Sze v. Annucci et al

Filing 104

MEMORANDUM-DECISION and ORDER - That defendants' motion for partial summary judgment (Dkt. No. 94) is GRANTED and Sze's first and second causes of action (Am. Compl. 117-26) are DISMISSED. That Sze's motion to certify a class (Dkt. No. 90) is DENIED AS MOOT. That the parties contact Magistrate Judge David E. Peebles to schedule further proceedings consistent with this Memorandum-Decision and Order. Signed by Senior Judge Gary L. Sharpe on 3/7/2017. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
KWOK SZE, o/b/o himself and
all others similarly situated,
9:13-cv-534
(GLS/DEP)

Plaintiffs,
v.
ANTHONY ANNUCCI et al.,

Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Frank Raimond
305 Broadway, 14th Floor
New York, NY 10007

FRANK V. RAIMOND, ESQ.

FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224

MICHAEL G. MCCARTIN
Assistant Attorney General

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Kwok Sze commenced this action pursuant to 42 U.S.C.

§ 1983 against defendants1 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.

Facts2
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
1

Defendants are Anthony Annucci, Brian Fischer, Arthur Dirie, Philip Heath, Hearing
Officer Davis, Hearing Officer Lamora, Hearing Officer Irwin, Hearing Officer Gutwein, Hearing
Officer Overbaugh, Hearing Officer Sawchak, Correction Officer Redl, Correction Officer
Walantus, Correction Officer Martin, Correction Officer Harris, Correction Officer Hill,
Correction Officer Bidwell, Correction Officer Dysard, Deputy Superintendent Joslyn,
Correction Officer Harringan, Correction Officer Merrill, Correction Officer Thompson, Clinton
Correction Officer Does 1-30, Franklin Correction Officer Does 1-30, and Greene Correction
Officer Does 1-30. (2d Am. Compl., Dkt. No. 60.)
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Unless otherwise noted, the facts are not disputed. Also, as highlighted by
defendants, (Dkt. No. 103 at 3), Sze’s failure to comply with Local Rule 7.1(a)(3) by admitting
or denying each of the paragraphs in defendants’ statement of material facts, (compare Dkt.
No. 94, Attach. 20, with Dkt. No. 99), is not without consequences. Defendants’ properly
supported and uncontroverted facts are therefore deemed admitted.

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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, 4856.) 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
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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.
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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 to certify a class, (Dkt. No. 90), and defendants
filed the pending motion for partial summary judgment, (Dkt. No. 94).
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
Defendants argue that they are entitled to judgment at law because
Sze fails to raise a material question of fact on his access to courts claim.3
(Dkt. No. 94, Attach. 21 at 20-23.) Sze contends that he has a First
Amendment right to use prison telephones and defendants have failed to
demonstrate that their policy limiting unmonitored telephone calls is a valid

3

Defendants also argue that their motion should be granted on other grounds, but the
court does not reach those arguments in light of its decision on this dispositive issue.

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restriction on his free speech. (Dkt. No. 99 at 7-11.)
While the precise source of constitutional protection remains
unsettled, see Christopher v. Harbury, 536 U.S. 403, 415 & n. 12 (2002),
inmates have a right to access the courts, see Bourdon v. Loughren, 386
F.3d 88, 92 (2d Cir. 2004). Challenges to a prison’s telephone policy may
also implicate, as it does in this case, an inmate’s right to free speech.
See generally Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). In any
event, “[c]ourts considering prison telephone restrictions have agreed that
an inmate has no right to unlimited telephone use.” Pitsley v. Ricks, No.
96-CV-0372, 2000 WL 362023, at *4 (N.D.N.Y. Mar. 31, 2000).
Whether analyzed as an access to courts or free speech claim,
courts have held that restrictions on inmate telephone use present no
constitutional violation if inmates have an alternative method of
communication. See McIntosh v. United States, No. 14-CV-7889, 2016
WL 1274585, at *23 (S.D.N.Y. Mar. 31, 2016) (analyzing a challenge to
inmate telephone use as an access to courts claim); Ahlers v. Townsend,
No. 9:12-CV-0575, 2014 WL 4365277, at *5 (N.D.N.Y. Aug. 28, 2014)
(analyzing a challenge to inmate telephone use as a free speech and
access to courts claim). This rule applies with equal force to privileged
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communications between inmates and their attorneys. See Groenow v.
Williams, No. 13 Civ. 3961, 2014 WL 941276, at *7 (S.D.N.Y. Mar. 11,
2014) (report and recommendation) (finding that an inmate must “be
prohibited from communicating with his attorney by all available means” to
demonstrate a constitutional violation); Henry v. Davis, No. 10 Civ. 7575,
2011 WL 3295986, at *2-3 (S.D.N.Y. Aug. 1, 2011) (holding that “[p]hone
restrictions do not impinge on a prisoner’s constitutional rights where an
inmate has alternate means of communicating with the outside world,
particularly with counsel”), adopting report and recommendation, 2011 WL
5006831 (S.D.N.Y. Oct. 20, 2011).
Here, the facts demonstrate that Sze had and used alternative
means to communicate with his attorneys. Sze could entertain personal
visits from his attorneys. (Defs.’ SMF ¶ 17.) Sze wrote to and received
correspondence from his attorneys. (Id. ¶ 18.) Sze could even speak with
his attorneys on the unmonitored telephone lines. (Id. ¶ 23.) In fact, he
spent over thirty-three hours doing just that. (Id. ¶ 12, 14.) As Sze had
other avenues of communication with his attorneys readily available to him,
DOCCS’ restriction on his use of the unmonitored lines does not present a
constitutional question. See Groenow, 2014 WL 941276 at *7; Henry,
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2011 WL 3295986 at *2-3.
Nor does Sze raise a constitutional issue to the extent that he
challenges the monitoring of his conversations with his attorneys on the
“call home” line. Again, Sze could communicate with his counsel by
personal visit, letter, or unmonitored telephone line. (Defs.’ SMF ¶¶ 12, 14,
17-18, 23.) DOCCS simply did not “prohibit[ Sze] from communicating with
his attorney[s] by all available means.” Groenow, 2014 WL 941276 at *7.
What is more is that DOCCS had a policy to stop monitoring conversations
once it was discovered that an inmate was speaking with his or her
attorney even though inmates were on notice of DOCCS’ monitoring policy.
(Defs.’ SMF ¶¶ 5-7.) Consequently, Sze fails to raise any constitutional
question and defendants are entitled to summary judgment on this claim.
Because the court grants summary judgment on Sze’s individual
claim, his motion for class certification on this claim is necessarily moot.
See Leonard v. Abbott Labs., Inc., No. 10-CV-4676, 2012 WL 764199, at
*7 (E.D.N.Y. Mar. 5, 2012) (“The unnamed class members are not
technically part of the action until the court has certified the class,
therefore, once the named plaintiff[’s] claims are dismissed, there is no one
who has a justiciable claim that may be asserted.”) (internal quotation
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marks and citation omitted); see also Phillips v. Ford Motor Co., 435 F.3d
785, 787 (7th Cir. 2006) (“[I]f no motion to certify has been filed (perhaps if
it has been filed but not acted on), the case is not yet a class action and so
a dismissal of the named plaintiff[’s] claims should end the case.”). For
this reason, Sze’s motion is denied.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for partial summary judgment
(Dkt. No. 94) is GRANTED and Sze’s first and second causes of action
(Am. Compl. ¶¶ 117-26) are DISMISSED; and it is further
ORDERED that Sze’s motion to certify a class (Dkt No. 90) is
DENIED AS MOOT; and it is further
ORDERED that the parties contact Magistrate Judge David E.
Peebles to schedule further proceedings consistent with this
Memorandum-Decision and Order; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.

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March 7, 2017
Albany, New York

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