document found in someone else's possession. Dkt. #49, Exh. B, pp.16-17.
C.O. Foley testified that DOCS had no quarrel with the text of the document confiscated, but was only concerned with the fact that it was distributed by the AFC, which stands for the Amfrican Freedom Communion, which is an Unauthorized Group in this state, and it was formed by an inmate here at Attica, and . . . that's why it's illegal.
Dkt. #49, Exh. B, pp.21-22. Plaintiff asked for information about the background and nature of the AFC, but his request was denied. Dkt. #49, Exh. B, p.25. C.O. Foley confirmed that this document would not have been permitted at Greenhaven either. Dkt. #49, Exh. B, p.22.
When questioned about the delay between the search of his possessions on December 3rd and the issuance of the misbehavior report on December 22nd, C.O. Foley responded that there were "numerous other . . . materials to go over." Dkt. #49, Exh. B, p.22. Lt. Breckon further explained that
There has been quite a bit of property that's coming in here from other inmates. There has been a lot going on . . . with the talk statewide of an inmate strike and what have you. There has been a lot of property searched. I believe . . . the report was written as soon as it could practically be written.
Dkt. #49, Exh. B, p.27. In support of his motion for summary judgment, Lt. Breckon declares that
At the time of the events alleged in the complaint, there was a concern throughout DOCS of a planned prison strike to occur on January 1, 2000. Due to the efforts of DOCS, the planned prison uprising did not occur.
Dkt. #49, ¶ 11. Lt. Breckon declares that the AFC "was believed to be behind the planned prison strike." Dkt. #49, ¶ 12.
Lt. Breckon found plaintiff guilty of the charge and sentenced him to 30 days keeplock and 30 days loss of phone, package and commissary privileges. Dkt. #49, Exh. B, p.29. In reaching this determination, Lt. Breckon relied upon the written report of Officer Foley which states that he recovered paperwork from your property that was copyrighted by the A.F.C., which stands for Amfrican Freedom Communion. This organization is not authorized by the Department of Corrections. You admitted that these papers were yours, but claim that you received them six years ago. The copyright on the paper is 1997 however.
You also claimed to have written your family and received a response from them about how this paperwork was actually copyrighted by someone else. I find this to be impossible due to the fact that you received the Misbehavior Report December 24th. The Post Office was closed the 25th and the 26th. Your mail would not have even left the institution until the 27th, and I started the hearing on the 28th. . . . You also gave conflicting testimony about how you received this material, either through the mail four years before it was copyrighted or through a Black Studies Group. All of this conflicting and improbable testimony leads me to believe that you knew you weren't allowed to have the material, and you are now trying to cover that fact up.
Dkt. #49, Exh. B, pp.29-30. Plaintiff's appeal of the disposition was affirmed on February 8, 2000. Dkt. #49, Exh. A.
Plaintiff alleges that he was denied recreation during the entire duration of his keeplock confinement. Dkt. #28, ¶ 27. Plaintiff alleges that he was also denied recreation while in keeplock from February 23, 2000 until March 2, 2000. Dkt. #28, ¶ 28. On December 30, 1999 and January 5, 2000, plaintiff alleges that C.O. Smalok and C.O. Magyar did not allow him to attend a medical callout to seek care for back pains and breathing difficulties allegedly caused by the lack of recreation. Dkt. #28, ¶¶ 28-29; Dkt. #55, Exh. E & G.
Plaintiff alleges that he submitted a grievance on January 5, 2000 regarding the lack of recreation and denial of medical callouts, but received no response, causing him to submit a "complaint/appeal" to Thomas Eagan, Director of the Inmate Grievance Program ("IGP"). Dkt. #28, ¶¶ 30-31; Dkt. #55, Exh. I & J. By letter dated February 16, 2000, Director Eagan advised plaintiff that "[c]ontact with the facility administration reveals that you have not filed a grievance with the facility IGRC" and directed him to comply with the Inmate Grievance policy. Dkt. #55, Exh. K.
On March 6, 2000, plaintiff submitted a grievance stating: On January 5, 2000 I submitted the included grievance concerning inmates not being allowed to go to rec while on keeplock. I sent in the enclosed grievance and never got a response. I also sent it to Albany but they sent it back with instruction [sic] to refile it. I was keeplock again from Feb. 23, 2000 until March 2, 2000 and was again denied keeplock rec. Dkt. #55, Exh. L. This grievance was numbered 40480-00. Dkt. #55, Exh. L.
While waiting a response, plaintiff complained to Richard Savage, Deputy Superintendent for Programs at Attica, who returned his grievances with instructions to follow standard procedure. Dkt. #55, Exh. M -- Q. Plaintiff also wrote a letter to Commissioner Goord complaining that Attica was not complying with the grievance procedure. Dkt. #55, Exh. R. On March 24, 2000, plaintiff received the following response:
All inmates who are keeplocked are entitled to one hour of recreation each day[,] if requested. However, based on security conditions the time of recreation and the number of inmate[s] participating at any one time may be limited.
On March 28, 2000, plaintiff wrote Superintendent Herbert to appeal two grievances filed January 5, 2000, and March 6, 2000. I am appealing the decision because my . . . problem concerning . . . my medical call outs were never answered.
Also the reason that was stated "security" can not justify being denied keeplock rec. because the[re] are always eight or nine officers sitting around doing nothing all day long in the D-block corridor, any one of these officers can take care of the keeplock rec. situation.
Finally, they can rotate the keeplock rec. time so that all inmates can get rec. because D-block do not have rec. in the afternoon.
On April 16, 2000, the Superintendent accepted grievance number ...