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Lowery v. Westchester County Department of Correction

United States District Court, S.D. New York

February 8, 2017

HAKIN LOWERY, Plaintiff,
v.
WESTCHESTER COUNTY DEPARTMENT OF CORRECTION; SGT. LOPEZ, Badge #157; SGT. S. CARDEN, Badge #149; ASSISTANT WARDEN KARL VOLLMER, Defendants.

          Hakin Lowery Jamaica, NY Pro Se Plaintiff

          Sean T. Carey, Esq. Westchester County Attorney's Office White Plains, NY Counsel for Defendants

          OPINION & ORDER

          KENNETH M KARAS UNITED STATES DISTRICT JUDGE

         Plaintiff Hakin Lowery (“Plaintiff”), an incarcerated inmate proceeding pro se, filed the instant Complaint against Defendants Westchester County Department of Correction, Sgt. Lopez, Sgt. S. Carden, and Assistant Warden Karl Vollmer pursuant to 42 U.S.C. § 1983 alleging constitutional violations arising out of the denial of the use of a private video telephone, which Plaintiff intended to use to speak with his attorney regarding his then-pending criminal case. Before the Court is Defendants' Motion To Dismiss. For the reasons to follow, Defendants' Motion is granted.

         I. Background

         Because this case is before the Court on a motion to dismiss, the Court takes all factual allegations in the Complaint as true.

         A. Factual Background

         Plaintiff was arrested on February 26, 2014 in connection with a charge for a narcotics conspiracy. (See Compl. at unnumbered 15 (Dkt. No. 2).)[1] Although Plaintiff was originally housed in the Metropolitan Correctional Center in New York City, he was moved to the Westchester County Department of Correction, a named Defendant, in Valhalla, New York after the Assistant United States Attorney prosecuting the case revealed that Plaintiff had been targeted for a hit by members of a gang. (See id.) The transfer was secured in order to ensure Plaintiff's safety. (See id.)

         Plaintiff arrived in Valhalla in April 2014. (See id.) At the new facility, although Plaintiff was permitted to communicate with his attorney via a video telephone, 16 out of the 19 times he used such a device, he was required to conduct his video call in the general population pod. (See id.) While the other inmates in the general population pod could not hear what Plaintiff's attorney was saying, they could see the attorney on the video screen and could hear Plaintiff's comments and questions. (See Id. at unnumbered 16.) Because of the circumstances of the video telephone calls, Plaintiff's attorney requested, on several occasions, to prematurely terminate the call so as to ensure Plaintiff's safety and privacy. (See id.) Plaintiff notes that this was particularly frustrating to him because in his criminal case, he had been offered a deal by the government in exchange for his cooperation and he wanted to seek the advice of his attorneys. (See id.)

         Plaintiff filed a formal grievance, requesting that he be allowed to conduct his video telephone calls in a private visitation room. (See id.) The grievance was denied, and a subsequent appeal confirmed that denial. (See id.) The appeal denial noted that while “[i]t [was] true that anyone can see the screen[, ] . . . the video phones have handsets so anything [Plaintiff's] attorney [said] . . . [was] strictly between [Plaintiff] and [his] attorney.” (Id. at unnumbered 13.) The appeal also noted that Plaintiff's “attorney ha[d] the option of coming to the jail, meeting with [Plaintiff] in the visit room and accordingly having privacy in the attorney booths.” (Id.) During this time, Plaintiff's attorney contacted the Westchester County Department of Correction, requesting that Plaintiff be allowed to communicate with her via a private video telephone. (See Id. at unnumbered 17, 19-22.) Although Plaintiff's attorney had some success in this endeavor, she was notified on May 7, 2015 that Plaintiff would no longer be allowed to use the private video telephone because it was too much of an inconvenience. (See Id. at unnumbered 17.) Plaintiff alleges that, all told, he was allowed to use the private video telephone, located in a different part of the prison, only three times. (See id.)

         Plaintiff alleges that Defendants “put Plaintiff's life in jeopardy” by denying him access to a private video telephone. (Id. at unnumbered 14.) He seeks compensation in the amount of $3 million and seeks an injunction directing Defendants to “adhe[re] to proper procedure in the future.” (Id.)

         B. Procedural Background

         Plaintiff filed his Complaint on June 9, 2015. (See Dkt. No. 2.) Defendants filed a letter on June 21, 2016 seeking leave to file a Motion To Dismiss. (See Letter from Sean T. Carey, Esq., to Court (June 21, 2016) (Dkt. No. 13).) The Court thereafter set a briefing schedule for the Motion. (See Dkt. No. 14.) On August 5, 2016, Defendants filed their Motion To Dismiss and supporting papers. (See Dkt. Nos. 15-19.) Plaintiff did not file opposition papers. On September 26, 2016, Defendants wrote the Court informing it that they did not intend to file a reply and that they would rest on their moving brief. (See Letter from Sean T. Carey, Esq., to Court (Sept. 26, 2016) (Dkt. No. 20).)

         II. Discussion

         A. ...


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