Opinion
99 Civ. 3955 (RMB) (KNF)
June 28, 2002
REPORT and RECOMMENDATION
TO THE HONORABLE RICHARD M. BERMAN, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
In this action, brought pursuant to 42 U.S.C. § 1983 and 1985, plaintiff Stacy Knight ("Knight"), pro se, contends that his rights to be free from cruel and unusual punishment and to procedural due process under the Eighth and Fourteenth Amendments were violated when the defendants caused him to be placed in keeplock confinement following a disciplinary hearing in which plaintiff was found guilty of violating a prison rule. Plaintiff also contends that his right to receive and send mail, guaranteed under the First Amendment, was violated when the defendants seized plaintiffs personal correspondence in contravention of prison rules and regulations. Further, plaintiff contends that defendants Sergeant H. Kerrigan ("Kerrigan"), of the Sing Sing Correctional Facility ("Sing Sing"), and Lieutenant Dixon ("Dixon"), of the Attica Correctional Facility ("Attica"), violated 42 U.S.C. § 1985 by conspiring to violate his civil rights.
Keeplock is "a form of administrative segregation in which an inmate is confined to his cell and denied participation in normal prison activities, as well as telephone and commissary privileges." Wright v. Coughlin, 132 F.3d 133, 135 (2d Cir. 1998).
The defendants have made a motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss this action for failure to state a claim upon which relief may be granted. They contend that plaintiffs complaint should be dismissed because: (1) plaintiffs segregation in keeplock confinement did not constitute an "atypical and significant hardship" and, therefore, did not deprive plaintiff of his constitutional rights under the Eighth and Fourteenth Amendments; (2) the defendants' confiscation and examination of plaintiffs mail was reasonably related to substantial governmental interests and, therefore, did not deprive plaintiff of his First Amendment rights; and (3) the defendants are shielded from liability to plaintiff by the doctrine of qualified immunity.
For the reasons which follow, I recommend that the defendants' motion be denied in part and granted in part.
II. BACKGROUND
In considering the defendants' motion to dismiss, the Court accepts all of the facts alleged in plaintiffs complaint as true.
In October 1996, plaintiff was a prisoner at Sing Sing. On October 8, 1996, an incident occurred at that facility during which three inmates were stabbed. As a result of the assaults, which were related to gang activity, and after contraband was found, corrections personnel conducted a facility-wide investigation. In furtherance of the investigation, from October 13 to October 15, 1996, the facility was placed under a lockdown. As part of the lockdown, a mail watch was conducted and a letter, written by plaintiff and addressed to plaintiffs mother, was seized by prison officials. In the letter, dated October 13, 1996, plaintiff stated inter alia that he had "cut" three other inmates during the October 8, 1996, fracas. At the time that plaintiffs letter was intercepted, plaintiff was in the facility's Special Housing Unit ("SHU") based upon a weapons charge arising from a separate incident. Plaintiff was subsequently transferred to Attica.
On October 19, 1996, defendant Kerrigan filed a misbehavior report charging the plaintiff with having violated a prison disciplinary rule by assaulting other inmates. Attached to the report was plaintiffs letter to his mother. The letter was used as evidence against plaintiff at a Tier III disciplinary hearing conducted by defendant Dixon at Attica in October and November 1996.
During the hearing, plaintiff objected to the seizure and use of the letter he had written to his mother. Plaintiff claimed that the confiscation of his correspondence constituted" unauthorized censorship "and violated his First Amendment rights. Plaintiff claimed further that the letter had been opened and read in violation of prison regulations, which required corrections personnel to obtain written authorization from the facility superintendent before inspecting an inmate's outgoing correspondence. According to plaintiff, although Kerrigan testified at plaintiffs disciplinary hearing that he believed the seizure of plaintiffs mail had been authorized by the facility superintendent, there is no record of such authorization and, moreover, Kerrigan did not have sufficient independent information concerning plaintiffs alleged involvement in the stabbing incident to justify seizure of plaintiffs letter.
The regulation at issue, section 720.3 of the New York Compilation of Codes, Rules and Regulations ("NYCRR"), in its most pertinent part, provides:
Outgoing correspondence shall not be opened, inspected or read without express written authorization from the facility superintendent . . . .
The superintendent shall not authorize the opening or inspection of such outgoing mail unless there is a reason to believe that the provisions of any department directive, rule or regulation have been violated, that any applicable state or Federal law has been violated, or that such mail threatens the safety, security, or good order of a facility or the safety or well being of any person. Such written authorization shall set forth the specific facts forming the basis for the action.
7 NYCRR § 720.3(e)(1).
Plaintiff maintained that the sole basis for prison officials' identification of him as a suspect in the stabbing incident and, thus, for the filing of the misbehavior report against him, was the information contained in plaintiffs letter. Plaintiff asserted that, if he had been identified as a suspect prior to the inspection of his outgoing mail, his name would have appeared in the Unusual Incident Report which was filed by Kerrigan in connection with the stabbing incident. Plaintiff contends that since his name did not appear in that report, 'as the record stands there [was] no valid reason to suspect plaintiff of [the] alleged assaults."
Following the disciplinary hearing, plaintiff was found guilty of assaulting other inmates; he received a penalty of 365 days in keeplock confinement. This determination was affirmed on appeal by defendant Donald Selsky ("Selsky"), Director of the SHU and Inmate Disciplinary Program for the New York State Department of Correctional Services ("DOCS").
In November 1998, plaintiff commenced a New York Civil Practice Law and Rules Article 78 proceeding to have a court review the disciplinary hearing determination finding him guilty of violating a prison disciplinary rule. The Article 78 proceeding was transferred to the New York State Supreme Court, Appellate Division, Fourth Department, which annulled the determination of the disciplinary hearing officer and ruled that all references to the disciplinary charge brought against plaintiff be removed from his DOCS file. See Matter of Knight v. Goord, 255 A.D.2d 930, 681 N.Y.S.2d 719 (App.Div. 4th Dep't 1998). In reaching its finding, the court concluded that the evidence used at the disciplinary hearing, that is, plaintiffs October 13, 1996, letter to his mother, had been seized in contravention of DOCS' rules and regulations.
In bringing his § 1983 action, plaintiff claimed that he was "falsely imprisoned where [he] was denied the rights and privileges" enjoyed by prisoners in the general prison population, and made to suffer "emotional and psychological trauma." Plaintiff seeks compensatory and punitive damages.
III. DISCUSSION
Standard of Review
A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(6), only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief." Cohen v. Koenig, 25 F.3d 1168, 1171-1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99). In considering the motion, the court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiffs favor." Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994). The court may consider all papers and exhibits appended to the complaint as well as any matters of which judicial notice may be taken.Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). Additionally, when a plaintiff is proceeding pro se, courts are to construe the complaint liberally. See, e.g., Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). "A complaint should not be dismissed simply because a plaintiff is unlikely to succeed on the merits." Baker v. Cuomo, 58 F.3d 814, 818 (2d Cir. 1995).
Due Process Claim
"A prisoner asserting that he was denied due process in connection with prison disciplinary hearings that resulted in segregative confinement or a loss of privileges must make a threshold showing that the deprivation of which he complains imposed "an atypical and significant hardship on [him] in relation to the ordinary incidents of prison life.'" Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000) (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300); see also Colon v. Howard, 215 F.3d 227, 230 (2d Cir. 2000); Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir. 1998).
In determining whether a prisoner has a protected liberty interest in freedom from disciplinary confinement under due process principles, a court must examine the specific circumstances of the punishment. See Sims, 230 F.3d at 22. In particular, a court must examine "the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions and . . . the duration of the disciplinary segregation imposed compared to discretionary confinement." Id. (quotingWright, 132 F.3d at 136).
Although the Second Circuit has not established a bright-line rule concerning the length or type of confinement that would give rise to an atypical and significant hardship, it has determined that the Sandin standard is not met unless the sanctions are onerous. See Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999). The Second Circuit has ruled that a prisoner's confinement for 305 days in standard SHU conditions "was 'atypical' and a "severe hardship' within the meaning of Sandin," and has instructed the district courts to develop a detailed factual record in cases challenging segregative confinements of durations "within the range bracketed by 101 days and 305 days." Colon, 215 F.3d at 229, 232. See also Lee v. Coughlin, 26 F. Supp.2d 615, 637 (S.D.N.Y. 1998) (finding that 376 days in SHU constituted an atypical and significant hardship).
In the instant case, plaintiff alleged that his confinement in keeplock for 365 days violated his right to procedural due process. In addition to complaining of the length of his sentence, Knight alleged that his punishments included a loss of phone privileges and a recommendation of a loss of twelve months of good time.
Plaintiff's claim that he was "falsely imprisoned where [he] was denied the rights and privileges enjoyed by prisoners in the general prison population," is here construed as a restatement of plaintiffs Fourteenth Amendment procedural due process claim and not as a separate state law claim of false imprisonment.
Defendants contend that, although keeplock confinement involves conditions harsher than those experienced by the general inmate population, at the time of his disciplinary hearing plaintiff was housed, not in the general population, but rather in SHU. Consequently, defendants maintain, since the conditions of plaintiffs confinement after the disciplinary hearing were comparatively less restrictive than those imposed on him prior to the hearing, the time spent by plaintiff in keeplock did not amount to an "atypical and significant hardship" within the meaning of Sandin.
Defendants are correct in stating that the change in conditions represented by removal from SHU and placement in keeplock normally would involve a decrease in the severity and restrictiveness of an inmate's confinement. However, the Sandin standard addresses changes in the conditions of confinement measured against the ordinary incidents of prison life. Thus, plaintiffs removal from SHU and placement in keeplock is not dispositive with respect to the extent to which the conditions of plaintiffs disciplinary segregation "differ from other routine prison conditions." See Welch v. Bartlett, 196 F.3d 389, 394 (2d Cir. 1999) (noting that a comparison between the duration of a plaintiffs SHU sentence and the SHU terms received by others who were convicted of misbehavior was not the comparison required by Sandin because it failed to establish whether the plaintiffs deprivation was more serious than typically endured by prisoners as an ordinary incident of prison life). Furthermore, the nature of the punishments actually imposed on plaintiff is a matter in dispute.
The usual conditions of SHU confinement in New York include solitary confinement for 23 hours per day, exercise for one hour per day, two showers per week, and denial of various privileges available to the general population such as the opportunity to work and to obtain out-of-cell schooling. In addition, the frequency and duration of visits is less than in the ordinary population, and the number of books allowed in the cell is limited. See, e.g., Colon, 215 F.3d at 230.
In his complaint, plaintiff did not allege any specific punishments imposed on him other than the loss of phone privileges and twelve months of good time, as noted earlier. However, in his memorandum of law, submitted in opposition to the defendants' motion to dismiss, plaintiff alleges that his segregated confinement in SHU at Attica, the facility to which plaintiff was transferred after the October 8, 1996 incident at Sing Sing, imposed on him conditions of confinement that were, among other things, racist, sadistic, hazardous and unsanitary. Also, plaintiff asserts that his segregation in "Attica's infamous 'snakepit' (SHU)" was a result of the disciplinary hearing conducted in October and November 1996 and the "arbitrary censorship of [his] outgoing mail."
In their reply memorandum of law, defendants dispute plaintiffs assertions, contending that plaintiffs SHU confinement in Attica was a continuation of his SHU confinement in Sing Sing, and was imposed on plaintiff as the result of the earlier weapons charge, rather than the disciplinary hearing determination. Defendants assert that "it does not follow that plaintiff would end up in SHU when the decision in the hearing at issue sentenced him to the less restrictive Keep Lock."
A more detailed factual record, such as the Second Circuit in Colon instructed the district courts to develop in cases of the type presented here, might reveal that the conditions of confinement that plaintiff alleges in his opposition to defendants' motion to dismiss were not imposed or were not atypical. In the absence of such a record, however, it does not appear beyond doubt that plaintiff can prove no set of facts in support of his procedural due process claim.
Furthermore, the complaint alleged that the sentence imposed on Knight was of sufficient length to be atypical and significant. Knight was sentenced to serve 365 days in keeplock, thus exceeding the 305-day period found atypical and significant in Colon. Therefore, although the factual record is not determinative with respect to the conditions of Knight's segregated confinement, based on its duration, the confinement constitutes a sufficient departure from the ordinary incidents of prison life so as to require due process protections under Sandin. Accordingly, plaintiffs Fourteenth Amendment due process claim should not be dismissed for failure to state a claim upon which relief may be granted.
Eighth Amendment Claim
Knight's complaint does not specify the basis for his claimed deprivation of the right to be free from cruel and unusual punishment under the Eighth Amendment. Construing plaintiffs pro se complaint liberally, see Boddie, 105 F.3d at 860, plaintiffs statement that he suffered emotional and psychological trauma" as a result of his segregated confinement could be read as an attempt to allege an Eighth Amendment violation.
"The Supreme Court has held that the Eighth Amendment embodies broad and idealistic concepts of dignity, civilized standards, humanity and decency by which penal measures must be evaluated." Trice v. Clark, No. 94 Civ. 6871, 1996 WL 257578, at *2 (S.D.N.Y. May 16, 1996). The Eighth Amendment is violated when the deprivation alleged is sufficiently serious and unnecessary in nature. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977 (1994). Thus, "only the unnecessary and wanton infliction of pain implicates the Eighth Amendment." Id.
Plaintiff stated in his complaint that the emotional and psychological trauma he suffered as a result of the defendants' actions was "manifested through perceptual distortions and illusions[,] overt paranoia, panic attacks and problems with emotional control, and lack of [a] sense of personal safety." Apart from plaintiffs statements concerning deprivations he allegedly suffered while in segregative confinement in SHU at Attica, the complaint fails to provide specific facts which would establish that the conditions of plaintiffs confinement involved a wanton infliction of pain. However, in the absence of a sufficiently detailed factual record concerning the actual conditions of plaintiffs confinement, it does not appear that plaintiff can prove no set of facts in support of his allegation that defendants have violated his constitutional right to be free from cruel and unusual punishment. Accordingly, plaintiffs Eighth Amendment claim should not be dismissed for failure to state a claim upon which relief may be granted.
First Amendment Claim
Prison inmates have a First Amendment right in the free flow of their mail, both incoming and outgoing. See Heimerle v. Attorney General, 753 F.2d 10 (2d Cir. 1985); France v. Coughlin, No. 85 Civ. 6347, 1987 WL 10724, at *2 (S.D.N.Y. May 4, 1987). Prison restrictions on mail must be reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261 (1987). Legitimate penological interests include preserving prison security and maintaining order and discipline. See Security and Law Enforcement Employees v. Carey, 737 F.2d 187, 203 (2d Cir. 1984).
Permissible restrictions on inmates' outgoing legal mail are extremely limited. See France, 1987 WL 10724, at *2 (citing Washington v. James, 782 F.2d 1134 [2d Cir. 1986]). However, where good cause is shown, outgoing non-legal mail can be read without violating inmates' First Amendment rights. See United States v. Workman, 80 F.3d 688, 698 (2d Cir. 1996). Dangerous outgoing correspondence, which would support a finding of good cause, may include "escape plans, plans relating to ongoing criminal activity, and threats of blackmail or extortion."Thornburgh v. Abbott, 490 U.S. 401, 412, 109 S.Ct. 1874, 1881 (1989).
In this case, the record evidence is insufficient to establish that inspection of plaintiffs mail was based on good cause. Plaintiffs letter was opened and inspected in the course of a mail watch following an incident during which three inmates were stabbed. The assaults took place in the context of gang-related activity and necessitated a facility-wide investigation and lockdown.
Defendants claim that plaintiffs letter to his mother indicates that he was suspected of being a member of a gang and of involvement in the stabbing incident when a weapon was recovered from him during a strip search. Thus, according to defendants, "it is clear that this particular letter, coming from this particular inmate, at this particular time, would clearly have been suspect." However, there is nothing in the record to indicate that defendants possessed an independent source of information concerning plaintiffs alleged participation in the events that gave rise to the mail watch. Therefore, there was no justification for seizing plaintiffs mail. The letter from plaintiff cannot have been suspect based upon information contained only in the letter itself.
Consequently, while the prevention of ongoing criminal activity and the preservation of prison security and discipline constitute legitimate penological interests, under the circumstances, the inspection of plaintiffs outgoing mail cannot be said to have been reasonably related to those interests. Accordingly, in the absence of a sufficiently detailed record, plaintiffs First Amendment claim should not be dismissed for failure to state a claim upon which relief may be granted. Personal Involvement — Section 1983 Claim
Although, as noted above, the Appellate Division found, at the conclusion of an Article 78 proceeding, that plaintiffs letter was seized in contravention of DOCS' rules and regulations, that finding is not dispositive with respect to plaintiffs First Amendment claim. The violation of a prison regulation does not necessarily constitute the deprivation of a constitutional right. Where, as here, the regulation involved has been found to be constitutional and, indeed, to afford prison inmates more protection than the Constitution requires, plaintiffs First Amendment right to receive and send mail would not have been violated by defendants' failure to obtain the proper authorization before seizing plaintiffs letter. See, e.g., France v. Coughlin, 1987 WL 10724, at *3.4 (citing Golden v. Coombe, 508 F. Supp. 156, 160 [S.D.N.Y. 1981]).
"To state a claim under § 1983, a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. City of New York, 985 F.2d 94, 98 [2d Cir. 1993]). "Allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors. Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
In this Circuit, personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983. McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977) (citing Mukmuk v. Comm'r of Dep't of Correctional Servs., 529 F.2d 272, 275 [2d Cir. 1976]). A § 1983 complaint must contain allegations that a defendant is "directly and personally responsible for the purported unlawful conduct." Alfaro, 814 F.2d at 886 (citing Black v. U.S., 534 F.2d 524, 527-528 [2d Cir. 1976]); see also Lee v. State of New York Dep't of Correctional Servs., No. 97 Civ. 7112, 1999 WL 673339, at *15 (S.D.N.Y. Aug. 30, 1999).
Personal involvement of a supervisory employee in § 1983 actions may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation; (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong; (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such policy or custom; (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts; or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Lee, 1999 WL 673339, at * 15; see also Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Some allegation that a supervisor was personally involved in a manner described above is necessary in order for a complaint to survive a motion to dismiss made pursuant to Fed.R.Civ.P. 12(b)(6). See Tarafa v. Manigo, 897 F. Supp. 172 (S.D.N.Y. 1995).
Based on the parties' submissions, the Court finds that the record evidence is sufficient to permit a § 1983 action to go forward against defendants Kerrigan, Dixon and Selsky.
Plaintiff has alleged facts that indicate that Kerrigan, who filed a misbehavior report against plaintiff following the incident in which three inmates were stabbed, and Dixon, who conducted the subsequent Tier III disciplinary hearing, participated directly in the alleged violations of plaintiffs constitutional rights. Further, plaintiff has alleged facts that suggest that Selsky, who reviewed and affirmed the disciplinary hearing officer's determination, was informed of the alleged violations of plaintiffs constitutional rights and failed to remedy the wrong. Where challenged conduct is attributable, at least in part, to a person who was acting under color of state law and the conduct deprived a plaintiff of a right guaranteed under the Constitution, a valid claim under § 1983 has been asserted. See Snider v. Dylag, 188 F.3d at 53. That is the situation with respect to defendants Kerrigan, Dixon and Selsky.
However, where a plaintiff makes "allegations which are nothing more than broad, simple and conclusory statements[,]" no valid claim under § 1983 can be said to have been made. Alfaro Motors Inc., 814 F.2d at 887. Plaintiff has alleged that Keane, the Superintendent of Sing Sing, was negligent in supervising subordinates who committed wrongful acts because Kerrigan was acting under Keane's supervision at the time he seized plaintiffs outgoing mail. Without more, the Court finds that this broad and conclusory allegation with respect to defendant Keane is insufficient to state a claim under § 1983. See id.
Plaintiff does not specify the basis for his allegation of a violation by defendants Kerrigan and Dixon of 42 U.S.C. § 1985. The only applicable provision of that section concerns the participation in a conspiracy by two or more persons to impede the due course of justice.See 42 U.S.C. § 1985(2). Plaintiff did not allege any specific facts in support of a conspiracy on the part of the defendants. Accordingly, plaintiffs § 1985 claim should be dismissed for failure to state a claim upon which relief may be granted.
Qualified Immunity
The doctrine of qualified immunity shields "government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982), or insofar as it was objectively reasonable for them to believe that their acts did not violate those rights. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-3040 (1987); Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995). The doctrine of qualified immunity would protect a government official from personal liability in a § 1983 claim.
The defendants contend that they may not be found liable to plaintiff because of the doctrine of qualified immunity. When analyzing a claim for qualified immunity in a § 1983 action, a court must first determine whether the plaintiff has stated that a constitutional violation occurred. Thereafter, the court must determine whether the constitutional right that plaintiff alleges was violated was clearly established at the time of the alleged wrongful act. If so, then the court may proceed to determine whether qualified immunity shields a government actor from liability for damages. See Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001).
At the time of the events that gave rise to this action, the Supreme Court had made it clear — and thus a reasonable person would have known — that a sentence of sufficient length to be an atypical and significant hardship, in that it constitutes a substantial departure from the ordinary incidents of prison life, requires due process protections under the Fourteenth Amendment. Similarly, a reasonable person would have known that, at the time of the events that gave rise to this action, plaintiff had a right to be free of conditions of confinement that differed from other routine prison conditions to such an extent that they were violative of the Eighth Amendment. Finally, a reasonable person would have known that, at the time of the events that gave rise to this action, plaintiff had a First Amendment right to receive and send mail.
Since the Court has already determined that plaintiff has failed to establish that defendant Keane engaged in conduct that was violative of plaintiffs constitutional rights, the qualified immunity issues before the Court are whether: (a) it was objectively reasonable for Kerrigan and Dixon to believe that the acts of misconduct plaintiff attributes to them would not violate the Fourteenth, Eighth and First Amendments; and (b) it was objectively reasonable for Selsky, after being informed of the acts of misconduct plaintiff attributes to Kerrigan and Dixon through plaintiffs appeal from the disciplinary hearing determination, and after affirming that determination, to believe that his conduct would not violate the Fourteenth, Eighth and First Amendments.
The Court finds that it was not objectively reasonable for Kerrigan to believe that seizing, opening and reading plaintiffs outgoing, non-legal mail without good cause, and for Dixon to believe that the use of such mail as evidence against plaintiff at a Tier III disciplinary hearing, would not violate the First Amendment. In addition, the Court finds that it was not objectively reasonable for Kerrigan to believe that offering plaintiffs mail as evidence against him at a disciplinary hearing which resulted in a sentence imposing segregative confinement of great severity and duration, and for Dixon to believe that imposing that sentence at the conclusion of the hearing, would not violate the Fourteenth and Eighth Amendments. Further, the Court finds that it was not objectively reasonable for Selsky to believe that affirming the determination of the disciplinary hearing officer after being informed of the acts of misconduct plaintiff attributes to Kerrigan and Dixon would not violate the Fourteenth, Eighth and First Amendments. Consequently, defendants Kerrigan, Dixon and Selsky are not entitled to dismissal of the claims made against them on the ground of qualified immunity.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that defendants' motion to dismiss for failure to state a claim be denied with respect to plaintiffs Fourteenth, Eighth and First Amendment claims against defendants Kerrigan, Dixon and Selsky. In addition, I recommend that defendants' motion to dismiss for failure to state a claim be granted with respect to plaintiffs § 1985 claim against defendants Kerrigan and Dixon, and with respect to all claims made against defendant Keane.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Foley Square, Room 201, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Berman. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).