Sparks v. Seltzer
| Decision Date | 20 April 2009 |
| Docket Number | No. 05 CV 1061(NG)(KAM).,05 CV 1061(NG)(KAM). |
| Citation | 607 F.Supp.2d 437 |
| Parties | Robert SPARKS, on behalf of himself and all others similarly situated, and Mental Disability Law Clinic, Touro Law Center, on behalf of its constituents, Plaintiffs, v. Charlotte SELTZER, in her official capacity as Executive Director of Creedmoor Psychiatric Center, and Paulette Floyd, in her official capacity as Treatment Team Leader at Creedmoor Psychiatric Center, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
William M. Brooks, Eric Broutman, Central Islip, NY, for Plaintiffs.
Michael E. Peeples, New York State Attorney General, New York, NY, for Defendants.
Plaintiffs Robert Sparks ("Sparks"), on behalf of himself and all others similarly situated, and the Mental Disability Law Clinic of Touro Law Center, on behalf of its constituents, bring this action under 42 U.S.C. § 1983 against Charlotte Seltzer and Paulette Floyd1 in their official capacities alleging violations of the class's First Amendment rights and "zone of privacy". Pursuant to Rule 56 of the Federal Rules of Civil Procedure, both plaintiffs and defendants move for summary judgment.
The material facts pertinent to the resolution of both motions as set forth below are undisputed. Plaintiff Sparks is a patient on Ward 6A of building 40 at Creedmoor Psychiatric Center ("Creedmoor"), a New York state psychiatric hospital. Ward 6A is an inpatient, long-term locked ward which normally houses a mixture of voluntary patients, patients who have been involuntarily committed under the civil law, and patients committed as a result of a verdict of not guilty by reason of mental disease or defect or a finding of incompetence to stand trial. In the summer of 2004, responding to a perceived increase in the possession of contraband by patients after the hospital instituted a ban on indoor smoking, Creedmoor implemented a policy requiring supervision of at least some visits to patients on Ward 6A. Initially, patient visits were sometimes supervised without a written order from a doctor. However, at present, it is Creedmoor's policy that visits may be supervised only when a physician writes an order authorizing supervision, the order limits supervision to a specified period no longer than one month, and a clinical or safety reason exists for supervision.2 Among the "clinical and safety" reasons which Creedmoor has offered as justification for supervised visits are a patient's violent or aggressively sexual behavior, a patient's prior possession of contraband, and a patient's prior suicide attempt.
Ward 6A has a designated visiting room. This room is regularly used by more than one patient at a time. Supervision is accomplished by a guard's sitting in or just outside the doorway of the patients' visiting room; also, a videocamera can transmit video (but not audio) of the visiting room to the nurses' station. A patient's conversation will ordinarily be audible to a guard supervising a visit. However, patients are not required to speak at a level audible to the guard, and conversations are not recorded. During supervised visits, patients are not forbidden from discussing any topic or from engaging in routine physical contact with their visitors.3 Plaintiffs do not allege that any patient has suffered retaliation—formal or informal— for anything said during a supervised visit. Nonetheless, some patients have stated that they are unwilling to discuss personal matters or concerns about treatment or conditions at the hospital within earshot of a guard.
On February 25, 2005, plaintiffs commenced this action, which challenges the Creedmoor policy both facially and as applied and seeks declaratory and injunctive relief. Initially, plaintiffs' complaint included three counts, arising out of three different Creedmoor policies: the policy regarding supervised visitation discussed above, a policy allegedly restricting telephone access for patients, and a policy allegedly restricting visitation during "lockdowns". On November 22, 2005, this court certified a class with respect to plaintiffs' first count of "all individuals (a) who are presently confined or who will be confined in the future on ward 6A, building 40, of Creedmoor Psychiatric Center, and (b) who will receive visitors during their period of confinement". Plaintiffs withdrew their second and third counts on May 15, 2007. Plaintiffs and defendants have now both moved for summary judgment.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Fed.R.Civ.P. 56(c). A genuine issue of material fact exists where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must construe the facts in the light most favorable to the non-moving party, and all reasonable inferences and ambiguities must be resolved against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). However, the non-moving party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986), but "must come forward with specific facts showing that there is a genuine issue for trial," Matsushita, 475 U.S. at 586-87, 106 S.Ct. 1348 (emphasis removed).
Defendants move for summary judgment against plaintiffs on their First Amendment claim, arguing that plaintiffs have not established that Creedmoor's policy of supervised visitation has chilled patients' exercise of their First Amendment right of expression.
The courts have long recognized that a law may infringe on the First Amendment by "chilling" protected speech as much as by forbidding it outright, often in the context of overbroad or vague legislation. See, e.g., Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); Baird v. State Bar, 401 U.S. 1, 6, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971); Keyishian v. Board of Regents, 385 U.S. 589, 603-04, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Zieper v. Metzinger, 474 F.3d 60, 65-66 (2d Cir.2007). However, in such cases, those complaining of a "chill" ordinarily have been faced with the prospect of criminal liability (as in Ashcroft and Zieper), exclusion from the state bar (Baird), the loss of public employment (Keyishian), or some other specific injury as threatened punishment for the speech that has been chilled.
In contrast, courts have found that "[a]llegations of a subjective `chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm." Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). In Laird, the plaintiffs objected to the widespread and systematic gathering of information regarding "potential for civil disorder" by Army intelligence officers, including surveillance of public political meetings. As the plaintiffs did not allege any specific harm that they had suffered or expected to suffer as a result of this kind of surveillance, the Court found that they had not experienced a chill. Similarly, in Fifth Avenue Peace Parade Comm. v. Gray, 480 F.2d 326 (2d Cir.1973), FBI agents had examined the bank records of an organization sponsoring a protest and photographed protestors boarding buses to the protest site. The Second Circuit denied relief because plaintiffs had not alleged that any specific harm had come or would come to plaintiffs as a result of the government's actions. Id. at 333. See also Hankard v. Town of Avon, 126 F.3d 418, 423 (2d Cir.1997); Handschu v. Special Servs. Div., 475 F.Supp.2d 331, 354 (S.D.N.Y.2007), order vacated on reconsideration on other grounds, 2007 WL 1711775 (S.D.N.Y. Jun 13, 2007).5
Plaintiffs argue that the supervision of visits has chilled the speech of Ward 6A patients who are unwilling to discuss certain matters in the presence of a guard. Thus, although patients are theoretically permitted to discuss any topic they choose with their visitors, in effect, they argue, they have been prevented from doing so. Defendants counter that, since plaintiffs have not pointed to any actual or threatened retaliation against patients for anything that they might say during their visits, plaintiffs have not made the "claim of specific present objective harm or a threat of specific future harm" necessary to establish that their speech has been chilled.
As an initial matter, the court rejects defendants' argument that patients' speech during visits, which might lack an important political or social purpose, is wholly unprotected by the First Amendment. Although casual conversation among family members or friends may not necessarily implicate the highest of the political and social concerns underlying the First Amendment, this does not imply that such speech is undeserving of its protection.6 The First Amendment protects the right to share information and ideas "regardless of their social worth". Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542.7
Here, plaintiffs have claimed only that patients and their visitors have been reluctant to discuss various matters within earshot of a supervising guard. It may indeed be difficult to discuss one's personal affairs in an atmosphere with little privacy. Nonetheless, plaintiffs have made no...
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... ... do not have an objectively reasonable expectation of privacy ... See, e.g., Sparks v. Seltzer, 607 F.Supp.2d ... 437, 442-43 (E.D.N.Y. 2009), aff'd, 380 ... Fed.Appx. 26 (2d Cir. 2010) (holding that “under Fourth ... ...