Boehme v. Smith

51 A.D.2d 670, 378 N.Y.S.2d 170, 1976 N.Y. App. Div. LEXIS 11025

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1976
• Status: Published

Opinion

In the Matter of Frank E. Boehme, Appellant, v Harold J. Smith, as Superintendent of the Attica Correctional Facility, Respondent.—Judgment unanimously affirmed. Memorandum: Relator, an inmate of Attica Correctional Facility, appeals from the dismissal of his article 78 proceeding instituted as a result of respondent’s, Harold J. Smith, Superintendent of Attica Correctional Facility, denial of his request to correspond with an inmate at Auburn Correctional Facility. We find no deprivation of relator’s constitutional rights arising by reason of the denial, since a legitimate interest in fostering order and security in a penal institution justifies the imposition of certain restraints on inmate correspondence (Procunier v Martinez, 416 US 396, 413). The issue presented is simply whether respondent’s action was arbitrary or capricious. Administrative bulletin No. 20 (issued by the Commissioner of the Department of Correctional Services on January 31, 1972) which contains the rules governing correspondence for inmates at State correctional facilities provides at rule No. 3: "Special permission must be obtained by you from the Superintendent for correspondence with * * * inmates in other facilities in this or other States”. Relator’s request to correspond was for the purpose of obtaining assistance in pursuing postconviction remedies arising from his murder conviction in Queens County in 1960. Respondent’s reply advised that usual policy was to permit only codefendants to correspond with each other and then only about their case. We conclude that respondent has a right to regulate inmate correspondence. Petitioner has not alleged that he has been denied access to books and legal materials, counsel or the legal assistance of other inmates or staff personnel at Attica. He has merely alleged that he has been denied access to the legal expertise of a particular inmate at another correctional facility. Such is not construed by us to be an arbitrary and capricious act by respondent, absent any claim that alternative routes to obtain legal assistance were unavailable to relator (see Johnson v Avery, 393 US 483, 490). (Appeal from judgment of Erie Special Term denying petition in article 78 proceeding, seeking permission for petitioner to correspond with inmate at another penal institution.) Present—Cardamone, J. P., Simons, Mahoney, Goldman and Witmer, JJment unanimously affirmed. Memorandum: Relator, an inmate of Attica Correctional Facility, appeals from the dismissal of his article 78 proceeding instituted as a result of respondent’s, Harold J. Smith, Superintendent of Attica Correctional Facility, denial of his request to correspond with an inmate at Auburn Correctional Facility. We find no deprivation of relator’s constitutional rights arising by reason of the denial, since a legitimate interest in fostering order and security in a penal institution justifies the imposition of certain restraints on inmate correspondence (Procunier v Martinez, 416 US 396, 413). The issue presented is simply whether respondent’s action was arbitrary or capricious. Administrative bulletin No. 20 (issued by the Commissioner of the Department of Correctional Services on January 31, 1972) which contains the rules governing correspondence for inmates at State correctional facilities provides at rule No. 3: "Special permission must be obtained by you from the Superintendent for correspondence with * * * inmates in other facilities in this or other States”. Relator’s request to correspond was for the purpose of obtaining assistance in pursuing postconviction remedies arising from his murder conviction in Queens County in 1960. Respondent’s reply advised that usual policy was to permit only codefendants to correspond with each other and then only about their case. We conclude that respondent has a right to regulate inmate correspondence. Petitioner has not alleged that he has been denied access to books and legal materials, counsel or the legal assistance of other inmates or staff personnel at Attica. He has merely alleged that he has been denied access to the legal expertise of a particular inmate at another correctional facility. Such is not construed by us to be an arbitrary and capricious act by respondent, absent any claim that alternative routes to obtain legal assistance were unavailable to relator (see Johnson v Avery, 393 US 483, 490). (Appeal from judgment of Erie Special Term denying petition in article 78 proceeding, seeking permission for petitioner to correspond with inmate at another penal institution.) Present—Cardamone, J. P., Simons, Mahoney, Goldman and Witmer, JJ.