Montgomery v. Coughlin, No. 1

• Decision Date: 30 December 1993
• Docket Number: No. 1,No. 2
• Parties: In the Matter of Charles MONTGOMERY, Appellant, v. Thomas A. COUGHLIN III, as Commissioner of the Department of Correctional Services, Respondent. (Proceeding) In the Matter of Kenneth G. PAVEL, Appellant, v. Thomas A. COUGHLIN III, as Commissioner of the Department of Correctional Services, et al., Respondents. (Proceeding)
• Court: New York Supreme Court — Appellate Division

Page 569

605 N.Y.S.2d 569

194 A.D.2d 264

In the Matter of Charles MONTGOMERY, Appellant, v. Thomas A. COUGHLIN III, as Commissioner of the Department of

Correctional Services, Respondent.

(Proceeding No. 1.)

In the Matter of Kenneth G. PAVEL, Appellant, v. Thomas A. COUGHLIN III, as Commissioner of the Department of

Correctional Services, et al., Respondents.

(Proceeding No. 2.)

Supreme Court, Appellate Division,

Third Department.

Dec. 30, 1993.

Eleanor Jackson Piel, New York City, for Charles Montgomery, appellant.

Kenneth G. Pavel, pro se.

Robert Abrams, Atty. Gen. (Daniel Smirlock and Nancy A. Spiegel, of counsel), Albany, for respondents.

Before WEISS, P.J., and MERCURE, WHITE, MAHONEY and CASEY, JJ.

MAHONEY, Justice.

Appeals (1) from an order and judgment of the Supreme Court (Monserrate, J.), entered December 16, 1992 in Chemung County, which, in proceeding No. 1, converted an application, brought pursuant to CPLR article 78, into an action for declaratory judgment and declared certain regulations and directives issued by respondent to be constitutional, and (2) from an order and judgment of said court, entered January 6, 1993 in Chemung County, which, in proceeding No. 2, dismissed petitioner's application, brought pursuant to CPLR article 78, to review a policy of respondent Commissioner of Correctional Services prohibiting prisoners from receiving newspapers, articles or clippings from nonpublisher sources.

In these proceedings, petitioners Charles Montgomery and Kenneth G. Pavel, both inmates at Elmira Correctional Facility iN chemunG county, posit 1sT amendment challenges to a directive of the Department of Correctional Services which, consistent with 7 NYCRR 712.5, prohibits inmates from receiving newspapers from nonpublisher sources (i.e., persons or entities other than the publisher or an approved distributor). Apparently, through application of this rule, they were deprived of access to various newspaper clippings sent to them by family and friends. Applying the standard set forth in Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459, Supreme Court upheld the restriction as constitutional. We concur in that assessment and, accordingly, affirm.

The well-settled standard to be applied in considering the constitutionality of regulations censoring incoming publications directed at prisoners is whether the challenged regulations are " 'reasonably related to legitimate penological interests' " (Thornburgh v. Abbott, supra, at 409, 109 S.Ct. at 1879, quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64). This determination is to be made with reference to the following four factors: (1) whether the objective underlying the regulation is legitimate and neutral and the regulation is rationally related to that objective, (2) whether alternative means of exercising the impaired right of the inmate remain open to him or her, (3) whether accommodation of the inmate's right will have a negative impact upon others in the prison, and (4) whether alternatives exist which fully accommodate the inmate's rights at minimal cost to valid penological interests (id., 490 U.S. at 414-419, 109 S.Ct. at 1882-84; see, Matter of Lucas v. Scully, 71 N.Y.2d 399, 405, 526 N.Y.S.2d 927, 521 N.E.2d 1070; Matter of Malik v. Coughlin, 154 A.D.2d 135, 138, 552 N.Y.S.2d 182).

Applying these factors to the instant case, we discern no constitutional impediment. As respects the first factor, the objective of the publisher-only rule rests in the need to maintain security by reducing the means by which contraband can be secreted into the facility, an objective which undoubtedly is legitimate ( cf., Bell v. Wolfish, 441 U.S. 520, 549, 99 S.Ct. 1861, 1879, 60 L.Ed.2d 447; Ward v. Washtenaw County Sheriff's Dept., 881 F.2d 325). Additionally, because the rule bans all newspapers from nonpublisher sources, there is little doubt that it also meets the neutrality requirements ( see, Thornburgh v. Abbott, supra, 490 U.S. at 415, 109 S.Ct. at 1882-83). Moreover, we are satisfied on these records that the requisite reasonable relationship between the rule and the underlying objective has been established. As is made clear in the affidavit of John Maloy, Deputy Superintendent of Elmira Correctional Facility, newspapers are a prime target for secreting contraband due to their bulk and, in view of the frequency with which they are published, those received from unidentified sources pose a monumental task to prison officials in terms of screening. Newspapers received from the publisher or from approved sources, however, are significantly less likely to contain contraband and,...