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104 F3d 355 Davidson v. Boulinger 1-5

104 F.3d 355

Ronald DAVIDSON, Plaintiff-Appellant,
v.
Ed BOULINGER, Officer in Charge, Green Haven Correspondence
Department; Charles Scully, Superintendent; Dean Riley,
Deputy Superintendent; Unknown Media Review Committee
Members 1-5; Thomas A. Coughlin III, Commissioner; Media
Personnel, Unknown Central Media Review Personnel; Harold
J. Smith, Superintendent of Attica; William McAnulty,
Deputy Superintendent; Eugene S. Lefevre, Dannemora;
Dennis McQuire, Dannemora; John Curren, Dannemora; Fred
Duncan, Attica; James E. Cochrane, Glens Falls; James
Konfederath, Attica, Defendants-Appellees.

No. 95-2791.

United States Court of Appeals, Second Circuit.

Dec. 23, 1996.

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.

Appeal from the United States District Court for the Northern District of New York.

Appearing for Appellant: John L. Sander, Kenilworth, N.J.

Appearing for Appellees: Martin A. Hotvet, Ass't Att'y Gen., Albany, N.Y.

N.D.N.Y.

VACATED.

Present: KEARSE, CABRANES, Circuit Judges, and KELLEHER, District Judge*.

This cause came on to be heard on the transcript of record from the United States District Court for the Northern District of New York, and was submitted by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is vacated.

1

Plaintiff Ronald Davidson, a New York State prisoner, appeals from a judgment of the United States District Court for the Northern District of New York, Con. G. Cholakis, Judge, dismissing his complaint brought against various prison officials under 42 U.S.C. § 1983 for violation of his First Amendment right to receive certain publications. The district court dismissed the complaint pursuant to Fed.R.Civ.P. 12(c) on the ground that defendants were entitled to qualified immunity. Davidson challenges this ruling on appeal. Defendants concede that judgment should not have been granted on the pleadings on the basis of qualified immunity, and we agree.

2

The report of the magistrate judge on which the district court relied made no findings as to whether or to what extent the publications at issue were potentially dangerous, and it stated broad principles that appeared to suggest, incorrectly, that prison officials will be entitled to qualified immunity whenever their conduct impinging on First Amendment rights involves a balancing test. Further, the complaint sought not only monetary relief but also injunctive relief, a type of remedy as to which qualified immunity is not available, see, e.g., Allen v. Coughlin, 64 F.3d 77, 81 (2d Cir.1995).

3

Accordingly, the judgment of the district court is vacated, and the matter is remanded to the district court for further proceedings not inconsistent with this order.

*

Honorable Robert J. Kelleher, of the United States District Court for the Central District of California, sitting by designation