Dugar v. Coughlin, 83 Civ. 7471 (JES).

• Citation: 613 F. Supp. 849
• Decision Date: 11 July 1985
• Docket Number: 83 Civ. 7471 (JES).
• Parties: Joseph DUGAR, Plaintiff, v. Thomas COUGHLIN, Supt. Adirondack Correct. Facility, Supt. Auburn Correct. Facility, Supt. Ossining Correct. Facility, Carl Hunt, Steve Wiley, Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

613 F. Supp. 849

Joseph DUGAR, Plaintiff, v. Thomas COUGHLIN, Supt. Adirondack Correct. Facility, Supt. Auburn Correct. Facility, Supt. Ossining Correct. Facility, Carl Hunt, Steve Wiley, Defendants.

83 Civ. 7471 (JES).

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

July 11, 1985.

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Joseph Dugar, pro se.

Robert Abrams, Atty. Gen., State of N.Y., New York City, for defendants; Evelyn Tenenbaum, Asst. Atty. Gen., New York City, of counsel.

OPINION & ORDER

SPRIZZO, District Judge:

Plaintiff pro se Joseph Dugar brought this action pursuant to 42 U.S.C. §§ 1983 & 1985 for injunctive relief and damages,¹ alleging that various actions and practices of the defendants violated his civil rights and those of state prisoners. The complaint states two types of claims: the first relates to prisoners' right of access to the courts, and the second regards prisoners' participation in the New York Temporary Release Program ("TRP").

Defendants have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim.²

A. Access to the Courts

Plaintiff seeks an injunction (1) prohibiting defendants from charging prisoners for postage for legal mail; (2) prohibiting defendants from charging prisoners for all photocopying services in connection with legal work, except for copies made from books; (3) ordering that photocopying machines be placed in prison law libraries; and (4) requiring defendants to make available to prisoners the services of a notary five days a week. Plaintiff also seeks restitution of $200.00, apparently for prior charges for mail and copying services, and $15,000,000 in punitive damages. The basis for these claims is plaintiff's assertion that defendants' present practices violate the due process and equal protection rights of prisoners.

Prisoners have a well established right of access to the courts, which prison regulation must not "unjustifiably obstruct." See, e.g., Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974); Ex Parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 641, 85 L.Ed. 1034 (1941). This principle, however, requires only that prisoners' access to the courts be "adequate, effective, and meaningful," see, e.g., Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977), and does not preclude the balancing of prisoners' rights with the legitimate interests of the states, including economic concerns. See, e.g., id. at 825, 97 S.Ct. at 1496; Harrell v. Keohane, 621 F.2d 1059, 1061 (10th Cir.1980); cf. Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974). A state need not "provide the best manner of access, nor is it obligated to equalize the financial resources of each of its inmates.... So long as the State's procedure's sic meet constitutional minima, the courts should not second-guess them." Pino v. Dalsheim, 558 F.Supp. 673, 675 (S.D.N.Y.1983) (emphasis in original).

1. Charges for Legal Mail

The New York Department of Correctional Services ("the Department") has provided that prisoners may mail five one-ounce letters per week free of charge. Prisoners must pay for any mail weighing more than one ounce, or in excess of five one-ounce letters in any week. See Department of Correctional Services Directive No. 4422 at III(D)(1) & (3) (Dec. 7, 1981). Plaintiff claims that prisoners are constitutionally entitled to free postage for all legal mail, that Congress and the United States Postal Service have appropriated funds to allow prisoners to mail their legal materials for free, and therefore that the practice in New York, which may result in prisoners being charged for legal correspondence, is unlawful.

Plaintiff is incorrect in claiming that funds have been provided to fully subsidize prisoners' legal mail. Furthermore, while a prisoner's constitutional right of access to the courts includes a right to use the mails, this right is not absolute, see United States ex rel. Thompson v. Fay, 197 F.Supp. 855, 856 (S.D.N.Y.1961), and it does not require that prisoners be provided with unlimited free postage. See, e.g., Bach v. Coughlin, 508 F.2d 303, 307 (7th Cir.1974); Williams v. Ward, 404 F.Supp. 170, 171-72 (S.D.N.Y.1975). The practice in New York safeguards prisoners' right of access while also protecting the State's legitimate budgetary interests. See, e.g., Twyman v. Crisp, 584 F.2d 352, 359 (10th Cir.1978); Bach, supra, 508 F.2d at 307-08. It clearly does not suppress all court access, as plaintiff contends. Nor is there any basis to find that this policy deprives prisoners of money earned in prison without due process. Therefore, this aspect of plaintiff's complaint must be dismissed for failure to state a claim.

2. Charging for Copy Machine Services

Plaintiff contends that, with the exception of charges for photocopying from books, it is unconstitutional to charge prisoners for photocopying services related to their legal work. He therefore challenges the practice at certain prisons whereby prisoners must pay $.10 per page for photocopies. He also notes in his complaint that prisoners have the option of using handwritten or typewritten copies as an alternative to photocopies, and that no charge is imposed for paper.

As with charges for postage, an inmate's right of access to the courts is not unconstitutionally infringed by reasonable charges for copying services, particularly in light of the available alternatives. See, e.g., Johnson v. Parke, 642 F.2d 377, 380 (10th Cir.1981); Harrell, supra, 621 F.2d at 1061. These charges do not result in total or undue denial of access to the courts, but are a reasonable balance of the legitimate interests of both prisoners and the State. See Harrell, supra, 621 F.2d at 1061.

Plaintiff has cited no authority for his claim that the Constitution requires that photocopying machines be placed in prison law libraries. It follows that this claim must also be dismissed.

3. Availability of Notary Services

Plaintiff contends that prisoners are constitutionally entitled to have available to them the services of a notary five days a week, and that the practice in New York violates this right. Once again, plaintiff has cited no authority for this claim. This court has squarely held that inmates do not have a constitutional right to notary services five days a week, see Washington v. Vincent, 361 F.Supp. 942, 943 (S.D.N.Y. 1973), and can see no reason for departing from that ruling in this case. Therefore, these allegations must also be dismissed for failure to state a claim.

4. Equal Protection Claim

Plaintiff alleges in a conclusory fashion that the policies and practices with respect to postage, photocopying, and notary services discussed above deprive state prisoners of the equal protection of the laws, because of an "invidious class-based discriminatory animus" against them, and that without this hinderance plaintiff's access to the courts would have been "more easily available."

The Court can find no basis here for an equal protection violation. Plaintiff does not allege that either he or all prisoners in New York are discriminated against in comparison to some other group. Rather, plaintiff simply claims that all prisoners are entitled to free postage, photocopying, and daily notary services, and that the failure to provide these deprives prisoners of equal protection. The law is clear, however, that prisoners are not constitutionally entitled to any of these things. Moreover, the restrictions which are placed on prisoners' access to the courts do not rise to the level of an equal protection violation as they do not deprive prisoners of "an adequate opportunity to present their claims fairly." See Ross v. Moffitt, supra, 417 U.S. at 616, 94 S.Ct. at 2447.

Because the allegations regarding access to the courts fail to state a claim for the violation of any constitutional or federal right, they must be dismissed.

B. Temporary Release Program ("TRP")

Plaintiff alleges that he was denied due process and equal protection in connection with his rejection for participation in the TRP at Ossining Correctional Facility.³ He seeks damages and an injunction prohibiting the holding of "Temporary Release Evaluation Hearings" without a stenographer or recording device.

1. Due Process

In order to state a due process claim, plaintiff must have a constitutionally protected liberty interest with respect to participation in the TRP, see, e.g., Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979); Meachum v. Fano, 427 U.S. 215, 223-24, 96 S.Ct. 2532, 2537-38, 49 L.Ed.2d 451 (1976), which in turn depends upon the nature of the interest asserted. See, e.g., Greenholtz, supra, 442 U.S. at 7, 99 S.Ct. at 2103; Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

Plaintiff's claimed liberty interest is in conditional release from valid incarceration. However, prisoners have been legitimately deprived of all but the most basic liberty interests, see, e.g., Hewitt v. Helms, 459 U.S. 460, 467-68, 103 S.Ct. 864, 869-70, 74 L.Ed.2d 675 (1983); Greenholtz, supra, 442 U.S. at 7, 99 S.Ct. at 2103; Meachum, supra, 427 U.S. at 224, 96 S.Ct. at 2538; Pugliese v. Nelson, 617 F.2d 916, 921 (2d Cir.1980), and as the Supreme Court noted in Greenholtz with respect to parole, "there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." 442 U.S. at 7, 99 S.Ct. at 2104. It is also well-settled that the mere fact that a state has a conditional release program does not, in and of itself, create a protected liberty interest in the form of a legitimate expectation or entitlement of participation therein which implicates due process rights. See, e.g., Hewitt, supra, 459 U.S. at 471, 103 S.Ct. at 871; Connecticut Board of Pardons v....