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Sze v. Annucci

United States District Court, N.D. New York

March 7, 2017

KWOK SZE, o/b/o himself and all others similarly situated, Plaintiffs,
v.
ANTHONY ANNUCCI et al., Defendants.

          FOR THE PLAINTIFF FRANK V. RAIMOND

          FOR THE DEFENDANTS HON. ERIC T. SCHNEIDERMAN

          OF COUNSEL FRANK V. RAIMOND, ESQ., MICHAEL G. MCCARTIN ATTORNEY GENERAL ASSISTANT ATTORNEY GENERAL

          MEMORANDUM-DECISION AND ORDER

          Gary L. Sharpe Senior District Judge

         I. Introduction

         Plaintiff Kwok Sze commenced this action pursuant to 42 U.S.C. § 1983 against defendants[1] alleging individual constitutional torts as well claims on behalf of himself and those similarly situated for a denial of access to courts and a violation of the First Amendment. (2d Am. Compl., Dkt. No. 60.) Pending is Sze's motion to certify a class on his First Amendment and access to courts claims, (Dkt. No. 90), and defendants' cross motion for partial summary judgment on the same claims, (Dkt. No. 94). For the reasons that follow, defendants motion is granted and Sze's motion is denied as moot.

         II. Background

         A. Facts[2]

         At all relevant times, Sze was an inmate with the New York State Department of Corrections and Community Supervision (DOCCS) where he was housed at Clinton, Franklin, Greene, and Mid-State Correctional Facilities. (Defs.' Statement of Material Facts (SMF) ¶¶ 1-2, Dkt. No. 94, Attach. 20.) Sze had at least five attorneys who represented him in civil and post-conviction criminal matters. (Dkt. No. 94, Attach. 5 at 32-33, 48-56.) On over ten occasions, Sze used DOCCS' monitored telephone lines to speak with his attorneys. (Id. ¶ 9.) Sze was aware that DOCCS could be listening to his calls. (Id.)

         DOCCS operates an agency-wide telephone program for inmates to contact their friends and family, which is colloquially referred to as the “call home” program. (Dkt. No. 94, Attach. 6.) Pursuant to agency policy, DOCCS monitors all inmate telephone calls made under this program. (Id. ¶ III.C.) Signs in English and Spanish are placed next to the telephones notifying inmates that their phone calls are electronically monitored. (Defs.' SMF ¶¶ 7-8.) DOCCS also has an agency-wide policy to cease monitoring calls if it learned that the inmate was speaking with his or her attorney. (Id. ¶¶ 5-6.)

         In addition to the call home program, inmates could request to speak with their attorneys on unmonitored telephone lines. (Id. ¶ 10.) The method to obtain permission to use the unmonitored lines varied at each facility. (Id. ¶ 11.) By March 8, 2012, DOCCS instituted a policy to build booths around the telephones with unmonitored lines. (Id. ¶ 20.) Starting in May 2015, DOCCS revised its policy and limited the time inmates could speak with their attorneys on unmonitored lines to one thirty minute session every thirty days. (Id. ¶ 23.) Inmates could receive additional time if they or their attorneys attained a court order or made a showing of special need to DOCCS' Office of Counsel. (Id.)

         In total, Sze used DOCCS' unmonitored telephone lines for approximately thirty-three hours to speak with his various attorneys. (Id. ¶¶ 12, 14.) Before Sze commenced this lawsuit, neither he nor any of his attorneys filed grievances complaining about his allotted telephone time or any misconduct by DOCCS regarding the unmonitored telephone lines. (Id. ¶ 13.) Sze could freely meet with his attorneys in person, (id. ¶ 17), however, testified that he opted not to because he did not want to incur the expense, (id. ¶ 18). In addition, Sze could mail his attorneys letters, which he did on an “almost weekly basis.” (Id. ¶ 19.)

         B. Procedural History

         On May 8, 2013, Sze commenced this action. (Compl., Dkt. No. 1.) He subsequently filed an amended complaint, (Dkt. No. 37); some defendants answered, and others moved to dismiss pre-answer, (Dkt. Nos. 38-39). The court granted in part and denied in part defendants' motion. (Dkt. No. 50.) Thereafter, Sze filed a second amended complaint, (Dkt. No. 60), which defendants answered, (Dkt. Nos. 65, 73). Sze then filed the pending motion ...


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