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Zimmerman v. Burge

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


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 clause."). Therefore, it is not necessary for the court to reach the second prong of the due process analysis, that is, "whether the procedures attendant upon th[e] deprivation were constitutionally sufficient." Thompson, 490 U.S. at 460.

There is some authority for the proposition that prison and/or state regulations may create a liberty interest in contact visits. See Daniels v. Walker, No. 93-cv-0570, 1995 WL 760707, at *3 (N.D.N.Y. Nov. 25, 1995) ("Sections 200.2 through 200.5 of Title 7 of New York's Comprehensive Rules and Regulations clearly create and safeguard a liberty interest in contact visitation.").It is possible that this is the argument that Zimmerman is making. To the extent that Zimmerman so argues, however, Judge Lowe has persuasively rejected this position. As Judge Lowe notes, following the Supreme Court's decision in Sandin v. Connor, 515 U.S. 472 (1995), state regulations may create liberty interests that are protected by the Due Process Clause, "[b]ut these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force . . . nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."

Id. at 484. In light of the post-Sandin cases cited by Judge Lowe in footnote 53 of the R&R, the court has no trouble adopting his conclusion that "restrictions on the conditions in which inmates may visit with non-inmates would appear to be a hardship on inmates that is rather typical and necessary (in relation to the ordinary incidents of prison life)." (R&R at 28-29; Dkt. No. 31.)

In summary, upon de novo review, the court finds no flaws in Judge Lowe's analysis of Zimmerman's due process claim. Accordingly, the court adopts Judge Lowe's analysis, and Zimmerman's due process claim is dismissed.

D. Eighth Amendment Claim Based on Visitation Restrictions*fn5

Zimmerman has specifically objected to Judge Lowe's recommendation that his Eighth Amendment claim based on visitation restrictions be dismissed; accordingly, the court has reviewed Judge Lowe's recommendation de novo.

Zimmerman objects to the sua sponte dismissal of his Eighth Amendment claim because his motion for summary judgment on his Eighth Amendment claim was unopposed. However, the court need not grant summary judgment in favor of Zimmerman merely because his motion is unopposed. See Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 242 (2d Cir. 2004) ("Even when a motion for summary judgment is unopposed, the district court is not relieved of its duty to decide whether the movant is entitled to judgment as a matter of law."). Moreover, the court may dismiss a case brought by a pro se prisoner at any time if it determines that the action is "frivolous or malicious" or "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2). Judge Lowe properly concluded that Zimmerman's Eighth Amendment claim regarding visitation restrictions fails to state a claim on which relief may be granted.

According to his Objections, Zimmerman has been denied contact visits for two and a half years.*fn6 It appears--though it is nowhere explicitly stated in the record--that the restriction on contact visits is ongoing and is to continue indefinitely.*fn7 Even so, this restriction does not violate the Eighth Amendment. In Overton v. Bazzetta, 539 U.S. 126 (2003), the Supreme Court held that a visitation restriction which limited inmates with multiple substance abuse violations to no visitors except attorneys and members of the clergy for two years did not violate the Eighth Amendment. See id. at 130, 136-37. The Court suggested that it might have reached a different conclusion had the withdrawal of visitation privileges been permanent. See id. at 137. From this, Zimmerman argues that the indefinite visitation restriction to which he is currently being subjected is cruel and unusual punishment. However, the restriction at issue in Bazzetta was also indefinite, in the sense that it would not come to an end absent affirmative action on the part of prison officials. See id. at 130.*fn8 As in Bazzetta, the visitation restriction at issue in this case may be lifted if the Superintendent determines it is no longer necessary. See supra note 7. Moreover, unlike in Bazzetta, Zimmerman is not wholly prevented from having visitors; instead, he is subjected to the lesser imposition of non-contact visitation.

In light of the Supreme Court's decision in Bazzetta, as well as the other cases cited in the R&R, the court agrees with Judge Lowe's conclusion that the visitation restrictions to which Zimmerman is subjected do not violate the Eighth Amendment.*fn9 Accordingly, Zimmerman's Eighth Amendment claim is dismissed insofar as it concerns the visitation restrictions.

E. Rule 7.1(a)(3) Violation

Judge Lowe recommended dismissal of the three claims on which Zimmerman sought summary judgment, i.e., the double jeopardy claim, the due process claim, and the Eighth Amendment claim based on visitation restrictions. As discussed supra in sections II-B, C, and D of this opinion, the court has adopted said recommendation. In the alternative, Judge Lowe recommended that Zimmerman's motion for summary judgment on these three claims be denied for failure to comply with N.D.N.Y. R. 7.1(a)(3). Zimmerman has objected to this alternative recommendation. However, because the court has dismissed the three claims at issue, the court need not address the local rule violations.

F. Preliminary and Permanent Injunction

Zimmerman has lodged a specific objection with respect to the R&R's treatment of his motion for a preliminary and permanent injunction. Upon de novo review, the court concurs with Judge Lowe's treatment of Zimmerman's motion. Zimmerman has not established irreparable harm or a likelihood of success on the merits. Accordingly, Zimmerman's motion for a preliminary and permanent injunction is denied.

III. Conclusion

In summary, the following claims are dismissed: (1) the equal protection claim; (2) the double jeopardy claim; (3) the due process claim; and (4) the Eighth Amendment claim relating to visitation restrictions. The following claims survive: (1) the Eighth Amendment claim relating to the length of SHU confinement; and (2) the Eighth Amendment deliberate indifference claim. It appears that the motion filing deadline in this case has not yet passed; accordingly, defendants may seek summary judgment on the outstanding claims should they so choose.

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that Judge Lowe's Report-Recommendation is adopted; and it is further

ORDERED that Zimmerman's motion for a preliminary and permanent injunction (Dkt. No. 4) is DENIED; and it is further

ORDERED that Zimmerman's motion for partial summary judgment (Dkt. No. 25) is DENIED; and it is further

ORDERED that defendants' cross motion for partial dismissal (Dkt. No. 28) is GRANTED, and Zimmerman's double jeopardy and due process claims are DISMISSED; and it is further

ORDERED that Zimmerman's equal protection claim is DISMISSED; and it is further

ORDERED that Zimmerman's Eighth Amendment claim regarding visitation restrictions is DISMISSED; and it is further

ORDERED that the Clerk provide copies of this Memorandum-Decision and Order to the parties.

IT IS SO ORDERED.


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