Opinion
95 Civ. 9705 (LAK)
October 8, 2002
ORDER
Plaintiff, a state prison inmate, commenced this action, claiming that he was improperly subjected to discipline for the use of a prison computer for personal legal work and that defendants retaliated against him in violation of the First Amendment for wearing a kufi to his work assignment in a prison office. In March 2000, this Court granted defendants' motion for summary judgment dismissing the complaint except as to plaintiff's claim that defendant Cook retaliated against plaintiff for wearing the kufi and for use of the computer. Nicholas v. Tucker, 89 F. Supp.2d 475 (S.D.N.Y. 2000). The case then proceeded to trial, following which the Court concluded that Cook improperly retaliated against plaintiff for wearing the kufi, found that plaintiff suffered damages of $3,005 (which included a $5 fine or assessment imposed on plaintiff as a result of a prison disciplinary hearing), and invited briefing on the issue of qualified immunity. The Court later ruled that Cook was entitled to qualified immunity and dismissed the action. Id. No. 95 Civ. 9705, 2001 WL 228413 (S.D.N.Y. Mar. 8, 2001).
The Second Circuit affirmed in substantially all material respects but remanded "for consideration of Nicholas' claim that he is entitled to expungement of his disciplinary record and the return of the $5 fine." The Circuit noted that a remand was necessary in part because this Court had not made "any factual findings as to whether Cook can effect the equitable relief plaintiff seeks." Summary Order at 3.
This Court later invited the parties to brief the issues raised by the remand. Both sides have submitted memoranda of law, and the defendants have submitted an affidavit of Donald Selsky. The matter now is ripe for decision.
The only defendant that remained in the case when it went to trial was Cook, the correction officer who retaliated against plaintiff by bringing the inmate misbehavior report that triggered the Tier III discipline and resulted in the $5 fine. There is no evidence that the fine was paid to Cook. Any recovery of the amount of the fine from him would be an award of damages as against which he is immune. Nor is there any evidence that Cook is in a position to expunge the disciplinary determination made against plaintiff. Plaintiff's suggestion that this is immaterial because an injunction against Cook would bind those in privity with him (Pl. Mem. 8) is an oversimplification that has no bearing in these circumstances.
Mr. Selsky's affidavit demonstrates that he lacks any such authority. The Court, however, does not consider the affidavit, as the trial record is closed. Its absence from the record appropriately considered, however, is not material. Plaintiff had the burden of proving facts essential to justify the relief he seeks. He failed to do so.
To be sure, an injunction binds the individual enjoined and those in active concert and participation with the enjoined individual who receive actual notice of the order. Fed.R.Civ.P. 65(d). But there is no basis for supposing that the New York State Department of Correctional Services is in active concert and participation with defendant Cook with respect to expungement of plaintiff's disciplinary record.
The Court has considered plaintiff's other arguments and concluded that they are without merit.
Case dismissed. Judgment accordingly.
SO ORDERED.