Dubarry v. Annucci
| Docket Number | 21-CV-5487 (KMK) |
| Decision Date | 20 June 2023 |
| Parties | DARIUS DUBARRY, HARRY RIVERA, and JAYQUAN GRIFFIN, on behalf of themselves and all others similarly situated, Plaintiffs, v. ANTHONY ANNUCCI, JEFF McKOY, MICHAEL CAPRA, LESLIE MANN, STEPHEN BRANDOW, JPAY INC., and MEMBERS OF STATE OF NEW YORK DEPT. OF CORRECTIONS &COMMUNITY SUPERVISION, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Darius Dubarry
Harry Rivera
Jayquan Griffin
Pro se Plaintiffs
Kathryn E. Martin, Esq.
Office of the New York Attorney General
Counsel for Defendants Anthony Annucci, Jeff McKoy, Michael Capra, Leslie Malin, & Stephen
Colleen L. Smeryage, Esq.
Constantine P. Economides, Esq.
Devin Freedman, Esq.
Freedman Normand Friedland LLP
Counsel for Defendant JPay, Inc.
Darius Dubarry (“Dubarry”), Harry Rivera (“Rivera”), and Jayquan Griffin (“Griffin”; together, “Plaintiffs”), proceeding pro se, bring this Action against Anthony Annucci (“Annucci”), Jeff McKoy (“McKoy”), Michael Capra (“Capra”), Leslie Malin (“Malin”), Stephen Brandow (“Brandow”; together with Annucci, McKoy, Capra, and Malin, “DOCCS Defendants”), JPay, Inc. (“JPay”), and Members of State of New York Department of Corrections and Community Supervision, (collectively, “Defendants”), pursuant to 42 U.S.C. § 1983, alleging that Defendants violated their rights under the First and Fourteenth Amendments by instituting and enforcing a department-wide policy of denying inmates nude photographs and videos on secure tablet devices. [1]Before the Court are DOCCS Defendants' Motion To Dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (“DOCCS Defendants' Motion”) and JPay's Motion To Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (“JPay's Motion”; together, the “Motions”). For the following reasons, the Motions are granted.
The following facts are taken from Plaintiffs' Amended Complaint, (see FAC), and are assumed to be true for the purposes of ruling on the instant Motion. See Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep't of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam). Where relevant, the Court also recounts facts from the materials attached to Plaintiffs' Amended Complaint.[2]
Plaintiffs are currently-and at all times relevant to the instant Action have been- inmates of Sing Sing Correctional Facility (“Sing Sing”), located in Ossining, New York. (See FAC 3, 4.) DOCCS Defendants are each supervisory officials employed by DOCCS: Annucci is the Acting Commissioner of DOCCS, McKoy is the Deputy Commissioner of DOCCS, Brandow is the Deputy Commissioner of Administrative Services of DOCCS, Capra is the Superintendent of Sing Sing, and Malin is the Deputy Superintendent of Programs at Sing Sing. (See id. at 3-5.) JPay is a private entity that has contracted with DOCCS to provide media services to inmates confined in DOCCS facilities via tablet devices. (See id. at 5.)
Plaintiffs allege that between December 2019 and April 2021, Plaintiffs were each sent a number of videograms and photographs from individuals outside of Sing Sing via their respective tablet devices, which were reviewed and rejected “by a John Doe defendant(s) without notification in violation of [DOCCS] Directive[s] [Nos.] #4572 and #4425.” (See id. at 6; see also FAC Ex. N, at 55-65 (“Directive 4425”) (Dkt. No. 79); FAC Ex. O. at 66-74 (“Directive 4572”) (Dkt. No. 79).)[3]DOCCS Directive No. 4425 “contains and describes the policies and procedures governing the tablet program available to inmates in general population,” which is designed for, inter alia, “the opportunity to use a secure messaging system to communicate with family and friends as approved by [DOCCS].” (Directive 4425 at §§ I, II.) As part of the program, DOCCS provides to each inmate a tablet device at no cost, which the inmate can connect to one of several kiosks located in common areas of DOCCS facilities to download a selection of materials, some of which have an associated cost, using his or her passwordprotected kiosk account. Inmates are not permitted to share tablets, kiosk accounts, or passwords. Inmates using their tablets for secure messaging are required to comply with applicable DOCCS policies; further, all secure messages are subject to content screening by authorized staff, who may reject messages and associated attachments that violate DOCCS policies. When a message is rejected, the sender of the message-whether he or she is an inmate or civilian-is notified of the rejection.
DOCCS Directive No. 4572 sets forth DOCCS' policy “encourag[ing] incarcerated individuals to read publications from varies sources if such material does not encourage them to engage in behavior that might be disruptive to orderly facility operations.” (Directive 4572 at § I.) As relevant to the instant dispute, DOCCS Directive No. 4572 prohibits publications “which contain child pornography”; which “depict[] nude children in a non-pornographic context but . . . could promote or encourage prurient interest in the sexual performance of children”; and “which, taken as a whole, by the average person applying contemporary standards, appeal to prurient interest, and which depict or describe in a patently offensive way sexual bestiality, sadism, masochism, necrophilia, or incest, and which taken as a whole, lack serious literary, artistic, political, or scientific value.” (Id. § II.) Moreover, the Directive states that publications “should not incite violence” and “[a]ny publication which advocates and presents a clear and immediate risk of lawlessness, violence, anarchy, or rebellion against Governmental authority is unacceptable.” (Id.) In addition to Directives Nos. #4572 and #4425, Plaintiffs alleges that, “[u]nder the contract . . ., JPay [] is allowed to make and implement policies concerning the provided secure nude videos and photographs on their J[P]ay secure tablets.” (FAC 5.)
Dubarry alleges that on April 11, 2020 and April 13, 2020, Alexis Leidiger attempted to send Dubarry videograms and photographs on his tablet device, and on December 7, 2019, February 2, 2020, March 24, 2020, March 26, 2020, April 13, 2020, and April 24, 2020, Nicole Dubarry attempted to send Dubarry videograms and photographs on his tablet device, but that all videograms and photographs were rejected by a reviewing officer without any notification to Dubarry. (See id. 6.) Rivera alleges that on April 28, 2020 and May 8, 2021, Amaury Rubirosa attempted to send Rivera videograms and photographs on his tablet device; on June 1, 2020, Jennifer Thomas and Tamara Adams attempted to send Rivera videograms and photographs on his tablet device; on February 22, 2021 and April 30, 2021, Harry Rivera, Jr. attempted to send Rivera videograms and photographs on his tablet device; and on April 6, 2021, Suzette Montero attempted to send Rivera videograms and photographs on his tablet device, but that all videograms and photographs were rejected by a reviewing officer without any notification to Rivera. (See id.) Finally, Griffin alleges that on February 6, 2020, February 8, 2020, March 27, 2020, April 1, 2020, and April 7, 2020, Nashara Grady attempted to send Rivera videograms and photographs, but that all videograms and photographs were rejected by a reviewing officer without any notification to Griffin. (See id.)
On April 18, 2020, Griffin filed a grievance concerning the denial of the videograms and photographs, and on April 20, 2020, Dubarry and Rivera filed similar grievances; the three grievances were consolidated thereafter. (See FAC Ex. B, at 22-25.) On June 25, 2020, a hearing was held on the consolidated grievance, (see FAC 7), and July 8, 2020, the grievance was denied by Malin, who explained that the videograms and photographs were denied “in accordance with departmental directives”; specifically, Malin explained that, as stated in prior Central Officer Review Committee (“CORC”) dispositions, “the possession of nude photographs presents a clear threat to the safety, security, and good order of the correctional facility” and that “nudity from the NYS Penal Law is ‘the showing of the human male or female genitals, pubic area[,] or buttocks with less than a full opaque covering,'” (FAC Ex. C, at 27). Plaintiffs appealed Malin's decision to CORC, (see FAC 7; FAC Ex. D, at 29-30), which denied the appeal on October 1, 2020, (see FAC Ex. E, at 32). CORC explained that “monitoring of tablet content is a necessary function to ensure the safety and security of DOCCS correctional facilities” and that “the possession of nude photographs presents a clear threat to the safety, security[,] and good order of the correctional facility due to the difficulty in distinguishing between professionally posed, commercial produced[,] and personal ones.” (Id.) CORC also explained that DOCCS “uses the definition of ‘nudity' from the NYS Penal Law, which is the showing of the human male or female genitals, pubic area[,] or buttocks with less than a full opaque covering, of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.” (Id.)
On June 2, 2020, while Plaintiffs' grievance process was pending Rivera alleges that he wrote a letter to Annucci in which Rivera expressed his belief that Sing Sing was improperly denying photographs and videograms...
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