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July 15, 2003


The opinion of the court was delivered by: David Larimer, Chief Judge, District


Plaintiffs, Adrian, Ashley, Ana, Javier, Jeffrey and Dennise Hernandez, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiffs allege that the four defendants, all of whom were, at all relevant times, employed by the New York State Department of Correctional Services ("DOCS"), violated plaintiffs' rights under the United States Constitution due to the temporary revocation of plaintiff Adrian Hernandez's visitation rights while he was an inmate at Southport Correctional Facility. Defendants have moved for summary judgment.


The complaint alleges that on June 20, 1998, Adrian Hernandez ("Adrian") was summoned to receive visitors who had come to Southport to see him. As Adrian was waiting to be allowed into the visitation room, a correction officer ("C.O.") conducted a pat frisk of Adrian. The C.O. asked Adrian to remove his sneakers. In one of the sneakers, the C.O. found a six-inch plexiglass shank. Adrian was immediately removed from the area and the visit did not occur. As a result of this incident, the C.O. filed a misbehavior report against Adrian, charging him with possession of a contraband weapon, smuggling, and violating facility visiting rules.

Shortly after these events, Adrian's cell was searched. During the search, it was discovered that the plexiglass lens to the cell light had been broken, and that an 8 ½ -inch by 10 ½ -inch piece of plexiglass was missing. This discovery led to a second misbehavior report against Adrian, charging him with destroying state property and tampering with state property.

A hearing on these charges was conducted on July 2, 1998, before defendant Hearing Officer Richard Cerio. On July 3, 1998, Cerio found Adrian guilty of all five charges against him, and imposed a penalty of thirty months in the Special Housing Unit with a corresponding loss of good time. On administrative appeal, the penalty was modified to twenty-four months, and the determination was otherwise affirmed.

Also on July 3, Cerio submitted a memorandum to defendant Michael McGinnis, the Superintendent of Southport, advising him of Adrian's possession of the shank, and recommending that Adrian's visiting privileges be permanently revoked. On July 14, McGinnis permanently revoked Adrian's visiting privileges. Adrian appealed to defendant Glenn S. Goord, Commissioner of DOCS. On August 25, 1998, the revocation was affirmed by Goord's designee, defendant Anthony J. Annucci, Deputy Commissioner and Counsel of DOCS. The Memorandum Decision affirming the penalty (which is attached to the complaint in this action) also advised Adrian that he could "request a reconsideration of this revocation any time after it has been in effect for one year and on an annual basis thereafter," and that such a request should be directed to the superintendent of the facility in which Adrian was then housed.*fn1

Adrian subsequently commenced a number of proceedings in state court seeking to reverse the disciplinary determination and penalty. All of them were dismissed. See Hernandez v. Goord, No. 98-2706 (Sup.Ct. Chemung County, Feb. 10, 1999) (Docket #112, Ex. A); Hernandez v. Goord, No. 98-2754 (Sup.Ct. Chemung County, Feb. 10, 1999) (Docket #112, Ex. B); Hernandez v. Selsky, No. 99-2557 (Sup.Ct. Chemung County, Mar. 13, 2000) (Docket #112, Ex. C); Hernandez v. McGinnis, No. 99-2609 (Sup.Ct. Chemung County, Mar. 28, 2000) (Docket #112, Ex. D).

As stated, Adrian was advised that he could seek reconsideration of the revocation of his visiting privileges after it had been in effect for a year. It appears that he did so on February 6, 2001, for in an Interdepartmental Communication dated June 4, 2001, George B. Duncan, the Superintendent of Great Meadow Correctional Facility (where Adrian was then located), informed Adrian that, pursuant to Adrian's February 6 request for restoration of visiting privileges, and Duncan's prior response indicating that he would consider restoration after June 1, 2001, Duncan was "approving [Adrian] for non-contact visiting, effective immediately," since it appeared that Adrian had met Duncan's conditions that he "remain in a program and report-free. . . ." Docket #11, Ex. A. Duncan stated that if Adrian continued to meet those conditions, Duncan would consider restoration of contact visits on September 1, 2001.

Thus, Adrian was without visitation privileges from about June 20, 1998, when the shank and damage to his light were discovered, until about June 4, 2001. Plaintiffs commenced the instant action on July 17, 2001. Plaintiffs include Adrian and five of his relatives: his mother Ana; his brothers, Jeffrey and Javier; his sister Dennise; and his daughter Ashley (collectively, "family plaintiffs"). The family plaintiffs have not brought any prior actions or proceedings concerning these matters.

Plaintiffs allege that the finding of guilt on the disciplinary charges against Adrian, and the subsequent penalty, which prevented the family plaintiffs from visiting Adrian while the revocation was in effect, violated their rights to free association and due process under the First and Fourteenth Amendments to the United States Constitution, and that it constituted cruel and unusual punishment in violation of the Eighth Amendment.


I. Summary Judgment — General Standards

Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Where the plaintiffs are proceeding pro se, the court will liberally construe the plaintiffs' pleadings, and "interpret them `to raise the strongest arguments that they suggest.'" McPherson v. ...

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