United States District Court, S.D. New York.
INSIDE CONNECT, INC. d/b/a JAIL CALLS, Plaintiff,
BRIAN FISCHER, JOSEPH F. BELLNIER, JEFFREY McKOY, PATTY NELSON, GARY E. BAXTER, PATRICIA LECONEY, WILLIAM CONNOLLY, JOSEPH T. SMITH, WILLIAM LEE and JOHN DOES 1-20, Defendants.
Frederick J. Martorell, Brooklyn, New York, John B. Messenger, Rochester, New York, Counsel for Plaintiff.
Christina Chinwe Okereke, Office of New York State Attorney General, New York, New York, Counsel for Defendants.
OPINION AND ORDER
CATHY SEIBEL, District Judge.
Before the Court is the Motion to Dismiss of Defendants Brian Fischer, Joseph F. Bellnier, Jeffrey McKoy, Patty Nelson, Gary E. Baxter, Patricia LeConey, William Connolly, Joseph T. Smith, William Lee and John Does 1-20, all current or former employees of the Department of Corrections and Community Supervision ("DOCCS"). (Doc. 52.) Defendants move, in the alternative, for summary judgment. ( Id. ) For the reasons set forth below, Defendants' Motion is GRANTED.
A. Factual Background
For purposes of Defendants' Motion, I accept as true the facts (but not the conclusions) as set forth in Plaintiff's Amended Complaint ("AC"), (Doc. 27).
Plaintiff publishes a one-page flyer called "Inmate News 4DOCS" or "DOCS Inmate News" (hereinafter, "Inmate News"). (AC ¶ 15; see id. Ex. E at 4 ("Inmate News").) At the top of the flyer there are three sentences purporting to describe the "Journal of prisoners [ sic ] on Prisons" above a bold headline stating "Inmate Phones and Collect to a Family's Cell!" ( See id. Ex. E at 4.) Below the heading - representing about 75% of the page - are three paragraphs about the telephone service, Jail Calls, that Plaintiff offers to inmates and their families. ( See id. ) The flyer advertises, among other things, that "[i]f you... have a block when you call your loved one... [s]top this today and have your loved one call Jail Calls...." ( See id. ) Plaintiff alleges that it has encountered difficulty over the past several years getting copies of Inmate News delivered to its intended recipients at New York State correctional facilities. ( Id. ¶ 16.) Plaintiff maintains that DOCCS has no basis for refusing to deliver its flyers, and that this refusal violates Plaintiff's First Amendment right to communicate with inmates. ( Id. ¶¶ 25, 40.)
Defendants are Brian Fischer, former Commissioner of DOCCS,  Joseph F. Bellnier, Deputy Commissioner of DOCCS, Jeffrey McKoy, Deputy Commissioner for Program Services of DOCCS, Patty Nelson, Superintendent of the Taconic Correctional Facility ("Taconic"), Gary E. Baxter, Mailroom Supervisor at Taconic, Patricia LeConey, Superintendent of the Cape Vincent Correctional Facility ("Cape Vincent"), William Connolly, Superintendent of the Fishkill Correctional Facility ("Fishkill"), Joseph Smith, Superintendent of the Shawangunk Correctional Facility ("Shawangunk"), William Lee, Superintendent of the Green Haven Correctional Facility ("Green Haven") and John Does 1-20. ( Id. ¶¶ 5-14.) Plaintiff has sued Defendant Fischer in his official and individual capacities, and the remaining defendants in their individual capacities. ( Id. )
DOCCS has regulations governing the inmate use of telephones. These policies are found in Section 723 of Title 7 of the New York Compilation of Codes, Rules and Regulations ("NYCCRR") and in DOCCS Directive No. 4423. Section 723.3(e)(11) provides:
Inmate telephone calls and telephone conversations shall be restricted to the telephone number dialed or otherwise placed by or for the inmate, and shall terminate at the billing address of the called party. Telephone call forwarding or third-party phone calls are prohibited.
7 NYCCRR § 723.3(e)(11). When Plaintiff initiated this case, section 723.3(e)(12) provided:
Inmates are prohibited from placing calls to wireless communications devices, e.g., cellular or PCS telephones, pagers, etc. except that an emergency call to such a device may be authorized under subdivision (g) of this section.
Id. § 723.3(e)(12).
Plaintiff alleges that its telephone service works by "assigning [a] customer a new number, " after which inmate "[c]alls to the new Jail Calls number are... connected to the customer's telephone." (AC ¶ 18.) Plaintiff admits that "a Jail Calls customer may use the service to receive calls from an incarcerated loved one on the customer's cell phone, " ( id. ¶ 23), but insists that calls to cell phones "pose no legitimate security risk, " ( id. ).
DOCCS also has regulations governing the inmate receipt of mailings and other publications. These regulations, found in Section 712 of Title 7 of the NYCCRR and DOCCS Directive No. 4572, provide that, before a facility may refuse to deliver a mailing or other publication to an inmate, it must first refer the material to a Facility Media Review Committee ("FMRC") at the local institution. 7 NYCCRR § 712.1(b). ( See AC Ex. A.) The FMRC may reject a publication (or redact a portion of it) only if the offending material violates one of the standards specifically enumerated in the regulations, and then only if the FMRC specifically indicates which portion of the publication violates which standard. 7 NYCCRR § 712.3(c)(4).
In January 2012, DOCCS began to implement a series of changes to its media review policies and procedures in response to complaints from outside organizations, including a case filed in this Court by Prison Legal News. (AC ¶¶ 28-29; see Prison Legal News v. Lee, et al., No. 11-CV-7118 (VB).) On January 27, 2012, Catherine Jacobsen, Acting Deputy Commissioner for Program Services, and Defendant Bellnier issued to all correctional facility superintendents a memorandum titled "Publications containing advertisements in conflict with disciplinary rules." (AC ¶ 28.) It discussed advertisements mailed to inmates for services - including call forwarding - that allegedly violate DOCCS "Standards of Inmate Behavior." ( Id. ) The memorandum directed:
Rather than barring the introduction of these publications altogether or attempting to redact or remove all such objectionable advertisements from each publication, correctional facilities are to include [a warning] along with each publication.... If a publisher was added to a disapproved vendor list based solely upon the presence of the aforesaid objectionable advertisements in its publication, the publisher should be removed from that list at this time.
( Id .; see id. Ex. E.)
Notwithstanding the policy set forth in the January 27 memorandum, the Taconic Correctional Facility refused to deliver copies of Inmate News to inmates at that facility. ( Id. ¶ 31.) On February 24, 2012, Defendant Baxter informed Plaintiff that Inmate News was "unacceptable mail to this facility, " and instructed Plaintiff to "discontinue sending mail to inmates here." ( Id .; see id. Ex. B.) Plaintiff alleges that other correctional facilities similarly rejected Inmate News after the January 27 memorandum. ( Id. ¶ 31.)
On April 17, 2012, Plaintiff's counsel wrote to Defendant Fischer asserting that DOCCS' refusal to deliver Inmate News to inmates violated the First Amendment rights of Plaintiff and the inmates and subjected the officials involved to liability under 42 U.S.C. § 1983. ( Id. ¶ 32; see id. Ex. C.) On May 4, 2012, Maureen Boll, Deputy Commissioner and Counsel of DOCCS, replied to Plaintiff's letter on behalf of Fischer, stating that "every Superintendent has... been directed... to process each issue of the flyer through the [FMRC]." ( Id. ¶ 33; see id. Ex. D.) Boll further stated:
[T]he problematic advertising at issue will not, standing alone, prohibit the flyer from being made available to inmates. At the same time, however, inmates will be reminded that availing themselves of a telephone service that involves call forwarding or that allows inmates to place calls ...