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HENRY v. COUGHLIN

September 30, 1996

ERNEST HENRY, Plaintiff, against THOMAS A. COUGHLIN III, Commissioner of D.O.C.S; JOHN P. KEANE, Superintendent of Sing Sing Prison; BRANT L. KEHN, Deputy Superintendent of Sing Sing Prison, Defendants.


The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge.

 Pursuant to 42 U.S.C. § 1983, the Plaintiff pro se prison inmate alleges that correctional officers violated his First and Fourteenth Amendment rights when they refused Plaintiff's request for additional visitation privileges. *fn1" Defendants now move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff responds with a request for leave to amend his Complaint.

 I. BACKGROUND

 Plaintiff Ernest Henry is an inmate at Sing Sing Correctional Facility ("Sing Sing") in New York. Defendant Thomas A. Coughlin is Commissioner of the New York State Department of Correctional Services, Defendant John P. Keane ("Keane") is Superintendent of Sing Sing Correctional Facility, and Defendant Brant L. Kehn ("Kehn") is Deputy Superintendent of Sing Sing.

 Plaintiff claims that the Defendants violated his First and Fourteenth Amendment rights. Specifically, Plaintiff claims the Defendants instituted an "invisible" policy which prohibits inmates from having additional visits on the same day as their participation in the Family Reunion Program ("FRP") ends. (Compl. P 4.) The FRP allows inmates and their family members to visit for prolonged periods of time in the privacy of an individual trailer or similar unit. *fn2"

 On November 5, 1993, the Plaintiff challenged the legitimacy of this "invisible" policy by filing an internal grievance with the Inmate Grievance Resolution Committee ("I.G.R.C."). (Compl. P 6.) Inmate Grievance Sergeant Whisnant filed a report stating that the issue had been grieved in the past, denied by Keane, and the denial approved by the Central Office Review Committee. (Compl. P 7.)

 On November 11, 1993, the I.G.R.C. held a hearing regarding Plaintiff's request and rendered a split decision. (Compl. P 10 & Ex. C.) Next, Plaintiff appealed the I.G.R.C.'s decision to Keane. (Compl. P 10.) In a letter dated November 30, 1993, Keane denied Plaintiff's grievance and cited the prior decision on the same issue. (Compl. P 12.) Keane also informed Plaintiff that the FRP would be changed to specify that no visitation would be permitted at the conclusion of the FRP visit. (Compl. P 12.) On December 2, Plaintiff appealed Keane's decision to the Central Office Review Committee. (Compl. P 14.)

 Meanwhile, on November 24, 1993, Henry allegedly wrote to the designated official in charge of the visiting room, Sergeant Mack ("Mack"), and requested a special additional visit on the same day his FRP ended. (Compl. P 11 & Ex. D.) Mack never responded to Henry's letter, and asserts that he never received it. (Compl. P 12; Answer P 11.) On December 14, 1993, Plaintiff requested permission for a special visit from Keane, and included the original letter sent to Mack. (Compl. P 15.) In a memo dated December 20, 1993, Keane denied Henry's request and explained that the visiting room would be especially full because it was a holiday weekend. (Compl. P 16.)

 Henry claims that Defendants' actions in denying him the additional visit denied him of his First Amendment right to freedom of association and his Fourteenth Amendment liberty interest to receive visits. (Compl. P 19.) Accordingly, Plaintiff is suing Defendants in their individual and official capacities. Henry seeks declaratory and injunctive relief, as well as $ 20,000.00 from each Defendant for compensatory damages.

 Defendants move to dismiss the Complaint contending that Plaintiff's allegations fail to state a claim under § 1983. Defendants also maintain that the Eleventh Amendment bars this action and that they are entitled to qualified immunity.

 In response to Defendants' motion to dismiss, Plaintiff seeks leave to amend the Complaint. Defendants respond that leave to amend should be denied because the proposed amendment fails to state a cause of action.

 II. DISCUSSION

 The standard employed for determining whether to grant a motion for judgment on the pleadings is the same as that for dismissing a complaint for failure to state a cause of action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Ad-Hoc Comm. of Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987); see also Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 130 L. Ed. 2d 28, 115 S. Ct. 73 (1994). When applying this standard, a court "must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard, 18 F.3d at 150. The court should only dismiss a complaint if, after viewing the plaintiff's allegations in this favorable light, "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). Furthermore, where a plaintiff acts pro se, a court must liberally construe the complaint, and "'interpret [it] to raise the strongest arguments that [it] suggest[s],'" Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)), thus giving the pro se plaintiff even ...


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