Mujahid Farid v. Harold J. Smith, Superintendent of the Attica Correctional Facility, Individually and in His Official Capacity
850 F.2d 917
2d Cir.
1988
Check Treatment

*1 judg- dismiss. We therefore reverse agree with hand, inclined to we are other the Lanham Act Ayerst to have in favor of likely ment pharmacists Ayerst that matter dis- subject claim. knowledge of the represen- Letter, that in the cussed made, Letter were forth set tations CONCLUSION made, for the only have been could above, judg- reasons For the stated Ayerst during which of time period short district court is reversed and of the ment right under the exclusivity retained an proceed- remanded for further case is this Nevertheless, we be- Act. Waxman-Hatch opinion. ings consistent this the several present case lieve that cannot be above have noted factors we discovery until the evaluated

adequately greater to a has moved forward thus far. We therefore it has

extent than Zenith’s claim dismissal of

reverse the January 1986 Letter vio-

publication of Act, though without

lated the Sherman filing motion for sum- of a prejudice to FARID, Plaintiff-Appellant, Mujahid stage future of the at some mary judgment v. litigation.4 SMITH, Superintendent of the J. Harold Claim The Lanham Act IV. Facility, Individual Attica Correctional ly Capacity, in His Defend Official 43(a) note, appellants As ant-Appellee. than encompasses more than Lanham Act falsity or “The truth literal falsehoods. 86-2007. No. Docket usually should be tested the advertisement Appeals, Court of United States public.” American by the reactions Circuit. Second Johnson, 577 & Home Prods. Johnson Nevertheless, (2d Cir.1978). F.2d Argued Oct. claim un misrepresentation prevail on a 22, 1988. Decided June Act, 43(a) plaintiff of the Lanham der § misrepre the defendant prove must quality characteris an “inherent

sented See, e.g., product.

tic” of the defendant’s Co., Sassoon, Bristol-Myers Inc. v.

Vidal Cir.1981). (2d F.2d view, appellants should be

In our evi develop their

given opportunity misrep January 1986 Letter

dence that the or character quality inherent

resented the claim that the Appellants Inderal.

istics of impression that conveyed the false

Letter gener superior to therapeutically

Inderal is pharmacists or not propranolol;

ic whether cannot this manner the Letter in

construed of a motion on consideration

be determined (1961).” In our S.Ct. view, magistrate Zenith’s antitrust also 4. The held inappropriate mo- funding finding on a relating Ayerst’s of CUREP this claim ‘third-party may woefully Summary judgment short the use "falls advertising/ tion to dismiss. which, context, by however, itself in this discovery indicates appropriate, of the Sherman not 'constitute violation would min- “advertising” the de does not overcome this Railroad Presidents Act.’ Eastern presumption. Conference imis Inc., Freight, Noerr Motor *2 Smith, superintendent the former (“Attica”). Facility Attica Correctional Farid, April, appellant Mujahid Attica, serving inmate then a sentence at pursuant commenced an action to 42 U.S.C. alleging that Smith had violated his *3 rights by promulgating, pro- moting, sanctioning procedures and various working pris- carried out officials package alleged on’s room. Farid effect procedures, these which resulted in depriving prison him of certain items that contraband, officials had classified as vio- right predeprivation lated to a notice which, asserts, hearing, required and he is amendment, by the fourteenth un- specified under the first and fourth amendments. For the reasons set forth below, part, part, we affirm in vacate proceedings. remand for further

BACKGROUND procedures, in At herein are certain issue 1980’s, during early place at Attica property rights. A relating to inmate 1983, by February, issued in memorandum Speckard sets Acting Superintendent H.J. following terms: forth Attica’s time inmate will receive From time to package is not merchandise in a which facility. The inmate has allowed into the Peterson, City York New Clifford may property options. He send three Paul, Ortiz, Felleman, (George Victoria home, organization give it a charitable to Garrison, Rifkind, Weiss, & New Wharton If the inmate destroyed. it or have counsel), plaintiff-appel- for City, York desig- room without package leaves lant. above, it will be con- nating one of the Hall, (Rob- Albany, N.Y. Christopher K. facility for the authorization sidered Abrams, of the State Atty. Gen. ert orga- property to a charitable donate the Gen., Schiff, N.Y., Deputy Sol. Peter H. nization. Gen., A. Lew Kogan, Asst. Sol. William J. addition, suggests any the record In N.Y., Gen., Millenbach, Albany, Atty. Asst. prison- from a property confiscated item of counsel), defendant-appellee. room package to the would be sent er’s cell disposition. Al- the same subject to and be PIERCE, KEARSE, Before af- property whose though prisoner PRATT, Judges. Circuit “inmate policy could file an by this fected days of a complaint” six PIERCE, grievance within Judge: Circuit does not reveal deprivation, the record is an from a This oppor- any further accorded inmates were District for the West- United States Court deprivation. tunity to contest the Curtin, York, of New John T. ern District to this action giving rise The incidents J., in fa- granting summary judgment Ch. prison au- when began September, J. defendant-appellee, Harold vor thorities confiscated a tape player which and a nail clipper from Farid’s cell. Al- Farid had loaned to prisoner, another alleg- though pens and the clipper were re- edly in violation of a state regulation pro- turned, the pajamas were donated to chari- hibiting inmates from exchanging property ty when Farid refused to designate anyone with one another. Farid contends he to whom they should be sent. Finally, on was called to package room Septem- August 22, 1984, a package room official ber 20 and informed that he could send the refused allow Farid to receive package tape player to someone prison, outside the containing a clock. Like the items, other or else have it destroyed. Farid declined the clock was donated charity. exercise either of options, these whereupon April, 1984, Farid commenced this ac- tape player was donated charity. pursuant tion to 42 U.S.C. Farid filed a grievance the following day, Smith in his individual and official capaci- but he received no further hearing on the ties, alleging that he had been deprived of matter. *4 the foregoing items of property without The next incident arose on 20, March due of law. Farid sought a declar- 1983, when package room officials refused atory judgment stating that acts, Smith’s to deliver to Farid a package containing policies, procedures and as described in the two books on Tarot and a deck of Tarot complaint infringed on Farid’s under cards. According Farid, to the only reason the first and fourteenth amendments. Far- he given at the time was that the id sought also compensatory punitive and officers could not type “remember this of damages in the $25,000. amount of Upon material being [ever] allowed in.” Farid consideration of parties’ the cross-motions filed a grievance, given and was hearing a for summary judgment, Judge Chief Curtin before grievance a committee. Although granted summary judgment in favor of the committee recommended prison that a Smith. This appeal followed. chaplain incident, review the Superintend- ent Smith denied the recommendation and declared the DISCUSSION materials contraband. Farid subsequently commenced an against action I. Eleventh Amendment Immunity Smith in court, state alleging that Smith Smith contends on that the State had violated his due process, equal protec- of New York required would be tion, pay any and first rights. amendment On De- Farid, awarded to and 30, that the cember the state court entered action is therefore barred for eleventh Farid, holding that Farid amendment. In addition, was entitled claims that possession of the Tarot the eleventh amendment materials; (2) bars Farid’s ac- “policies that the practic- tion for a declaratory judgment es” denying him the because materials were uncon- Attica’s mailroom stitutional; policy during the period enjoining Smith from at issue is no longer in interfering with effect. Farid’s We efforts to obtain compelled materials. However, address these issues ap- Tarot books peal, even though and cards were never Smith did turned over not raise Farid. eleventh amendment defense before the Four other place incidents took during district court. Ford Motor Co. v. Depart- 1983 and 1984. On July 1983, prison ment Treasury, 459, 466-67, officials confiscated a set of Everlast exer- 347, 351-52, S.Ct. (1945). L.Ed. 389 gloves cise during uncovered a search of Farid’s cell. again, Once Farid filed a A. The Damages Claim grievance; time, this grievance was dis- missed ground on the gloves were We consider first the effect of the “state property.” On February 1984, eleventh amendment defense on the claim the package personnel room refused to damages. al- Absent waiver on part low Farid to receive a package containing a state, or a valid congressional over tape. cassette 27, 1984, On March ride, officials the eleventh prohibits amendment fed pair confiscated a of pajamas, pens, two eral courts from entertaining pri- suits by the states. Kentucky parties against vate out State, he would not be Graham, 473 U.S. 167 n. 105 protected personal liability by the 3106 n. L.Ed.2d immunity State’s under eleventh (1985). The eleventh amendment also bars amendment. against suits state agen officials Supreme As the Court noted, “an real interest, cies the state is the party in agent’s liability for torts committed him regardless of whether the state is named cannot be by pleading avoided the direction to the action. Edelman v. Jor party as a or authorization of principal. The dan, 651, 663, 94 S.Ct. agent is himself liable whether or not he Accordingly, when has been authorized even directed to a state official is named party as a to a II, the tort.” Pennhurst commit here, litigation, as the court must deter n. at 915 n. 23. Accord mine whether the action is reality a suit ingly, the Court has consistently held that against the state itself. Pennhurst State the eleventh amendment does protect Hospital Halderman, School & state officials personal liability when 89, 101, their actions law, violate federal even (1984) (“Pennhurst II”). When the state though state purports law require such itself, rather than employee the state Indeed, actions. as Justice Frankfurter appears caption, whose name is the noted, once during seventy years which interest, real party in the suit is said to be followed the original enactment of the Civil brought employee in his “offi- *5 Rights 1866, Act in every cial case capacity.” The before the eleventh amendment Supreme Court in recovery against bars which the employee “under who is color provisions sued in state capacity, his official of law” but does not were invoked “in protect personal him from volved action taken liability he is either in pur strict sued in “personal” his “individual” or of specific ca- suance command of state Graham, pacity. 166-67, 473 at 105 law or U.S. within the scope of executive discre- “Thus, S.Ct. at 3105-06. while an award of in tion the administration of state laws.” damages against an Pape, personal Monroe v. official in his 167, 213, 365 U.S. 81 S.Ct. capacity can only against be executed the 473, 498, (1961) (footnotes personal assets, plaintiff official’s seek- omitted) (Frankfurter, J., dissenting), over ing to damages recover on a in part in grounds, ruled on other Monell v. an official-capacity suit must look to the Department Servs., Social 658, 436 U.S. of government Id. at 166, entity itself.” 105 2018, S.Ct. (1978). 98 56 611 For S.Ct. at 3105. Anderson, in Myers v. example, 238 U.S. 368, 932, aff'g (1915), 35 S.Ct. 59 L.Ed. 1349 case, In present the we conclude (C.C.D.Md.1910), F. 223 three black citi that, although the eleventh amendment zens of the Maryland State of filed an bars prosecuting Farid from the damages, action for predecessor under the against in action Smith official capacity, 1983, against statute to U.S.C. two it pursuing § does not bar Farid from this City election officials of Annapolis the of against action Smith in capac his individual refused to ity. register who allow the argument blacks to Smith’s that this action can only municipal vote in a election. The com official-capaci characterized as an suit, plaint charged ty officials, the election because the policy mailroom at complied promulgated issue was who with a state law by the State of effec tively whites, New York rather restricted the by personally, than franchise to Smith persuasive. all, is right violated the black First of citizens’ to vote presented no the support Although evidence under fifteenth in of his amendment. argued assertion that the prom they State of New York the election officials could ulgated in this not be liable for issue case. actions undertaken in con however, importantly, statute, More formity for the Supreme reasons with the state that follow we conclude that even if Smith Court affirmed the of their denial demurrer were prove merely See that he carrying complaint. 378-79, 238 U.S. at 934; 35 S.Ct. at 182 F. at 226-30. See also defensively in suits States, 347, brought Guinn v. states.”) United (emphasis original); in 926, (1915) Casto, 59 L.Ed. 1340 (upholding Innovations Defense of Offi-

criminal conviction Oklahoma election cial Immunity 1983, Under Section predecessor officers under (1979). U.S.C. Tenn.L.Rev. 61-63 1985(3) depriving blacks of right § view, In our foregoing cases still vote, conformity in with Oklahoma law retain their vitality light even in contrary amendment); but to the fifteenth somewhat different eleventh amendment Schild, Belknap 10, 18, 16 S.Ct. jurisprudence Supreme Court has an 40 L.Ed. (sovereign nounced its more recent decisions. The immunity government federal did not cases cited above rest on an vires ultra protect federal officers agents from exemplified doctrine best by the landmark being personally liable to private persons parte decision Ex Young, they injured whom under authority of the 52 L.Ed. 714 In States); United McGahey Virginia, 135 Young, a case in which a state official U.S. 10 S.Ct. 34 L.Ed. 304 challenged a federal court’s authority to (permitting action state officer enjoin him from enforcing a law that state who, acting pursuant to state law al allegedly conflicted with the fourteenth legedly clause, violated the contract U.S. amendment, Supreme Court held that Const, I, art. cl. accept refused to the eleventh prohibit amendment did not bonds government issued state the federal court issuing injunc thereafter seized taxpayer’s property to tion, theory on the that an unconstitutional satisfy liability); tax Poindexter v. Green enactment is void and therefore does not how, 270, 285-90, “impart to any immunity [the officer] 911-14, (1885) (eleventh 29 L.Ed. 185 responsibility supreme to the authority of amendment did Virginia not protect United States.” Id. at 28 S.Ct. at action, treasurer detinue where treasur years, however, recent majority er acted conformity unconstitution- Supreme grounded Court has its law); al state Osborn v. Bank United eleventh princi amendment decisions “in *6 States, (9 Wheat.) 738, 839, 22 U.S. 6 L.Ed. ples federalism, eschewing agency (1824) 204 (Marshall, C.J.) (void act does concepts underlay ultra vires [the] not protection afford to person who theory.” Althouse, How to Sepa a Build it); (6 executes Cohens Virginia, v. Sphere: rate Federal Courts and State Wheat.) 264, 403, (Mar 5 L.Ed. 257 Power, 1485, 100 Harv.L.Rev. 1519 shall, C.J.) (suggesting state, that if a in (citing II, 100, Pennhurst 465 U.S. at 104 treaty, violation of federal confiscated a (quoting S.Ct. at 908 Hutto v. Finney, 437 person’s land, the injured party have would 2565, U.S. 2573, 98 S.Ct. 57 remedy against occupant land); (1978))). Thus, L.Ed.2d 522 in resolving Barreme, (2 Little Cranch) 170, v. issues, eleventh amendment the Court has 179, 2 (1804)(Marshall, L.Ed. 243 C.J.) (na the competing assessed interests of federal val officer liable tort for sei unlawful instances, state law. In some such as ship zure of despite having acted in accord plaintiff when a seeks to recover ance presidential order). with general See from treasury, a state these interests con ly Amar, Sovereignty Federalism, flict, and “the promote Of need the su 96 1425, (1987)(“John Yale L.J. 1486 Mar premacy of federal law must be accommo shall’s opinion in v. Virginia Cohens dated to the immunity constitutional imply seemed to full vindication II, States.” 105, 465 Pennhurst at U.S. rights against the states 104 at plaintiff S.Ct. a alleg “[W]hen might require not against affirmative suits es that a state official has violated state state; individual might ... law,” however, be “this need to reconcile [the] fully protected by against affirmative suits competing interests federal and state [of individual officers in private capacity, their wholly is 106, absent.” Id. at law] 104 and by the ability of citizens to (emphasis invoke S.Ct. at original). 911 In such

923 case, guage feder appears the eleventh amendment bars suggest Jones that the jurisdiction injunction a federal al because eleventh protects amendment person from supreme authority “not vindicate the would liability al a state official who acts in ac By token, law.” Id. the same federal law, cordance with state we doubt that the believe that the need to reconcile com we Jones court intended this result. None of peting wholly interests is absent when a the authorities cited the court in Jones plaintiff, alleging that a state official in proposition stands for the that state offi carrying policy has violated out state feder cials cannot personally be liable for carry law, a federal personal-capaci al institutes ing out an unconstitutional state policy. ty against the state In action official. such Jones, See 784 (citing F.2d at 152 Ken the federal only interest case Graham, tucky v. 105 S.Ct. supremacy implicated, of federal law is be (1985); 87 114 L.Ed.2d Brandon v. treasury cause the state is risk. Holt, 464, 105 469 83 U.S. Moreover, the law is clear that a state’s (1985); Jordan). Edelman v. 878 voluntary indemnify public decision to its Moreover, in our view such a result would personal-ca servants does not transform a contrary controlling Supreme have been pacity against a action state official into an law, Court case as noted above. official-capacity action the state. summarize, To we regardless hold that See, Franzen, e.g., Duckworth v. 780 F.2d of whether the mailroom at issue in (7th Cir.1985), denied, cert. this case promulgated by the State L.Ed.2d 28 Department by Superin of Corrections or (1986); Beebe, Wilson F.2d Smith, tendent Smith cannot invoke the (6th Cir.1985); Kerrigan, Schiff eleventh protect amendment himself (D.Conn.1986); F.Supp. 707 n. 7 personal from liability under 1983. We Group Ass’n, Health Inc. v. Blue Cross suspect, however, that in most instances an F.Supp. (S.D.N.Y.1985), complies official who with an unconstitu dismissed, (2d Cir.1986), 793 F.2d 491 cert. tional state will protected law per — denied, U.S. -, liability by applicable personal sonal de L.Ed.2d 758 fense, qualified such as absolute or immu addition, In we believe that neither nity personal or lack of involvement. For Supreme Court’s decision Edelman v. example, qualified the defense of immunity Jordan, nor this court’s decision in Jones v. may shield a state official who acts under Smith, (2d Cir.1986), 784 F.2d 149 are to authority of an unconstitutional state Edelman, the contrary. held Court law; instances, compliance most the eleventh amendment barred unlikely state law is clearly violate es plaintiffs obtaining a judgment for law, tablished federal since most state laws *7 that benefits had been withheld wrongfully are not patently unconstitutional. The from them under Illinois law. 415 U.S. at amendment, however, is a eleventh defense 658-59, 94 S.Ct. at 1353-54. the Su As actions, only official-capacity see, e.g., preme out, subsequently pointed Court has Graham, at at S.Ct. however, “the case was effect a suit such plaintiff as when a seeks retroactive against itself,” the State than rather equitable damages payable relief or direct against the personally, state officials “be state, see, ly Edelman, from the e.g., judgment cause payable a from state funds 664-69, atU.S. 94 S.Ct. at 1356-59. There White, was demanded.” Cory v. fore, to the present that the extent action is 85, 90, 102 2325, against directed Smith in his individual ca (1982). Similarly, in this Jones v. Smith pacity, the amendment is eleventh not a court held that the eleventh amendment valid defense. plaintiff, inmate, barred the another Attica recovering damages resulting from Declaratory B. The Judgment allegedly prison policy unconstitutional receiving post urges restricted inmates from Smith also that Farid’s age-due Although mail. the lan- action for declaratory judgment a is barred

by the eleventh amendment. In support of judgment is within the discretion of the proposition, that, this Smith contends at court). district November, least since pris- New York required provide ons have been inmates II. Smith’s Motion Summary Judg- with thirty-day grace period a within which ment dispose decide whether to of disallowed Given the absence of any eleventh property articles of or to commence a amendment obstacle to our assertion of grievance procedure. Smith therefore con- jurisdiction case, in this we now turn our challenging cludes that Farid is a mailroom attention to the merits of appeal. Farid’s exists, longer policy that no and that under 56(c), Under Fed.R.Civ.P. summary judg- Mansour, Green v. is appropriate ment if the pleadings, deposi- (1985), 88 L.Ed.2d 371 the action for tions, answers interrogatories, and ad- declaratory relief is barred the eleventh file, missions on together affidavits, if amendment. any, show that genuine is no there issue as agree We do not the eleventh any fact, material moving that the amendment bars Farid’s action for declar- a party is judgment entitled to as matter a atory judgment. Green, Supreme Where, here, law. as persua- burden of Court held that the eleventh amendment sion at trial would be on the non-moving bars a federal court issuing judg- a (Farid), party the party moving for summa- declaring ment policy that a state longer no ry judgment may satisfy his burden of contrary law, effect is to federal when production under Rule 56 in either of two judgment such a would be “only useful if it ways: (1) by submitting evidence that ne- might offered in state-court proceedings gates an essential element of the non-mov- judicata as res on the liability, issue of ing party’s claim, (2) by or demonstrating leaving the only state courts a form of that the non-moving party’s evidence is in- accounting proceeding damages where or sufficient to establish an essential element restitution computed.” would be Id. party’s non-moving claim. Celotex 106 S.Ct. at 428. In situation, a such “the Catrett, Corp. declaratory issuance of a ... would have much the same effect as a (Brennan, J., dissenting). We conclude full-fledged award of or restitu- that summary judgment was appropriate in tion federal court” the state. present only case appellee if either

Id. negated an essential element of Farid’s due process claims, first amendment present case, In the however, demonstrated evidence submitted presented no support evidence in of his by Farid was insufficient as a matter of claim that policy of which com Farid law. plains policy state; a was nor has he demonstrated policies in effect A. Due Process from 1982 were, they whatever longer no today. Moreover, followed even To procedural resolve process due if the policy that is subject claim, of Farid’s a court must determine whether the complaint was a the state plaintiff that is deprived protected of a inter longer no effect, declaratory judgment est, and, so, what he was due. *8 could be entered per Smith in his Logan v. Co., Zimmerman Brush 455 U.S. sonal capacity. course, Of express 422, 428, we no 1148, 1153, 102 S.Ct. 71 L.Ed.2d opinion as to whether an (1982). award of declara 265 To determine the nature the tory relief would appropriate process exercise (1) due a court must consider the of the court’s present discretion in the private case. interest will by be affected the See id. at 106 S.Ct. at 428 (although action; (2) official the risk of an erroneous declaratory relief granted regard may be deprivation of through interest such less of whether other relief is procedures used, or could be probable value, and the if sought, grant decision to declaratory a any, of additional or procedural substitute (3) government’s safeguards; dispose inter- cide how to alleged contraband est, However, including the fiscal items. only administrative “evidence” that additional or Attica has policy burdens that substitute such a is to be found in procedural requirement appellee’s the addendum would entail. memorandum 319, 335, of law in Eldridge, support 424 U.S. of his Mathews motion for summa- 893, 903, ry judgment. (1976); 47 L.Ed.2d 18 addressing Without Jones whether this addendum was Laughlin Corp., properly Pension Plan v. before the & LTV dis- (2d court, Cir.1987). trict it F.2d suffices to note that the ad- only prison dendum describes policy as of Turning first to the element of result, November 1984. As a only deprivation, we note that negligence mere evidence of Attica’s policy mailroom during deprive life, does not an individual of liber period the earlier time issue this case ty, property or under the fourteenth Farid, was the by evidence submitted as Williams, amendment. Daniels v. realize, course, described above. We 327, 330-31, 664-65, U.S. 106 S.Ct. prison “that officials have broad adminis- present case, L.Ed.2d 662 In the trative and discretionary authority over the however, challenging Farid is they institutions manage.” Hewitt v. gave having him the choice of Helms, 460, 467, 103 S.Ct. away property pending filing sent of a (1983). Nevertheless, grievance complaint, having or it de given record, the current we stroyed. promulgation Since the of this are constrained to remand with instructions act, policy was an it seems intentional that the district court consider whether the evident that depriva Farid has suffered a evidence submitted Farid on the issue of Similarly, tion. dispute there can be no process due is sufficient under Mathews v. property that Farid had a interest Eldridge to withstand Smith’s motion for confiscated, items even if some of them summary judgment. See, were e.g., of minimal value. Parratt Taylor, B. First Amendment (1981) 68 L.Ed.2d (hobby kit Although prison inmates retain $23.50, prison worth lost mailroom protections afforded the first inmate, reaching before fell within defini amendment, “prison regulations alleged to property tion of for fourteenth amendment infringe judged purposes), part overruled in on other under a test ‘reasonableness’ less restric Williams,

grounds, Daniels v. applied alleged tive than that ordinarily 327, 106 S.Ct. 662. infringements of fundamental constitution Turning next pro element of rights.” Shabazz, al O’Lone v. Estate of cess, — we note that Farid has submitted -, 2400, 2404, U.S. 107 S.Ct. (1) indicating evidence package room (1987) (citing L.Ed.2d 282 Jones v. North officials forced him to almost imme choose Union, Carolina Prisoners’ Labor diately alleged whether certain items to be 2532, 2539, 53 L.Ed. away, contraband should be sent donated (1977)). Therefore, prison regula- 2d 629 charity, destroyed; that subse impinges tion that on inmates’ constitution- quent to post-dep each incident filed Farid rights may reasonably al be valid it is grievance rivation petitions which were legitimate penological related to interests. routinely Therefore, denied. the issue be however, present case, In the Id. fore the district court was whether a ra yet to articulate record evidence a jury tional could infer from this evidence legitimate penological denying interest pro that Farid was accorded insufficient Farid the Tarot and the cassette books cess under the bal Eldridge tape. Mathews v. The district court reasoned that the ancing test. The district court did ad deprivation tape justi- of the cassette issue, dress this but held that Farid tape rather fied because was not commer- made, sealed, was accorded cially directly due because Attica’s or received *9 regulations give thirty days (2) inmates to de- company; tapes the and unsealed

might pro- relating “good contain information to clear, faith.” however, It is not posed escapes. may very justification This whether the court meant that Smith had true, superintendent well be but the objective faith, good demonstrated in the produced yet any tape not that the evidence sense he did not that violate clearly estab- regulations; did law, not conform to his memo- subjective lished or good faith, which support summary randum of law in is not relevant to qualified the issue of judgment tape states that the did not immunity. remand, con- On the court should form, sought the and to have district court consider clearly whether violated es- true, accept this unsworn statement as consider, tablished law. The court should which it In any did. absence of among evidence things, which, other the extent to tapes nonconforming, that the were all, the the article 78 reflected law court could not have that already established, concluded the that clearly was or it- deprivation of the books and cassette was self clearly relating established the law permissible under the first amendment. rights. inmates’ express due We opinion no on this matter. appeal,

On Farid also claims deprivation that the of the cards Tarot vio CONCLUSION right his first lated amendment to freedom religion. believe, however, We do not light In foregoing the considerations, that properly pleaded Farid has present we hold that Farid’s action Smith in any ed evidence that deprivation the capacity, the his individual which seeks dam- Tarot cards ages violated such a relief, first amend and declaratory is not barred right. To ment assess a addition, free exercise the eleventh amendment. In claim, (1) a court must determine whether because applied the district court the the practice asserted is religious wrong legal standards, we hold sum- person’s beliefs, scheme of mary and whether judgment was improperly granted held; (2) the is sincerely belief respect whether the with to the claims of due process challenged practice prison violations, officials and first amendment except for infringes upon religious belief; (3) the free exercise claim. We therefore af- challenged practice whether pris claim; firm as to the free exercise vacate on legitimate officials furthers peno judgment; the remainder of the and re- logical objective. Johnson, Kent v. 821 mand for proceedings further consistent (6th F.2d Cir.1987); 1224-25 opinion. Hill v. with this Blackwell, (8th 774 F.2d 342-43 Cir.

1985). KEARSE, alleged Because Farid has Judge, neither Circuit concurring: nor any proof submitted sincerely that he I concur in the result and much of the any religious holds belief that mandates reasoning of majority opinion but write cards, of Tarot use we conclude that separately principally emphasize what I summary judgment was on appropriate litigated believe need respect free exercise claim. certain majority issues remand. As the opinion notes, in December Farid ob- Qualified

C. Immunity judgment against tained a Smith in state general rule, As a “holding officials are court that Farid was entitled liability shielded from for civil in possession materials; (2) of the Tarot 1983 actions insofar as ‘policies their conduct practices’ denying him the does not violate clearly established statu- unconstitutional; materials were en- tory or of which joining interfering Smith from with Farid’s person reasonable would have known. efforts to obtain the materials.” Ante at Harlow v. Fitzgerald, Apparently question there is no the same policies here, are at issue present case, ruled, the district court alleged deprivation latest occurred Au- alternative, protected that Smith gust and Smith’s brief on liability because he had acted in policies states effect in 1982-

927 Sage College, in November 1984. v. Russell 54 were revised N.Y.2d 1984 185, 192-93, 68, 71, Thus, has a num- N.Y.S.2d judgment court the state (1981). N.E.2d 746 present effects for judicata of res ber action. Finally, though the December 1983 state judgment judicata damages is res as to here First, that Farid seeks to the extent issues constitutionality other than the of policies declaratory judgment policies, judgment two facts make that equitable seeks relief unconstitutional or quite significant respect any with asser materials, Tarot his respect to the with present tion Smith in the case of a (Sec- E.g., Restatement precluded. claim is qualified immunity defense of from an (1982). ond) He has Judgments of damages. award of Such a defense must judg- rights and obtained litigated these rejected if the defendant’s action vio ment; already recognized have “clearly statutory lates established or con honored, proper recourse is to his not been rights of per stitutional which a reasonable court and seek enforcement return son would have known.” Harlow v. Fitz judg- a new judgment, his not to seek of 800, 818, 2727, gerald, 457 U.S. to the same effect in federal court. ment 2738, (1982). 73 L.Ed.2d 396 The facts that Second, Farid seeks to the extent that (a) (b) judgment was Smith and damages, present claims are not barred very policies held unconstitutional judgment because that by the state court impedi issue here would seem to be a clear judgment in an Article 78 was obtained any grant immunity. ment to of lacked proceeding, in which the state court plenary power damages. to award See (McKinney R. 7806 N.Y.Civ.Prac.L. &

1981); Bowen, 907, 41 N.Y.2d v. Schwab

908, 616, 617, 363 N.E.2d 341 394 N.Y.S.2d ¶. 860,

(1977); Bahou, 97 A.D.2d Leisner 1983), (3d Dep’t 469 N.Y.S.2d America, Appellee, UNITED STATES dismissed, 475 N.Y. N.Y.2d denied, 463 N.E.2d cert. S.2d PINTO, Moreno, Gilberto Luis Eduardo 83 L.Ed.2d 704 Moreno, Vence, “Bolo”, Enrique a/k/a damages power to award Since Sinisterra, Sylvio Hugo Enriquez, Fre limited, adequate Farid did not have an Gonzalez, Ramirez, derico Omar Tina claims, opportunity litigate Marin-Orozco, Ramirez, Carlos Cesar preclude judgment the state court does not Castano, Defendants, litigation in their this action. See David (2d Cir.1986). Capuano, 792 F.2d 275 son v. Vence, “Bolo”, Eduardo Cesar Cas a/k/a Sinisterra, “Tio”, tano, Silvio a/k/a Third, respect to Farid’s claims even Moreno, Pinto, Enrique Gilberto a/k/a damages, state court Moreno, “Indigo”, Luis Carlos Marin- holding policies pre these unconstitutional Orozco, Gonzalez, Hugo Frederico En relitigation of the con cludes issue riquez, Defendants-Appellants. stitutionality policies. The district 87-1104, 87-1111, No. Docket required give is effect to the state court 87-1120, 87-1160, 87-1161 and ruling they court’s are unconstitution 87-1166 to 87-1169. Migra City al. District Warren School Education, 75, 81, 104 Board Appeals, United States Court (1984); Second Circuit. (1982)(judgments of a state U.S.C. § Argued Jan. court “shall have the same full faith 23, 1988. Decided June every credit court within the United they usage States ... as have law State”);

the courts of such v. Sie Petrella (2d Cir.1988); see

gel, 843 F.2d