Burroughs et al v. County of Nassau et al

Filing 135

ORDER denying 131 Motion to Compel. For the reasons set forth in the attached Order, Plaintiff pro se's Motion to Compel is denied. Defendants shall serve pro se Plaintiffs with a copy of the attached Order, and electronically file proof of such service. Ordered by Magistrate Judge Steven I. Locke on 7/14/2015. (Walsh, Kenneth)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CRAIG BURROUGHS, et al.,
-against-

Plaintiff,

ORDER
13-cv-6784(JMA)(SIL)

COUNTY OF NASSAU and MICHAEL J.
SPOSATO, SHERIFF of NASSAU COUNTY,
Defendants.
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LOCKE, Magistrate Judge:
Plaintiffs pro se, who are fifteen individuals currently or previously
incarcerated at the Nassau County Correctional Center (“NCCC”) in East Meadow,
New York, commenced this action under 42 U.S.C. § 1983 alleging various violations
of their constitutional rights by Defendants County of Nassau (“Nassau County”) and
Sheriff Michael J. Sposato (together, “Defendants”). Presently before the Court is a
letter motion by Plaintiff pro se Daniel Miller (“Miller”), DE [131], seeking an Order
compelling the wardens or superintendents of various correctional facilities to allow
Miller and four of his co-Plaintiffs pro se who are now housed in those facilities to
communicate for purposes of this action. 1 Defendants filed a letter in opposition, DE
[132]. For the reasons set forth herein, Miller’s motion is denied.

Miller’s motion seeks relief on behalf of himself and incarcerated Plaintiffs pro se William
Cowan (“Cowan”), Kurtis Phillip (“Phillip”), Jamel Williams (“Williams”), and Michael Dollison
(“Dollison”). See Pl. Ltr. Mtn. at 1. As a pro se plaintiff, and as Judge Seybert has previously held in
this action, Miller may not seek relief on behalf of his co-Plaintiffs pro se. See DE [21] at 3; see also
Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990) (“[A] pro se litigant
cannot represent anyone other than himself or herself.”).
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I.

Background

When Plaintiffs pro se filed their Complaint on November 18, 2013, each
individual was incarcerated at the NCCC as either a pre-trial detainee or sentenced
prisoner. See DE [1]. According to the Complaint, various NCCC policies violated
Plaintiffs’ rights under the Americans with Disabilities Act, the Rehabilitation Act,
and the Eighth and Fourteenth Amendments of the United States Constitution while
they were housed in the NCCC’s Medical Unit. Id. Since filing their Complaint,
certain Plaintiffs pro se have been released from incarceration, while others have
been transferred to other correctional facilities. See DE [129]; DE [130]. Presently,
only Plaintiffs pro se Miller and Cowan are incarcerated at the NCCC. See DE [130];
DE [134].
Miller now seeks an Order that would allow not only him, but each of the
incarcerated Plaintiffs pro se, to correspond with one another for purposes of this
action. See Pl. Ltr. Mtn. at 1. According to Miller, “it will be necessary to provide
each other with filed documents, such as discovery requests, motions, responses, etc.”
Id. Notably, Miller does not contend that he and his co-Plaintiffs pro se have sought
authorization for inmate-to-inmate communication from the appropriate officials at
the correctional facilities in which they are incarcerated.
In opposition to Miller’s motion, Defendants argue that the relief Miller seeks
“implicate[s] the policies of county, state and federal correctional facilities not at bar
in the instant action,” and that Miller fails to provide a “basis for why unnamed
wardens at unnamed correctional facilities should make exceptions to their inter-

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facility inmate mailing policies . . . .” Def. Ltr. Opp. at 1. Defendants also argue that
Miller, who is not a lawyer, may not seek relief on behalf of the other Plaintiffs pro
se, nor can Defendants advance arguments on behalf of the other correctional
facilities that would be required to permit communication if this Court granted
Miller’s motion. Id. at 1-2.
II.

Legal Standard

Generally, in matters of prison administration, courts defer to the judgment of
the prison officials authorized to establish policies and regulations. Duamutef v.
Hollins, 297 F.3d 108, 112 (2d Cir. 2002) (“The [Supreme] Court has counseled
judicial restraint in the federal courts’ review of prison policy and administration,
noting that ‘courts are ill equipped to deal with the increasingly urgent problems of
prison administration and reform.’ ”) (quoting Giano v. Senkowski, 54 F.3d 1050, 1053
(2d Cir. 1995)); see also Shaw v. Murphy, 532 U.S. 223, 230, 121 S.Ct. 1475 (2001)
(“[P]rison officials are to remain the primary arbiters of the problems that arise in
prison management.”). Judicial restraint is particularly appropriate where, as here,
state correctional facility policies are at issue. See Giano, 54 F.3d at 1053 (“Moreover,
the doctrines of separation of powers and federalism (where, as here, a state penal
system is involved) dictate a policy of judicial restraint.”) (quoting Turner v. Safley,
482 U.S.78, 85, 107 S.Ct. 2254 (1987)).
III.

Discussion

Applying the standards outlined above, the Court denies Miller’s motion, DE
[131], deferring to the judgment and discretion of the correctional facilities in which
Plaintiffs pro se are incarcerated.
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It is well-established that restrictions on inmate-to-inmate communication are
permissible so long as they are related to “legitimate penological interests.” Turner,
482 U.S. at 93; see also Shaw, 532 U.S. at 231 (upholding inmate-to-inmate
communication restrictions because “it is ‘indisputable’ that inmate law clerks ‘are
sometimes a menace to prison discipline’ ”) (quoting Johnson v. Avery, 393 U.S. 483,
488, 89 S.Ct. 747 (1969)).
The State of New York Department of Corrections and Community Supervision
Directive No. 4422 (“Directive No. 4422”) prohibits most inmate-to-inmate
communication and requires that inmates obtain authorization before corresponding
with inmates incarcerated in other New York State, Federal, or other correctional
facilities. See Directive No. 4422 at § III(B)(6)(c); see also N.Y. Comp. Codes R. &
Regs., tit. 7, § 270.2 (“An inmate shall comply with and follow the guidelines and
instructions given by staff regarding facility correspondence procedures pursuant to
requirements of departmental Directive Nos. 4422 and 4421”). 2 Directive No. 4422
further states:
The Superintendent or chief administrator at each facility may
designate a staff member to process offender-to-offender correspondence
requests. These requests will be investigated by both facilities to
determine that the exchange of such correspondence will not create
problems relating to the safety, security, or good order of the facilities,
or the safety or well-being of any individual before any offender-tooffender correspondence is authorized.
Authorization for such
correspondence must come from the involved Superintendents or their
designees.
***
Directive No. 4421 “describes the policies and procedures governing privileged
correspondence,” but is not implicated by Miller’s present motion, as correspondence between inmates
is not deemed privileged. See Directive No. 4421 at §§ I-II(A).
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b. Restrictions: Offenders are only permitted to correspond
with immediate family members and codefendants in
active cases.
For the purposes of this Directive,
immediate family members are defined as spouses,
children, parents, siblings, and grandparents. Other
offender-to-offender correspondence may only be
approved in exceptional circumstances.
Directive No. 4422 at § III(C)(1) (emphasis added).
Courts interpreting Directive No. 4422 have held that the restrictions it places
on inmate communication serve a legitimate penological purpose. See, e.g., Rodriguez
v. James, 823 F.2d 8, 12 (2d Cir. 1987) (“It is evident that a valid, rational connection
exists between Directive 4422 and the legitimate governmental interests the directive
was designed to promote.”) (internal quotation omitted); Malsh v. Garcia, 971 F.
Supp. 133, 138 (S.D.N.Y. 1997) (“Thus the defendants actions, which were plainly
authorized by DOCS Directive No. 4422, do not violate the plaintiff’s First
Amendment rights.”); Webster v. Mann, 917 F. Supp. 185, 187 (W.D.N.Y. 1996) (“In
addition, there is no dispute that Directive No. 4422 is reasonably related to
legitimate penological interests.”).
Here, as co-Plaintiffs pro se, Directive No. 4422 requires “exceptional
circumstances” to allow for inmate-to-inmate communication, which Miller has failed
to identify. See Directive No. 4422 at § III(C)(1)(b). Rather, Miller relies on the
conclusory assertion that “it will be necessary to provide each other with filed
documents, such as discovery requests, motions, responses, etc.” Pl. Ltr. Mtn. at 1.
However, this is not a class action, Miller does not represent his co-Plaintiffs pro se,
and correspondence between a pro se plaintiff and his incarcerated “legal advisor” is
not entitled to greater protection than ordinary inmate-to-inmate correspondence.
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See Shaw, 532 U.S. at 228 (“We thus decline to cloak the provision of legal assistance
with any First Amendment protection above and beyond the protection normally
accorded prisoners’ speech.”); see also Bennett v. U.S., 31 Fed. Cl. 753, 756 (1994)
(“Because plaintiff is proceeding pro se his alleged inability to communicate with his
‘legal advisor’ is of no account.”).
Miller’s contention that inmate-to-inmate correspondence “requires a courtorder” is similarly unavailing. See Pl. Ltr. Mtn. at 1. To the contrary, Directive No.
4422 states that, “Authorization from the Superintendents concerned must be
obtained before an offender may correspond with another offender.” Directive No.
4422 at § III(B)(6)(c). Indeed, courts have specifically denied requests for relief nearly
identical to that which Miller now seeks. See, e.g., Mitchell v. Goord, No. 06-cv-6197,
2007 WL 1288750, at *3 (W.D.N.Y. May 2, 2007) (“The Court determines that DOCS
Directive 4422 is facially valid and would not permit the Court to enter an order
directing that DOCS permit inmate-to-inmate correspondence in this case.”).
Finally, authorization for inmate-to-inmate correspondence requires that
“both facilities . . . determine that the exchange of such correspondence will not
create problems relating to the safety, security, or good order of the facilities, or the
safety or well-being of any individual . . . .” Directive No. 4422 at § III(C)(1) (emphasis
added). As Defendants correctly argue, they are unable to “speak to (much less
purport to defend) the policies of other correctional facilities . . . .” Def. Ltr. Opp. at
2. Accordingly, to grant Miller’s motion would require overriding potentially valid
concerns of safety, security, and inmate well-being at the various correctional

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facilities in which Miller and his co-Plaintiffs pro se are incarcerated, something that
this Court is unwilling to do, particularly where Miller has failed to identify
“exceptional circumstances” warranting such relief. As a result, Plaintiff pro se’s
motion is denied.
IV.

Conclusion

For the foregoing reasons, Miller’s motion, DE [131] is denied.
Dated:

Central Islip, New York
July 14, 2015

SO ORDERED
s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge

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