Papers considered: 1. Notice of Petition and Petition dated July 10, 2023, with Exhibits A-F. 2. Answer dated November 9, 2023, with Exhibits A-F, Memorandum of Law in Support of Respondents’ Answer. 3. Reply Affirmation of Marc A. Canaan, Esq., dated November 23, 2023, with Exhibits J-N, and Reply Memorandum of Law. For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules DECISION/ORDER Petitioner, Kristina Bellamy, brings this Article 78 petition against Respondents, New York State Department of Corrections and Community Supervision, (“DOCCS”), and Superintendent, Amy LaManna, seeking judicial review of Respondents’ determination to suspend her inmate visitation privileges and the affirmance of that decision on administrative appeal. Respondents oppose. BACKGROUND Bellamy was visiting her husband, an inmate at Five Points Correctional Facility, when a canine indicated on the locker she was using. Bellamy was escorted from the visiting area to the lobby for questioning. When asked to submit to a search of the locker, Bellamy opened the locker and began to show the officer what was inside. Bellamy contends that the officer became intimidating and rude, threatening to arrest her if she did not allow him to complete his search of her belongings. She eventually stopped the search and left the facility. Respondents assert that Bellamy initially complied with a search of her belongings until being asked to open a metal container. Bellamy refused to allow a search of the container and left the facility. By letter dated December 12, 2022, LaManna suspended Bellamy’s visitation privileges for six months from December 8, 2022, through June 8, 2023, for refusing to cooperate with their investigation. Bellamy appealed upon the ground, inter alia, that DOCCS’ visitation rules specifically provide that, when a detection device indicates a visitor might have contraband on them, the visitor has the right to leave the facility and that future visits may not be denied solely on the basis of refusing a search.1 On March 10, 2023, DOCCS denied Bellamy’s appeal, upholding the finding that her refusal to consent to a search of the items in her locker, “was an unauthorized act in violation of well-established visitation rules” and the “facility was within its rights to suspend [Bellamy's] visiting privileges in order to preserve the safety, security and good order of that facility”. Despite upholding the finding of guilt, Bellamy’s visitation privileges were reinstated immediately upon the conditions that there were no pending criminal charges against her relating to her conduct at a correctional facility and that she is not on either probation or parole. Bellamy seeks to expunge the finding that she “engaged in an unauthorized act in violation of well-established rules and regulations” and that the “facility was within its rights to suspend [Bellamy's] visiting privileges in order to preserve the safety, security, and good order of that facility”. RESPONDENTS’ CONTENTIONS Respondents contend that there is no constitutional right to have visitation with an inmate of a correctional facility. Accordingly, the pertinent issue is whether the determination to suspend Bellamy’s visitation had a rational basis such that it was not arbitrary or capricious. Respondents assert that the decision to suspend Bellamy’s visitation was entirely rational and supported by the evidence. They contend that they properly followed the rules and regulations contained in Directive 4403 for the termination of visiting privileges. Furthermore, Bellamy is not entitled to an expungement of the finding because “DOCCS” regulations do not provide for such relief” and because, pursuant to Arts and Cultural Affairs Law §57.05, “DOCCS has a statutory requirement to neither destroy nor otherwise dispose of records unless such disposition is authorized by New York State Archives”.2 PETITIONER’S CONTENTIONS Bellamy claims that she was subjected to a punishment for purported misconduct which is specifically authorized by DOCCS’ own regulations. Bellamy asserts that DOCCS’ rules provide that when a detection device indicates a visitor might have contraband on them, the visitor has the right to leave the facility, or they can consent to a more intrusive search. Bellamy contends Directive 4403, which states the rules and regulations of the Inmate Visitor Program, provides at Section VI(B)(5) that future visits may not be denied solely on the basis of refusing to allow a more intrusive search. Thus, the determination to suspend Bellamy’s visitation for refusing to submit to a more intrusive search of the metal container is arbitrary and capricious and/or an abuse of discretion. Furthermore, she was denied due process of law by imposition of punishment without a valid finding of guilt and for deprivation of her right to familial association, under both the U.S. Constitution and New York State Constitution, and is entitled to have such determination annulled. DISCUSSION/PROCEDURAL DUE PROCESS CLAIMS “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of life, liberty, or property without due process of law, and “those who seek to invoke its procedural protection must establish that one of these interests is at stake.” Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012) (quoting Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005)). “[S]tandard analysis under that provision proceeds in two steps: We first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219, 131 S. Ct. 859, 178 L. Ed. 2d 732 (2011) (citing Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989).” Victory v. Pataki, 814 F.3d 47, 59 (2d Cir., 2016). Generally, the denial of prison access to a particular visitor “is well within the terms of confinement ordinarily contemplated by a prison sentence” and therefore is not independently protected by the Due Process Clause. Kentucky Dept. of Corrections v. Thompson, 490 US 454, 461 (1989) quoting Hewitt v. Helms, 459 US 460, 468 (1983). A State creates a protected liberty interest by placing substantive limitations on official discretion. Kentucky Dept. of Corrections v. Thompson, 490 US at 462; Olim v. Wakinekona, 461 US 238, 249 (1983). In order to create a protected liberty interest, the State’s regulations must “contain ‘explicitly mandatory language’, i.e., specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow”. Kentucky Dept. of Corrections v. Thompson, 490 US at 463; Hewitt v. Helms, 459 US at 471-472; see also, Baez v. Pinker, 673 Fed. Appx. 50, 53 (2d Cir., 2016). If the state decisionmaker “is not required to base its decisions on objective and defined criteria, but instead can deny the requested relief for any constitutionally permissible reason or for no reason at all, the State has not created a constitutionally protected liberty interest.” Baez v. Pinker, 673 Fed. Appx., at 52, quoting Olim v. Wakinekona, 461 U.S. at 249. DOCCS’ Directive 4403, and 7 NYCRR Part 201, provide the relevant regulations for the State’s Inmate Visitor Program. Under Directive 4403, visitation with an inmate is allowed provided the visitor meets the established criteria and complies with established rules. Section VIII provides that “a Superintendent may deny, limit, suspend or revoke the visitation privileges of any inmate or visitor to visit each other if the Superintendent has reasonable cause to believe that such action is necessary to maintain the safety, security, and good order of the facility”. These provisions create a protected liberty interest in visitation because the reasonable cause standard presents objective and defined criteria under which a Superintendent may deny visitation and, without such reasonable cause, must allow visitation. See, Kozlowski v. Coughlin, 539 F.Supp. 852, 857 (S.D.N.Y., 1982); Daniels v. Walker, 1995 U.S. Dist. LEXIS 19075 (N.D.N.Y 1995) (“Sections 200.2 through 200.5 [now Part 201] of Title 7 of New York’s Comprehensive Rules and Regulations clearly create and safeguard a liberty interest in contact visitation”); Glenn v. Gonzales, 1991 U.S. Dist. LEXIS 15107 (S.D.N.Y., 1991). Bellamy claims that the process provided herein was constitutionally deficient for failure to allow a hearing at which she could testify. In Kozlowski v. Coughlin, supra, the U.S. District Court, Southern District of New York, held that Directive 4403 was unconstitutional by authorizing the revocation of prison visitation privileges without “some form of hearing”. At a minimum, due process requires the opportunity to be heard. Id. The Kozlowski Court directed DOCCS to either restore the suspended visitation privileges or conduct an evidentiary hearing at which the visitor and her inmate husband shall be allowed to call witnesses and present documentary evidence but did not determine “what due process safeguards are constitutionally required for all cases and for all times”. Id., at 858. The Kozlowski case resulted in a consent decree by which DOCCS provided for graduated degrees of due process protections based upon the length of any proposed suspension of visitation rights. As relevant herein, when a visitation privilege is suspended for six months or more, both Directive 4403 and 7 NYCRR §201.4 provide the visitor with the right to a hearing. The notice of suspension is required to notify the visitor of “his or her right to a hearing to appeal the decision of the superintendent within 60 days of such notice”. 7 NYCRR §201.4(c)(1)(ii). If the visitor requests a hearing, the commissioner shall appoint an impartial individual from outside the facility to conduct the proceeding pursuant to the procedures set forth in §201.5. (7 NYCRR §201.4[c][2]). Although the suspension challenged herein was for six months, nothing in the December 12, 2022, letter from LaManna to Bellamy advised Bellamy of a right to a hearing. The notice of suspension letter advises Bellamy that she “has the right to appeal this decision within 60 days of receipt of this notice by writing to the Commissioner of DOCCS…”. This letter further advises that her “written appeal should include any written material that you wish to be considered”. Finally, it advises that “Should you choose to appeal in writing, you will be provided with a written decision within 45 days of receipt of your appeal”. The letter contains no instruction on how to request a hearing and fails to mention that a hearing is available. Section VIII(E)(1)(b) of Directive 4403 (7 NYCRR §201.4[c][1][ii]) requires that the notice of suspension advise the visitor “of his or her right to a hearing to appeal the decision of the Superintendent…”. In response, Bellamy submitted a letter of appeal dated January 17, 2023, objecting that the documents supporting the determination were not enclosed as required by the regulations and otherwise setting forth her legal arguments. Respondents never provided copies of all charges and reports as required by 7 NYCRR §201.4(1)(c)(i)(c) and Directive 4403 §VIII (E)(1)(a)(3). Respondents never offered or provided Bellamy with a hearing. Based on the failure to provide the required notice of hearing, and the failure to provide the required charges and reports, the Court finds that the determination challenged herein was made in violation of lawful procedure (CPLR §7803[3]) and constitutes a violation of Bellamy’s right to Procedural Due Process, as guaranteed to her by both the Fourteenth Amendment of the U.S. Constitution and Article I, Section 6 of the New York State Constitution. Any other contentions of the parties have been considered and are either rendered academic or without merit. Accordingly, it is hereby ORDERED, that Respondents’ determination dated March 10, 2023, is annulled; and it is further ORDERED, that Respondents are directed to vacate from its records the finding that Bellamy “has engaged in an unauthorized act in violation of well-established visitation rules and regulations” and to ensure that any mention of such finding is deleted from DOCCS’ records; and it is further ORDERED, that within 14 days of the date of this Decision/Order, Respondent LaManna shall file with the Court an affidavit confirming that DOCCS has complied with the previous paragraph. This constitutes the Decision/Order of this Court. The Court is E-filing this Decision and Order, but that does not relieve the parties from compliance with the provisions of CPLR §2220 with regard to notice of entry thereof. Dated: January 25, 2024
