Kozlowski v. Coughlin, 81 Civ. 5886(CES)

• Citation: 539 F. Supp. 852
• Decision Date: 22 March 1982
• Docket Number: No. 81 Civ. 5886(CES),81 Civ. 2355(CES).,81 Civ. 5886(CES)
• Parties: Anatol KOZLOWSKI, et al., Plaintiffs, v. Thomas COUGHLIN III, et al., Defendants. James SIMS, et al., v. Thomas COUGHLIN III, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

539 F. Supp. 852

Anatol KOZLOWSKI, et al., Plaintiffs, v. Thomas COUGHLIN III, et al., Defendants.

James SIMS, et al., v. Thomas COUGHLIN III, et al., Defendants.

Nos. 81 Civ. 5886(CES), 81 Civ. 2355(CES).

United States District Court, S. D. New York.

March 22, 1982.

David L. Posner, McCabe & Mack, Robert Gombiner, Prisoners' Legal Services of N. Y., Poughkeepsie, N. Y., for plaintiffs.

Richard Howard, Asst. Atty. Gen., New York State Dept. of Law, New York City, for defendants.

MEMORANDUM DECISION

STEWART, District Judge:

These cases challenge the constitutionality of Directive 4403 of the New York State Department of Correctional Services pertaining to the inmate visitation program at state correctional facilities. The plaintiffs, who seek certification to bring this action on behalf of all present and future inmates and visitors of inmates, contend that Directive 4403¹ violates rights guaranteed by the First, Fifth and Fourteenth Amendments by permitting the suspension of visitation privileges without adequate procedural protections. Plaintiffs in both cases contend that their visiting privileges at various state correctional facilities were wrongfully suspended following false allegations of misbehavior during otherwise authorized visits.² Since the commencement of these cases in April and September of last year, a number of motions have been filed, directed to both procedural and substantive matters. In Sims, the defendants move to dismiss or transfer the matter, and for judgment on the pleadings; the plaintiffs move for summary judgment. In Kozlowski, the defendants move for summary judgment; the plaintiffs move for consolidation with Sims, class certification, and summary judgment. Also pending in Kozlowski is a motion for preliminary relief pursuant to Fed.R.Civ.P. 65 on behalf of intervening plaintiffs, James and Lisabeth Purchell.

1. Procedural Motions

As these cases involve a common issue of law — namely, the constitutionality of Directive 4403 — and similar questions of fact, we grant the Kozlowski plaintiffs' motion for consolidation at the outset.³ We further find certification of classes of all present inmates and their visitors under Fed.R.Civ.P. 23(b)(2) appropriate in this case.⁴ Plaintiffs meet the prerequisites to a class action set out in Fed.R.Civ.P. 23(a).⁵ Since they challenge actions taken pursuant to a statewide directive, moreover, certification as (b)(2) classes is appropriate. By enforcing the directive, the defendants have "acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief ...". Fed.R.Civ.P. 23(b)(2). While defendants contend that class certification is unnecessary because a judgment in favor of the individual plaintiffs would run to the benefit of those similarly situated to plaintiffs, we find certification in this case "advisable to cautiously safeguard the interests of the entire class by ensuring that any order runs to the class as a whole". Mendoza v. Lavine, 72 F.R.D. 520, 523 (S.D.N.Y.1976). See also Bacon v. Toia, 437 F.Supp. 1371, 1383 (S.D.N.Y.1977), aff'd, 580 F.2d 1044 (2d Cir. 1978).

2. Substantive motions

Having consolidated the two actions and granted class certification, we construe the several pending motions to dismiss and for summary judgment as a single set of cross-motions for summary judgment directed to the now consolidated case. After considering the papers submitted by the parties in connection with all the motions previously filed, we grant summary judgment for the plaintiffs on the issue of the constitutionality of Directive 4403.

Plaintiffs advance two theories in support of their position that their visitation privileges⁶ may not be revoked without due process protection. First, they argue that prison visits are a liberty interest created by the substantive laws of New York and subject to the protections of the Due Process Clause of the Fourteenth Amendment. Second, they argue that prison visits are a fundamental right under the First Amendment, again requiring due process protections. As we find the first argument meritorious, and sufficient for the purposes of the motions in this case, we do not consider the second issue of the "fundamentality" of prison visitation under the Constitution of the United States.

Plaintiffs' "liberty interest" argument requires a two-part inquiry into whether the interest they claim is indeed a protected interest, and if so, whether current procedures provide what process is due. See Logan v. Zimmerman Brush Co., ___ U.S. ___, ___, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265 (1982). Constitutionally protected liberty interests can be found in both the federal constitution and the substantive law of the states. Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467, 101 S.Ct. 2460, 2466, 69 L.Ed.2d 158 (1981) (White J., concurring). On the state level, such interests may be created by statute, regulation, or judicial decree. Pugliese v. Nelson, 617 F.2d 916, 922 (2d Cir. 1980). To be a constitutionally protected interest, however, the benefit must be presently enjoyed by the individual claiming entitlement, or enjoyable upon the happening of specified conditions. Id. Mere hope on the part of an inmate that some benefit will be granted is not sufficient, nor is a mere statistical probability. Connecticut Board of Pardons v. Dumschat, 452 U.S. at 465, 101 S.Ct. at 2464. Thus, when a state grants good time credits to prisoners revocable only upon serious misconduct, it has created a liberty interest to which due process applies. Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). A similar liberty interest arises when a state provides that its Board of Parole "shall order" parole for an eligible prisoner unless one of four specific situations occur. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979). In contrast, however, when a state grants its Board of Pardons "unfettered discretion" to commute the sentences of lifetime inmates, no entitlement to such commutation arises, even though the Board may in fact commute the sentences of at least 75% of the "lifers" whose cases it hears. Connecticut Board of Pardons v. Dumschat, 452 U.S. at 461, 464, 101 S.Ct. at 2462, 2464.

The State of New York, by judicial decision, administrative regulation and departmental directive has granted its prisoners a protected liberty interest in receiving visits from persons of their choice. The New York Court of Appeals has recognized as a matter of state law that those within the custody of the state have a fundamental right to the maintenance of relationships with family and friends. Cooper v. Morin, 49 N.Y.2d 69, 80, 399 N.E.2d 1188, 1194, 424 N.Y.S.2d 168, 176 (1979), cert. denied, 446 U.S. 984, 100 S.Ct. 2965, 64 L.Ed.2d 840 (1980). While the facts of Cooper specifically involved the rights of pretrial detainees to a system of contact visitation, the authorities cited by the court, as well as its analysis, suggest that the basic right identified there extends to convicted individuals as well.⁷ Several lower New York courts have recognized Cooper's implications in this regard. See McNulty v. Chinlund, 108 Misc.2d 707, 708, 438 N.Y.S.2d 734, 736 (Sup. Ct.1981) (no rational basis for denying contact visitation privileges mandated in Cooper to sentenced prisoners); Bugliaro v. Wilmot, 108 Misc.2d 425, 428, 437 N.Y.S.2d 551, 553 (Sup.Ct.1981) (Cooper recognizes a state constitutional right to prison visitation). While these judicial decisions might well be sufficient to conclude that New York prisoners have a protected interest in receiving visits from persons of their choice, we do not rest our decision on these cases alone. Rather, we find that New York's administrative regulations also evince the liberty interest that plaintiffs claim in this case.

Pursuant to N.Y.Correc.Law §§ 112 and 146, the New York Commissioner of Corrections has promulgated regulations that establish "minimum requirements" for correctional facilities throughout the state. 7 N.Y.C.R.R. §§ 300.1(a) (1980), 301.1 (1975). It is thus a "minimum requirement" in New York that "no inmate shall be deprived of the ... visiting privileges available to inmates in the general population". 7 N.Y.C.R.R. § 301.6(a) (1975). It is a further minimum requirement that "no inmate is ever, under any circumstances, to be deprived of these visiting privileges for the purpose of punishment or discipline". 7 N.Y.C.R.R. § 301.8 (1975). These regulations, which have the "force and effect of law" in New York, see Bugliaro v. Wilmot, 108 Misc.2d at 426, 437 N.Y.S.2d at 552, have been broadly construed by New York courts. Sections 301.6 and 301.8 have thus been held to prohibit the suspension of visitation privileges to inmates for disciplinary purposes, Directive 4403 notwithstanding. Id.;⁸see also Chambers v. Coughlin, 76 App.Div.2d 980, 429 N.Y.S.2d 74 (1980). Nor is Directive 4403 itself inconsistent with the conclusion that visitation is a state created liberty interest in New York. Directive 4403 provides that visitation privileges may only be revoked upon a finding that such action is necessary to "maintain the safety, security, and good order of the facility". The structure of the Directive is thus quite similar to the statute considered in Wolff v. McDonnell: it grants a benefit that may only be revoked for substantial cause. See 418 U.S. at 557, 94 S.Ct. at 2975. The interests created by both the regulations and the Directive are more than mere hopes or statistical probabilities. They are presently enforceable entitlements granted by the state. On the basis of sections 301.6 and 301.8, as well as Directive 4403 and the fundamental rights identified in Cooper therefore, we conclude that New York prisoners enjoy a constitutionally protected liberty interest in receiving visitors of their choice.

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