This is a motion by claimant for "reconsideration" of the dismissal of his
claim in my Decision, which was filed June 28, 2002. Ian Dawes had sued for
damages arising from the suspension of his contact visitation rights at Sullivan
Correctional Facility. Defendant argues that claimant's motion is procedurally
flawed, since it is a motion for leave to reargue under CPLR 2221 and was not
made within 30 days of service with notice of entry as required by subdivision
(d)3. of Rule 2221. CPLR 2221 covers prior orders. The dismissal here was
after a trial and hence governed by CPLR 4404(b), which provides that following
a bench trial, the court, by its own initiative or in response to a motion from
either party, may set aside its decision and make new findings of fact or
conclusions of law.
Inmate Dawes, on January 13, 2000, "assaulted a member of the Sullivan
Correctional Facility Staff" (Annucci memorandum, p 1, cl trial exh 1). The
next day, Mr. Dawes was sent a directive from Captain Healy which stated that
"because of the pattern of violent behavior you have established against staff .
. . I find it necessary to implement measures to ensure that you are not able to
and/or limit your ability to assault staff." (Healy memorandum p 1, cl trial
exh 1). What followed was an 11-item list as to the circumstances and method of
the application of mechanical restraints. For example, they would be applied to
Dawes during the one hour out-of-cell exercise period and when going to and from
the shower area. Item 7 provides that, "All visitation will occur in the
non-contact visiting area of the Visiting Room and full mechanical restraints
will remain on for the duration of the time you are out of your cell."
No evidence was offered that any of Dawes' violent behavior occurred during a
visitation period. The withdrawal or suspension by the Department of
Correctional Services of visitation rights for improper behavior not related
thereto has been the subject of federal litigation. The Second Circuit set out
the history in its majority decision denying DOCS' request to modify a prior
consent decree thereon, about which the federal appeals court stated: ". . .
visitation sanctions may not be employed to punish or discipline. Consequently,
only misconduct between an inmate and a specific visitor can result in
deprivation of visitation rights." Kozlowski v Coughlin, 871 F2d 241,
243 (2d Cir 1989).
Rules were promulgated to implement the decree; they became Part 200, entitled
"Visitation" of title 7 of New York's compiled Codes, Rules and Regulations (7
NYCRR §§ 200.1 - 200.5). Section 200.5(a)(3) provides that contact
visiting rights may be suspended for a violation of visiting rules which
represent a threat to the security and order of the facility, however only if
(i) contraband is passed, or attempted to be passed, between inmate and visitor
or (ii) there is unacceptable physical contact between the two.
Other extant regulations are not inconsistent with Part 200. The January 14,
2000 directive restricted Dawes to noncontact visitation, but §305.4(e)(7)
comprehends a situation in which an inmate is under restraint, but still has the
right to a contact visitation with members of his family: "If an inmate is
under a restraint order directing that he..be mechanically restrained whenever
he . . . leaves the SHU [special housing] cell . . . the inmate will remain
mechanically restrained . . . except . . . when in a general population visiting
room and not in a noncontact area."
302, which contains certain general provisions relating to SHU inmates, provides
that "no inmate shall be deprived of the visiting privileges available to
inmates in the general population," except as otherwise provided in part 300. 7
If defendant's position were well founded, then there would have been any
number of SHU prisoners denied visitation rights. As it were, at trial, Deputy
Superintendent of Security Kenneth Decker could point to only one other such
instance at Sullivan: "I believe there was another inmate here under similar
circumstances [mentioning a name]. I'm not, you know, 100 percent sure on that
as I was not here, but I believe that that's correct."
In view of the above, having considered the parties'
, IT IS ORDERED that motion no.
M-65871 be granted
. It should be observed that there are any number of
punishments that DOCS can mete out to inmates in order to ensure the necessary
secure environment; what the consent decree and the corresponding rules mean is
simply that the curtailment of visitation cannot be used to punish
* * *
There is scant evidence in the trial record as to the measure of claimant's
damages. Dawes testified that his contact visitation rights were suspended for
6 months, but offered nothing further. The only other material relating to
damages that was placed in evidence was a brief reference in the Annucci
memorandum to a "Visitor McIntosh" whose planned visit of January 17, 2000 did
not come off (p. 3, cl exh 1). Consequently, claimant is awarded the amount of
one hundred dollars ($100). The Decision in this matter that was dated
June 19, 2002 and filed June 28, 2002 and the judgment thereon are vacated. To
the extent claimant has paid a filing fee, it may be recovered pursuant to Court
of Claims Act §11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.