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Zimmerman v. Burge

March 27, 2008

NICHOLAS ZIMMERMAN, PLAINTIFF,
v.
JOHN W. BURGE, SUPERINTENDENT OF AUBURN CORRECTIONAL FACILITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Nicholas Zimmerman, an inmate at Auburn Correctional Facility, brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, seven employees of the New York State Department of Correctional Services ("DOCS"), violated his constitutional rights when, in broad strokes, they sentenced him to a lengthy term of solitary confinement with limited visitation privileges and inadequate access to medical care. (See Compl.; Dkt. No. 1.) On February 9, 2006, Zimmerman moved for preliminary relief, seeking an order directing the defendants to place him in the Intermediate Care Program at Auburn Correctional Facility. (Dkt. No. 4.) Subsequently, on November 14, 2006, Zimmerman moved for summary judgment on three of his five claims. (Dkt. No. 25.) By submission dated December 19, 2006, defendants opposed both motions and sought dismissal of two of the three claims at issue in Zimmerman's motion for summary judgment. (Dkt. No. 28.) The motions were referred to Magistrate Judge George H. Lowe for report and recommendation. On September 28, 2007, Judge Lowe issued a Report-Recommendation ("R&R") recommending that Zimmerman's motions be denied and that three of Zimmerman's five claims be dismissed. (See Dkt. No. 31.)*fn1 Pending are Zimmerman's timely objections ("Objections") to the R&R. (Dkt. No. 33.) For the reasons that follow, the R&R is adopted.

II. Discussion

A. Equal Protection Claim

Judge Lowe recommended dismissal of Zimmerman's purported equal protection claim on the grounds that no such claim was even arguably presented in Zimmerman's Complaint, and Zimmerman could not raise such a claim for the first time in his motion for summary judgment.*fn2

What is more, Judge Lowe concluded that even if he could liberally construe the Complaint as attempting to assert such a claim, the facts alleged in the Complaint "do not plausibly, or even conceivably, suggest such a claim." (R&R at 6; Dkt. No. 31.) Zimmerman has specifically objected to Judge Lowe's recommendation in this regard. Accordingly, the court has reviewed this recommendation de novo. See Brito v. Phillips, 485 F.Supp.2d 357, 360 (S.D.N.Y. 2007) ("[W]here objections to a report are specific and address only those portions of the proposed findings to which the party objects, district courts should conduct a de novo review of the issues raised by the objections.") (citations and quotations omitted).

Upon de novo review, the court concurs with Judge Lowe that, even construed liberally, the Complaint does not assert an equal protection claim. As to Zimmerman's argument that he could provide factual support for such a claim if only he could conduct discovery, in filing a motion for summary judgment Zimmerman implicitly conceded that the claim was primed for resolution on the merits without the need for additional fact-finding.*fn3 Accordingly, because the Complaint makes no mention of an equal protection claim and because there are no factual predicates for such a claim, Zimmerman's equal protection claim is dismissed.

B. Fifth Amendment Double Jeopardy Claim

Zimmerman objects in cursory terms to Judge Lowe's recommendation that his double jeopardy claim be dismissed. (See Objections at 2 ("In any event, I object to Lowe's report and the defendants 'reply' on this point.").) In light of this general objection, the court has reviewed the R&R for clear error insofar as it addresses the double jeopardy claim. See McAllan v. Von Essen, 517 F.Supp.2d 672, 679 (S.D.N.Y. 2007) ("If, however, the party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.") (citations and quotations omitted). Upon such review, the court adopts Judge Lowe's reasoning and conclusion. Accordingly, Zimmerman's Fifth Amendment double jeopardy claim is dismissed.

C. Fourteenth Amendment Due Process Claim

In light of Zimmerman's specific objections to the R&R's treatment of his due process claim, the court has reviewed that portion of the R&R de novo. Upon such review, the court concludes that Zimmerman's objections are without merit.

As an initial matter, there is no merit to Zimmerman's contention that Judge Lowe should not be permitted to raise arguments for the defendants. Judge Lowe merely pointed out that the defendants' brief had not properly set forth the complete legal standard for evaluating a procedural due process claim. Judge Lowe then proceeded to evaluate the claim under the proper legal standard. It defies logic to suggest that Judge Lowe should have evaluated the claim under a faulty standard simply because the parties had proposed such a standard.

Turning to the standard itself, Zimmerman has argued that he recognizes that he has no constitutional right to contact visits, and that he is simply challenging the procedures that were utilized to deny him the privilege of contact visits. (See Objections at 7; Dkt. No. 33.) Zimmerman misses the point. He cannot state a claim for procedural due process without first establishing that he has been denied a liberty or property interest. See Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989).*fn4 As Zimmerman concedes, there is abundant case law establishing that inmates have no liberty or property interest in contact visits. See, e.g., Baskerville v. Goord, No. 97-cv-6413, 1998 WL 778396, at *6 (S.D.N.Y. Nov. 5, 1998) ("It is well established . . . that contact visits of prison inmates are a privilege for inmates, not a right, and thus do not give rise to a liberty interest protected by the due process ...


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