Corso v. Fischer

• Decision Date: 22 October 2013
• Docket Number: No. 11–CV–8602 (CS).,11–CV–8602 (CS).
• Citation: 983 F.Supp.2d 320
• Parties: Joann CORSO, Plaintiff, v. Brian FISCHER, in his official capacity as Commissioner, Department of Corrections and Community Supervision, Defendant.
• Court: U.S. District Court — Southern District of New York

983 F.Supp.2d 320

Joann CORSO, Plaintiff,

v.Brian FISCHER, in his official capacity as Commissioner, Department of Corrections and Community Supervision, Defendant.

No. 11–CV–8602 (CS).

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

Oct. 22, 2013.

Michael H. Sussman, Sussman & Watkins, Goshen, NY, for Plaintiff.

Steven N. Schulman, Office of the Attorney General, State of New York, New York, NY, for Defendant.

OPINION AND ORDER

SEIBEL, District Judge.

Before the Court are Plaintiff's Motion for Summary Judgment, (Doc. 35), and Defendant's Cross–Motion for Summary Judgment, (Doc. 40). For the reasons set forth below, Plaintiff's Motion is GRANTED and Defendant's Cross–Motion is DENIED.

I. BACKGROUNDA. Factual Background

The following facts are based on the parties' Local Civil Rule 56.1 statements, supporting materials, and other evidence in the record from previous stages of litigation,¹ and are undisputed except where noted.

Since 1998, Plaintiff Joann Corso has worked as a Corrections Officer for the New York State Department of Corrections and Community Supervision (“DOCCS”). ² (P's 56.1 ¶ 2; D's 56.1 ¶ 8.) ³ DOCCS is a New York State agency responsible for administering the State's corrections and parole systems, including approximately 94,000 inmates and parolees. (D's 56.1 ¶ 3.) DOCCS operates sixty correctional facilities and thirty-nine parole field offices and employs approximately 29,000 individuals. ( Id. ¶ 4.) Defendant Brian Fischer is the Commissioner of DOCCS. (P's 56.1 ¶ 5.)

For many years, DOCCS has maintained policies governing the personal association of employees with current and former inmates and their associates. (D's 56.1 ¶ 9.) This “Work Rule,” which appears in the New York Compilation of Codes, Rules, and Regulations at Title 7 Section 52.18 and in Section 2.15 of the DOCCS employee manual, remained substantially unchanged from 1998 until 2012. ( Id. ¶¶ 9–11.) At the time this case was initiated, Section 2.15 of the employee manual read as follows:

Association with inmates or persons engaged in unlawful activities. Except as otherwise authorized by [the appropriate DOCCS official], no employee shall knowingly:

(a) Associate or have any dealings with criminals or persons engaged in unlawful activities; or

(b) Engage in any conversation, communication, dealing, transaction, association, or relationship with any inmate, former inmate, parolee or former parolee, or any visitor, friend, or relative of same in any manner or form which is not necessary or proper for the discharge of the employee's duties.

Any contact or attempt to contact an employee by an inmate as described above shall be reported to [the appropriate DOCCS official.]

All requests for inmate association shall be addressed to the Office of the Inspector General for review. The Inspector General will forward his decision to [the appropriate officials, who will then] notify the requesting employee of the final determination.

(Schulman Aff. Ex. A.) ⁴ The Work Rule does not identify any standards or guidelines for when exceptions will be granted. ( See id.) Noncompliance with the Work Rule may subject the employee to discipline,including possible discharge. ( See Corso Aff. ¶ 13; First Fonda Decl. ¶ 2.) ⁵

Since beginning her employment as a Corrections Officer, Plaintiff has submitted numerous requests to associate with inmates or former inmates. In October 1998, Plaintiff requested and received permission to associate with her then-husband Michael Bruno, who was on parole at the time, for the purpose of securing a divorce. (First Fonda Decl. Ex. A.) In January 2003, Plaintiff requested and received approval to correspond with and visit her son, who had been incarcerated in the Orange County Jail. (First Fonda Decl. Ex. E.) In March 2010, Plaintiff requested permission to “write or talk for support” with Bruno, then an inmate at Walkill Correctional Facility, upon learning that Bruno had been diagnosed with cancer. (Schulman Aff. Ex. B, at 3.) This request was granted for correspondence only. ( Id.) In August 2010, Plaintiff submitted a request to associate with Bruno in person upon his release (which she expected to occur later that month), because their children were close and Plaintiff wanted to be able to interact with Bruno at family gatherings. (First Fonda Decl. Ex. C.) This request was approved for correspondence, but because Bruno's release date had been postponed in the interim to December 2011, the request for in-person association was denied with instructions to resubmit the request upon Bruno's release. ( Id.) In January 2011, Plaintiff again submitted a request, seeking an exception to visit Bruno in prison because he “can die incarcerated” and to allow Bruno to live at home with her for medical care upon his release. ( Id. Ex. D.) Again, this request was granted for correspondence only and denied as to visitation and cohabitation, and Plaintiff was instructed to resubmit the request upon Bruno's release. ( Id.)

In August 2011, Plaintiff requested, but was denied, permission to interact with a parolee named Douglas Montgomery, whom she described as one of her daughter's friends. ( Id. Ex. F.) In October 2011, Plaintiff renewed her request with respect to Montgomery upon learning that her daughter was carrying Montgomery's child. (Schulman Aff. Ex. B, at 11.) This request was procedurally invalidated, (First Fonda Decl. ¶ 11), and the record does not indicate whether Plaintiff ever renewed the request.

In December 2011, upon Bruno's release, Plaintiff sought permission to have an intimate relationship with Bruno, and that application was granted for “personal association,” but not cohabitation. (Second Fonda Decl. Ex. A, at 3–4.) ⁶

B. Procedural Posture and the Amended Work Rule

Plaintiff brought this action in 2011, seeking a declaratory judgment: (1) that, as applied to Plaintiff, the DOCCS Work Rule is an unconstitutional infringement on Plaintiff's First Amendment freedom of intimate association; (2) striking the Work Rule as void for vagueness; and (3) striking the Work Rule as facially overbroad in violation of the First Amendment. (Complaint (“Compl.”), (Doc. 1), 9–10.) On December 14, 2011, I denied Plaintiff's application for a preliminary injunction because she failed to show irreparable harm in the absence of immediate injunctive relief. (Minute Entry dated Dec. 14, 2011.) Defendant subsequently moved to dismiss the Complaint, and on December 4, 2012, I dismissed Plaintiff's as-applied and vaguenessclaims from the bench. (Minute Entry dated Dec. 4, 2012.)

On February 6, 2013, as part of what he describes as an effort to merge the old DOCS and Division of Parole employee manuals into a new DOCCS employee manual, Defendant reworded Section 2.15 of the employee handbook. (Martuscello Decl. ¶¶ 5–10; D's 56.1 ¶¶ 12–14.) The new version of the Work Rule reads as follows (deleted language in bracketed italics; new language underlined):

Association with inmates, parolees or persons engaged in unlawful activities.

Except as otherwise authorized by [the appropriate DOCCS official], no employee shall knowingly:

(a) Associate or have any dealings with criminals or persons engaged in unlawful activities; or

(b) Engage in any conversation, communication, dealing, transaction, association, or relationship with any inmate, former inmate, parolee or former parolee, [or any visitor, friend, or relative of same in any manner or form] which is not necessary or proper for the discharge of the employee's duties.

(c) Engage in any communication, transaction or fraternization with any person (i.e.: visitor, friend or relative) who has an illegal or improper interest in the case of any inmate, parolee, or releasee, where such communication, transaction or fraternization may interfere with or give the appearance of interfering with the employee's duties or with the work of the Department.

Any contact or attempt to contact an employee by an inmate or parolee as described above shall be reported to [the appropriate DOCCS official.]

All requests for inmate association shall be addressed to the Office of the Inspector General for review. The Inspector General will forward his or her decision to [the appropriate officials, who will then] notify the requesting employee of the final determination.

In instances where an employee has a child in common with an inmate or parolee and the child has contact with both the employee and the inmate or parolee, the employee is not required to complete a request for inmate association form.

Where an employee is uncertain about any of the above, the employee shall notify [the appropriate DOCCS official.]

(“Amended Work Rule” or “Rule”) (D's 56.1 ¶ 13; Martuscello Decl. Ex. A.) Defendant asserts that the amendment “is not intended to introduce substantive changes to DOCCS policies.... To the contrary, the new rule is intended merely to clarify the existing rule by making explicit the longstanding practices of DOCCS and its predecessors.” (Martuscello Decl. ¶ 7.) Because it regards the changes as non-substantive, DOCCS is of the opinion that no further process—such as union approval or publication in the New York Compilation of Codes, Rules, and Regulations—is necessary, and Defendant asserts that the amended version of the rule is currently in effect. ( Id. ¶¶ 10, 14; see id. Ex B (memorandum dated Mar. 1, 2013 to all DOCCS managers containing the new provision and instructing it be distributed to all employees).) The parallel version of the Work Rule codified in State regulations remains in its original, unamended form, seeN.Y. Comp.Codes R. & Regs. Tit. 7, § 52.18, but Defendant asserts that immediate amendment of the regulation is unnecessary. (Martuscello Decl. ¶ 12.) The parties now cross-move for Summary Judgment on Plaintiff's remaining facial overbreadth claim. (Docs. 35, 40.)

II. DISCUSSIONA. Legal Standard

Summary judgment is appropriate when “the movant shows that there is no...