07-1950-pr
Pilgrim v. Luther

                                   UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT
                                               August Term 2008

(Submitted: June 19, 2009                                                            Decided: July 6, 2009)

                                             Docket No. 07-1950-pr

PRINCE PILGRIM ,

                    Plaintiff-Appellant,

                    -v.-

DAVID LUTHER, Corrections Officer, Sing Sing Correctional Facility, EDWARD VAUGHN , Sergeant, Sing
Sing Correctional Facility, and JOSEPH T. SMITH , First Deputy Superintendent, Sing Sing Correctional
Facility,

                    Defendants-Appellees.*


Before: MINER , CABRANES, Circuit Judges, and STEIN , District Judge.**

         Plaintiff-appellant, an inmate in New York’s correctional system who appears pro se, brought

this suit under 42 U.S.C. § 1983, alleging that defendants—three prison officials—violated his

constitutional rights to free speech and due process of law in the course of an investigation and

disciplinary hearing. We write principally to address plaintiff’s argument that defendants retaliated

against him, in violation of the First Amendment, for writing a pamphlet that urged inmates to

participate in “work stoppages.” We hold that this claim fails as a matter of law.

         Affirmed.




         *
         The Clerk of Court is directed to amend the official caption in this case to reflect the listing
of the parties above.
         **
          The Honorable Sidney H. Stein, of the United States District Court for the Southern
District of New York, sitting by designation.

                                                      1
                                        Prince Pilgrim, pro se, Dannemora, NY

                                        Marion R. Buchbinder, Assistant Solicitor General (Barbara D.
                                               Underwood, Solicitor General, and Peter Karanjia,
                                               Special Counsel to the Solicitor General) for Andrew M.
                                               Cuomo, Attorney General of the State of New York,
                                               New York, NY, for defendants-appellees.

JOSÉ A. CABRANES, Circuit Judge:

        We are asked to consider whether a prison inmate’s First Amendment right to free speech is

violated by enforcement of a state prison regulation that prohibits inmates from leading or organizing

work stoppages at state penitentiaries. Plaintiff-appellant Prince Pilgrim (“plaintiff” or “Pilgrim”), an

inmate in New York’s correctional system, brought this suit, pro se, under 42 U.S.C. § 1983, alleging that

defendants violated his constitutional rights—principally, his rights to free speech and due process of

law—in the course of an investigation and disciplinary hearing while plaintiff was an inmate at Sing

Sing Correctional Facility in Ossining, New York. Plaintiff now appeals from a January 29, 2007

judgment of the United States District Court for the Southern District of New York (Richard Conway

Casey, Judge), granting a motion for summary judgment by defendants-appellees Edward J. Vaughn (the

corrections officer assigned to assist plaintiff in preparing for a disciplinary hearing) and Joseph T.

Smith (the hearing officer), pursuant to Rule 56 of the Federal Rules of Civil Procedure, and a motion

to dismiss by defendant David Luther (a corrections officer who investigated and filed a disciplinary

report against plaintiff) (collectively, “defendants”), pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure.

                                            BACKGROUND

        The following facts are not in dispute and are drawn principally from the District Court’s

January 24, 2007 Memorandum & Order granting summary judgment in favor of Vaughn and Smith.

See Pilgrim v. Luther, No. 01 Civ. 8995, 2007 U.S. Dist. LEXIS 7410, at *2-7 (S.D.N.Y. Jan. 24, 2007)

(“Pilgrim II”). On September 14, 1999, defendant Luther filed an inmate misbehavior report against


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plaintiff after a search of plaintiff’s cell yielded three typewritten copies of a pamphlet entitled “Wake

Up!”. The pamphlet encouraged inmates to engage in work stoppages and other disruptive conduct in

direct violation of prison rule 104.12.1 Plaintiff, who was placed in administrative segregation pending

a disciplinary hearing concerning his actions, requested assistance in preparing a defense, and Vaughn

was assigned to work with him. Plaintiff requested that Vaughn obtain multiple documents and

interview several witnesses, including Luther. Vaughn’s supervisor instructed him that the requested

information could not be disclosed to plaintiff, and that plaintiff could make his requests for discovery,

including access to witnesses, directly to the hearing officer, Smith. On the first day of the hearing,

September 20, 1999, plaintiff admitted that he wrote “Wake Up!”, the contents of which were read into

the record. On the second day of the hearing, September 22, 1999, after accusing Smith of bias owing

to a prior conversation with plaintiff—a charge which Smith denied—plaintiff informed Smith that he

no longer wished to participate in the hearing and returned to his cell. On September 24, 1999, Luther

testified regarding his investigation. Following the hearing, Smith found that plaintiff had violated

prison rule 104.12, based on (a) plaintiff’s admission that he wrote “Wake Up!”, and (b) Luther’s

testimony regarding his investigation and the search of plaintiff’s cell.

        Following an unsuccessful administrative appeal, plaintiff brought this suit against Luther,

Vaughn, and Smith. On January 20, 2004, the District Court adopted in its entirety a February 27,

2003 Report and Recommendation of Magistrate Judge Kevin N. Fox (“R&R”), which recommended

that the claims against Vaughn and Smith proceed to discovery but that the claims against Luther be

dismissed on the basis of the pleadings. For the purpose of this appeal, we highlight one aspect of the

R&R. Plaintiff claimed that Luther’s investigation was a form of retaliation in violation of the First

Amendment because Luther disliked the contents of “Wake Up!”. The District Court adopted the



        1
         Prison rule 104.12 provides: “An inmate shall not lead, organize, participate, or urge other
inmates to participate, in a work-stoppage, sit-in, lock-in, or other actions which may be detrimental
to the order of [the] facility.” N.Y. Comp. Codes R. & Regs. tit. 7, § 270.2(B)(5)(iii).
                                                      3
Magistrate Judge’s conclusion that, “even though the search for and the seizure of [plaintiff’s]

documents . . . may have trampled upon plaintiff’s First Amendment right to free speech, so long as the

search and the seizure were conducted pursuant to prison regulations that are reasonably related to

legitimate penological interests, no actionable constitutional violation exists.” Pilgrim v. Luther, No. 01

Civ. 8995, 2003 U.S. Dist. LEXIS 2933, at *14-15 (S.D.N.Y. Feb. 27, 2003) (“Pilgrim I”) (citing Turner v.

Safley, 482 U.S. 78, 89 (1987) (holding that “when a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably related to legitimate penological

interests”)). The Magistrate Judge observed that the prison regulations that permitted the

investigation—including prison rule 104.12—were “designed to safeguard the correctional facility

from[ ] disorder or conduct that might lead to violence or to collective action on the part of the

prisoners designed to enable them to take over the facility.” Pilgrim I, 2003 U.S. Dist. LEXIS 2933, at

*15. Because the Magistrate Judge determined that “Wake Up!” advocated significant disruptions of

prison order, and that the rules prohibiting such materials served legitimate governmental interests, he

concluded that plaintiff’s First Amendment claim failed as a matter of law.

        The claims against Vaughn and Smith proceeded to discovery and, on January 24, 2007, the

District Court entered summary judgment for defendants. The District Court concluded, inter alia, that

(1) any shortcomings in Vaughn’s pre-hearing assistance were harmless because plaintiff’s “culpability

[rested] primarily on two things: the seized documents, which [plaintiff] admitted [to] writing, and the

testimony of Luther, which Smith deemed credible,” Pilgrim II, 2007 U.S. Dist. LEXIS 7410, at *13-14

(internal citations omitted), and (2) plaintiff “has failed to allege facts necessary to support the

conclusion that Smith was not fair and impartial,” id. at *15. This appeal followed.

        Before this Court, plaintiff offers three main arguments why the judgment of the District Court

in favor of defendants should be reversed. First, plaintiff contends that Luther violated his rights under

the First Amendment by conducting an investigation of the “Wake Up!” pamphlet and filing an inmate

misbehavior report in retaliation for his exercise of free speech. Second, plaintiff argues that Vaughn
                                                      4
did not fulfill his obligation to assist him in preparing a defense for the September 1999 disciplinary

hearing, in violation of his right to due process of law. Third, plaintiff argues that Smith deprived him

of a fair and impartial hearing, in violation of his right to due process of law.

                                              DISCUSSION

        We review de novo a district court’s grant of summary judgment pursuant to Rule 56 of the

Federal Rules of Civil Procedure, construing all facts in favor of the non-moving party. See, e.g.,

Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d Cir. 2008). Summary judgment is only

warranted upon a showing “that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We also review de novo a district court’s

dismissal of claims pursuant to Rule 12(b)(6), “construing the complaint liberally, accepting all factual

allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.”

Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).

        Plaintiff’s first argument on appeal contests the dismissal of the claims against Luther who,

plaintiff asserts, retaliated against him in violation of his First Amendment right to free speech because

Luther did not like the content of “Wake Up!”. The prison regulation at issue in this case—rule

104.12—has appeared with some frequency in decisions of our Court addressing constitutional claims

brought by prisoners. See, e.g., Sira v. Morton, 380 F.3d 57, 62 (2d Cir. 2004) (plaintiff “planned [an]

inmate demonstration . . . in which inmates would conduct a work/program stoppage,” in violation of

prison rule 104.12); Gayle v. Gonyea, 313 F.3d 677, 680 (2d Cir. 2002) (plaintiff “threatened inmate

unrest”—including encouraging inmates to file law suits and grievances—in violation of prison rule

104.12); Gaston v. Coughlin, 249 F.3d 156, 159 (2d Cir. 2001) (plaintiff organized a “food strike,” i.e., a

boycott of the prison cafeteria, in violation of prison rule 104.12); Duamutef v. O’Keefe, 98 F.3d 22, 23

(2d Cir. 1996) (plaintiff “prepared a petition signed by 33 inmates asking for an improvement of prison

conditions” in violation of prison rule 104.12). Only one of these cases—Duamutef—has addressed a

First Amendment challenge to prison rule 104.12.
                                                      5
        In Duamutef, we recognized that “[a]lthough the act of preparing and circulating a petition

implicates speech and associational rights under the First Amendment, those rights must be weighed

against legitimate safety interests of the prison.” 98 F.3d at 24 (citation omitted). We also

acknowledged that, consistent with Supreme Court precedent, rule 104.12 would be upheld over the

plaintiff’s First Amendment challenge if the regulation were “reasonably related to legitimate

penological interests.” Id. (quoting Turner, 482 U.S. at 89). Following Turner, we examined “(i) whether

there is a ‘valid, rational connection’ between the regulation and a governmental interest; (ii) whether

there are alternative means of exercising the constitutional right; (iii) whether the asserted right will

have an impact on the allocation of prison resources; and (iv) whether the regulation represents an

exaggerated or reasonable response to prison concerns.” Duamutef, 98 F.3d at 24 (quoting Turner, 482

U.S. at 89-90). We concluded that all four Turner factors were met. “Petitions necessarily involve

hard-to-monitor organizational activities that might well result in concerted conduct that undermines

order in the prison.” Duamutef, 98 F.3d at 24. So long as inmates had grievance procedures available to

them, regulations limiting their rights to organize and petition were reasonable restrictions designed to

further the government’s interest in the orderly administration of prisons.2

        Although Duamutef did not examine work stoppages specifically, other cases have held that

similar inmate activity within prisons is not protected by the First Amendment. The Supreme Court

has held that “[i]n a prison context, an inmate does not retain those First Amendment rights that are

inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections

system,” Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 129 (1977) (internal quotation marks

omitted), including “organized union activity within the prison walls,” id. at 132. Work stoppages are

deliberate disruptions of the regular order of the prison environment and are a species of “organized



        2
        We note that, in the instant case, plaintiff has not suggested, much less alleged, that he had
no recourse to complain about prison conditions other than circulating a petition calling for work
stoppages.
                                                     6
union activity.” See id. They are plainly inconsistent with legitimate objectives of prison organization.

Entreaties to such activity, like “petition[s] protesting prison conditions,” Duamutef, 98 F.3d at 24, are

not entitled to First Amendment protection where other less disruptive means of airing grievances are

available. Accordingly, plaintiff’s First Amendment retaliation claim fails as a matter of law.

        Plaintiff’s remaining arguments on appeal—which largely concern alleged violations of his right

to due process of law—are also without merit. Plaintiff claims that defendant Smith was not an

“impartial hearing officer,” but he has pointed to no evidence to support that conclusion. Regarding

plaintiff’s allegation that he received inadequate assistance in preparing a defense in advance of his

disciplinary hearing, we have held previously that a prisoner is entitled to assistance in “marshaling

evidence and presenting a defense” in advance of a prison disciplinary hearing. Eng v. Coughlin, 858

F.2d 889, 897 (2d Cir. 1988), and that the assistance must be provided “in good faith and the best

interests of the inmate,” id. at 898. However, any violations of this qualified right are reviewed for

“harmless error.” See Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir. 1991). In this case, although

defendant Vaughn—who was assigned to assist plaintiff in preparing a defense for his disciplinary

hearing—failed to comply with plaintiff’s instructions on interviewing witnesses and gathering

documents, any error on Vaughn’s part was harmless in light of defendant’s failure to identify any

relevant testimony that was excluded as a result, his decision not to call witnesses when given the

opportunity, and his decision to walk out of the hearing in protest of defendant Smith’s role as the

hearing officer. Indeed, Smith based his decision on (a) plaintiff’s admission that he wrote the “Wake

Up!” pamphlet, and (b) Luther’s credible testimony regarding his investigation and search of plaintiff’s

cell, where he discovered multiple copies of “Wake Up!”. See Pilgrim II, 2007 U.S. Dist. LEXIS 7410, at

*3, 6, 13-14. We fail to see how either of these facts could be changed by further investigation by

plaintiff or by Vaughn.




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                                         CONCLUSION

       We have considered all of plaintiff’s claims on appeal and have found them to be unavailing.

Accordingly, we AFFIRM the judgment of the District Court.




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