New York State Court of Claims

New York State Court of Claims

RICHARDSON v. THE STATE OF NEW YORK, #2006-036-016, Claim No. 107365


Claim by correctional facility inmate alleging improper revocation of his visitation privileges is dismissed after trial.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 22, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate in the State correctional system proceeding pro se, seeks damages arising out of the suspension of his visitation privileges at Southport Correctional Facility. Claimant testified that on January 11, 2003, as he was washing up at his sink, the escort officers came to his cell and said it was time for the visit. He stated he finished washing and stuck his hands through the opening in the cell to be handcuffed. One of the officers went back into the cell and came out with an object in his hand and asked claimant what it was. Claimant responded that it appeared to be a razor. He was then escorted to a different unit in the facility and the visit was cancelled.
Defendant’s sole witness was Correction Officer Paul Jayne, one of the escort officers who was assigned to transport claimant to his visitation on the date in question. The officer testified that when he arrived at claimant’s cell, claimant was standing at the sink and that when Jayne said it was time for his visit, he stepped away from the sink and tossed something on the bed. Jayne stated he was “curious” because claimant had been involved in a prior incident in the visiting room involving cutting with a weapon. He looked on the bed and found a piece of a razor blade or an X-acto knife blade.
Claimant was issued a misbehavior report charging him with possession of a weapon and smuggling. He stated he received a memorandum from Supt. McGinnis advising him that his visitation privileges were suspended (Exhibit “5”; Memorandum dated January 16, 2003) and he received a second memorandum from McGinnis stating that since he was found guilty of possession of a weapon at a Tier III hearing, his visitation privileges would be revoked for one year (Exhibit “6”; Memorandum dated February 4, 2003). The Superintendent noted that claimant previously had been involved in a violent altercation during visitation, in June 2000, in which claimant was observed slashing another inmate and which resulted in claimant requiring 56 stitches and another inmate requiring 130 stitches. Claimant alleges that these penalties violated a directive governing visitation privileges because the underlying incident occurred in his cell, not in the visiting room. Claimant maintained he never had a problem in the visiting room, that all visitation, contact and non-contact, was suspended and then revoked and that revocation of visitation privileges is not an appropriate penalty in a disciplinary hearing.
Claimant appealed Supt. McGinnis’s determination to the Commissioner of Corrections. In a Memorandum Decision dated March 20, 2003, Deputy Commissioner Anthony J. Annucci affirmed Supt. McGinnis’s decision. Mr. Annucci noted claimant’s contentions that (1) suspension of all of his visitation privileges was not in compliance with DOCS Directive #4403 and 7 NYCRR 200.5(a)(5); (2) pursuant to the consent decree in Koslowski v Coughlin (711 F Supp 83 [SDNY 1988]), suspension of visitation privileges is permitted only for infractions involving an inmate and a particular visitor; and (3) pursuant to Supt. McGinnis’s decision, visitation would be denied to visitors not involved in the incident. These contentions were rejected by Mr. Annucci, who noted that in light of claimant’s possession of the weapon and his history of violence in the visitation room, the one-year revocation of his visiting privileges was not inappropriate or inconsistent with the visitation guidelines.
Claimant then filed an Article 78 petition with the Supreme Court, Chemung County challenging the revocation of his visitation privileges, again contending that the revocation of his privileges for one year violated the relevant directive and regulations. In a Decision and Judgment filed February 11, 2004, Supreme Court (Chemung County) Justice William F. O’Brien, III dismissed claimant’s petition, finding:
“The decision of Deputy Commissioner Annucci dated March 20, 2003, made a thorough analysis of petitioner’s argument and the facts supporting Superintendent McGinnis’s action. The superintendent’s decision to revoke petitioner’s visiting privileges was based upon petitioner’s history of violence during visits and the serious nature of his offense on January 11, 2003. Accordingly, the decision of Deputy Counsel Annucci was proper and did not deny petitioner due process.”
(Exhibit “7”). Justice O’Brien noted the governing regulation and directive state that a superintendent may revoke visiting privileges upon finding a violation of the visitation rules based on a preponderance of the evidence, citing Serrano v Goord (266 AD2d 661 [3d Dept 1999]).
The issues raised by claimant herein are identical to those raised in the Article 78 proceeding. As Justice O’Brien found, although the applicable regulation (7 NYCRR § 200.5[a]) is primarily concerned with the procedure for revoking a visitor’s privileges, it does provide that a correctional facility superintendent “may deny, limit, suspend or revoke the visitation privileges of any inmate or visitor” and that if “a visitor or inmate’s visiting rights have been revoked,” application may be made after one year for reconsideration (7 NYCRR § 200.5[d]). In this case, the Superintendent’s decision was found to have been appropriate after review by both the Deputy Commissioner and the Supreme Court. As was held in Arteaga v State of New York, 72 NY2d 212 [1988]), “where, as here, the employees act under the authority of and in full compliance with the governing statutes and regulations . . . their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity.” As Justice O’Brien noted, and as is evident from the record at this trial, claimant was afforded full due process protections prior and subsequent to the revocation of his visiting privileges. Thus, Arteaga is dispositive of this claim.
To the extent that claimant contends it is a violation of the Koslowski consent judgment, the appropriate forum for such a contention would be the Federal court in which that consent judgment was entered. The court does note the District Judge in Koslowski observed that the terms of the consent judgment are “currently embodied in 7 NYCRR § 200.1 - 200.5” (Koslowski v Coughlin, 711 F Supp 83 [SDNY 1988]), regulations that specifically provide for the revocation of an inmate’s visiting privileges after a determination made upon the exercise of due process of law, as occurred here.
For the foregoing reasons, the Clerk of the Court is directed to enter judgment dismissing the claim.

September 22, 2006
New York, New York

Judge of the Court of Claims