Beyah v. Coughlin, 782

Citation789 F.2d 986
Decision Date02 May 1986
Docket NumberD,No. 782,782
PartiesAbdul BEYAH, K. McDonald, H. Benitez, A. Robles, D. Boswell, K. Dukes, K. Richardson, M. Payne, J. Duffy, S. Dukes, and V. Baez, Plaintiffs, Abdul Beyah, Plaintiff-Appellant, v. Thomas A. COUGHLIN, Commissioner of DOCS; Harold J. Smith, Superintendent, Attica Correctional Facility; and J. Cochrane, Attica Correctional Facility, Defendants-Appellees. ocket 84-2371.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Mitchell A. Lowenthal, New York City (Jonathan I. Blackman, Cleary, Gottlieb, Steen & Hamilton, New York, New York, on the brief), for plaintiff-appellant.

Martin A. Hotvet, Asst. Atty. Gen. of State of N.Y., Albany, N.Y. (Robert Abrams, Atty. Gen., Robert Hermann, Sol. Gen., William J. Kogan, Asst. Sol. Gen. of State of N.Y., Albany, N.Y., on the brief), for defendants-appellees.

Before OAKES, KEARSE, and PRATT, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Abdul Beyah, a New York State prisoner whose religion requires his abstention from contact with pork or pork products, appeals from a judgment of the United States District Court for the Western District of New York, John T. Curtin, Chief Judge, dismissing his complaint, brought under 42 U.S.C. Sec. 1983 (1982), alleging that the refusal of the defendant prison officials to allow him to use soap containing no pork products violated his rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution. The district court granted defendants' motion for

summary judgment dismissing the complaint on the ground that the soap currently provided to inmates did not contain pork products. On appeal, Beyah contends that the court improperly granted summary judgment on the basis of the affidavit of defendants' attorney, who lacked personal knowledge of the facts alleged, and unsworn letters from third parties, and that the court ignored a genuine issue of material fact demonstrated by the affirmation of another inmate who was one of the original plaintiffs in the action. Defendants seek affirmance of the judgment principally on the ground that, since Beyah is no longer incarcerated at the correctional facility where the alleged constitutional violations occurred, the action is moot. Finding insufficient merit in defendants' claim of mootness, and finding that the district court improperly granted summary judgment, we vacate the judgment dismissing the complaint and remand for further proceedings.

I. BACKGROUND

Beyah and several other inmates of New York State's (the "State") Attica Correctional Facility ("Attica"), who were from time to time housed in Attica's Special Housing Unit ("SHU"), commenced this action in April 1983 under 42 U.S.C. Sec. 1983 against defendants Thomas A. Coughlin, Commissioner of the State's Department of Correctional Services, Harold J. Smith, Superintendent of Attica, and J. Cochrane, Deputy Superintendent of Attica. In their complaint and in various pretrial affidavits, plaintiffs alleged that they were practitioners of religions that require abstention from contact with pork products, and that during their incarceration in SHU in the 1982-1983 period, defendants confiscated plaintiffs' personal soap "without reason or cause," in violation of their Fourth, Fifth, and Fourteenth Amendment rights, and allowed plaintiffs to use only soap made with pork products, depriving them of their First Amendment right to the free exercise of their religious beliefs. Plaintiffs also contended that their inability to use the soap provided by defendants effectively denied them adequate hygiene and health care, thereby subjecting them to cruel and unusual punishment in violation of the Eighth Amendment. The complaint demanded declaratory and injunctive relief and compensatory and punitive damages. Defendants admitted that inmates in SHU are not permitted to use other than State-issued soap, but denied that pork-based soap was issued.

Plaintiffs asserted that the allegedly pork-based soap provided them had been manufactured by the State at its Great Meadow Correctional Facility ("Great Meadow"), and they served on defendants interrogatories and requests for admissions seeking confirmation of those facts. Responding in January 1984, Cochrane stated that in 1982, "State soap and soap provided by an outside source were provided to SHU inmates," and that "[f]rom May 1982 until now we have purchased soap for SHU inmates from a commercial supplier." Thus it was conceded that prior to May 1982, defendants had provided plaintiffs only with soap manufactured by the State, and it is clear from various submissions of the defendants that the State-made soap was manufactured at Great Meadow. Defendants disclaimed personal knowledge, however, of the content of the soaps provided to plaintiffs. In his November 1983 answers to plaintiffs' interrogatories, Cochrane stated that he had "no knowledge that soap made at Great Meadow Correctional Facility for department use is made with swine by-products." He added that information had been requested from the commercial suppliers as to the contents of their soaps.

In February 1984, defendants moved for summary judgment dismissing the complaint on the ground that there were "no genuine issues of material fact with respect to the composition of the soap presently issued to inmates in [SHU] or previously issued to inmates in [SHU] prior to May of 1982." In support of their motion, defendants relied on Cochrane's answers to plaintiffs' discovery requests and submitted the affidavit of their attorney, Assistant In opposition to defendants' motion, plaintiff Milton Payne filed an affirmation in which he stated, inter alia, that

                Attorney General Douglas S. Cream, which attached, inter alia, letters from the State's current commercial suppliers of soap, stating that there were no pork products in their soaps.  Cream's affidavit stated that prior to May 1982, soap manufactured at Great Meadow had been provided to SHU inmates and that the soap manufactured at Great Meadow "does not contain pork fat or pork derivatives."    In support of this statement, the affidavit attached a December 1983 letter from a quality control analyst employed by the State, stating that "to the best of [his] knowledge," the soap products manufactured by the State Department of Correctional Services "do not contain pork fats or pork fat derivatives."
                

plaintiff Milton Payne, as well as other prisoners ... were once held at Great Meadow Corr. Fac. ... where all N.Y.S. Dept. of Corr. Services "State" soap is manufactured has seen or been to Soap-Factor [sic] at that facility to view the barrels of swine (pig) produces [sic] that are used in making that soap.

In light of Payne's affirmation, defendants requested that the court hold their summary judgment motion in abeyance until Payne's deposition could be taken.

The district court declined to postpone its decision on the summary judgment motion, concluding that the taking of Payne's deposition was unnecessary in light of all the circumstances. The court stated that "[t]here is no evidence whatever that the soap now provided contains any pork products." Decision and Order dated October 24, 1984, at 2. Without reaching the question of whether the denial to plaintiffs of pork-free soap, if proven, would violate their constitutional rights, the court granted summary judgment on the basis of the materials submitted by defendants stating that the soaps provided by current suppliers contained no pork products:

According to the affidavits supplied, neither "Cashmere Bouquet," which is manufactured by the Colgate Palmolive Company, nor "Sweetheart" soap, which is manufactured by Purex, contains pork fats or pork derivatives. Beyond plaintiffs' suspicion that this is so, there is no information in the file to support plaintiffs' contention.

Id. The complaint was dismissed, and this appeal by Beyah followed.

II. DISCUSSION

On appeal, Beyah contends that the granting of summary judgment was error principally because the court (1) relied on inadmissible hearsay and unsworn statements, and (2) disregarded Payne's affirmation which showed that a material fact was in dispute. Defendants seek to sustain the judgment on the ground that the action is moot, principally because Beyah is no longer incarcerated at Attica, where the alleged constitutional deprivations occurred. Finding insufficient merit in the claim of mootness, and finding that the district court erred in granting defendants summary judgment, we vacate the judgment and remand for further proceedings.

A. Mootness

Defendants' mootness contentions need not detain us long. Defendants argue, first, that since plaintiffs' complaint attributed the allegedly unconstitutional practice only to officials at Attica, the fact that Beyah is no longer incarcerated at Attica renders the action moot as to Beyah. Although this fact may well moot Beyah's claims for declaratory and injunctive relief, see Preiser v. Newkirk, 422 U.S. 395, 401-02, 95 S.Ct. 2330, 2334-35, 45 L.Ed.2d 272 (1975) (an actual controversy must be extant at all stages of the case, not just at the time the complaint is filed); Steffel v. Thompson, 415 U.S. 452, 459-60, 94 S.Ct. 1209, 1215-16, 39 L.Ed.2d 505 (1974); Geraci v. Treuchtlinger, 487 F.2d 590, 592 (2d Cir.1973) (per...

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