Farid v. Goord

• Decision Date: 09 February 2002
• Docket Number: No. 96-CV-0737C(F).,96-CV-0737C(F).
• Citation: 200 F.Supp.2d 220
• Parties: Mujahid FARID, Plaintiff, v. Glenn S. GOORD, Acting Commissioner; R.K. James, Captain; Walter R. Kelly, Superintendent; T. Monin, Sergeant; Donald Selsky, Director of Special Housing; and R. Simmons, Correction Officer; Individually and in their official capacities, Defendants.
• Court: U.S. District Court — Western District of New York

200 F.Supp.2d 220

Mujahid FARID, Plaintiff, v.Glenn S. GOORD, ActingCommissioner; R.K. James, Captain; Walter R. Kelly, Superintendent; T. Monin, Sergeant; Donald Selsky, Director of Special Housing; and R. Simmons, CorrectionOfficer; Individually and in their official capacities, Defendants.

No. 96-CV-0737C(F).

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

February 9, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kavinoky & Cook, LLP(Mark C. Poloncarz, of Counsel), Buffalo, New York, for Plaintiff.

Eliot Spitzer, Esq., Attorney General of the State of New York(Michael A. Siragusa, Esq., Assistant Attorney General, of Counsel), Buffalo, New York, for Defendants.

I.INTRODUCTION

CURTIN, District Judge.

PlaintiffMujahid Farid commenced this action, pro se, while in custody of the New York State Department of Correctional Services("DOCS"), at the Attica Correctional Facility ("Attica").Farid brought this action pursuant to 42 U.S.C. § 1983, claiming violations of his First and Fourteenth Amendment rights.On August 4, 1998, the court assigned Mark C. Poloncarz, Esq., to act as attorney for Farid.Item 48.¹

Defendants previously moved for summary judgment.Item 19.That motion was denied as premature.Item 52.The court ordered the parties to conduct any necessary discovery.Id., p. 9.Discovery is now complete, and defendants have again moved for summary judgment.Item 60.

Numerous affidavits and deposition transcripts are on file in connection with this motion, including those relied on in the prior motion.The documents forming the record herein are: Defendants' Notice of Motion in Support of Defendants' Motion for Summary Judgment, dated July 18, 2000, Item 60; Affidavit of defendantRandy James, dated August 14, 1997, Item 21; Affidavit of defendantWalter R. Kelly, dated August 15, 1997, Item 22; Affidavit of defendantRichard Simmons, dated September 19, 1997, Item 23; Affidavit of defendantDonald Selsky, dated August 12, 1997, Item 24; Affidavit of defendantThomas Monin, dated September 29, 1997, Item 25; Affidavit of Anthony J. Annucci, dated August 21, 1997, Item 26.Most affidavits have exhibits attached.

Also on file are: Declaration of Michael A. Siragusa, Esq., in Support of Defendants' Motion for Summary Judgment, dated July 18, 2000, Item 61; and Defendants' Statement of Undisputed Facts Pursuant to Local Rule 56, dated July 18, 2000, Item 62.

Attached to the Siragusa Declaration are numerous transcripts: Exhibit B, transcript from the December 9, 1999 Monin deposition; Exhibit C, transcript from the December 9, 1999 Simmons deposition; Exhibit D, transcript from the December 9, 1999 James deposition; Exhibit E, transcript from the December 9, 1999 deposition of Sibatu Khahaifa; and Exhibit F, transcript from the October 27, 1999 deposition of plaintiff Farid.

Also filed are: Plaintiff's Brief in Opposition to the Motion for Summary Judgment, dated September 13, 2000, Item 65; Plaintiff's Statement of Facts Pursuant to Local Rule 56, dated September 13, 2000, Item 66; and Plaintiff's Amended Statement of Facts Pursuant to Local Rule 56, dated October 18, 2000, Item 68.

The court issued an order dated June 29, 2001, Item 69, asking counsel whether they objected to including Farid's Article 78 decision by New York State Supreme Court Acting JusticeMark H. Dadd in the record.The State did not object, although it pointed out that the State Court decision had no res judicata/collateral estoppel effect here.Item 70.Farid's counsel did not object, Item 71, and the decision is now part of the record.Item 72.

All parties have briefed the issues relevant to this motion.Defendants did not request oral argument, and the motion was submitted for decision.

II.FACTS

On April 12, 1996, Farid alleges that Corrections Officer Rademacher failed to allow adequate time for him and certain other inmates to finish their breakfast.Farid claims that Rademacher became abusive when he complained that another corrections officer, Sergeant Honiski, witnessed the event.Item66, ¶¶ 8-9, and Ex. A.While acknowledging that an incident occurred at the time and place alleged by plaintiff, defendants deny any improper conduct by Rademacher.

On April 13, 1996, Farid prepared a petition ("Petition") entitled "Abusive Conduct by Correction Officer," which Farid and five other inmates signed, "requesting an official investigation of this officer and his conduct ...."Item 66, Ex. A. Farid sent the Petition directly to the Superintendent of Attica, defendantWalter R. Kelly, and Glenn S. Goord, Commissioner of DOCS.Item 61, Ex. F, p. 13.

The First Amendment claims brought by Farid revolve around the investigation into the charges contained in the Petition and the investigation of another incident that occurred on April 15, 1996.The April 15 incident involved a search of Farid's cell and work area, as a result of which charges were lodged against him in a Misbehavior Report.Farid asserts that the searches were motivated by an intent to retaliate against him for complaining about Rademacher via the Petition.Item 61, Ex. E, p. 19.He also asserts that his First Amendment rights were violated by imposition of the disciplinary charges for authoring and possessing certain articles found during the search of his work area.In the circumstances of this case, it is important to consider who authorized the search of Farid's cell and work area, and the timing of the searches and severity of the charges in relation to the investigation of the Petition.

As indicated by a date-stamp, defendant Kelly received the Petition on April 15, 1996.Item 66, Ex. B. Kelly forwarded it down the chain of command for investigation.First, the Petition went to Deputy Superintendent E.R. Donnelly, via a transmittal dated April 15, 1996.Id. at Ex. C. Then, Donnelly forwarded it to his subordinate, Lt. Khahaifa, via a transmittal dated April 15, 1996.Id. at Ex. D.

Ultimately, Khahaifa forwarded the Petition to his subordinate, defendant Monin, where it remained for investigation and response.However, in what appears to be a departure from usual procedure, there exists no transmittal slip from Khahaifa to Monin.As discussed infra,the parties disagree on the issue of whether defendant Monin received the Petition from Khahaifa on April 15, or sometime thereafter.There is an annotation on the face of the transmittal from Donnelly to Khahaifa which reads: "Recv'd 4-17-96 Rademacher."Id.Monin testified that he made that note and that it indicates the date he received the transmittal.Item 61, Ex. B, p. 12.During his deposition, Khahaifa could not rule out having spoken to Monin about the Petition on the day he received the transmittal from Donnelly (April 15).Item 61, Ex. E, pp. 7-8.Farid, in his deposition, noted that he had filed petitions on a number of other occasions (Item 61, Ex. F, pp. 65, 66), and it had been his experience that he would receive a response to the complaint on the very day it had been filed.Id., p. 73.

At the time Farid prepared the Petition, there was an inmate grievance procedure available to inmates at Attica.On numerous occasions, he had availed himself of that procedure.Item66, ¶¶ 51-58.However, Farid did not have confidence in the grievance process and opted instead to complain about officer Rademacher directly by petition.Id.He did not believe it violated any rule or regulation to have the Petition signed by other inmates who he alleges were also affected by defendant's conduct.Id.at ¶ 58.

In a seemingly unrelated incident on April 15, an inmate named Pratt was preparing for a family visit.He had in his possession a copy of an article entitled "The Rude Awakening of RIP"("Rip Article") dated July 1995, which Farid had authored.Pratt wanted to take a copy of the article with him on his visit to give to his fiancee.As required by the rules, he voluntarily showed the article to the corrections officer serving as package window clerk prior to taking it into the visit.See testimony of Pratt, Transcript from Farid's Tier III Hearingat 9.A copy of the Tier III Hearing Transcript is attached as Ex. E to James Aff.("Tier III Trans."), Item 21.A copy of the Rip Article which Pratt delivered to the package window officer is attached to the Simmons Aff., Item 23, as Ex. B.² Farid denied knowing inmate Pratt prior to the April 15 incident and testified that he had no idea how Pratt obtained a copy of the article.Item 21, Ex. E, p. 7.Pratt testified that he did not know Farid and that he found a copy of the article in a cell he was cleaning.Id. at 9.

A. Farid's Cell and Library Work Station Searches

The package window officer, who was neither identified nor deposed, refused to allow Pratt to take the article into the visiting room, telling Pratt it could be "misconstrued."Item 21, Ex. E, p. 9.The officer contacted defendant Simmons, a corrections officer assigned to "B" Block where Farid was then housed.Item 23, ¶ 4.Simmons in turn contacted Monin, the "B" Block Supervisor, about the article, and pointed out that Farid's name was on the document.Simmons explained the circumstances surrounding the receipt of the document to Monin.Item 61, Ex. C, p. 6.Monin reviewed the Rip article, Item 25, ¶ 5, and felt it was "inflammatory."Item 61, Ex. B, p. 6. C.O. Simmons recounted that "[a]s a result of the volatile and inflammatory content of the article," Sgt. Monin ordered a search of Farid's cell and his work area in the law library.Item 23, ¶ 5.³Item 61, Ex. B, p. 6.The cell search occurred while Farid was at his job in the law library.Item 23, ¶ 5.

The contraband receipt, signed by N. Petito, reports that two documents were seized from Farid's cell and ultimately treated as contraband: an "unauthorized Petition"(a copy of the April 13, 1996 Petition), and "various ACF copy machine illegal copies."Item 23, Ex. D.

Prior to or contemporaneously with the...