Franco v. Kelly

• Decision Date: 25 July 1988
• Docket Number: D,No. 1073,1073
• Citation: 854 F.2d 584
• Parties: Francisco FRANCO, Plaintiff-Appellant, v. Walter KELLY, Lt. Moscicki and Officer Higley, Defendants-Appellees. ocket 88-2035.
• Court: U.S. Court of Appeals — Second Circuit

Page 584

854 F.2d 584

Francisco FRANCO, Plaintiff-Appellant, v. Walter KELLY, Lt. Moscicki and Officer Higley, Defendants-Appellees.

No. 1073, Docket 88-2035.

United States Court of Appeals Second Circuit.

Argued April 22, 1988.

Decided July 25, 1988.

David Gerald Jay, Buffalo, N.Y., for plaintiff-appellant.

John Q. Driscoll, Asst. Atty. Gen., State of N.Y., 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., Albany, N.Y., of counsel), for defendants-appellees.

Before TIMBERS, MESKILL and KEARSE, Circuit Judges.

MESKILL, Circuit Judge:

In this appeal, we must decide whether an allegation that state prison officials intentionally filed false disciplinary charges against an inmate, in retaliation for the prisoner's exercise of a constitutional right, states a cause of action for damages under 42 U.S.C. Sec. 1983 (1982) that can withstand a motion for summary judgment. The United States District Court for the Western District of New York, Curtin, C.J., held that as long as prison officials provide minimum procedural due process protections, which were provided here, the alleged filing of false disciplinary charges would not raise a proper section 1983 claim. For the following reasons, we reverse and remand to the district court for further proceedings.

BACKGROUND

In 1984 and 1985, the time period at issue in this case, plaintiff-appellant Francisco Franco was an inmate at the Attica Correctional Facility in New York State. On January 9, 1985, Franco was cited in an inmate misbehavior report filed by defendant-appellee Laurence J. Higley, a corrections officer. In the report, Higley alleged that Franco had directed obscene remarks and gestures toward him while Higley was overseeing the transfer of a group of inmates from one area of the prison to another. Higley said that when he approached Franco "to counsel him on his behavior," Franco responded by saying, "If your [sic] going to write me up for this you had better make it good, because I'll get you good for it." Higley cited Franco for violations of prison rules that prohibit insolence and threats by inmates toward prison employees.

Higley's charges were the subject of a subsequent disciplinary hearing held before defendant-appellee Ronald Moscicki, a hearing officer. At that hearing, held in January 1985, Franco called several inmates and another corrections officer as witnesses. All of those witnesses, who were present in the area at the time of the alleged incident, testified that they had not heard or seen anything to support Higley's allegations. Higley testified in support of his complaint. In a subsequent report, Moscicki found Franco guilty of insolence and threats and sentenced him to thirty days of confinement and a loss of privileges. Franco's administrative appeals were unsuccessful and he served his time in confinement.

Franco thereafter initiated an action in a New York state court pursuant to Article 78 of the New York Civil Practice Law and Rules, seeking expunction of the disciplinary report and proceedings from his prison files. After a hearing, the state Supreme Court for Wyoming County entered judgment for Franco, ordering, without opinion, that the proceedings be "nullified and expunged." That ruling was affirmed, without opinion, by the Appellate Division of the Supreme Court. See Franco v. Kelly, 115 A.D.2d 1016, 497 N.Y.S.2d 974 (4th Dep't 1985).

Franco then instituted the instant action in the district court. His initial complaint was filed pro se and Chief Judge Curtin subsequently appointed counsel. In his complaint, Franco alleged that Higley's The defendants moved for summary judgment. Franco, in turn, sought partial summary judgment against Officer Higley, arguing that the state court's previous expunction of his disciplinary record should collaterally estop Higley from relitigating his liability for filing false charges. Chief Judge Curtin, by order dated April 20, 1987, ordered prison officials to file an affidavit responding to Franco's allegation that the disciplinary proceedings had been instituted in retaliation for his cooperation with a state investigation of reports of inmate abuse. In response, Higley filed an affidavit in which he denied having any knowledge of the reported abuse of inmate Washington or of any subsequent investigation of that incident by the state Inspector General.

January 1985 disciplinary report was part of a pattern of false disciplinary actions taken against him in retaliation for his cooperation with an investigation by the state Inspector General into reported incidents of inmate abuse at the Attica Correctional Facility. Franco alleged that in late 1984 he cooperated with the Inspector General's investigation of the alleged beating of inmate Stanley Washington by prison guards. Franco said that he subsequently had been subjected to "trumped up" disciplinary charges, resulting in confinement and a loss of privileges, and that he had suffered physical abuse and threats by prison guards. Franco alleged that he had been deprived of unspecified constitutional rights, in violation of 42 U.S.C. Sec. 1983, and he sought $200,000 in compensatory and punitive damages. With his complaint, Franco filed copies of letters he had written in late 1984 to the Inspector General's office and in January 1985 to defendant-appellee Walter R. Kelly, the Attica superintendent. Both letters complained of alleged incidents of retaliatory abuse against Franco.

In an opinion dated December 31, 1987, Chief Judge Curtin denied Franco's motion for partial summary judgment and granted defendants' motion for summary judgment in all respects. As to Franco's motion, Chief Judge Curtin held that an Article 78 proceeding resulting in the expunction of disciplinary records would have no preclusive effect in a subsequent action for damages under section 1983. ¹ As to the defendants' motion, Chief Judge Curtin held that as long as Franco had the benefit of minimum procedural due process protections, his action for damages resulting from the alleged filing of false charges must fail. In support of this proposition, Chief Judge Curtin relied on our decision in Freeman v. Rideout, 808 F.2d 949 (2d Cir.1986), rehearing in banc denied, 826 F.2d 194 (2d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1273, 99 L.Ed.2d 484 (1988). Next, relying on the Supreme Court's decisions in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), Chief Judge Curtin concluded that Franco had indeed been provided with all of the procedural protections to which he was constitutionally entitled. Accordingly, Chief Judge Curtin granted summary judgment for the defendants. ² He noted, however, that under his reading of Freeman, the mere provision of procedural due process could eliminate all liability in any case in which prison officials had intentionally filed false and unfounded charges. See J.App. 13 (citing Freeman, 826 F.2d at 195 (Oakes, J., dissenting from the denial of rehearing in banc)). Chief Judge Curtin therefore

                granted Franco permission to proceed in forma pauperis with an appeal of "the substantial and troublesome questions raised in this case."    Id. at 14.  This appeal followed
                

DISCUSSION

We must decide if Chief Judge Curtin was correct in concluding that the parties' pleadings and submissions presented no genuine issues of material fact and that the prison officials were entitled to judgment as a matter of law. Normally, a party faced with a motion for summary judgment, as Franco was here, may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); see also Fed.R.Civ.P. 56(e). Here, Franco did not present any additional facts through affidavits after the defendants moved for summary judgment. However, he did append two exhibits to his sworn pro se complaint--a copy of a letter that he wrote to the Inspector General's office and a copy of another letter that he sent to Superintendent Kelly. We believe that those submissions, along with the sworn complaint itself, were sufficient to create a factual dispute when compared with the denials and averments contained in the defendants' pleadings and affidavits. Cf. Pfeil v. Rogers, 757 F.2d 850, 859 & n. 15 (7th Cir.1985) (noting that documents sworn under penalty of perjury may suffice for summary judgment purposes even if they do not meet all of the formal requirements of a notarized affidavit), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986); 28 U.S.C. Sec. 1746 (1982). Thus, in considering this appeal, we will view all contested allegations in the light most favorable to Franco. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986); Schering Corp. v. Home Insurance Co., 712 F.2d 4, 7 (2d Cir.1983). We must now consider whether Chief Judge Curtin was correct in concluding that the defendants were entitled to judgment as a matter of law under our decision in Freeman v. Rideout.

In Freeman, a state prison inmate claimed that he had been falsely charged with assaulting another prisoner and had been subjected to thirty days of "segregation" on the basis of that false charge. See 808 F.2d at 950. The prisoner, Freeman, initiated a section 1983 action in the district court, seeking compensatory damages for the deprivation of his liberty interest without due process. See id. at 949-51. Following a trial, the district court entered judgment for Freeman, awarding monetary damages. Id. at 950. We reversed. We held that "prison inmate[s] ha[ve] no constitutionally guaranteed immunity from being falsely or wrongly accused of...