Opinion
04 Civ. 8908 (DLC).
April 17, 2006
Anson Moore, pro se, For Plaintiff.
Kevin P. McCaffrey Assistant Attorney General State of New York New York, NY, For Defendants.
OPINION AND ORDER
This Opinion concludes that a prison rule that prohibits actions that may be "detrimental to the order of the facility" did not provide an inmate with adequate notice that he may be disciplined for initiating or participating in a letter-writing campaign regarding alleged misconduct by guards. Plaintiff Anson Moore ("Moore") brings this action under 42 U.S.C. § 1983 against various officials of the New York State Department of Correctional Services ("DOCS") and Green Haven Correctional Facility ("Green Haven") in Stormville, New York, where he was incarcerated. Moore alleges that defendants retaliated against him for his involvement in a letter-writing campaign by initiating a disciplinary proceeding and sentencing him to 90 days in the Special Housing Unit ("SHU"). He also claims he was not provided with due process at the hearing.
Defendants move for summary judgment, arguing that Moore's constitutional rights were not violated, and alternatively, that defendants are protected by qualified immunity. Defendant Lucien Leclaire ("Leclaire") also moves for summary judgment on the ground that Moore has not established that he was personally involved in the relevant events. For the reasons set forth below, partial summary judgment is granted for plaintiff because the rule under which he was disciplined did not provide him with sufficient notice that his actions were prohibited. Therefore, the disciplinary proceeding violated plaintiff's Fourteenth Amendment due process rights, and the infraction must be expunged from his record. Defendants' motion for summary judgment is also granted in part, as defendants are protected by qualified immunity from an award of monetary damages. An injunction shall issue expunging the finding that Moore violated the prison rule.
Background
The following facts are undisputed unless otherwise noted. Moore has been incarcerated since 1986, serving a sentence for second degree murder. In early 2004, when the events at issue took place, he resided on the J Block of Green Haven. J Block housed participants in the Residential Substance Abuse Treatment ("RSAT") program. At the time, Moore, who had already completed the program, was serving as an RSAT peer educator, a role in which he facilitated group discussions and occasionally spoke one-on-one with program participants.
In early 2004, inmates in J Block began complaining about the conduct of the guards who worked the 3:00 p.m. — 11:00 p.m. shift. Among the allegations were that the guards arbitrarily denied or delayed privileges, such as mail delivery, recreation, showers, and meals; that they yelled and cursed at inmates; and that certain prisoners were assaulted. Plaintiff was not personally affected by most of the alleged misconduct. The inmates, including Moore, discussed how to proceed, and Moore recommended that they write letters of complaint to DOCS officials in Albany. Moore also discussed the content of the letters with individual inmates outside of the group sessions, and on at least one occasion provided another inmate with a copy of the complaint letter Moore had written. At least seven inmates sent signed letters to DOCS officials in mid-January 2004. The letters are substantially similar to one another: they make the same allegations of guard misconduct and frequently use identical words and phrases.
Defendants imply that Moore was the source of a model complaint letter that was provided to other inmates. Moore says that he only provided a single inmate with a copy of the letter he drafted.
Moore contends that more than seven inmates sent letters, but that defendants have highlighted only those that were similar to one another.
On February 18, lieutenant Richard Ward ("Ward") assigned sergeant David Jolicoeur ("Jolicoeur") to investigate the complaints. Jolicoeur interviewed a number of inmates who had drafted letters, including a confidential informant who allegedly stated that plaintiff was the organizer of a letter-writing campaign. On February 23 or 24, plaintiff sent two anonymous letters to Leclaire, the deputy commissioner of correctional facilities for DOCS, complaining about both the RSAT guards' original misconduct and Jolicoeur's investigation. Plaintiff claimed that Jolicoeur was encouraging inmates to name Moore as the initiator of the alleged letter-writing campaign.
On February 29, Jolicoeur supervised a search of Moore's cell, during which guards found three copies of an unsigned complaint letter similar to those that had been sent by other inmates. Plaintiff admitted that he was the author of the anonymous letters. Jolicoeur then prepared an Inmate Misbehavior Report ("IMR") in which he stated that Moore had violated Rule 104.12 of the Department of Correctional Services' Standards of Inmate Behavior ("Rule 104.12") by "initiat[ing] a conspiracy to organize other J [Block] inmates to mail complaint letters to officials in Albany DOCS." Rule 104.12 prohibits inmate involvement in "work-stoppages, sit-ins, lock-ins, or other actions which may be detrimental to the order of the facility." N.Y. Comp. Codes R. Regs. tit. 7 § 270.2(B)(5)(iii). Ward reviewed the report and determined that the alleged violation qualified as "Tier III," the most serious type of prison disciplinary charge.
On March 5, hearing officer William Haggett ("Haggett") presided over a hearing regarding the charges against plaintiff. Jolicoeur, RSAT counselor Chrles Sommers, and the confidential informant testified at the hearing. Haggett also reviewed and compared the letters written by plaintiff and the other inmates. Plaintiff, who was provided with an employee assistant to help him prepare for the hearing, argued that he had not initiated the letter-writing effort and that his conduct should not subject him to discipline. On March 11, Haggett found Moore guilty of violating Rule 104.12, assessed a $5 fine against him, and sentenced him to three months in the SHU.
Plaintiff was confined to the SHU from February 29 to May 29, 2004. SHU inmates are separated from the general population in single — or double-occupancy cells and are entitled to fewer privileges, such as showers, outside visitors, and mail, than inmates in general population. Plaintiff also alleges that the SHU was cold and that he was unable to turn out the lights.
Moore's confinement began upon Jolicoeur's preparation of the IMR.
On March 11, plaintiff appealed Haggett's determination to Donald Selsky ("Selsky"), the director of special housing and inmate discipline for DOCS. He argued that the IMR was retaliatory and that the alleged acts did not constitute a violation of Rule 104.12. Moore further objected to the hearing on the grounds that he had been unable to confirm that the witnesses he wished to call were unwilling to testify on his behalf, and that the confidential informant was not proven to be reliable. Selsky affirmed the disposition on May 11. On June 7, after Moore learned that certain procedural objections he made at the hearing were not included in the record, Moore requested that Selsky reconsider his decision. On October 15, Selsky again affirmed the disposition. Moore also sent at least two letters of complaint to Leclaire in the spring of 2004. Leclaire forwarded the letters to Ada Perez, an assistant commissioner of DOCS. Perez informed Moore that an investigation had found "no evidence . . . to substantiate your allegations." Moore also wrote to William Philips ("Philips"), superintendent of Green Haven, requesting a discretionary review of his punishment. Philips declined the request.
It appears that this investigation was conducted by Thomas Griffin ("Griffin"), a captain at Green Haven.
On November 10, 2004, Moore filed this action under 42 U.S.C. § 1983 ("Section 1983"), alleging that defendants violated his First and Fourteenth Amendment rights. Moore's primary claim is that defendants filed a misbehavior report against him in retaliation for his involvement in constitutionally protected conduct — namely, the sending of complaint letters to DOCS officials. Moore argues that the IMR was "false" both factually and legally. First, he claims that defendants fabricated the evidence of his leadership role in the letter-writing campaign. Second, he contends that, whatever role he played, his actions do not constitute a violation of Rule 104.12. In addition, Moore objects to the manner in which the disciplinary hearing was conducted. Although not articulated as such, these objections amount to a claim that he was not provided with the due process required under the Fourteenth Amendment.
Moore seeks a declaratory judgment that defendants violated his constitutional rights. He also requests that the Court issue an order that the IMR be expunged from his record and an injunction that would prohibit defendants from engaging in "further retaliation against plaintiff or against other inmates who have submitted affidavits" on his behalf. Moore further seeks compensatory and punitive damages for the time he served in the SHU and the costs he incurred in bringing this litigation. Defendants bring this motion for summary judgment on the grounds that (1) Moore's constitutional rights were not violated, (2) defendants are entitled to qualified immunity, and (3) plaintiff has not established the personal involvement of Leclaire. Discussion
Moore purports to sue defendants in both their personal and official capacities. Because states are immune under the Eleventh Amendment from suits for monetary relief, the claim for damages can only be brought against defendants in their individual capacity. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); Cruz v. Gomez, 202 F.3d 593, 595 n. 2 (2d Cir. 2000). Moore may, however, "seek injunctive and declaratory relief against the defendants in their official capacity because official-capacity actions for prospective relief are not treated as actions against the State." Id. (quoting Will, 491 U.S. at 71 n. 10).
Summary judgment under Rule 56, Fed.R.Civ.P., is appropriate only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465 (2d Cir. 2000). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment should only be granted when "no reasonable trier of fact could find in favor of the nonmoving party." James v. New York Racing Ass'n, 233 F.3d 149, 152 (2d Cir. 2000) (citation omitted).
As noted above, plaintiff alleges both that he was improperly disciplined in retaliation for engaging in constitutionally protected conduct, and that he did not receive the procedural protections he was due at his disciplinary hearing. Before reaching those arguments, however, it is necessary to address the threshold issue of whether the regulation under which Moore was disciplined put him on notice that his actions were prohibited. A finding that the notice was constitutionally insufficient would render the disciplinary proceedings improper, "regardless of the procedural means applied." Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (citation omitted).
Plaintiff does not directly raise a vagueness challenge in this action or in his appeal below. Defendants argue that plaintiff thereby waived the argument. It is well established, however, that "when [a] plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations." Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir. 2005) (citation omitted). Plaintiff argues here, as he did below, that the allegations in the IMR do not support a finding of a Rule 104.12 violation. This is sufficiently similar to a vagueness challenge to preserve and raise that objection. Moreover, defendants understood that Moore's arguments amounted to a challenge to Rule 104.12 based on unconstitutional vagueness and addressed the issue in their motion papers.
A penal statute must provide individuals with notice of the conduct that is prohibited. Kolender v. Lawson, 461 U.S. 352, 357 (1982); Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). To determine whether a statute is unconstitutionally vague, "a court must first determine whether the statute gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited and then consider whether the law provides explicit standards for those who apply it." United States v. Roberts, 363 F.3d 118, 122 (2d Cir. 2004). The degree of vagueness that the Due Process Clause will tolerate "depends in part on the nature of the enactment at issue." Hoffman Estates v. Flipside, 455 U.S. 489, 498 (1982); see also Chatin v. Coombe, 186 F.3d 82, 86 (2d Cir. 1999). There is a greater tolerance for "enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe." Hoffman, 455 U.S. at 499; see also Chatin, 186 F.3d at 86. Where the lack of clarity "threatens to inhibit the exercise of constitutionally protected rights," there is the greatest cause for concern. Hoffman, 455 U.S. at 499.
Plaintiff was disciplined under Rule 104.12, which states: "An inmate shall not lead, organize, participate, or urge other inmates to participate, in work-stoppages, sit-ins, lock-ins, or other actions which may be detrimental to the order of the facility." N.Y. Comp. Codes R. Regs. tit. 7 § 270.2(B) (5) (iii). Moore did not participate in any of the specifically enumerated activities, but his conduct was nonetheless determined to have been detrimental to the order of Green Haven.
As used against plaintiff, this portion of Rule 104.12 fails both prongs of the vagueness test. A person of ordinary intelligence would not be able to discern with any degree of certainty whether a letter-writing campaign would threaten "the order of the facility." Similarly, the Rule does not provide anything approaching "explicit standards" for those charged with enforcing the Rule, at least insofar as they must determine when to apply it to behaviors that are not akin to the enumerated forbidden activities. The activities — participating in or encouraging participation in a work-stoppage, sit-in, or lock-in — directly impact the physical environment of the prison. This is equally true of the behaviors prohibited by the other subsections of the Rule: taking over or conspiring to take over a facility; threatening or engaging in violent conduct; talking loudly or after designated quiet time; playing a radio, television, or tape player in a loud or improper manner; and playing a musical instrument in a loud or improper manner. N.Y. Comp. Codes R. Regs. tit. 7 § 270.2(B)(5)(i), (ii), (iv). Nothing in the text of the Rule suggests how or whether it might apply to situations, such as a letter-writing campaign, where the threat to facility order is less direct or observable. Moreover, the statutory canon of ejusdem generis, which holds that "where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words," counsels against a determination that such behavior is covered by the Rule. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001).
Defendants correctly point out that a regulation "need not achieve meticulous specificity" in order to pass constitutional muster, and "may instead embody flexibility and reasonable breadth." Perez v. Hoblock, 368 F.3d 166, 175 (2d Cir. 2004) (citation omitted). Such flexibility can arguably be greater in the context of a prison, since security is of utmost importance, and "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights." Johnson v. California, 543 U.S. 499, 510 (2005) (citation omitted). As construed by defendants, however, Rule 104.12 would go much farther than the Constitution allows, giving prison officials virtual carte blanche and providing inmates with little notice of what they may and may not do.
Defendants concede that it is at least an "open question" whether Rule 104.12 puts inmates on notice that a coordinated letter-writing effort is prohibited. Nonetheless, they argue that the evaluation of the Rule's vagueness must be made with respect to plaintiff's actual conduct, "and not with respect to hypothetical situations at the periphery of the regulation's scope or with respect to the conduct of other parties who might not be forewarned by the broad language." Perez, 368 F.3d at 175 (citation omitted). According to defendants, plaintiff indicated at his deposition that he understood that organizing a letter-writing campaign was prohibited; therefore, he cannot claim to have lacked notice that his behavior could result in an IMR.
This argument fails for two reasons. First, Moore's deposition testimony demonstrates that he did not believe that the inmates' letter-writing campaign violated any regulations. Indeed, at his deposition, Moore stated that the reason the inmates wrote letters rather than signing a petition was that they understood the latter was prohibited, while the former was not. Second, and more fundamentally, the question is not whether plaintiff thought he would be punished, but whether the language of the statute provides notice that plaintiff's behavior is eligible for punishment. See, e.g., Chatin v. New York, No. 96 Civ. 420 (DLC), 1998 WL 196195, at *7 (S.D.N.Y. Apr. 23, 1998) (holding that plaintiff's knowledge that some inmates had been disciplined for praying under a rule prohibiting "[r]eligious services" proved "nothing more than that he had observed arbitrary discipline of inmates praying"). Here, the answer is clearly no.
Further, Moore's deposition testimony shows how problematic the vagueness of Rule 104.12 can be for an inmate trying to anticipate how it will be applied to behavior that is not obviously similar to the enumerated banned acts:
Q. Do you believe it would have been a violation of regulations if you made a copy of one letter and each individual signed their own copy and sent it out?
A. If you made a copy of one letter and each individual signed that copy and sent it out?
Q. Do you think that would be a violation of regulations as you understand it?
A. Say it again, do I believe that it was a violation of regulations, depends on circumstances I believe as far as being at — the RSAT program is run and it is group therapy and about the group helping the group. . . . So in RSAT format, no, I wouldn't say that was particularly a violation, but I feel that still that an individual would be better off writing his own complaint even if he wrote similar or the same thing someone else wrote. . . .
Q. Do you think it would have been proper for an inmate each inmate to send out an identical copy of the letter of complaint, do you think it would be proper in the general population to do that? You can answer yes or no?
A. I can't really answer yes or no without explaining myself. . . .
Q. How about a photocopy, one letter typewritten and there was a photocopy provided to every inmate for them to sign on their own, would that be appropriate?
A. Not so much appropriate or not I think it calls into account whether the individual wanted to do that or not, so that is my answer to that. . . .
Q. If an inmate were to provide a typewritten letter to ten inmates asking those inmates to send them out assuming for the purposes all wanted to send them out individually, would that be as you extend [sic] a violation of the regulation?
A. No.
Rule 104 is entitled "Riot, Disturbances and Demonstrations." As noted above, the specific behaviors it prohibits are all related to physical acts. The rules give no further definition of prohibited behaviors beyond those enumerated above. Each official and inmate is left to guess whether the Rule reaches the organization of or participation in an effort to voice inmate complaints. Therefore, even assuming every allegation against Moore is true, the Tier III hearing violated plaintiff's due process rights protected by the Fourteenth Amendment because the statute under which plaintiff was disciplined does not provide adequate notice that a letter-writing campaign is prohibited.
Relief
A. Monetary Relief
Plaintiff seeks to hold defendants liable under Section 1983, which provides a cause of action against anyone who, under color of state law, deprives another person of his or her constitutionally protected rights. Here, defendants' conduct did violate Moore's rights. As government officials performing discretionary functions, however, they are "shielded 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." Wilson v. Layne, 526 U.S. 603, 609 (1999) (citation omitted); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The purpose of the doctrine is to balance "the need, on one hand, to hold responsible public officials exercising their power in a wholly unjustified manner and, on the other hand, to shield officials responsibly attempting to perform their public duties in good faith from having to explain their actions to the satisfaction of a jury."Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 101 (2d Cir. 2003) (citation omitted).
Qualified immunity arises when an official's conduct did not violate "clearly established law." Id. at 102. To determine whether qualified immunity applies, a court must consider:
(1) whether the right in question was defined with "reasonable specificity"; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.Pena v. DePrisco, 432 F.3d 98, 115 (2d Cir. 2005) (citation omitted). There is a strong presumption in favor of finding qualified immunity, so that "all but the plainly incompetent or those who knowingly violate the law" are protected. Saucier v. Katz, 533 U.S. 194, 202 (2001).
Here, the constitutional issues raised by the application of Rule 104.12 to plaintiff's conduct were anything but "clearly established" under the law of this Circuit. In fact, the Second Circuit has twice explicitly declined to rule on the issue of whether Rule 104.12 puts prisoners on notice that preparing or circulating a petition is barred. See Gayle v. Gonyea, 313 F.3d 677, 680 n. 3 (2d Cir. 2002); Duamtef v. O'Keefe, 98 F.3d 22, 25 (2d Cir. 1996). In the same decisions, the Second Circuit also implicitly left open the question of whether a prohibition of letter-writing campaigns is constitutionally permissible. Although the Court of Appeals held that prison officials could bar the circulation of petitions through the appropriate regulation, Duamtef, 98 F.3d at 24, it did not address whether they could prohibit an inmate from encouraging other inmates to file grievances. Gayle, 313 F.3d at 680 n. 3. As a result, it was reasonable for defendants to believe that disciplining Moore was permissible, and they are therefore protected by qualified immunity. Defendants' motion for summary judgment is granted with respect to Moore's claim for monetary damages.
Because defendants are entitled to qualified immunity, it is not necessary to reach Leclaire's argument that he is also shielded from liability because of his lack of personal involvement in the events at issue.
B. Equitable Relief
For the purposes of obtaining declaratory and injunctive relief, defendants are sued in their official capacity, supra note 5, and qualified immunity does not apply. Moore did not move for summary judgment with respect to his requests for a declaratory judgment that his rights were infringed, an order expunging the IMR from his disciplinary record, or an injunction prohibiting future retaliatory actions. A district court may grant summary judgment sua sponte, however, so long as care is taken to ensure that the party against whom summary judgment is entered "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." Schwan-Stabilo Cosmetics GmbH Co. v. Pacificlink Intern. Corp., 401 F.3d 28, 33 (2d Cir. 2005) (citation omitted).
Defendants here have had the opportunity to raise any factual issues that would defeat a finding that Rule 104.12 is impermissibly vague as applied to plaintiff's conduct. As noted, they directly addressed the issue in their motion papers. Therefore, summary judgment is granted for plaintiff with respect to his request for a declaratory judgment. Further, since plaintiff was disciplined pursuant to a rule that could not be constitutionally applied to his conduct, DOCS will be required to expunge the IMR from Moore's record and restore any attendant credits or benefits. Because this Opinion makes clear that no further disciplinary action may be taken against Moore or any other inmate for involvement in the letter-writing campaign, and because Moore has not introduced any evidence indicating that there is a threat of "further retaliation," his request for an injunction prohibiting such actions is denied.
Conclusion
Defendants' motion for summary judgment is granted with respect to Moore's request for damages; it is denied with respect to Moore's requests for equitable relief. Summary judgment is granted for plaintiff with respect to his requests for entry of a declaratory judgment that the disciplinary action against him was unconstitutional, and that the inmate misbehavior report filed against plaintiff on February 29, 2004 be expunged from plaintiff's record. Any attendant good time credits or other benefits of which plaintiff was deprived because of the disciplinary action shall be restored. The Clerk of Court shall enter judgment in accordance with these rulings and close the case.
SO ORDERED.