United States District Court, W.D. New York
NICHOLAS ZIMMERMAN, Pro Se ERIC T. SCHNEIDERMAN NEW YORK
STATE ATTORNEY GENERAL Attorney for Defendants RYAN L. BELKA,
DECISION AND ORDER
G. FOSCHIO UNITED STATES MAGISTRATE JUDGE.
prisoner civil rights § 1983 action, alleging First
Amendment claims based on alleged interference with
Plaintiff's mail and an unlawful mail watch order, Eighth
Amendment violations based on alleged excessive force and a
failure to protect, and federal Due Process violations in
connection with disciplinary hearings conducted April 1,
2010, September 22, 2010, and August 8, 2011, and a
generalized conspiracy, by papers filed May 8, 2017 (Dkt.
43), Plaintiff requests a court order granting Plaintiff
telephone privileges for communications with nine individuals
described as “witnesses, paralegals and administrative
assistants” (“Plaintiff's litigation
aides”) to Plaintiff of up to three hours per day, four
visitations per week with these same persons, direct access
of up to three hours per day to the law library at the Wende
Correctional Facility where Plaintiff is housed without
restraints to permit Plaintiff to write and type documents,
and that the requested telephone communications and visits
occur between 9:00 a.m. and 3:00 p.m. upon 48 hours prior
notice to the prison (“Plaintiff's motion”).
All of such requests, according to Plaintiff, are for the
purpose of facilitating Plaintiff's successful
prosecution of Plaintiff's claims in the instant case.
Plaintiff cites to no authority to support Plaintiff's
motion except a copy of an order by Hon. Mae D'Agostino
filed August 8, 2011 in connection with a trial of an
unrelated matter then pending in the Northern District which
allowed Plaintiff to receive phone calls from four of nine
individuals listed in Plaintiff's motion to discuss
matters relating to Plaintiff's trial and permitted
Plaintiff to have visitation rights with Plaintiff's
witnesses expected to testify in that trial. See
Dkt. 43 at 5; Dkt. 45-2.
papers filed May 25, 2017, Defendants oppose Plaintiff's
motion contending Plaintiff's history of attempted
escape, see Dkt. 45-1, precludes telephone access
and visitation privileges beyond those available under
general prison regulations to persons, like Plaintiff,
confined to SHU and that courts recognize there is no right
for unlimited prisoner access to a prison law library.
Defendants further contend judicial interference in the
administration of prevailing telephone, visitation and
library access privileges as Plaintiff requests would serve
to create a “disincentive” to prisoner
“good behavior, ” which qualifies as a legitimate
penological justification for the more limited privileges
available to Plaintiff. Dkt. 45-1 ¶¶ 14-15. There
is no indication that Plaintiff filed any grievance in
connection with Plaintiff's requests, however, the court
presumes Plaintiff has presented the instant requests to
prison officials, and that they have been rejected.
Plaintiff's motion is without merit.
lack an unrestricted right to communication by telephone.
See Mercado v. Dep't of Corrections, 2017 WL
1095023, at *3 (D.Conn. Mar. 23, 2017) (citing caselaw). As
relevant, prison restrictions on a prisoner's telephone
use “do not impinge on a prisoner's constitutional
rights where an inmate has alternate means of communication,
” such as by mail. Id. (citing Henry v.
Davis, 2011 WL 5006831, at *2 (S.D.N.Y. Oct. 20, 2011)).
Here, Plaintiff does not allege he is prevented from
communicating by mail with his litigation aides regarding his
lawsuit. It is also well-established that a prisoner does not
enjoy an unrestricted right to contact visitations under the
Due Process clause and that such visitations are a privilege
not a right. See Caldwell v. Goord, 2013 WL 1289410,
at **4-5 (Mar. 27, 2013 W.D.N.Y) (citing caselaw).
Limitations on an inmate's privileges do not infringe Due
Process or the First Amendment right of association where the
limitations bear a rational relationship to “legitimate
penological interests and other alternate means of
communication are available.” Id. (citing
Overton v. Bazzetta, 539 U.S. 126, 131-36 (2003)).
Here, Plaintiff provides no indication of any existing
limitations on Plaintiff's visitation privileges or that
alternative means of communications, such as out-going and
in-coming mail with the litigation aides is not available.
Further, although Plaintiff contends, Dkt. 46 at 2, that he
was not disciplined for attempted escape, Plaintiff concedes,
Dkt. 46 at 2, he was previously convicted in state court of
an escape related offense. See People v. Zimmerman,
851 N.Y.S.2d 265 (2d Dep't. 2008), lv. to appeal
den., 908 N.E.2d 938 (N.Y. 2009). Thus, there is a
reasonable penological justification for placing some
restrictions on Plaintiff's telephone and visitations
access privilege as Defendants assert. Similarly, prisoners
do not enjoy unlimited rights to access prison law libraries
and such access is also subject to reasonable restriction
based on valid penological concerns such as exist here.
See Jean-Laurent v. Los, 2015 WL 1015383, at **5-6
(W.D.N.Y. Mar. 8. 2015) (citing O'Lone v. Estate of
Shabazz, 482 U.S. 342, 348 (1987) and Ford v.
McGinnis, 352 F.3d 582, 593-94 (2d Cir. 2003));
Nevarez v. Hunt, 770 F.Supp.2d 565, 567 (W.D.N.Y.
2011) (citing caselaw). Absent a showing that the regulations
restricting a prisoner's law library access have denied
“the inmate meaningful access to the courts, ”
such restrictions will be upheld. Here, Plaintiff argues only
that Plaintiff's request for greater law library access
will better enable Plaintiff to conform to the deadlines
established by the Scheduling Order (Dkt. 38), not that
Plaintiff is thereby disabled from pursuing the instant case,
see Dkt. 43 at 1; Dkt. 46 at 16. However, in the
event that Plaintiff, despite reasonable diligence, cannot
meet a Scheduling Order deadline while conforming to existing
prison regulations regarding law library access, Plaintiff
may seek an amended Scheduling Order for good cause pursuant
to Fed.R.Civ.P. 16(b).
Plaintiff's reliance on Judge D'Agostino's order
granting additional communications with some of
Plaintiff's litigation aides in the case before her is
misplaced. As Defendants point out, Dkt. 45 at 2-3, that
order was entered to facilitate Plaintiff's trial
preparation for a relatively short - 17 day - duration.
Additionally, precedents based on other district court
decisions are not binding upon the courts of this district.
See Camreta v. Greene, 563 U.S. 692, 709 n. 7 (2011)
(“A decision of a federal district court judge is not
binding precedent in either a different judicial district,
the same judicial district, or even upon the same judge in a
on the foregoing, Plaintiff's ...