Balabin v. Scully

• Decision Date: 31 January 1985
• Docket Number: No. 83 Civ. 6778 (JMC).,83 Civ. 6778 (JMC).
• Citation: 606 F. Supp. 176
• Parties: Pinchas BALABIN, Plaintiff, v. Charles SCULLY, Thomas Coughlin, III, Dean Riley, Robert Seitz, Wayne Strack, W.J. Connolly, Rosario, Defendants.
• Court: U.S. District Court — Southern District of New York

606 F. Supp. 176

Pinchas BALABIN, Plaintiff, v. Charles SCULLY, Thomas Coughlin, III, Dean Riley, Robert Seitz, Wayne Strack, W.J. Connolly, Rosario, Defendants.

No. 83 Civ. 6778 (JMC).

United States District Court, S.D. New York.

January 31, 1985.

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Cravath, Swaine & Moore, New York City (John E. Beerbower, James E. Brandt, New York City, of counsel), for plaintiff.

Robert Abrams, Atty. Gen. of the State of New York, New York City (Sue Barnett Bohringer, Asst. Atty. Gen., New York City, of counsel), for defendants.

MEMORANDUM AND ORDER

CANNELLA, District Judge:

Defendants' motion to dismiss the complaint is granted in part and denied in part. Fed.R.Civ.P. 12(b)(6).

FACTS

Plaintiff Pinchas Balabin commenced this action by pro se complaint on September 15, 1983.¹ Defendants filed a notice of motion to dismiss the complaint on December 13, 1983.² Before that motion was decided, however, counsel was appointed by this Court, see Order, 83 Civ. 6778 (JMC) (S.D.N.Y. Jan. 11, 1984), the motion was withdrawn, and the complaint was amended.³ Defendants now move to dismiss the amended complaint.

In the amended complaint, plaintiff alleges that defendants violated his civil rights under 42 U.S.C. § 1983 and unlawfully converted his property in violation of state law. The defendants are or were employees of the Green Haven Correctional Facility "Green Haven", except Thomas Coughlin, III, who is the New York State Commissioner of Correction. This Court has jurisdiction over the federal constitutional claims under 28 U.S.C. §§ 1331, 1343. Whether the Court has jurisdiction over the state claim under the principles of pendent jurisdiction is an issue raised in this motion.

The facts leading to the current dispute are as follows: On June 3, 1983, plaintiff's cell at Green Haven was searched, without warning. Plaintiff claims that the cell was left in "shambles" and that some personal property was damaged or destroyed.⁴ Certain other property was confiscated, including, according to plaintiff, a transcript of plaintiff's criminal trial, other legal papers and notes, lawbooks, letters to and from attorneys, three bibles, prayer books, a prayer shawl, a tefillin, a yarmulke and some personal letters. Plaintiff was given a receipt indicating that the following property had been taken: "All paperwork, All contraband wood, Exacto knife, 8 track Radio and Realistic Radio, medical supplies, and misc. contraband."⁵ Apparently at least some of the items taken were contraband. Plaintiff claims that the property was "scrutinized", including the letters to and from attorneys.⁶

At some time after the search and confiscation, a disciplinary proceeding was held and plaintiff was "found guilty" of possessing certain contraband items: "a print of a helicopter that allegedly contained drawings of certain keys, sand paper, an allen wrench and a map of the world."⁷ This ruling was later overturned on procedural grounds.

There is some dispute as to whether plaintiff has been offered access to his property or merely been allowed to inspect it. Apparently, the only property that has been returned to plaintiff is one bible, one prayer book, certain nonlegal books and personal correspondence.

DISCUSSION

Plaintiff raises claims based on the first, fourth, fifth, sixth, eighth and fourteenth amendments to the United States Constitution, and a state law claim of conversion. Each of these claims, and the defendants' objections to each, will be discussed in turn.

First and Fourteenth Amendments

Plaintiff claims that the confiscation and failure to return certain religious items — bibles, prayer books, a prayer shawl, tefillin and a yarmulke — has "curtailed" his religious activities,⁸ in violation of his first amendment rights. Defendants have moved to dismiss the claim on the ground that the confiscation is within the discretion of the prison officials and that the complaint insufficiently states the way in which plaintiff's religious activities have been curtailed.

Prisoners are not automatically stripped of first amendment rights by virtue of their incarceration. See Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974-75, 41 L.Ed.2d 935 (1974); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974); Moorish Science Temple of Am., Inc. v. Smith, 693 F.2d 987, 990 (2d Cir.1982); Phillips v. Coughlin, 586 F.Supp. 1281, 1283 (S.D.N. Y.1984). See also Heimerle v. Attorney General, 753 F.2d 10, 12-13 (2d Cir.1985) (discussing first amendment restrictions on prison mail censorship). On the contrary, a prisoner retains all first amendment guarantees "not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. at 822, 94 S.Ct. at 2804. Prison officials may thus interfere with those rights only for important penological purposes, where the "restraint on religious liberty is reasonably adapted to achieving the objective." LaReau v. MacDougall, 473 F.2d 974, 979 (2d Cir. 1972), cert. denied, 414 U.S. 878, 94 S.Ct. 49, 38 L.Ed.2d 123 (1973), quoted in Moorish Science Temple, 693 F.2d at 990.

In certain circumstances, the Supreme Court has shown great deference to prison officials' enunciations of their motives in restricting prisoners' first amendment rights, see Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 128, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977) (where prisoners sought to form union, district court erroneously required prison officials to prove that it would be detrimental to proper penal objectives); see also St. Claire v. Cuyler, 634 F.2d 109, 112-15 (3d Cir.1980) (discussing burden of proof and compiling cases). Even assuming that prison officials may not be required to prove that their motives are valid or their means the least restrictive, however, they must, at the very least, allege an important purpose for imposing a restriction. See Moorish Science Temple, 693 F.2d at 990 (plaintiff need only plead that his first amendment rights were restricted to overcome sua sponte dismissal); Burgin v. Henderson, 536 F.2d 501, 504 (2d Cir.1976) (counsel's unsupported assertion that religious hats might conceal weapons held insufficient to permit affirmance of district court's sua sponte dismissal).

Defendants have given plaintiff no explanation whatever for retaining his religious items for a year and a half and have also failed to allege any purpose in their motion papers before this Court. The only suggestion that counsel has presented is the equivocal statement that "it is not inconceivable that an inmate might use religious articles to conceal contraband and that prison officials would occasionally be justified in confiscating such articles."⁹

Defendants instead rest their motion to dismiss this claim on the contention that plaintiff has insufficiently pleaded an interference with his religion. It has been held that there is a judicial policy requiring stricter pleading in civil rights cases as a means to combat the ever-increasing burden that these cases place on district courts. See Patton v. Dumpson, 425 F.Supp. 621, 626 (S.D.N.Y.1977). Even supposing that his circuit was to adopt such a rule, this case presents no such broad conclusory allegation as that raised in Patton. In that case, the court dismissed the complaint with leave to amend because the plaintiff had made the conclusory allegation that the defendants had participated in a pattern and practice of racial discrimination in their placement of children who are wards of the state. Id. Balabin, by contrast, specifically alleges that certain religious artifacts were seized from him and have been retained for over a year without legitimate reason and that his religious practices have thereby been curtailed. Whether the lack of these items has in fact curtailed his religious practices is a question of fact that cannot be decided in this motion. The complaint clearly presents circumstances that, if proved, would warrant recovery at trial. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

Accordingly, plaintiff's claim that his first amendment rights were infringed must not be dismissed at this time.

Fourth and Fourteenth Amendments

In moving to dismiss plaintiff's fourth amendment claim that his cell was the subject of an unreasonable search, defendants raise the recent Supreme Court decision in Hudson v. Palmer, ___ U.S. ___, 104 S.Ct. 3194, 3198-204, 82 L.Ed.2d 393 (1984). Hudson held that prisoners have no reasonable expectation of privacy in their cells and thus are not protected by the fourth amendment insofar as concerns searches of their cells. Id. The plaintiff does not contest this argument in its brief.

It is clear that Hudson v. Palmer is controlling in this situation. Therefore, plaintiff's fourth amendment claim is dismissed.

Fifth and Fourteenth Amendments

Plaintiff raises claims that he was deprived of both property and liberty interests without due process of law in violation of the fifth and fourteenth amendments. Under the fourteenth amendment, no state may "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. However, not all liberty or property interests are covered by this section. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983). That a prisoner has a property interest in his personal belongings is undisputed. The existence of the alleged liberty interests is less clear. Protected liberty interests may arise from the Due Process Clause or the laws of the state. See Hewitt, supra; Meachum v. Fano, 427 U.S. 215, 223-27, 96 S.Ct. 2532, 2537-40, 49 L.Ed.2d 451 (1976). Plaintiff claims three constitutionally protected liberty interests, each created by a separate Directive of the State of New York Department of Correctional Services "Directive": (1) the interest in...