In 1974, Schaurer and Sharon divorced and Sharon received custody of Russell. Young Aff. at P 5. Schaurer was paroled in May 1975, but was again convicted of burglary and sentenced to 12.5 to 25 years in prison in February 1977. At no time during his initial parole, nor since his release in the late 1980's, has Schaurer corresponded or met with Russell. Sharon prevented Schaurer from seeing him. Id. at 11-13.
In 1981, Sharon's new husband Joseph Q. Young adopted Russell without notice to Schaurer. In 1983, Schaurer learned of the adoption and moved to vacate it in Steuben County Family Court. In an Order and a Decision dated April 11, 1986, Judge Henry J. Scudder denied the motion concluding that the adoption was in Russell's best interest, and that Schaurer's failure to have a meaningful relationship with his child resulted from Schaurer's own actions that led to his incarceration, as well as Sharon's decision not to permit Russell to maintain a relationship with his father. Exhibit A to Defendants' Motion for Summary Judgment ("Def. Mot."). Judge Scudder also concluded that New York law did not require Schaurer to have received notice and an opportunity to be heard before his son's adoption. Id.
In 1983 Schaurer also sued the State of New York in the Court of Claims asserting that the Department of Correctional Services ("the Department") failed to put his infant son's name on his approved correspondence and visitors list at Eastern Correctional Facility. On January 27, 1984, Judge Edward M. Murray granted the State's motion to dismiss Schaurer's claim as barred by the statute of limitations. Def. Mot. Exhibit B. In dictum referring to an affidavit from the Department regarding the rules governing visitors lists, Judge Murray wrote: "The rule that [the mother's] consent is required to have the infant added to the visitors list appears reasonable." Id. at 2.
Defendants assert that Schaurer's claims for declaratory and injunctive relief are moot because Schaurer is no longer incarcerated. Schaurer seeks preliminary injunctions (1) restraining Defendants from removing the names of other family members from his correspondence and visitors list, and (2) requiring Defendants to replace his son's name on those lists. "In order for a federal court to exercise its judicial power, an actual case or controversy must exist at each stage of review and not only at the time the complaint is filed." Mawhinney v. Henderson, 542 F.2d 1, 2 (2d Cir. 1976) citing Steffel v. Thompson, 415 U.S. 452, 459 n.10, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974). Schaurer could not possibly benefit from an injunction since he is no longer incarcerated and does not have a visitors list from which minor children could be excluded even if he had alleged that he currently has minor children. After a prisoner has been released, his request for an injunction restraining prison officials from violating his civil rights is moot. Mawhinney, 542 F.2d at 2. Schaurer's argument that the issues presented are still "live" because he can be imprisoned for violation of his parole is unpersuasive. By Schaurer's logic anyone would have standing to sue for an injunction against prison conditions because they might some day be incarcerated. Therefore, Schaurer's claims for injunctive relief are dismissed for mootness.
Schaurer also seeks a "declaratory judgment which sets forth the rights of the parties herein in relation to the removal of approved correspondents and visitors from lists maintained by the Department . . . without a formal or informal hearing . . . ." Amended Complaint, July 10, 1985, at 7. As Schaurer is no longer incarcerated, his request for declaratory relief is moot. Preiser v. Newkirk, 422 U.S. 395, 401-04, 45 L. Ed. 2d 272, 95 S. Ct. 2330 (1975); Beyah v. Coughlin, 789 F.2d 986, 988 (2d Cir. 1986). The facts alleged by Schaurer do not "show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Preiser, 422 U.S. at 402. Therefore, Schaurer's claims for declaratory relief are dismissed for mootness as well.
(2) QUALIFIED IMMUNITY
Defendants further argue that they are protected from Schaurer's various claims for damages by the doctrine of qualified immunity. Government officials performing discretionary functions are protected from civil liability "insofar as their conduct does not violate statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). "Once qualified immunity is pleaded, plaintiff's complaint will be dismissed unless defendant's alleged conduct, when committed, violated 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Williams v. Smith, 781 F.2d 319, 322 (2d Cir. 1986) (quoting Harlow, 457 U.S. at 818.). The unlawfulness of the defendant's action must have been "sufficiently clear" under preexisting law. Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987).
Defendants claim that even if they did remove Russell Schaurer's name from the visitation and correspondence lists, they did not violate a clearly established right. The parties have not cited any authority under New York or Federal law giving inmates an absolute right to receive correspondence from or have visits with persons outside the prison generally, let alone from minor children against the wishes of their custodial parent. While the right to receive visitors and correspondence is sometimes afforded to prisoners, it can be limited. Schaurer has not shown that he had a "clearly established" right of which a "reasonable person would have known" to have his infant son included on his visitors and correspondence lists. Here, it is undisputed that Sharon Young did not want her son Russell to have any contact with Schaurer. She may also have asked the prison authorities to remove Russell's name from Schaurer's correspondence and visitors lists.
There being no triable issues of material fact, Defendants' motion for summary judgment is granted and Schaurer's complaint is dismissed with prejudice.
Dated: New York, New York
January 9, 1995
Harold Baer, Jr.
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