Shakur v. Selsky

• Decision Date: 06 December 2004
• Docket Number: Docket No. 03-0050.
• Citation: 391 F.3d 106
• Parties: Shabaka SHAKUR, Plaintiff-Appellant, v. Donald SELSKY, Director of Special Housing, James Conway, First Deputy Superintendent of Attica, T. Sticht, Captain, R.T. Lomanto, Daniel Hurlburt, Correctional Officer, P. Foley, Correction Officer, Beyler, Correction Officer, R. Stack, Correction Officer, T. Steele, Correction Officer Dolan, Hearing Officer, Carol Edwards, Hearing Officer, sued in their individual and official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

391 F.3d 106

Shabaka SHAKUR, Plaintiff-Appellant, v. Donald SELSKY, Director of Special Housing, James Conway, First Deputy Superintendent of Attica, T. Sticht, Captain, R.T. Lomanto, Daniel Hurlburt, Correctional Officer, P. Foley, Correction Officer, Beyler, Correction Officer, R. Stack, Correction Officer, T. Steele, Correction Officer Dolan, Hearing Officer, Carol Edwards, Hearing Officer, sued in their individual and official capacities, Defendants-Appellees.

Docket No. 03-0050.

United States Court of Appeals, Second Circuit.

Argued: May 26, 2004.

Decided: December 6, 2004.

COPYRIGHT MATERIAL OMITTED

Gargi Pahuja, Keith Hovey (Jon Romberg, of counsel), Seton Hall University School of Law, Center for Social Justice, Newark, New Jersey, for Plaintiff-Appellant.

Martin A. Hotvet, Assistant Solicitor General of the State of New York (Eliot Spitzer, Attorney General, on the brief, Daniel Smirlock, Deputy Solicitor General, of counsel), Albany, New York, for Amicus Curiae Eliot Spitzer, Attorney General of the State of New York.

Before: SACK, SOTOMAYOR, and WESLEY, Circuit Judges.

WESLEY, Circuit Judge.

This 42 U.S.C. § 1983 (Supp. I 2002) action involves a prisoner's claims of infringement of his free speech, free exercise, due process, and equal protection rights under the Constitution, and of his rights under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc. The free speech, due process, and equal protection claims stem from confiscations of the prisoner's "New Afrikan political literature." The free exercise and RLUIPA claims arise from the alleged denial of the prisoner's opportunity to attend the Eid ul Fitr feast, a Muslim holiday. The prisoner filed his action pro se and, before defendants were served, the district court dismissed the complaint in its entirety with prejudice under 28 U.S.C. § 1915A (Supp. I 2002). We affirm the district court's dismissal of the due process and equal protection claims under § 1915A, but vacate the dismissal of the free speech and free exercise claims, as well as the RLUIPA claim.

BACKGROUND

Plaintiff-appellant Shabaka Shakur filed a pro se complaint in the United States District Court for the Western District of New York. He was and remains in the custody of the New York State Department of Correctional Services (DOCS). Shakur appeals from the district court's dismissal of his complaint. The following are the "facts" as alleged in the complaint. See, e.g., Ortiz v. McBride, 380 F.3d 649, 651 (2d Cir.2004).

1. The Christmas Eve Confiscation, 1999

In 1999, Shakur spent Christmas Eve in a Special Housing Unit (SHU) at Great Meadows Correctional Facility as the subject of a facility investigation. Defendant Hurlburt, a Great Meadows correctional officer, searched Shakur's property and discovered and then confiscated 26 books and pamphlets of "New Afrikan political literature," which he characterized as "Nubian gang materials." On Christmas Day, Shakur received an inmate misbehavior report charging him with possession of "gang material[s]" in violation of DOCS Institutional Rule of Conduct 105.12. Rule 105.12 provides that "[i]nmates shall not ... possess ... or use unauthorized organizational insignia or materials." N.Y. Comp.Codes. R. & Regs. tit. 7, § 270.2(B)(6)(iii) (2004). "An unauthorized organization," under Rule 105.12, "is any gang or any organization which has not been approved by the deputy commissioner for program services." Id.

Shakur was given a hearing by Defendant Dolan, a Great Meadows correctional officer, on the Rule 105.12 charge. Hurlburt testified that the confiscated materials were anti-establishment and anti-democracy; Shakur argued that they were simply political tracts and were not gang-related. Dolan found that the materials referred to a "revolutionary" organization "designed to create... and mobilize a well-armed war movement." He then determined that the organization was not authorized by DOCS and thus found Shakur guilty of a Rule 105.12 violation, imposing a penalty of 18 months in SHU. Shakur appealed the disposition to Defendant Selsky, the DOCS Director of Special Housing, who decreased the penalty to 12 months.

During his hearing, Shakur requested that Dolan forward the confiscated materials to Great Meadow's Facility Media Review Committee (FMRC), a committee that reviews inmate literature pursuant to established guidelines. N.Y. Comp.Codes. R. & Regs. tit. 7, §§ 712.2-712.3. New York regulations provide that "[i]t is departmental policy to encourage inmates to read publications from varied sources," id. § 712.1(a), but that "[w]hen there is a good faith belief that a publication ... in [the] possession of an inmate violates one or more of the media review guidelines, said publication shall be confiscated and referred to the FMRC for review and decision," id. § 712.3(b)(2). Neither Dolan nor Selsky referred Shakur's materials to the FMRC.

2. The January 2, 2002 Confiscation

Two years later, on January 2, 2002, Defendant Foley, a correctional officer at the Attica Correctional Facility, searched Shakur.¹ He found and confiscated materials he characterized as a "New Afrikan Self Development Program." Shakur again requested that these materials be sent to the FMRC; Foley declined to do so. Instead, Foley filed a report charging Shakur with a second Rule 105.12 violation.

Defendant Lomanto, a Lieutenant, gave Shakur a hearing on this second Rule 105.12 charge, determined that Shakur's materials were "from a group that is not authorized," and found Shakur in violation of the rule, imposing a penalty of thirty days in keeplock. Shakur appealed the disposition on the grounds that Foley had failed to send the materials to the FMRC, that Rule 105.12 did not apply to his literature, and that Rule 105.12 was unconstitutionally vague. Defendant Conway, First Deputy Superintendent at Attica, found no error in the hearing. Shakur then filed an Article 78 petition. See N.Y. C.P.L.R. § 7801 (Consol.1994). The New York Supreme Court, Appellate Division, confirmed the DOCS determination and dismissed the petition. See Matter of Shakur v. Goord, 306 A.D.2d 958 (4th Dep't 2003).

3. The Eid ul Fitr Feast, 2002

Shakur also contends that he was prevented from attending an important religious feast held at Attica on January 19, 2002. Shakur does not name the religious feast in his complaint, but on appeal claims that it was Eid ul Fitr. Shakur asserts that he was scheduled to attend but that Defendant Beyler, an Attica officer, prevented him from participating in the feast and from receiving a "required" meal. Shakur filed a grievance with the Inmate Grievance Resolution Committee and asked that "Beyler's malicious and intentional failure to perform his duties ... be reprimanded." The committee found that Beyler should have released Shakur for the event. Conway reversed that finding and the Central Officer Review Committee affirmed Conway's determination.

4. The Summer Confiscations and FMRC Review, 2002

In July, Defendant Stack, a correctional officer at Attica, searched Shakur's cell and confiscated 17 pages of additional "New Afrikan" materials that he characterized as "unauthorized gang materials." Shakur requested that the materials be sent to the FMRC and Stack refused. Stack charged Shakur with a third Rule 105.12 violation.

Defendant Sticht, a Captain at Attica, gave Shakur a hearing on this third Rule 105.12 charge. Shakur argued that the materials should be sent to the FMRC and requested that Stack appear as a witness. Sticht adjourned the hearing to review the materials and to secure Stack's appearance. Upon reconvening the hearing, Sticht found Shakur guilty of violating Rule 105.12. Sticht found that the "`New Afrikan Program' [literature] talks about ... overthrow[ing] and `liberat[ing]' parts of the U.S. for th[e] group's own country," and that the group was "not authorized by DOCS and is therefore an unauthorized group." Sticht imposed a penalty of 60 days in keeplock. Selsky affirmed the disposition.

In August, Foley again searched Shakur's property, found more "New Afrikan literature," and confiscated it. Foley ordered Shakur to destroy the literature, but Shakur refused and requested that it be sent to the FMRC. The Sergeant on Shakur's block granted the request. The FMRC reviewed these materials, found that three pages contained drawings that would "incite disobedience and violence," and approved the remainder of the literature. The materials were returned to Shakur with the objectionable portions redacted.

5. Shakur's Complaint

Shakur filed a complaint in late November 2002. On the basis of the above factual recitation, Shakur alleged, inter alia, violations of (1) the Freedom of Speech Clause of the First Amendment; (2) the Due Process Clause of the Fourteenth Amendment; (3) the Equal Protection Clause of the Fourteenth Amendment; and (4) both the Free Exercise Clause of the First Amendment and RLUIPA. Shakur's complaint contained other claims not the subject of this appeal. The district court dismissed Shakur's complaint with prejudice sua sponte pursuant to 28 U.S.C. §§ 1915A before the service of process on any defendant. The district court explained the reasons for its dismissal in an opinion dated December 10, 2002.

The district court first considered Shakur's claim that defendants violated what Shakur characterized as his rights "to freedom of political expression" and "to hold and express political beliefs." Shakur alleged that defendants violated these rights by improperly confiscating his "New Afrikan political literature." The district court disagreed. It noted that "[t]he New African organization, also known as the New African Liberation Movement (NALM), is a group which has been identified as an unauthorized organization by ... [DOCS], and this identification by DOCS has been upheld in federal court as reasonably related to legitimate penological...