April 1, 2009
IN THE MATTER OF THE APPLICATION OF ANTHONY RIVERA, PETITIONER,
NEW YORK CITY DEPARTMENT OF CORRECTION, RESPONDENT.
The opinion of the court was delivered by: Richard L. Price, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Petitioner moves this court pursuant to CPLR Article 78 for vacatur of an administrative determination revoking his contact visitation privileges claiming that it was imposed without due process. Petitioner contends that the loss of such visitation, which confines the inmate to a booth precluding any physical contact with visitors via a separation barrier, is a disciplinary sanction related to his having failed a urine drug test. Petitioner further claims that the Department denied him the right to procedural due process by failing to provide him with proper notice and a forum to challenge such determination, and that the revocation was itself arbitrary and irrational.
Respondent, the New York City Department of Correction ("Department"), contends that the petition is meritless and should be denied because petitioner had adequate notice that failing a drug test would result in the revocation of contact visitation privileges. Respondent further claims that any such determination was administrative, not disciplinary or punitive, and is rationally related to the legitimate interests of promoting internal prison security. After reviewing the parties' respective papers submitted in support these contentions, the petition is granted.
Findings of Fact
Petitioner is an inmate at a New York City correctional facility on Riker's Island. On January 11, 2008, the petitioner failed a mandatory drug test, which consisted of both an initial and confirmatory test for the presence of controlled substances. Testing positive for TCH-Marijuana, petitioner was served on January 16, 2008 with a Report and Notice of Infraction charged with him violating New York City Department of Correction ("Department") Detainee Conduct Rule 130.11.*fn1 At a disciplinary hearing conducted on January 18, 2008, petitioner was found guilty of this charge and a penalty of sixty days punitive segregation was imposed along with a twenty-five (25) dollar administrative fee.*fn2
On June 15, 2008, six months after that disciplinary hearing, petitioner received a visitor and was placed in a non-physical contact booth for the entire visit. A Denial of Visit Report was then filed with the facility's warden, a copy of which was placed in petitioner's file.*fn3 By petition dated August 1, 2008, petitioner commenced this Article 78 proceeding. The responding Department filed an affirmation opposing the petition on October 22, 2008. On November 12, 2008, petitioner, by his counsel, filed a reply to the Department's opposition and the matter was deemed submitted.
Conclusions of Law
As a general rule, prison inmates have no constitutional right to visitation (Encarnacion v Goord, 8 AD3d 850, 778 NYS2d 562 [3rd Dept, 2004]). Nevertheless, as the Department's own Directive provides, instituting visitation rights for inmates makes sense from a policy perspective in that it "encourage(s) inmates to maintain ties with their families and friends through regular visits."*fn4 When, however, inmates are granted such rights by regulation, any restriction of them must then be subject to administrative and judicial review (Grigger v Goord, 27 AD3d 803, 811 NYS2d 161 [3rd Dept, 2006], lv denied 7 NY3d 702, 818 NYS2d 192, 850 NE2d 1167). Thus, while the Department maintains authority to revoke or limit an inmate's visitation rights, it must first demonstrate reasonable cause to believe that such action is necessary to maintain safety, security, and good order of a correctional facility (Serrano v Goord, 266 AD2d 661, 698 NYS2d 742 [3rd Dept, 1999], lv denied 94 NY2d 762, 707 NYS2d 622, 729 NE2d 341).
Department Directive No.2007, Inmate Visit Procedures, Section III (F) (3) (a), provides in pertinent part:
An inmate's right to a contact visit may be denied, revoked, or limited only when it has been determined that such visits constitute a serious threat to the safety and security of a facility. Should a determination be made to deny, revoke or limit an inmate's right to contact visits in the usual manner, alternative arrangements for affording the inmate the requisite number of visits shall be made, including but not limited to non-contact visits. This determination must be based on specific acts committed by the inmate while in custody under the present charge or sentence that demonstrates his/her threat to the safety and security of an institution , or on specific information received and verified that the inmate plans to engage in acts during the next visit that will be a threat to the safety and security of the facility. Prior to any determination, the inmate may be provided with written notification of the specific charges and the names and statements of the charging parties, and be afforded an opportunity to respond. At the inmates's request, this determination may be reviewed by the Deputy Warden for programs every thirty (30) days (emphasis added).
Petitioner's argument that the Department denied him of his due process rights by violating the provisions of this Directive is persuasive. As noted above, petitioner was subjected to a mandatory drug test on January 11, 2008, to detect the presence of controlled substances.*fn5 Six months later, after testing positive for TCH-Marijuana and serving his punitive segregation time, petitioner received a visitor and was placed in a non-physical contact booth for the entire visit. Petitioner contends, and the court agrees, that the Department has proffered no relationship, causal or otherwise, between the petitioner's positive drug test and the indefinite revocation of his contact visits. More significantly, the Department has abjectly failed to demonstrate any act of the petitioner suggesting that he poses a threat to the safety and security of the correctional institution. Where an inmate's behavior bears no relation to his contact visits, such visits may be neither revoked or limited (Dawes v State, 194 Misc 2d 617, 755 NYS2d 221 ). Citing Kozlowski v Coughlin, 871 F2d 241, 243 (2d Cir, 1989), the Court stated that "visitation sanctions may not be employed to punish or discipline . . . only misconduct between an inmate and a specific visitor can result in deprivation of visitation rights." It is especially interesting to note that while the revocation of contact visits in Dawes was based on the inmate's violent behavior, there was no demonstrable relationship between that behavior and the contact visits. As such, the revocation of contact visits was held to be improper. Surely then, where the inmates' behavior was entirely non-violent, e.g. drug use, and had no relationship to any contact visits, revocation of contact visits is improper.
Simply stated, notwithstanding the Department's assertions that testing positive for the use of controlled substances, by itself, justifies revocation petitioner's contact visit privileges, it has failed to establish any basis, reasonable or otherwise, to believe that such action is necessary to maintain safety, security, and good order of the correctional facility. In fact, the Department has failed to show the existence of any "specific acts committed by the inmate . . . that demonstrates his threat to the safety and security of an institution." The Department similarly failed to provide any information, specific or otherwise, that petitioner planed to engage in acts during the next visit that would be a threat to the safety and security of the facility.
Petitioner further claims that although a disciplinary hearing was conducted relative to having been charged with violating Detainee Conduct Rule 130.11 for testing positive, no such hearing was conducted regarding the revocation of his contact visits, as required pursuant to Directive # 2007, Section III (F) (3) (a). In fact, even according to the papers submitted by the respondent Department, petitioner was unaware of the revocation until June 6, 2008, one day after his June 5, 2008 visit, when he was restricted to a booth-visit.
Regarding notice, the Department must provide the inmate with written notice of a disciplinary action and allow for appeal of such action. Rule 1-04 (a) (1) of the Inmate Rulebook,*fn6 states that when an inmate is placed against their will in "any of the most restrictive security categories, including punitive segregation," the inmate will be given written notice of i) the reasons for the designation, ii) the evidence relied upon, iii) the right to a hearing before an impartial Adjudication Captain appointed from the Adjudication Unit, and iv) the inmate's rights at the hearing. Clearly, the only notice and hearing petitioner was afforded related to his failed drug test. There is no evidence, however, that petitioner was provided with any such notice of the Department's determination to revoke his contact visits.
The Department's claim that as a general matter, petitioner should have been aware that testing positive for controlled substances could result in such a determination because it is stated in the Inmate Handbook, on signs posted in the facility and his having been previously incarcerated on several occasions is irrelevant and entirely without merit. As noted, the Department certainly has a duty to maintain the security of the facility, and the court does not question the legitimacy of the need to suspend contact visits to achieve that end. They must, however, adhere to the proper protocol of providing inmates with notice and an opportunity to respond before instituting such action. Department Directive # 2007, Section II.(3) (a) provides that "prior to any determination, the inmate may be provided with written notification of the specific charges and the names and statements of the charging parties, and be afforded with an opportunity to respond." Whether an inmate is generally aware that their visitation privileges may be revoked or restricted as a consequence of testing positive in no way serves as a substitute for notice and an opportunity to be heard given when the Department specifically intends to do so.
Finally, the Department's assertion that it had no obligation to notify petitioner of its determination revoking his contact visit privileges until he actually received a visitor is beyond a cavil and wholly unreasonable. Also unreasonable is the Department's claim that petitioner was not entitled to notice of its determination or a hearing because it was merely an administrative decision, not a punitive measure. Given that the Department utterly failed to establish even a remote connection between petitioner's positive drug test and any contact visits, along with its complete failure to demonstrate that his testing positive would be a threat to the safety and security of the facility in future visits, the revocation of petitioner's contact visit privileges was nothing other than arbitrary and capricious thereby depriving him of due process. The petition is therefore sustained in all respects and the court orders that petitioner's full visitation privileges be restored.
This constitutes the decision and order of the court.