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finding that the defendant was entitled to qualified immunity because an officer in the defendant's position could have concluded that contraband could have been concealed under the plaintiff's kufi
Summary of this case from Rodriguez v. FavroOpinion
95 Civ. 9705 (LAK).
March 8, 2001.
ORDER
This is an action by an inmate of the New York State Correctional system. The only claim that survived defendants' summary judgment motion was Nicholas' contention that Correction Officer Cook brought an institutional disciplinary proceeding against him in retaliation for his wearing a kufi (Moslem headgear) to work and/or because he used a state-owned computer at his work station to prepare personal legal work. See generally Nicholas v. Tucker, 89 F. Supp.2d 475 (S.D.N.Y. 2000).
At the conclusion of the non-jury trial, the Court found that the disciplinary proceeding in question was brought to retaliate against Nicholas for wearing the kufi. That is, the Court found a causal connection between Nicholas' wearing of the kufi and the adverse action taken by Cook. The Court also found that Nicholas had sustained damages of $3,005. It invited briefing on Cook's contention that he nevertheless was entitled to judgment on the ground of qualified immunity.
The Court found that Nicholas' use of the state-owned computer to prepare personal legal work, as distinguished from other personal material, played no role in Cook's action.
Nicholas first contends that Cook waived the defense of qualified immunity by failing to file a second motion for summary judgment on that ground, failing to mention the defense in his opening statement, and failing to move for judgment as a matter of law on that ground. This contention, however, is without merit.
Cook pressed the defense of qualified immunity in the answer and in memoranda in support of motions for summary judgment. The failure to mention it in the opening is not probative of waiver. Nor was Cook, in this non-jury trial, required to preserve the point by moving for judgment as a matter of law on that ground, as would have been required in a jury trial. See, e.g., Gierlinger v. Gleason, 160 F.3d 858, 869 (2d Cir. 1998). The Court holds that the qualified immunity defense was not waived.
Before turning to the merits of the qualified immunity defense, it is important to clarify one point dealt with in the Court's bench opinion. The Court specifically found that Nicholas' wearing of the kufi motivated Cook to bring the disciplinary proceeding at issue. It went on to indicate without further analysis that this had violated Nicholas' constitutional rights. Consideration of the immunity defense suggests that the Court should revisit that question more carefully.
Tr., Nov. 14, 2000, at 161-62.
Id. 164.
In Burgin v.Henderson, 536 F.2d 501, 504 (2d Cir. 1976), the Second Circuit held that prisoners could wear kufis absent a showing that doing so would threaten legitimate penological interests such as a desire to avoid the concealment of weapons under the headgear. See also Benjamin v. Couglin, 905 F.2d 571 (2d Cir. 1990) (distinguishing loose-fitting Rastafarian crowns from tight-fitting yarmulkes and kufis), cert. denied, 498 U.S. 951. Here, it is likely that there were legitimate penological interests served by preventing plaintiff from wearing the kufi at his work place. The garment was sufficiently loose to permit concealment of a weapon or contraband. Moreover, the work place was in the Administration Building, not in the close confines of the prison, was considerable less secure than plaintiff's usual quarters, and was occupied in part by civilian employees in addition to correction officers. Thus, the safety concerns were greater in that environment. In consequence, it is at least arguable that there was no violation of plaintiff's constitutional rights despite the fact that Officer Cook acted out of an improper motive. But it is unnecessary to decide that point because Officer Cook in any case was protected by qualified immunity.
Officials are immune from damage suits "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Even where such rights are clearly established, "qualified immunity . . . protects a government official `if it was objectively reasonable for [the official] to believe that his acts did not violate those rights.'" Russell v. Coughlin, 910 F.2d 75, 78 (quoting Robinson v. Via, 821 F.2d 913, 921 (2d Cir. 1987)); accord, Tellier v. Fields, 230 F.3d 502 (2d Cir. 2001); Mollica v. Volker, 229 F.3d 366 (2d Cir. 2000). For a right to be "clearly established" for purposes of qualified immunity, "it is sufficient if decisions of the Supreme Court or of the appropriate circuit have defined the contours of the right with reasonable specificity." Russell, 910 F.2d at 78. "A right is `clearly established' if `[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Diamondstone v. Macaluso, 148 F.3d 113, 126 (2d Cir. 1998) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
In this case, the Court finds that a reasonable officer in Cook's position could have concluded that a weapon or contraband could have been concealed under Nicholas' kufi. Accordingly, one in Cook's position reasonably could have concluded that interference with Nicholas' wearing of that headgear would not violate clearly established constitutional rights. Cook therefore is protected by qualified immunity.
The Court has considered Nicholas' other points and applications and concluded that they lack merit. Accordingly, the action is dismissed without costs.
SO ORDERED.