Engblom v. Carey

• Decision Date: 03 May 1982
• Docket Number: D,No. 732,732
• Citation: 677 F.2d 957
• Parties: Marianne E. ENGBLOM and Charles E. Palmer, Plaintiffs-Appellants, v. Hugh L. CAREY, Governor of the State of New York, Richard D. Hongisto, Acting Commissioner, New York State Department of Correctional Services, Joseph C. Snow, Superintendent of the Mid-Orange Correctional Facility, Major-General Vito J. Castellano, Chief of Staff to the Governor of New York, New York National Guard, Lieutenant-Colonel Justin M. Queally, an Officer of the 106th Maintenance Battalion of the New York National Guard, Captain "John" Drew, an Officer of the 101st Signal Battalion of the New York National Guard, and Various Officers and Enlisted Men, Members of the New York National Guard, Defendants-Appellees. ocket 81-7769.
• Court: U.S. Court of Appeals — Second Circuit

Page 957

677 F.2d 957

Marianne E. ENGBLOM and Charles E. Palmer, Plaintiffs-Appellants, v. Hugh L. CAREY, Governor of the State of New York, Richard D Hongisto, Acting Commissioner, New York State Department of Correctional Services, Joseph C. Snow, Superintendent of the Mid-Orange Correctional Facility, Major-General Vito J Castellano, Chief of Staff to the Governor of New York, New York National Guard, Lieutenant-Colonel Justin M. Queally an Officer of the 106th Maintenance Battalion of the New York National Guard, Captain "John" Drew, an Officer of the 101st Signal Battalion of the New York National Guard, and Various Officers and Enlisted Men, Members of the New York National Guard, Defendants-Appellees.

No. 732, Docket 81-7769.

United States Court of Appeals Second Circuit.

Argued March 1, 1982.

Decided May 3, 1982.

Alan N. Sussman, Kingston, N. Y. (Ricken, Goldman, Sussman & Blythe, Kingston, N. Y., of counsel), for plaintiffs-appellants.

Arlene R. Silverman, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., State of N. Y., George D. Zuckerman, Asst. Sol. Gen., New York City, of counsel), for defendants-appellees.

Before FEINBERG, Chief Judge, and KAUFMAN and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

In this action, brought in the Southern District of New York under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343(3) & (4) by two correction officers at the Mid-Orange Correctional Facility ("Mid-Orange") in Warwick, New York, against the Governor and various officials of the State of New York, plaintiffs-appellants contend that their due process and Third Amendment rights were violated during a statewide strike of correction officers in April and May of 1979 when they were evicted In summarizing the facts below we are guided by the principles that summary judgment may be granted only where there is no genuine issue as to any material fact and that upon review the inferences to be drawn from the materials submitted to the district court "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); see Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444 (2d Cir. 1980); Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975); Judge v. City of Buffalo, 524 F.2d 1321 (2d Cir. 1975). At the time of the strike appellants had worked at Mid-Orange for nearly two years and were residing in housing located on the grounds of the facility. Of the total staff of some 210, approximately 36-45 officers resided in the "Upper and Lower Staff Buildings" located at Mid-Orange. Although only employees were eligible to live there, such residence was optional on the employee's part and not a condition of employment. ³

from their facility-residences without notice or hearing and their residences were used to house members of the National Guard without their consent. For the first time a federal court is asked to invalidate as violative of the Third Amendment the peacetime quartering of troops "in any house, without the consent of the Owner." ¹ District Judge Robert W. Sweet granted defendants' motion for summary judgment dismissing the complaint on the ground that appellants did not have a sufficient possessory interest in their facility-residences to entitle them to protection under the Third Amendment and the Due Process clause of the Fourteenth Amendment. We affirm the dismissal of the due process claim on the ground that adequate post-deprivation procedures were afforded to protect appellants' rights. We reverse the dismissal of the Third Amendment claim on the ground that issues as to material facts rendered summary judgment inappropriate. ²

The Upper Staff Building was appellants' sole residence. The building, located about a quarter mile from the prison, consists of a layout of living facilities, each comprising a room with semi-private or private bath, and sharing common kitchens. Aside from the fixtures and a bed and dresser, the occupants of each facility supplied all other furnishings and accessories. The occupancy or "tenancy" was governed by two Correction Department documents. One was entitled "Facility Housing-Rules and Regulations" ("Rules"), signed by the occupants and Superintendent Joseph C. Snow, setting These documents placed various restrictions on the occupants. For example, overnight and long-term guests were prohibited, the rooms could be opened by a master key, personally owned firearms were not permitted to be stored in the rooms, and the rooms were subject to inspection. ⁵ There was no evidence, however, concerning the extent to which these restrictions were enforced. The documents also provided that an occupant could be evicted on designated grounds but only after an investigation and a six-month written notice to vacate. In an emergency the Superintendent was empowered to "suspend such portions of any or all rules which might impede proper emergency action." ⁶

forth various conditions. The other, a "Department Directive" dated January 29, 1976 ("Directive"), set forth the procedure for selecting occupants and additional conditions of the occupancy. ⁴ These documents throughout refer to the occupants as "tenants" and to the $36 deducted monthly from the payroll of each occupant as "rent" or "rental cost." The Directive made clear that the rent was not to be treated as a mere business expense; it specified that the rental cost could not be deducted by a resident-officer from his salary for income tax purposes. The Directive also obligated Mid-Orange to repair and maintain the rooms "in accordance with normal 'landlord-tenant' responsibilities and practices."

On April 18, 1979, a statewide strike was called by the Security and Law Enforcement Employees Council 82, AFL-CIO. On that day Governor Hugh L. Carey issued a Proclamation and Executive Order activating the National Guard. On April 19 most of the officers at Mid-Orange joined the strike. Either on that day or the following day Superintendent Snow because of the strike issued an order barring striking employees from the facility grounds unless they obtained his permission. At 12:10 A.M. on April 21 Snow finally declared an emergency at Mid-Orange. Beginning around April 19, National Guardsmen had begun arriving at Mid-Orange, eventually reaching a maximum force of 260.

As a result of these developments, from April 19 to April 25 appellants and other employees believed to be on strike were repeatedly denied access to the administration building. Striking officers who lived in staff housing were thus also denied access to their apartments, with one exception on April 20 when appellant Engblom was permitted to retrieve some personal items. The payroll rental deductions were cancelled effective April 19, 1979. Some time before April 25 a decision was made by Mid-Orange to clear the rooms that had been leased to the striking officers so that the rooms could be used to house National Guardsmen, who until then had been housed in the school and administration buildings. ⁷ On April 25 officer-tenants were permitted to enter and remove and store their belongings in a locked storage area in the building, and appellants did so. ⁸ Their rooms had been ransacked and personal property was found to be missing or destroyed. Beginning at the same time Guardsmen were housed in these rooms and remained until the end of the strike on May 5. It is undisputed that Palmer's room was so used. While Snow's affidavit states that Participation in the strike was the sole reason for evicting resident staff-tenants and using their rooms to house the Guard. However, at no time prior to the evictions did Mid-Orange provide notice or undertake investigations in accordance with its own regulations. Palmer joined the strike on April 19 and remained on strike through May 3. However, there is a dispute concerning Engblom's alleged participation. Snow stated in his affidavit that he had received second-hand reports that Engblom had been seen on the picket lines and engaging in vandalism. Engblom's affidavit, however, stated that April 18 and 19 were her scheduled days off and that thereafter she was absent from work for medical reasons. ⁹

Engblom's room was never occupied by Guardsmen, this was disputed by Engblom's affidavit.

When the strike was over on May 5, appellants were made an offer to resume residence in their staff housing, which they declined. Neither was terminated and both continue to work as correction officers at Mid-Orange.

On a motion for summary judgment the district court dismissed appellants' Third Amendment and due process claims. The district court found, as an initial matter, that the National Guardsmen were "Soldiers" within the meaning of the Third Amendment, that 42 U.S.C. § 1983 was properly invoked since the Guard is basically a state organization, Mela v. Callway, 378 F.Supp. 25, 28 (S.D.N.Y.1974), and that the Third Amendment is incorporated into the Fourteenth Amendment since it is one of the "fundamental" rights "rooted in the tradition and conscience of our people" and thus "implicit in the concept of ordered liberty." Griswold v. Connecticut, 381 U.S. 479, 499, 85 S.Ct. 1678, 1689, 14 L.Ed.2d 510 (1965) (Harlan, J., concurring); Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937). However, the court held that appellants were not entitled to Third Amendment protection since their occupancy was analogous to possession incident to employment, which, said the court, "carries with it a somewhat lesser bundle of rights than does a tenancy." The court also rejected appellants' due process claim on the ground that whatever property interest they had was insufficient to warrant due process protection and that neither the Department's regulations nor New York State's landlord-tenant laws accorded them substantive rights protected by the...