In this action brought by Abdullah Y. Salahuddin ("Plaintiff" or "Salahuddin") pursuant to 28 U.S.C. SEC. 1983 the First Eighth and Fourteenth Amendments to the United States Constitution and the Religious Freedom Restoration Act 42 U.S.C. SEC. 2000bb et seq. ("RFRA") Defendants Stephen Dalsheim ("Dalsheim") James O'Connell ("O'Connell") John Cahill ("Cahill") Robert H. Kuhlmann ("Kuhlmann") Richard Onorati ("Onorati") and Philip Coombes Jr. ("Coombes") have moved to dismiss the First Amended Complaint (the "Complaint") for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below the motion will be granted in part and denied in part. Specifically the motions to dismiss Count II alleging violations of RFRA and that portion of Count I alleging cruel and unusual punishment in violation of the Eighth Amendment will be granted. The motions to dismiss Count IV alleging violations of the First Amendment Free Exercise clause Count III alleging violations of the First Amendment right to petition and that portion of Count I alleging violations of due process will be denied.

Parties

Salahuddin is an inmate in the custody of the Department of Correctional Services ("DOCS"). He is incarcerated at Sing Sing Correctional Facility in Ossining New York.

Dalsheim was at all pertinent times the Superintendent of Downstate Correctional Facility ("Downstate"). (Compl. P 14.) O'Connell was at all pertinent times Deputy Superintendent for Programs at Downstate. (Id. P 15.) Lord was at all pertinent times Assistant Deputy Superintendent of Downstate. (Id. P 16.) Cahill was at all pertinent times an inmate Counselor employed by DOCS and assigned to Downstate. (Id. P 17.) Kuhlmann was at all pertinent times the Superintendent of Sullivan. (Id. P 18.) Onorati was at all pertinent times the Unit Chief of the MHU at Sullivan. (Id. P 19.) Philip Coombes Jr. ("Coombes") is the Acting Commissioner of DOCS and is sued in his official capacity only. (Id. at P 20.)

Facts

In considering a motion to dismiss pursuant to Rule 12(b)(6) Court presumes the factual allegations of the complaint to be true and draws all factual inferences in the plaintiff's favor and against the defendant. See Scheuer v. Rhodes 416 U.S. 232 236 40 L. Ed. 2d 90 94 S. Ct. 1683 (1974); Cosmas v. Hassett 886 F.2d 8 11 (2d Cir. 1989); Dwyer v. Regan 777 F.2d 825 828-29 (2d Cir. 1985). Accordingly the factual allegations set forth and considered herein are taken from Salahuddin's Complaint and do not constitute findings of fact by Court.

Salahuddin is an inmate in the custody of DOCS a practicing Muslim and a graduate of the New York Theological Seminary's ("NYTS") masters degree program. While incarcerated at Green Haven Correctional Facility ("Green Haven") in 1986 Salahuddin co-founded the Islamic Therapeutic Program (the "ITP") a Counseling program based on the Muslim Holy Books of Guidance and designed to meet the needs of Muslim inmates. The ITP Counsels on substance abuse control violent behavior awareness and basic life skills and runs for a total of forty-four weeks. Since its introduction at Green Haven the ITP has been established at other state prisons. (Compl. PP 22-23.)

In August 1992 DOCS transferred Salahuddin to Downstate at the request of Downstate's Islamic Chaplain Imam Salahuddin M. Muhammad ("Imam Muhammad"). In September 1992 Salahuddin submitted a proposal to Dalsheim to establish the ITP at the prison. At Imam Muhammad's request Salahuddin began teaching the substance abuse component of the ITP to Muslim inmates. (Id. PP 25-26.) On or about January 7 1993 Salahuddin and Imam Muhammad discussed with Lord Salahuddin's proposal to teach the entire ITP at Downstate and apprised Lord that Salahuddin was already teaching the substance abuse component of the ITP program. (Id. PP 27-29.) By January 26 1993 Dalsheim had formally approved the entire ITP at Downstate. (Id. PP 30-32.)

In November 1992 Salahuddin enrolled in courses at Marist College and signed a "Transfer Agreement" established by DOCS and Marist which provided that he would not request transfer to another facility during the semester in which he was enrolled. When he enrolled Salahuddin was told that as long as he abided by the facility rules kept up his grades and did not request a transfer Downstate "except in cases of discipline or enemies in order to assure that student progress is maintained" would not transfer him during the college semester. (Id. PP 33-34). In his Downstate evaluations Salahuddin received consistent ratings of "excellent" and praise for his work as an instructor and peer Counselor in addition to his teaching of the ITP.

In October 1992 Salahuddin submitted to Downstate officials a written complaint against a Downstate corrections officer. After Salahuddin had withdrawn the complaint at the request of a sergeant the corrections officer herself charged Salahuddin with "lying" in his complaint and a disciplinary hearing was commenced. In the latter part of 1992 individuals at DOCS in Albany instructed the hearing officer to dismiss the charge against Salahuddin because the law precluded charging an inmate with misbehavior for lying in a complaint to prison officials. Upon dismissing the charge the hearing officer said that he would have found Salahuddin guilty of misbehavior. (Id. PP 43-44 50.)

On or about January 11 1993 Cahill and O'Connell sought to have DOCS transfer Salahuddin who had not requested a transfer. The stated reason for the transfer request was that "we are unable to use Mr. Salahuddin's skills in a small work facility like cadre. The Department and Mr. Salahuddin would benefit if his Master's Degree were put to use in a more structured program-oriented facility." (Id. P 45.) Lord and Dalsheim participated in the decision but Salahuddin was not informed of it. (Id. PP 45 49; Record on Appeal at 224.) The requested transfer from Downstate was classified as an "unscheduled transfer " signifying that it had not been made during one of Salahuddin's two regularly scheduled transfer reviews during a given year. The requested transfer was also classified as a "non priority transfer " meaning that Salahuddin was neither in danger staying at Downstate nor considered a threat to the safety and security of the prison. (Compl. P 46.) DOCS approved the Downstate transfer request and issued a transfer order to Sullivan on or about February 1 1993. Salahuddin was transferred to Sullivan on February 27 1993 a Saturday. Salahuddin had not violated any Downstate rule requiring a transfer. His only disciplinary charge while at Downstate arising from the complaint that he filed had been dismissed as legally impermissible. (Id. PP 43-44 47-48.)

Upon arriving at Sullivan although papers prepared by Downstate personnel in connection with the transfer included the response "N" -- meaning "No" or "Negative" -- to the question "Referral for Mental Health Services " Salahuddin was immediately confined to the facility's mental hygiene unit (the "MHU") and subjected to the same rules and regulations as its inmates who suffer from mental illnesses. He was deprived of his belt shoelaces personal property and as the MHU is an eight-bed dormitory the privacy of a cell. While in MHU Salahuddin was unable to sleep for fear that he would be attacked. Salahuddin was not interviewed by Onorati either prior to or after his admission to the MHU. (Id. PP 51-52.)

On March 1 1993 two days after his arrival at Sullivan Salahuddin sought the help of the civilian Muslim Chaplain there Imam Hajj H.A. Muhammad ("Chaplain Muhammad"). On March 4 1993 Chaplain Muhammad wrote Salahuddin as follows: "After investigating your concerns I was unable to find out why you were placed in M.H.U. No one seems to know why or they are not saying. . . . My staff tells me there are open cells in the general population." Chaplain Muhammad also said that he would try to assist in securing Salahuddin's release from the MHU. (Id. P 55; R. 114.) On March 5 1993 Salahuddin was released from the MHU and placed in Sullivan's general prison population. On March 10 1993 Salahuddin wrote to DOCS to ascertain the reason for his transfer and confinement in Sullivan's MHU. He received no response to his inquiry. (Compl. P 56; R. 22.)

Prior Proceedings

I. The Article 78 Proceeding In The State Court

In April 1993 shortly after his transfer to Sullivan Salahuddin filed his Article 78 petition in the Dutchess County Supreme Court. (R. 8 10.) That Court transferred the case to the Sullivan County Supreme Court. (Id. at 23.)

A. Salahuddin's Petition

Salahuddin pleaded two claims in his petition. First he alleged that Dalsheim had approved his proposal to teach the ITP at Downstate but had then transferred him without permitting him to offer the program. Second he asserted that his enrollment at Marist College had given rise to a contractual obligation not to transfer him during the college semester. (R. 11-12.) As relief Salahuddin sought a declaration that the Article 78 respondents -- Dalsheim Kuhlmann and then-Commissioner Coughlin -- had exceeded their authority in transferring him to Sullivan an order returning him to Downstate and incidental relief. (Id. at 12-13.)

B. Dismissal of the Case Appellate Reversal and Proceedings on Remand

The Counsel General moved to dismiss the petition for failure to state a claim and the Supreme Court granted the motion. (R. 24 39.) On appeal the Counsel General advised the Appellate Division Third Department that Salahuddin's petition appeared to state a free exercise claim challenging his transfer from Downstate and without conceding that the allegations in the petition had any merit requested an opportunity to answer those allegations if the Supreme Court's order were reversed. (Id. at 43-44.) In March 1994 the Appellate Division reversed the dismissal holding that the petition "supported an inference that [Salahuddin's] transfer was motivated by an intent to deprive him or other prisoners of 1st Amendment rights or to discriminate on a religious basis. . . ." (Id. at 46) Accordingly Court remanded.

On remand the Counsel General filed an answer to which Salahuddin responded. (Id. at 47 74.) Salahuddin also applied to the Supreme Court for document production as no disclosure in an Article 78 proceeding is permitted except upon leave of court. (Id. at 55; N.Y. Civ. Prac. L. & R. 408.) The Supreme Court directed discovery of only certain materials relating to Salahuddin's transfer and to the ITP at Downstate. (R. 56 70.) Court denied Salahuddin's requests for documents relating to his confinement in Sullivan's MHU (R. 56-57 [PP 5-8]) the DOCS Unified College Program (R. 55 [P 1] 57 [P 9]) and the offering of the ITP to several Downstate inmates. (R. 56 [P 4].) These requests Court ruled concerned either "other inmates within the facility or matters unrelated to the subject of this proceeding." (R. 71.) The Appellate Division denied Salahuddin leave to appeal the discovery ruling. The Counsel General's office provided documents some of which it furnished to Salahuddin in redacted form. (See R. 72 133 [PP 16 21 23]; N.Y. Civ. Prac. L. & R. 5701[b][1].)

On September 16 1994 the Supreme Court held a pre-hearing conference. Although two weeks earlier Court had ordered DOCS to transport Salahuddin to court he received no advance notice of the conference. Salahuddin was asked to summarize the facts of his case. The Assistant Counsel General did not dispute Salahuddin's statement of the facts but apparently did not concede that there was any impermissible motive underlying his transfer. No stenographic record of the proceedings was made however. (R. 120-21 122 134 [P 26].)

Thereafter Salahuddin filed a motion for summary judgment in which he called the Supreme Court's attention to RFRA a statute signed into law on November 16 1993 several months after Salahuddin had commenced his Article 78 proceeding. Id. at 123.) On his summary judgment motion Salahuddin urged Court "to utilize the standards reinstated by RFRA in the present case and to hold respondents to these standards. . . ." (Id. at 127.) Although dated September 30 1994 the summary judgment motion apparently was not filed with Court until October 12 1994. (Id. at 123.) Salahuddin clarified his challenge to the transfer as raising three issues: (1) that the transfer had violated the free exercise rights of both Salahuddin and Muslim prisoners at Downstate (Id. at 84-88); (2) that the transfer had violated procedural due process safeguards allegedly provided by his college transfer agreement (Id. at 89-93); and (3) that his placement in Sullivan's MHU without first finding him mentally or emotionally ill violated his due process and equal protection rights. (Id. at 93-97). Salahuddin asserted that factual issues were in dispute and requested a hearing. (Id. at 74).

C. The Hearing Before the Supreme Court

On October 13 1994 the Supreme Court held a hearing on Salahuddin's petition. Salahuddin was given no advance notice of the hearing despite a transport order to DOCS issued on October 4. (Id. at 163 167.) Salahuddin understood certain facts to have been stipulated to based on the off-the-record proceedings at the September 16 conference. (Id. at 168.) The only witness called was Lord.

Lord testified that Downstate's Muslim chaplain was on the payroll of Fishkill Correctional Facility that the chaplain was at Downstate only a day and a half a week and that because Downstate was a small facility with a limited chaplain corps it was not able "to allow as much involvement as . . . Salahuddin might be able to get in another facility." (Id. at 175-176). Lord also testified that Salahuddin's transfer had been effectuated on February 27 1993 a Saturday because Downstate (the reception facility for state-ready inmates in the downstate region) had received 120 inmates from Riker's Island that day and because Salahuddin's transfer was necessary to create additional space. (Id. at 180.) It is unlikely that Salahuddin received a version of the transfer record introduced by Lord to support his contention. Lord further testified that despite Salahuddin's transfer the ITP continued in existence at Downstate with the Imam in charge (Id. at 179 186) and that the ITP program had been set up at Sullivan as a result of Salahuddin's efforts. (Id. at 180-181.)

Lord testified that he had initiated the request to transfer Salahuddin. Although the record contained a prior handwritten transfer request signed by defendants O'Connell and Cahill (Id. at 178 224) Salahuddin did not probe the matter.

Lord also testified that he did not know that Salahuddin intended to teach the ITP at Downstate (Id. at 186) that Salahuddin was enrolled as a student at Marist College (Id. at 192) or that Salahuddin had offered Counseling work at the prison's pre-release center. (Id. at 193-94.)

Despite possible inconsistencies between Lord's testimony and affidavit evidence provided by Dalsheim in support of the transfer Salahuddin was unable to marshal contradictions such as this to persuade Court of their existence and importance.

D. The Supreme Court's Rulings

On October 19 1994 the Supreme Court issued its decision dismissing Salahuddin's petition. (Id. at 4) Adopting the Defendants' explanation that Salahuddin's services were underutilized at Downstate Court found that Salahuddin's transfer had been made "for legitimate correctional reasons " and "was not arbitrary capricious or motivated by a desire to violate the constitutional rights of Salahuddin or any of the Islamic inmates at Downstate. . . ." (Id. at 6-7.) Court also held that there was no merit to Salahuddin's "college enrollment/no transfer claim" (Id. at 6 71.) Salahuddin timely appealed the dismissal order. (Id. at 3.)

In mid-November 1994 the Counsel General's office submitted an affidavit in opposition to Salahuddin's pre-hearing summary judgment motion based on RFRA arguing that the Supreme Court's October 19 order had a res judicata effect. (Id. at 219-20) Court ruled that because the petition already "has been decided . . . summary judgment must be denied." (Id. at 223.)

E. Appellate Proceedings In the Appellate Division

On appeal to the Appellate Division Salahuddin until then unrepresented was represented by the same Counsel who represent him here. Salahuddin presented the Appellate Division with three basic arguments. First he asserted that RFRA governed the case and that either his transfer should be invalidated under the statutory compelling governmental interest test or else the case should be remanded for further proceedings. (Himes Aff. Ex. 5 at 20-36.) Second Salahuddin argued that RFRA aside the circumstantial evidence proved that the respondents had sought impermissibly to deny his free exercise rights or otherwise to retaliate against him. (Id. at 36-40.) Finally Salahuddin argued that the Supreme Court had erred in denying discovery on his "college enrollment/no transfer" claim and that this discovery ruling tainted dismissal of that claim. (Id. at 40-45.)

The Appellate Division affirmed the Supreme Court's dismissal. First Court stated that "no claim for relief under RFRA was made in the petition and [Salahuddin] never sought to amend the petition to assert such a claim nor did he raise the issue at any time during the hearing before the Supreme Court." Thus the Appellate Division held that the RFRA claim had not been properly raised on appeal. (Notice of Motion Ex. B p. 2.) In an alternative ruling the Third Department reasoned that unless the activity subjected to government action is "mandated" by religion no "substantial burden" on free exercise is imposed as a matter of law. (Id. at 3.) Since the ITP is not mandated by Islam Court held that Salahuddin had failed to meet RFRA's substantial burden element. Finally Court ruled that there was no constitutional free exercise violation for the same reason and that there was no evidence of bad faith. (Id. at 3.)

The Appellate Division subsequently denied leave to appeal to the New York Court of Appeals. A motion in Court of Appeals for permission to appeal is pending. (Himes Aff. P 3.)

II. The Instant Motion

Salahuddin filed his initial complaint in this Court on December 5 1994. On February 29 1996 prior to answering Defendants filed the instant motion which having been briefed in full by the parties was deemed fully submitted and heard on April 24 1996.

The Complaint

The Complaint asserts three causes of action under 42 U.S.C. SEC. 1983 and one cause of action under RFRA. Count I alleges that in being confined to the MHU Salahuddin was deprived of his Eighth Amendment right not to be subjected to cruel and unusual punishment and his Fourteenth Amendment right not to be deprived of liberty without due process of law. Count II alleges that by being transferred from Downstate to Sullivan Salahuddin's free exercise of religion was substantially burdened in violation of RFRA. Count III alleges that by retaliating against him for his complaint against the corrections officer Defendants deprived him of his constitutionally guaranteed rights of free speech and to petition the government for redress of grievances under the First and Fourteenth Amendments. Count IV alleges that the transfer deprived Salahuddin of his constitutionally guaranteed right to the free exercise of religion under the First and Fourteenth Amendments.

Salahuddin seeks declaratory relief that Defendants (other than Coombes) violated his rights under the Constitution and RFRA an injunction directing his return to Downstate to teach the ITP and to train other inmates to teach it and awards of compensatory and punitive damages (against all of the defendants other than Coombes).

Discussion

I. Rule l2(b)(6) Standards

Rule 12(b)(6) imposes a substantial burden of proof upon the moving party. A court may not dismiss a complaint unless the movant demonstrates "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." H.J. Inc. v. Northwestern Bell Tel. Co. 492 U.S. 229 249-50 106 L. Ed. 2d 195 109 S. Ct. 2893 (1989); Hishon v. King & Spalding 467 U.S. 69 73 81 L. Ed. 2d 59 104 S. Ct. 2229 (1984); Conley v. Gibson 355 U.S. 41 45-46 2 L. Ed. 2d 80 78 S. Ct. 99 (1957). In determining the sufficiency of the complaint consideration is limited to the factual allegations it contains. See Valmonte v. Bane 18 F.3d 992 998 (2d Cir. 1994).

II. Collateral Estoppel

Because Salahuddin lacked a full and fair opportunity to litigate his claims in state court the doctrine of collateral estoppel does not preclude him from litigating here the issues raised in the state court proceedings. The Full Faith and Credit Statute 28 U.S.C. SEC. 1738 provides that a federal court must give state judicial proceedings "the same full faith and credit . . . as they have by law or usage in the courts of such state." Temple of Lost Sheep Inc. v. Abrams 930 F.2d 178 183 (2d Cir.) cert. denied 502 U.S. 866 116 L. Ed. 2d 153 112 S. Ct. 193 (1991). Accordingly a prior state judicial proceeding is entitled in a subsequent federal court proceeding to the same preclusive effect as it would have under the law of the rendering state. Migra v. Warren City Sch. Dist. Bd. of Educ. 465 U.S. 75 81 79 L. Ed. 2d 56 104 S. Ct. 892 (1984); Allen v. McCurry 449 U.S. 90 96 66 L. Ed. 2d 308 101 S. Ct. 411 (1980); West v. Ruff 961 F.2d 1064 1065 (2d Cir. 1992) (citing Allen 449 U.S. at 96; 28 U.S.C. Sec. 1738). Under New York law the doctrine of collateral estoppel "'precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against the party or those in privity whether or not the tribunals or causes of action are the same.'" Burgos v. Hopkins 14 F.3d 787 792 (2d Cir. 1994) (quoting Ryan v. New York Tel. Co. 62 N.Y.2d 494 467 N.E.2d 487 478 N.Y.S.2d 823 (N.Y. 1984)); accord Murphy v. Gallagher 761 F.2d 878 881 (2d Cir. 1985).

There are two prerequisites to the invocation of collateral estoppel: (1) there must be "an identity of issue which has necessarily been decided in the prior action and is decisive of the present action " (often referred to as the "identity of issue" or "identicality" requirement) and (2) there must have been "a full and fair opportunity to contest the decision said to be controlling." See Schwartz v. Public Adm'r 24 N.Y.2d 65 246 N.E.2d 725 298 N.Y.S.2d 955 (N.Y. 1969); accord Colon v. Coughlin 58 F.3d 865 869 (2d Cir.1995). Collateral estoppel applies "only if it is quite clear that these requirements have been satisfied lest a party be 'precluded from obtaining at least one full hearing on his or her claim.'" Id. (quoting Gramatan Home Investors Corp. v. Lopez 46 N.Y.2d 481 485 414 N.Y.S.2d 308 386 N.E.2d 1328 (1979)).

In Ryan the New York Court of Appeals enumerated factors properly considered in evaluating whether a full and fair opportunity to litigate was present: "the nature of the forum and the importance of the claim in the prior litigation the incentive and initiative to litigate and the actual extent of litigation the competence and expertise of Counsel the availability of new evidence [and] the differences in the applicable law." Id. at 491. That Court has also emphasized that the question "whether a party has had a full and fair opportunity to contest a prior determination cannot be reduced to a formula " but instead "involves a practical inquiry into the 'realities of the litigation.'" Gilberg v. Barbieri 53 N.Y.2d 285 292 441 N.Y.S.2d 49 423 N.E.2d 807 (1981) (quoting Schwartz v. Public Adm'r 24 N.Y.2d 65 72 298 N.Y.S.2d 955 246 N.E.2d 725 (1969)).

Defendants contend that the nature of the state forum and Salahuddin's pro se status did not impair his ability to litigate his Article 78 proceeding. They note that he was permitted to brief the issues that he was provided with a fact-finding hearing before the Supreme Court justice and that he appealed as of right to the Appellate Division. Salahuddin they note also had substantial incentive to litigate the issues for he clearly desired a transfer back to Downstate.

Yet these factors are insufficient to outweigh the impact of Salahuddin's self-representation the limited discovery made available to him and the circumstances that may have borne an adverse impact on his ability to litigate effectively. It is true that as Defendants note Salahuddin's submissions were well-written as would be expected of an individual with a Masters Degree and that he ably participated at his hearing. It is true also that Salahuddin had well-qualified Counsel on his appeal where Court rejected all the issues raised on the merits.

Yet while lack of Counsel in a prior proceeding by no means always prevents the application of collateral estoppel see e.g. Mendoza v. SSC & B Lintas 799 F. Supp. 1502 1511 (S.D.N.Y. 1992) here Salahuddin's pro se status combined with other circumstances to hinder his opportunity to litigate the primary issue in the proceeding: the motive underlying his transfer to Sullivan. Salahuddin failed to develop the record on his claims and his representation by Counsel on appeal could not necessarily cure this failure. For example although Dalsheim submitted an affidavit in the state case that could have been questioned Salahuddin never impeached the submission with available documents. Had he done so Court's evaluation of the motive underlying the transfer might have been different.

Second the discovery available to Salahuddin was severely limited. To prove the motive or bad faith of prison officials without any discovery is unrealistic. Rule 408 of the New York Civil Practice Law and Rules bars discovery as of right in an Article 78 proceeding. It is absolutely not the case that by their nature and by nature of this rule on discovery Article 78 proceedings provide any less full and fair a hearing than other proceedings; nor is it the case that collateral estoppel is less likely to result from the facts found there. However here the document discovery afforded to Salahuddin in the state proceeding was minimal as the Supreme Court denied most of his requests and the Third Department denied leave to appeal from that denial. Moreover the Counsel General provided some material to Salahuddin only in redacted form thus denying him potentially useful information. Given the nature of what Salahuddin sought to prove these limitations on discovery had a serious impact on his ability to litigate in state court. Cf. Rodrigues v. City of New York 193 A.D.2d 79 602 N.Y.S.2d 337 343 (1st Dep't 1993) (ex parte proceeding denied full and fair opportunity to litigate).

Most importantly as a prisoner Salahuddin apparently was given little or no chance to prepare for certain proceedings. A significant pretrial court appearance was conducted with no advance notice to Salahuddin and at that appearance although significant fact stipulations were reached no stenographic record was made. Similarly Salahuddin was given no advance notice of the Supreme Court hearing itself although again the Supreme Court had issued a transport order to DOCS nine days before that proceeding. An excerpt from the record is instructive:

Court: We are going to proceed with a hearing today. Are you ready to proceed?

MR. SALAHUDDIN: Your Honor I just was informed today. I wasn't notified every time I come here I'm not notified when I'm coming to court. So it's impossible to prepare to come to court.

(Id. at 167.) Moreover the Counsel General introduced an exhibit at the state court hearing that apparently had not previously been provided to Salahuddin.

In Clark v. Department of Correctional Servs. 564 F. Supp. 787 789 (S.D.N.Y. 1983) the plaintiff an inmate had represented himself pro se in a prior state case despite his lack of familiarity with the law. Ill-prepared from the start the plaintiff received notice of the state trial the night before it began. During the trial the plaintiff was ineffective in his attempts to present evidence and witnesses. Id. This Court concluded that the plaintiff had lacked a full and fair opportunity to litigate his claims thereby precluding collateral estoppel. See also West 961 F.2d at 1064 (inmate's pro se status one day's notice of the state trial and insufficient discovery were relevant in finding a lack of full and fair opportunity to litigate); Davis v. City of Charleston Mo. 827 F.2d 317 321 n.3 (8th Cir. 1987) (pro se litigant lacked full and fair opportunity to litigate) (applying Missouri law); In re Chinnery 181 Bankr. 954 963-64 (Bankr. W.D. Mo. 1995) (pro se litigant lacked full and fair opportunity to litigate).

As a result of some or all of these circumstances Salahuddin neither raised a retaliation claim nor introduced evidence regarding his complaint about the corrections officer and its aftermath. The question of the motive for Salahuddin's transfer from Downstate cannot therefore be deemed to have been fully and fairly litigated.

Because Salahuddin lacked a full and fair opportunity to present his claims to the Supreme Court he will not be collaterally estopped from reasserting them here.

III. Qualified Immunity

A. Legal Standard

Our Court of Appeals has held that:

Government officers performing discretionary functions are immune from liability from civil damages if their conduct either "did not violate 'clearly established' rights of which a reasonable person would have known or . . . it was 'objectively reasonable' to believe that [their] acts did not violate these clearly established rights. . . ." As a result a Court evaluating a claim of qualified immunity must first determine whether the federally protected right the defendant is accused of violating was clearly established at the time of the alleged violation.

Genas v. State of N.Y. Dep't of Correctional Servs. 75 F.3d 825 830 (2d Cir.1996) (citations omitted) (quoting Soares v. Connecticut 8 F.3d 917 920 (2d Cir.1993)); see also Richardson v. Selsky 5 F.3d 616 621 (2d Cir. 1993) (citing Anderson v. Creighton 483 U.S. 635 638-40 97 L. Ed. 2d 523 107 S. Ct.3034 (1987)). Hence the first step in determining the availability of a qualified immunity defense is to identify the rights allegedly violated and to determine if they are clearly established. See Harlow v. Fitzgerald .457 U.S. 800 818 73 L. Ed. 2d 396 102 S. Ct. 2727 (1982). This inquiry properly belongs to Court and may involve examination both of the currently applicable law and the state of law at the time the action occurred. Id. Court should examine the right in question at a particularized level: "The contours of the rights must be sufficiently clear that a reasonable official would understand that what he is doing violates that right . . . . In the light of pre-existing law the unlawfulness must be apparent." Anderson 483 U.S. at 639-40.

In this Circuit three overlapping factors are examined to determine whether a legal rule was "clearly established" at the time of the challenged action:

1) whether the right in question was defined with "reasonable specificity";

2) whether the decisional law of the Supreme Court and this Court supports the existence of the right in question; and

3) whether under preexisting law a reasonable official would have understood that his or her acts were unlawful.

See e.g. Soares 8 F.3d at 922; Richardson 5 F.3d at 621; Gan v. City of New York 996 F.2d at 532; Jermosen v. Smith 945 F.2d 547 550 (2d Cir.1991) cert. denied 503 U.S. 962 112 S. Ct. 1565 118 L. Ed. 2d 211 (1992). Under these factors if neither the Supreme Court nor Court of Appeals for this Circuit has ruled on the issue at the time of the challenged action "a fortiori it cannot be said that the right in question was defined with 'reasonable specificity' by either the decisional law of the Supreme Court or of this Circuit." Richardson 5 F.3d at 623.

If the contours of the Plaintiff's federal rights were clearly delineated at the time of the actions complained of the next inquiry is "if it was objectively reasonable for [them] to believe that their actions did not violate those rights." Id. at 621; see also Gan 996 F.2d at 532; Gittens v. Lefevre 891 F.2d 38 42 (2d Cir. 1989). "Even if the plaintiffs' complaint adequately alleges the commission of acts that violated clearly established law the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts." Mitchell 472 U.S. at 526.

In general "the defense of qualified immunity cannot support the grant of a . . . 12(b)(6) motion for failure to state a claim upon which relief can be granted." Green v. Maraio 722 F.2d 1013 1018 (2d Cir. 1983); see also Galvin v. Lloyd 663 F. Supp. 1572 1578 (D. Conn. 1987). This is so because qualified immunity is an affirmative defense that must be pleaded by the official claiming it. Satchell v. Dilworth 745 F.2d 781 784 (2d Cir. 1984) (citing Harlow 457 U.S. at 815); see also Galvin 663 F. Supp. at 1578. Dismissal for failure to state a claim is thus generally appropriate only where the complaint itself sets up on its face the qualified immunity defense. See e.g. Green 722 F.2d 1013 1019 (2d Cir. 1983) (defendant court reporter acted pursuant to Court's instructions thereby establishing "the circumstances required as a predicate to a finding of qualified immunity . . . . Consequently there is no reason to require an answer a hearing or a trial.") The Supreme Court has however also held that "unless the plaintiffs' allegations state a claim of violation of clearly established law a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery." Mitchell v. Forsyth 472 U.S. 511 526 86 L. Ed. 2d 411 105 S. Ct.2806 (1984). See also Robison v. Via 821 F.2d 913 920 (2d Cir. 1987) (citing Procunier v. Navarette 434 U.S. 555 565 55 L. Ed. 2d 24 98 S. Ct. 855 (1978)) (prison officials entitled to dismissal of claims of violating prisoner's First and Fourteenth Amendment rights by interfering with mail where such rights were not clearly established under those amendments); Molinelli v. Tucker 901 F.2d 13 16 (2d Cir. 1990) (prison official entitled to dismissal under Rule 12(b)(6) for qualified immunity where constitutional status of urine testing of public employees not clearly established).

In other circumstances -- that is where the law asserted to be violated is clearly established or where the complaint itself does not set up the qualified immunity defense -- dismissal must await a motion for summary judgment. In such instances the motion to dismiss for failure to state a claim can be converted to a motion for summary judgment see Rule 12(b) Fed. R. Civ. P. and further submissions must be invited. Id. Thus where the inquiry has shifted from the contours of the law to the reasonableness of the defendants' belief summary judgment is appropriate rather than dismissal for failure to state a claim.

B. The RFRA Claim

Because a qualified immunity defense exists to the RFRA claim -- Count II -- and because that claim has been made moot to the extent that it seeks injunctive relief the claim will be dismissed.

RFRA was enacted on November 16 1993 see Pub. L. 103-141 107 Stat. 1488 thus predating Salahuddin's transfer by nearly ten months. Because Defendants' challenged actions predated the enactment of RFRA the law was ipso facto not clearly established. Other defendants in RFRA actions have been granted qualified immunity for this very reason. See Muhammad v. City of N.Y. Dep't of Corrections 904 F. Supp. 161 202 (S.D.N.Y. 1995) (granting qualified immunity to defendants where the complaint was filed a year prior to RFRA's passage because the individual defendants could not have been expected to surmise that their alleged conduct violated this new statute.); Genas v. State of New York Dept. of Correctional Servs. 75 F.3d 825 (2d Cir. 1996) (where alleged acts took place prior to RFRA's passage "defendants could not reasonably be expected to anticipate subsequent legal developments . . .") (citations omitted). Therefore Defendants are entitled to qualified immunity on this Count.

Salahuddin argues that Count II cannot be dismissed because the qualified immunity doctrine applies only to money damages claims not to claims seeking injunctive relief. E.g. Allen v. Coughlin 64 F.3d 77 81 (2d Cir. 1995); Helbrans v. Coombe 890 F. Supp. 227 231 (S.D.N.Y. 1995) (citing Supreme Ct. of Va. v. Consumers Union of U.S. Inc. 446 U.S. 719 736 64 L. Ed. 2d 641 100 S. Ct. 1967 (1980)). He argues that because he seeks an injunction directing his return to Downstate to teach the ITP the qualified immunity argument is academic. (Compl. P 72 & p. 24 [P (c)].)

The Complaint alleges that the ITP is derived from Muslim religious doctrine and represents Salahuddin's effort to apply the teachings of his faith to help other prison inmates. (Compl. PP 22 23 26). Yet even if as Salahuddin contends the ability to invoke religious tenets to address human conditions is at the very core of free exercise see e.g. Western Presbyterian Church v. Board of Zoning Adjustment 862 F. Supp. 538 (D.D.C. 1994) (operation of a church program to feed the homeless was religious activity) appeal filed No. 94-7189 (D.C. Cir. Sept. 20 1994).

Even if Salahuddin's amended complaint states a prima facie claim under RFRA any claim has been rendered moot by his current involvement teaching the ITP at Sing Sing. Salahuddin's confinement in the MHU ended seven days after it began and he thereafter instituted and ran the ITP for the benefit of Sullivan's inmates. Salahuddin currently oversees the ITP program at Sing Sing. There is thus no ongoing violation of either RFRA to be remedied by injunctive relief returning him to Downstate. The fact that the program does not continue in its former incarnation at Downstate and the fact that Salahuddin cannot teach it there fail to compel injunctive relief for neither fact contributes to the establishment of a prima facie case that would survive a motion to dismiss for failure to state a claim.

The RFRA claim will be dismissed.

C. The Free Exercise Claim

As of the time of Salahuddin's transfer an inmate had a "clearly established right to be free of unjustified burdens upon free exercise rights." Bass v. Grottoli 1995 U.S. Dist.13916 94 Civ. 3220 (MGC) 1995 WL 565979 at *6 (S.D.N.Y. Sept. 25 1995) (citing Salahuddin v. Coughlin 993 F.2d 306 308 (2d Cir.1993)). See also Mawhinney v. Henderson 542 F.2d 1 3 (2d Cir.1976) (prison officials must have "a reasonable basis for limiting [an inmate's] participation at [religious] group services"); Pierce v. La Vallee 293 F.2d 233 235-36 (2d Cir. 1961).

The burden on free exercise rights allegedly arising here from Salahuddin's transfer is presumptively unjustified because the transfer was allegedly unrelated to assuring any of the traditional prison concerns -- safety security order or discipline. With Salahuddin pursuing a constructive role at Downstate the justification for sending him to a more program-oriented facility is not self-evident in light of the free exercise burden imposed. Clearly established rights are thus adequately alleged to have been violated. Hence dismissal of this claim as a matter of law on the basis of qualified immunity is unwarranted.

D. The Confinement to the MHU

The cruel and unusual punishment claim set out in Count I will be dismissed on qualified immunity grounds; for it fails to plead a violation of clearly established law.

The two prerequisites for an Eighth Amendment violation are set forth in Farmer v. Brennan 128 L. Ed. 2d 811 114 S. Ct. 1970 (1994). First the deprivation alleged must be "sufficiently serious"; that is a prison official's act or omission must result in the deprivation of "the minimal civilized measure of life's necessities." Id. at 1977 (citation omitted). The second prerequisite is that the prison official must have shown deliberate indifference to the inmate's health or safety. In order for deliberate indifference to be found the official must have "known of and disregarded an excessive risk to inmate health or safety; the official must [have been] aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also [have] drawn the inference." Id. at 1979.

The Amended Complaint bases the Eighth Amendment claim on the allegations that: (1) the MHU is used to house inmates suffering from mental illnesses; (2) Salahuddin did not suffer from any such illness; (3) he was confined in MHU nonetheless and subject to special restrictions imposed on inmates who do suffer from mental illnesses; (4) at the time cells were available in the general prison population; (5) neither Onorati nor his subordinates interviewed Salahuddin during his confinement; (6) while confined in the MHU Salahuddin suffered from fear-induced sleeplessness and general psychological fear; and (7) the confinement was imposed in retaliation for Salahuddin's exercise of his constitutional petition and free exercise rights. (Compl. PP 6-8 50-57 63-65 75.) Drawing all inferences in favor of Salahuddin the Complaint as framed nonetheless fails to make out a claim for violation of the Eighth Amendment.

Salahuddin suggests that confinement to a mental health unit is per se a violation of the Eighth Amendment and that this was made law in Lareau v. Manson 507 F. Supp. 1177 (D. Conn. 1980) (Cabranes J.) aff'd in part modified in part and remanded 651 F.2d 96 98-99 109 111-12 (2d Cir. 1981). There our Court of Appeals held there that "with respect to the specific practices of . . . placing healthy or nondisruptive inmates in the medical or isolation cells . . . we have no trouble upholding the district court's conclusion that these measures do not provide minimum decent housing under any circumstances for any period of time." 651 F.2d at 107-08. See also Vitek v. Jones 445 U.S. 480 63 L. Ed. 2d 552 100 S. Ct. 1254 (1980); Wright v. McMann 460 F.2d 126 129 (2d Cir.) (affirming injunction against confining inmates "to psychiatric observation cells for disciplinary purposes or without psychiatric justification") cert. denied 409 U.S. 885 34 L. Ed. 2d 141 93 S. Ct. 115 (1972); People ex rel. Brown v. Johnston 9 N.Y.2d 482 174 N.E.2d 725 215 N.Y.S.2d 44 (N.Y. 1961) (inmate who allegedly was mentally sound could challenge confinement with inmates suffering from mental illnesses); Negron v. Ward 458 F. Supp. 748 752 761 (S.D.N.Y. 1978). Lareau however visited the question in the context of prison overcrowding in general in which confinement to medical and mental health units was only one of the indignities visited on the inmates. In reviewing its findings of fact the District Court set out some of these additional factors:

At times the inmates who are well are required to share a "double-bunked" cell with inmates who have physical or psychiatric disorders. Inmates housed in the hospital unit are routinely confined to their cells for 23 hours every day; they have no access to "day rooms" or other recreational facilities.

Id. 507 F. Supp. at 1180. It was not then merely the confinement to a mental health unit that constituted the Eighth Amendment violation in Lareau; it was the totality of the circumstances including overcrowding and the absence of recreation facilities.

In contrast Salahuddin alleges neither overcrowding nor the absence of recreation facilities. The Complaint alleges only that he was deprived of his belt shoe laces and personal property for seven days subjected to 24-hour observation placed with mentally ill inmates denied a change of "Greens" and otherwise subjected to the regulations governing inmates in the MHU. These permit two-hour access to a recreation room daily telephone calls and daily showers (classification 7001 IV D and H) and compare favorably with the regulations to which inmates in the general population are subjected. See 7 NYCRR SEC. 320.3(d)(2) (at least one-hour per day of exercise permitted); 7 NYCRR SEC.320(d)(1) (at least three showers a week for general population). Inmates in Sullivan's MHU also have the same commissary and visiting rights as inmates in the general population (see Classification 7001 IV C and F) as well as access to reading materials and law library materials and contact with Sullivan's chaplains. Id. at IV I and K. These regulations and the other restrictions to which Salahuddin was subjected could not be held to constitute a denial of "the minimal civilized measure of life's necessities." The availability of open cells and the fact that Salahuddin on the facts of the Complaint was subjected to this treatment in retaliation for his actions at Downstate go not to this prong of the Eighth Amendment test but to the second: deliberate indifference. They cannot therefore be merged with the evaluation of whether Salahuddin was deprived of the minimal civilized measure of life's necessities.

The cruel and unusual punishment prong of Count I will be dismissed.

E. The Retaliation Claim

To the extent that Defendants have raised a qualified immunity defense against Count III which alleges that Salahuddin was transferred in retaliation for his complaint against a corrections officer in violation of his First Amendment rights of free speech and to petition for redress of grievance they have done so only on the premise that it was reasonably objective of them not to believe that Salahuddin's rights were violated. This is a question more appropriate for summary judgment and the count will not be dismissed.

III. The Motion to Dismiss Count III

Defendants contend that the retaliation claim fails to set out a prima facie case and must thus be dismissed. A valid claim for retaliation must allege facts to show that the Plaintiff "engaged in conduct that was constitutionally protected and that retaliation against the protected conduct was a 'substantial' or 'motivating' factor in the defendant's decisions." Blue v. Koren 72 F.3d 1075 1082 (2d Cir. 1995) (citation omitted). Accord Jones v. Coughlin 696 F. Supp. 916 920 (S.D.N.Y. 1988). The facts required to show a retaliatory motivating factor are those showing that (1) the plaintiff has engaged in constitutionally protected activity (2) the defendants were aware of the plaintiff's participation in the protected activity (3) the plaintiff suffered an adverse decision and (4) there was a causal connection between his protected activity and the adverse decision. See Malarkey v. Texaco Inc. 983 F.2d 1204 1213 (2d Cir.1993); Manoharan v. Columbia Univ. College of Physicians & Surgeons 842 F.2d 590 593 (2d Cir. 1988); DeCintio v. Westchester County Medical Ctr. 821 F.2d 111 115 (2d Cir.) cert. denied 484 U.S. 965 98 L. Ed. 2d 395 108 S. Ct. 455 (1981).

Defendants assert that the Complaint fails to set forth the facts necessary to support Salahuddin's claim because no facts are alleged to indicate that they were aware of his complaint against the corrections officer or to indicate that there was a causal connection between the filing of the complaint and the transfer.

However the Complaint satisfies the notice pleading requirement of Rule 8 Fed. R. Civ. P. Salahuddin alleges in essence that: (1) in or about October 1992 he filed a written complaint against a Downstate corrections officer who had disrupted an Islamic religious service; (2) he was asked to withdraw the complaint and did so; (3) thereafter the corrections officer charged Salahuddin with lying in his complaint; (4) Downstate officials convened a disciplinary proceeding against Salahuddin which DOCS officials in Albany ordered dismissed in late 1992; and (5) by no later than January 11 1993 Downstate employees had decided to have Salahuddin transferred. (Compl. PP 43-45.)

These allegations and others in the Complaint support an inference that Salahuddin was transferred in retaliation for exercising his right to petition. Cf. Colon 58 F.3d at 872 ("temporal proximity" between inmate lawsuit and disciplinary proceedings "may serve as circumstantial evidence of retaliation"); Sims v. Mme. Paulette Dry Cleaners 580 F. Supp. 593 598 & n.23 (S.D.N.Y. 1984) (in a Title VII case "retaliatory motive can be shown by . . . the closeness in time between defendants' receipt of the EEOC complaint and the initiation of . . . adverse employment actions toward [plaintiff]"). Moreover Salahuddin further alleges that defendants acted intentionally or with malicious disregard of his rights (Compl. P 76) and that should suffice to plead defendants' state of mind. See Rule 9(b) Fed. R. Civ. P. ("malice intent knowledge and other condition of mind . . . may be averred generally"). Although Court of Appeals has held that "a complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone " Flaherty v. Coughlin 713 F.2d 10 13 (2d Cir.1983) it has said so in reference to cases where "the prisoner has no factual basis for the claim other than an adverse administrative decision." Id. That is not the case here.

The cases cited by the Counsel General do not hold that "awareness" must be explicitly pleaded to avoid dismissal as a matter of law. The three cases cited are Title VII suits not inmate actions and two are decisions after trial that simply summarize the elements of proof needed to prevail on an employment discrimination claim. Malarkey 983 F.2d at 1213; Manoharan 842 F.2d at 593. The third case DeCintio 821 F.2d at 112 n.2 115 arose on a motion to dismiss which Court treated as though it were a motion for summary judgment. Court of Appeals reversed dismissal of the employee's retaliation claim.

By contrast Jones v. Coughlin 696 F. Supp. 916 920 (S.D.N.Y. 1988) demonstrates that a "causal connection" in an inmate retaliation case requires only that protected conduct by the inmate be a "substantial" or "motivating" factor in the action challenged. Salahuddin here meets that test by alleging that he was transferred in retaliation for exercising his constitutional right to petition. (Compl. PP 50 75.)

A pleading should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson 355 U.S. 41 45-46 2 L. Ed. 2d 80 78 S. Ct.99 (1957). On the facts of the Complaint a retaliatory motive is adequately alleged and the right to petition claim will not be dismissed.

IV. The Due Process Claim Will Not Be Dismissed

Count I of the complaint alleges inter alia that Salahuddin's confinement to the MHU violated his Fourteenth Amendment right not be deprived of liberty without due process of law. Defendants note that "the requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property " and the range of those interests "is not infinite." Board of Regents v. Roth 408 U.S. 564 569-70 33 L. Ed. 2d 548 92 S. Ct. 2701 (1972).

In Sandin v. Conner 132 L. Ed. 2d 418 115 S. Ct. 2293 (1995) the Supreme Court clarified the threshold requirement for prisoner procedural due process claims based on the deprivation of liberty interests arising under state law. Court held that disciplinary segregation does not implicate procedural due process rights unless it imposes at a minimum "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 2300. After comparing the thirty-day disciplinary confinement imposed on the inmate in Sandin with the conditions of confinement imposed on inmates in the general population Court held that procedural protections had not been required at the disciplinary hearing which had resulted in imposition of the disciplinary confinement.

Court however reaffirmed that "prisoners do not shed all constitutional rights at the prison gate." Confinement of a mentally sound inmate in a unit expressly intended for mentally ill inmates -- on its face -- could drawing all inferences in favor of Salahuddin meet the "atypical and significant hardship" test. Unlike the Eighth Amendment claim a determination as to whether Salahuddin's due process rights were violated requires scrutiny not only of the conditions of his confinement to the MHU but also of the reasons that he was confined there for Sandin addressed confinement in the context of disciplinary proceedings. Here none are alleged.

Defendants offer facts that suggest that Salahuddin was not deprived of a protected liberty interest by his temporary placement in Sullivan's MHU and was thus not entitled to procedural due process in regard to that placement. They contend that rather than imposing an "atypical and significant hardship " the conditions in Sullivan's MHU were more favorable to the inmates residing there then are the conditions imposed on inmates in the general population. Moreover argue Plaintiffs the duration of Plaintiff's confinement in Sullivan's MHU was significantly shorter than the duration's in Sandin and in other cases holding that no "atypical hardship" was present. See Rivera v. Coughlin 1996 U.S. Dist.560 92 Civ. 3404 (DLC) 1996 WL 22342 at *5 (S.D.N.Y. Jan. 22 1996) (holding that 89 days keep lock did not constitute an atypical or significant hardship sufficient to create a liberty interest and collecting other cases holding that from 11 days in keep lock up to 270 days confinement in a Special Housing Unit did not impose an atypical hardship). This question is however one better reserved for summary judgment and cannot be decided here.

Conclusion

For the reasons set forth above the motion to dismiss is granted in part and denied in part. Specifically the motions to dismiss Count II alleging violations of RFRA and that portion of Count I alleging cruel and unusual punishment in violation of the Eighth Amendment are granted. The motions to dismiss Count IV alleging violations of the First Amendment Free Exercise clause Count III alleging violations of the First Amendment right to petition and that portion of Count I alleging violations of due process are denied.

ROBERT W. SWEET

U.S.D.J.