Farid v. Smith

• Decision Date: 22 June 1988
• Docket Number: No. 328,D,328
• Citation: 850 F.2d 917
• Parties: Mujahid FARID, Plaintiff-Appellant, v. Harold J. SMITH, Superintendent of the Attica Correctional Facility, Individually and in His Official Capacity, Defendant-Appellee. ocket 86-2007.
• Court: U.S. Court of Appeals — Second Circuit

Page 917

850 F.2d 917

Mujahid FARID, Plaintiff-Appellant, v. Harold J. SMITH, Superintendent of the Attica Correctional Facility, Individually and in His Official Capacity, Defendant-Appellee.

No. 328, Docket 86-2007.

United States Court of Appeals, Second Circuit.

Argued Oct. 14, 1987.

Decided June 22, 1988.

Clifford Peterson, New York City (George Felleman, Victoria Ortiz, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, of counsel), for plaintiff-appellant.

Christopher K. Hall, Albany, N.Y. (Robert Abrams, Atty. Gen. of the State of N.Y., Peter H. Schiff, Deputy Sol. Gen., William J. Kogan, Asst. Sol. Gen., Lew A. Millenbach, Asst. Atty. Gen., Albany, N.Y., of counsel), for defendant-appellee.

Before KEARSE, PIERCE, and PRATT, Circuit Judges.

PIERCE, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Western District of New York, John T. Curtin, Ch. J., granting summary judgment in favor of the defendant-appellee, Harold J. Smith, the former superintendent of the Attica Correctional Facility ("Attica"). In April, 1984, appellant Mujahid Farid, an inmate then serving a sentence at Attica, commenced an action pursuant to 42 U.S.C. Sec. 1983 alleging that Smith had violated his constitutional rights by promulgating, promoting, and sanctioning various procedures carried out by officials working in the prison's package room. Farid in effect alleged that these procedures, which resulted in depriving him of certain items that prison officials had classified as contraband, violated (1) his right to a predeprivation notice and hearing, which, he asserts, is required by the fourteenth amendment, and (2) unspecified rights under the first and fourth amendments. For the reasons set forth below, we affirm in part, vacate in part, and remand for further proceedings.

BACKGROUND

At issue herein are certain procedures, in place at Attica during the early 1980's, relating to inmate property rights. A memorandum issued in February, 1983, by Acting Superintendent H.J. Speckard sets forth Attica's policy in the following terms:

From time to time an inmate will receive merchandise in a package which is not allowed into the facility. The inmate has three options. He may send the property home, give it to a charitable organization or have it destroyed. If the inmate leaves the package room without designating one of the above, it will be considered authorization for the facility to donate the property to a charitable organization.

In addition, the record suggests that any item of property confiscated from a prisoner's cell would be sent to the package room and be subject to the same disposition. Although a prisoner whose property was affected by this policy could file an "inmate grievance complaint" within six days of a deprivation, the record does not reveal that inmates were accorded any further opportunity to contest the deprivation.

The incidents giving rise to this action began in September, 1982, when prison authorities The next incident arose on March 20, 1983, when package room officials refused to deliver to Farid a package containing two books on Tarot and a deck of Tarot cards. According to Farid, the only reason he was given at the time was that the officers could not "remember this type of material [ever] being allowed in." Farid filed a grievance, and was given a hearing before a grievance committee. Although the committee recommended that a prison chaplain review the incident, Superintendent Smith denied the recommendation and declared the materials contraband. Farid subsequently commenced an action against Smith in state court, alleging that Smith had violated his due process, equal protection, and first amendment rights. On December 30, 1983, the state court entered judgment for Farid, holding (1) that Farid was entitled to possession of the Tarot materials; (2) that the "policies and practices" denying him the materials were unconstitutional; and (3) enjoining Smith from interfering with Farid's efforts to obtain the materials. However, the Tarot books and cards were never turned over to Farid.

confiscated a tape player which Farid had loaned to another prisoner, allegedly in violation of a state regulation prohibiting inmates from exchanging property with one another. Farid contends that he was called to the package room on September 20 and informed that he could send the tape player to someone outside the prison, or else have it destroyed. Farid declined to exercise either of these options, whereupon the tape player was donated to charity. Farid filed a grievance the following day, but he received no further hearing on the matter.

Four other incidents took place during 1983 and 1984. On July 23, 1983, prison officials confiscated a set of Everlast exercise gloves uncovered during a search of Farid's cell. Once again, Farid filed a grievance; this time, his grievance was dismissed on the ground that the gloves were "state property." On February 13, 1984, the package room personnel refused to allow Farid to receive a package containing a cassette tape. On March 27, 1984, officials confiscated a pair of pajamas, two pens, and a nail clipper from Farid's cell. Although the pens and the clipper were returned, the pajamas were donated to charity when Farid refused to designate anyone to whom they should be sent. Finally, on August 22, 1984, a package room official refused to allow Farid to receive a package containing a clock. Like the other items, the clock was donated to charity.

In April, 1984, Farid commenced this action pursuant to 42 U.S.C. Sec. 1983 against Smith in his individual and official capacities, alleging that he had been deprived of the foregoing items of property without due process of law. Farid sought a declaratory judgment stating that Smith's acts, policies, and procedures as described in the complaint infringed on Farid's rights under the first and fourteenth amendments. Farid also sought compensatory and punitive damages in the amount of $25,000. Upon consideration of the parties' cross-motions for summary judgment, Chief Judge Curtin granted summary judgment in favor of Smith. This appeal followed.

DISCUSSION

I. Eleventh Amendment Immunity

Smith contends on appeal that the State of New York would be required to pay any damages awarded to Farid, and that the action is therefore barred by the eleventh amendment. In addition, Smith claims that the eleventh amendment bars Farid's action for a declaratory judgment because Attica's mailroom policy during the period at issue is no longer in effect. We are compelled to address these issues on appeal, even though Smith did not raise the eleventh amendment defense before the district court. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466-67, 65 S.Ct. 347, 351-52, 89 L.Ed. 389 (1945).

A. The Damages Claim

We consider first the effect of the eleventh amendment defense on the claim for damages. Absent a waiver on the part of the state, or a valid congressional override, the eleventh amendment prohibits federal courts from entertaining suits by private In the present case, we conclude that, although the eleventh amendment bars Farid from prosecuting the damages action against Smith in his official capacity, it does not bar Farid from pursuing this action against Smith in his individual capacity. Smith's argument that this action can only be characterized as an official-capacity suit, because the mailroom policy at issue was promulgated by the State of New York rather than by Smith personally, is not persuasive. First of all, Smith has presented no evidence in support of his assertion that the State of New York promulgated the policy at issue in this case. More importantly, however, for the reasons that follow we conclude that even if Smith were to prove that he was merely carrying out a policy of the State, he would not be protected from personal liability by the State's immunity under the eleventh amendment.

                parties against the states.   Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985).  The eleventh amendment also bars suits against state officials and state agencies if the state is the real party in interest, regardless of whether the state is named as a party to the action.   Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974).  Accordingly, when a state official is named as a party to a litigation, as here, the court must determine whether the action is in reality a suit against the state itself.   Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984) ("Pennhurst II ").  When the state itself, rather than the state employee whose name appears in the caption, is the real party in interest, the suit is said to be brought against the employee in his "official capacity."    The eleventh amendment bars recovery against an employee who is sued in his official capacity, but does not protect him from personal liability if he is sued in his "individual" or "personal" capacity.   Graham, 473 U.S. at 166-67, 105 S.Ct. at 3105-06.  "Thus, while an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself."   Id. at 166, 105 S.Ct. at 3105
                

As the Supreme Court has noted, "an agent's liability for torts committed by him cannot be avoided by pleading the direction or authorization of the principal. The agent is himself liable whether or not he has been authorized or even directed to commit the tort." Pennhurst II, 465 U.S. at 113 n. 23, 104 S.Ct. at 915 n. 23. Accordingly, the Court has consistently held that the eleventh amendment does not protect state officials from personal liability when their actions violate federal law, even though state law purports to...