Jackson v. Heer et al

Filing 23

ORDER denying plaintiff's 10 Motion for Preliminary Injunction. Signed by Hon. David G. Larimer on 2/11/16. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
NATHANIEL JACKSON,

Plaintiff,
DECISION AND ORDER
15-CV-6531L
v.
D. HERR,
Correctional Officer at Wende Correctional Facility,
C. ZALUSKI,
Correctional Counselor at Wende Correctional Facility,
E. MEYER,
Correctional Captain at Wende Correctional Facility,
JOHN LEMPKE,
Superintendent at Wende Correctional Facility,
DONALD VENETTOZZI,
Director of Special Housing Unit/Inmate Disciplinary
Program; all sued in their individual and official capacities,

Defendants.
________________________________________________

Plaintiff, Nathaniel Jackson, appearing pro se, commenced this action under 42 U.S.C.
§ 1983. Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”), alleges that defendants violated his constitutional rights in
various ways during plaintiff’s confinement at Wende Correctional Facility.

Plaintiff has moved for preliminary injunction, as detailed below. For the following reasons,
his motion is denied.

DISCUSSION

To prevail on a motion for a preliminary injunction, the movant must demonstrate “‘(a)
irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious
questions going to the merits to make them a fair ground for litigation and a balance of hardships
tipping decidedly toward the party requesting the preliminary relief.’” Citigroup Global Mkts., Inc.
v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010) (quoting Jackson
Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979)). Accord UBS Financial
Services, Inc. v. West Virginia Univ. Hospitals, Inc., 660 F.3d 643, 647-48 (2d Cir. 2011). Applying
these standards here, I find that plaintiff’s motion fails with respect to both the “harm” and “success”
prongs.
The gist of plaintiff’s allegations is that defendants falsely accused him of having sexual
contact with his wife, in violation of prison rules, during a visit by her to see plaintiff at Wende in
May 2015. Plaintiff further alleges that the resulting disciplinary proceedings were unfair in several
respects. Plaintiff was found guilty of the charges against him and sentenced to six months in the
Special Housing Unit (“SHU”), six months’ loss of privileges, and 365 days’ loss of visitation rights.
The SHU term and loss of privileges were later reduced to 90 days, see Dkt. #19 at 8, and apparently
plaintiff is no longer in SHU, but the visitation sentence remains unchanged.

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In support of his application for a preliminary injunction, plaintiff alleges that he “is being
deprived of all visits including visits with his attorney.” Jackson Decl. (Dkt. #21) ¶ 2. Plaintiff
contends that this denial, as well as the fact of the finding of guilt on the disciplinary charges, has
jeopardized his chances for parole. He states that these circumstances led him to obtain a six-month
adjournment of a parole board hearing that had been scheduled for December 2015. Plaintiff also
alleges that the continued denial of visitation rights has caused him and his family great distress.
Defendants do not appear to dispute that in general, prison inmates have a qualified right
under the Sixth Amendment to communicate with their attorneys, see, e.g., Nordstrom v. Ryan, 762
F.3d 903, 909-10 (9th Cir. 2014); Al-Amin v. Smith, 511 F.3d 1317, 1331-34 (11th Cir. 2008). But
as defendants point out, the evidence here does not show that plaintiff has in fact been denied any
visits from his lawyer, or that his ability to communicate with his attorney has been curtailed or
impaired.
Plaintiff’s allegations and the other evidence do not show that any particular lawyer has in
fact been prevented from seeing him. Plaintiff’s allegation about being denied visits from his
attorney appears to be based on a visitor list generated in connection with the guilty finding on the
charges against him. One name on that list, James C. Neville, is identified as a lawyer. Dkt. #19 at
10.
According to defendants, this list was automatically generated following the imposition of
the no-visitation penalty against plaintiff, and simply identifies every person who visited plaintiff
during a certain previous time period. Neville is listed as having last visited plaintiff on February
18, 2014, and the oldest visit is from a “friend” who visited on July 13, 2013. Dkt. #19 at 10. But

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according to defendants, neither Neville nor any other lawyer has ever been prevented from meeting
with plaintiff. Defendants also contend that according to DOCCS policies, a loss of visitation rights
does not extend to attorney visits, as a general rule.
Plaintiff has presented no evidence to contradict those assertions. He does not identify any
particular lawyer who has been prevented from visiting him, or any instance in which a requested
visit was denied. All that the evidence shows is that in connection with the disposition of plaintiff’s
administrative charges, one lawyer was listed as having met with plaintiff in February 2014, over a
year before the penalty was imposed. There is no evidence that he, or any other lawyer, has ever
been prevented from visiting, or contacting, plaintiff since then, or that plaintiff has been prevented
from contacting a lawyer.1
Plaintiff’s contention that his ongoing restrictions and his guilty finding adversely affect his
chances for parole are also unavailing. For one thing, plaintiff has not demonstrated that he would
likely be granted parole, were it not for his disciplinary-violation finding. His contention that this
blot on his record is standing between him and parole is speculative, at best. See Rheaume v. Pallito,
No. 15-cv-135, 2015 7300790, at *3 (D.Vt. Oct. 22, 2015) (denying prisoner’s request for an
injunction directing that he be allowed to attend sex-offender programming, where plaintiff had not
demonstrated that he would be granted parole if he did so); Catanzaro v. Michigan Dep’t of
Corrections, No. 08-11173, 2008 WL 5273602, at *4 (E.D.Mich. Dec. 17, 2008) (“Plaintiff alleges,

1

Defendants have submitted evidence that in February 2015, DOCCS received a request
from the NYS Prisoner Assistance Center that they be “added to this inmates [sic] negative
correspondence list” and that their phone number be “removed from his approved caller list,” and
that this request was granted. Dkt. #19 at 15. But this appears to have nothing to do with the novisit penalty imposed on plaintiff, nor has he asserted this as a basis for his claims.
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without any factual corroboration, that unless a TRO issues, he will be denied parole. On the
contrary, this Court has no idea what the Parole Board, which is vested with discretion to decide
parole issues, will do”).
The only other harm alleged by plaintiff is his loss of visitation rights in general. On that
score, too, I see no basis for a finding of irreparable harm. And though this finding renders it
unnecessary for the Court to reach the merits of plaintiff’s claims, I find that he fails to meet the
likelihood-of-success prong as well. The claimed harms here relate simply to the ordinary
consequences of the punishment imposed based on plaintiff’s guilty finding, i.e. his loss of visitation
rights. Courts have routinely upheld such penalties, and I see no basis for a finding of irreparable
harm or a likelihood of success on the merits, particularly since plaintiff still has alternate means of
communicating with his family. See Marrero v. Weir, No. 13-cv-28, 2013 WL 6842716, at *3
(D.Conn. Dec. 27, 2013) (noting that “[c]ourts routinely hold that a prisoner’s telephone and
visitation privileges may be limited, and stating that “[b]ecause alternate channels for
communication [with his relatives] exist, plaintiff has not demonstrated irreparable harm sufficient
to warrant preliminary injunctive relief”). See also Mills v. Fischer, No. 09-CV-966, 2011 WL
91028, at *2 (W.D.N.Y. Jan. 11, 2011) (“there is no constitutional right to visitation for convicted
prisoners and their family members; family visitations for inmates only constitute a privilege and not
a right”) (quotation omitted).

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CONCLUSION

Plaintiff’s motion for a preliminary injunction (Dkt. #10) is denied.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
February 11, 2016.

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