Case Document 1 Filed 09/29/17 Page 1 of 30

WITED STATES DISTRICT COURT
HUHIHERN DISTRICT BF NEW YDEK

 

 

 

 

 

  
   

 

 

 

anx
JEREMY ZIMSKI, on behalf of himself VERIFIED mum
and all cthers similarly situated, 42 USE 1933f2000cc et seq.
Plaintiff, Action qunerL-H' 
v. TRIAL EMBED
LI ND. E-F 
WY m1, acting Cunnissioner, I 
New York State Department of
Corrections and Cummity Supervision .
BEP 29 201?
Defendant.
AT 

Plaintiff JEREMY ZIELINSKI, g, respectfully all



1. Ihis is a civil acticn pursuant te 542 13,- 1933 and s2
LT.S.C. Emc et seq. which challenges a policy and custom of the New York
State Department of Cerrecticn and Cmmnity Supervision of
prohibiting in?ates at facilities which sell televisiens an cmlnissary, referred
tn by as Facilities," receiving books, magazines, educatinnal
supplies religieua materials, and other items permissible under DOCCS "package"
policies. Plaintiff seeks declaratory and injunctive relief te end these
practices, as well. as damages.

JURISDICTIEH AND VENUE
2. This Court has jurisdictic-n pursuant to 23 U.S.C.. 1331, and
135?.
3. 1li'enue is proper in this district as it is the district in which the

neterial events giving rise to the causes of actinn are sccurring.

 

Case Document 1 Filed 09/29/17 Page 2 of 30

PARTIES

4. Plaintiff ZIELINSKI is an inmate in DOSES custody at Clinton
Correctional Facility under DIN: lb-a-3EUl.

5. Defendant ANNUCEI, who at all times herein was acting under
color of state law, custom, or usage, is the Acting Donuissioner of D0363.

6. Plaintiff brings this action on behalf of himself and a class of all
similarly?situated inmates (the consisting of all innates currently in
the custody of who have been, are, or become during the pendency of this
action confined at any Facility," upon information and belief
presently includes Attica, Bedford Hills, Clinton, Eloira, Fiye Points, Great
Meadow, Shawangunt, Sing Sing, Upstate and blends Correctional Facilities.

F. a class action is appropriate and superior to other forms of action
for resolving this case because:

a. The ISlass has thousands of inmates, so joinder of all members is
Wacticable;

B. There are questions of fact and law common to the Class which
predouinate over individual questions, including but not limited to the proper
interpretation and applicability of DODGE. Directive #5:?21 and NYERR no.2,
whether the policies and customs challenged are unconstitutional or otherwise
unlawful, and. whether the: defendant and his predecessors Inade. enforceable
promises to obtain waivers of Class oemhers' regulatory rights and breached
those promises by creating and applying the challenged policies and customs;

Plaintiff's claims are typical of claim likely to be made by Class
members generally, as they are substantially similar to numerous other
complaints made by initiates at BEEP and other Facilities;I

D. Individual actions create a risk of inconsistent and varying
adjudications;

E. Plaintiff will fairly and adequately represent the Class, as he has

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been personally subject to the challenged policies and customs and has a

personal state in a successful outcoue, has experience with civil rights

Litigation, and is applying for appointment of counsel experienced in class

action litigation to represent the lillass.

Fm

 

3.. In order to understand what is at issue here, it is necessary to
understand the differences between receipt of iteus through 1"vi-lat DEEDS refers to
as "packages" at the majority of its facilities and receipt of those same items

at the several Facilities."

Receipt of "Packages" at DEEDS Facilities Gmerally

9. Except for a few facilities not relevant here (Reception, Shock
Incarceration, CASAT, 51-11], and Work Release), DOSES generally permits innates to
receive a variety of items through what it calls "packages," as set forth in
ms Directive #4911. Although Directive ##911 has been revised and reissued
several times over the years, its various incarnations have always permitted
inmates to receive books, magazines, periodicals and other publications,
educational supplies, religious materials, art supplies, food, and clothing. a
current list of allowed items is contained in Directive #1911, enactment A,
Which is attached hereto as Exhibit a.

1D. Corresponding regulations at use, F244, and 
incorporate Directive #911 by reference.

11. Directive ##911 provides that generally, any person not on a

Wmeated "negative corresporrilence or vendor list" may send most itens

 

 

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allowed by the Directive to in?ates by mail or drop them off on a visit, and may
order any items allowed by the Directive from connercial sources for delivery to
inmates. See Directive ##911 111(0), 

11. Innates at non TV Facilities thus frequently receive packages mailed
or dropped off on visits by family and friends, mien can contain any items
allowed to be mailed or dropped off such as books, olothing, food, etc.
{Certain items such as typewriters and radios may only come from canneroia}.
souroes.) These packages are referred to in BOOBS parlance and among the inmate
pomlation as "personal packages" or "packages from hate."

l2. Additionally, family and friends frequently order and pay for items
from commie]. sources for delivery to iterates. For example, an irmate's wife
can call or go to the website of a vendor that sells items desired by DUCCS
imetes Macon or Barnes d: Noble), and make a purchase for shipment and
delivery to the innate. As long as the items ordered are permissible, the
packages and items will be delivered to the inmate because Directive #4911
contains no limitation or restriction on the source of funds used to pay for
items ordered from a coamercial source for delivery to inmates.

13. Thus general policy is that anyone can purchase any
penuissibie items for delivery to an inmate as a gift or surprise, at the
inmate's request, or for any other legitimate reason.

is. This general policy and practice, however, is not followed at 
Facilities," i.e. facilities that sell televisions on emissary, which includes
attics, Bedford Hills, Clinton, Elmira, Five Points, Great Meadow, Shawangunk,

Sing Sing, Upstate and Wanda correctional Facilities.

 

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Receigt of "Packages" at Facilities"

15. At the several TV Facilities, DDCES maintains that different policies
apply. Directive IRS) ireorporates another DOSES directive, Egg
Directive #921, entitled "Innate Television Sets by reference, and states
that receipt of packages at such facilities is "restricted." The current
version of Directive #921 I(dated SISIZDIS) in turn states in relevant part:

en inmate who has the option to ova a personal television set may only

receive:

1. Two packages per calenzlar year (Jan. - Dec.) frun family, friends, or

other personal sources {these packages may contain food items and may not

exceed 2D pends); and

2. Items ordered directly by the inmate from approved 

See Directive #921 attached hereto as Exhibit B.

16. a carraapomiing regulation, Ir' RYDER use, incorporates an earlier
version of Directive #921 by reference, and 2.921 has been encoded and reissued
several times over the years. Directive ##921 substantially affects the
"liberty interests" of both Hie incarcerated and nan-incarcerated "general.
public." However, upon information and belief, has never filed the
current or any other version of Directive #921 or any amendments thereto with
the Secretary of State, and instead has taken the position since at least as
early as that Directive #31921 relates solely to matters of
"organization or internal management" and is therefore exempt free the filing
requirenEnts of NY State Constitution Art. 11! and Exec. L. 102.

DISHES currently applies this "restriction" to the effect that inmates
at TV facilities are prohibited from receiving a_ny packages containing any
items, even ones permitted by Directive #4911, that two times per year,
they may receive a "personal package," Le. a package mailed or droppezl off on a
visit by family, friends, or other "personal sources." Each of these packages
"my only contain food items and may not exceed 2D pounds." Ea; Directive #921

All other packages must be mailed to the irmates Eran "approved

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vendors."

18. Notwithstanding the "approved vendor? language, DUCBS does not
maintain any list of "approved vendors" or engage in any sort of approval or
screening process for would-be sellers of items to inmates at TV Facilities.
Nor does an entity have to actuallyIr have to be a ?vertior? in the ordinary same
of that term, i.e. a sole proprietor or corporate entity engaged in the business
of selling goods or services for profit. Churches, colleges, charities, and
public Libraries and in at least one case the LLB. National Acct-lives and
Records Administration -- are amcng the many entities BUSES has categorised as
?Wendors" for no clear reason; "vendor" seems simply to be a catch?all category
for anything ooccs does not consider "family, friends, or other personal
sources." {Directive #4921 end regardless of "nan.T it makes the
distinction, any "vendor" is "approved" by default and remains so unless, for
whatever reason, they are placed on "Disapproved Vendor List." 
own Assistant Counsel has characterized the "approved vendor" language, which
also appears in some other DOSES Directives, as "misleading." See Response to
FOIL Request at 3, attached hereto as Exhibit C.

19. Also, although there is no language in Directive ##921 for it, 
prohibits innates at TV Facilities from receiving package sent from an
"approved vendor," wag the innate to the package is shipped both placed
the order himself or herself by mail and paid for it using a facility check
drawn on his or her innate accomt. If anyone Elie paid for it, such as a
family member, friend, attorney, or religious or spiritual adviser, it is not
allowed, even if the items themelvas are permissible. I

2D. Also, D0305 prohibits inmates at TV Facilities Eros receiving any
package containing any item 1which is donated or EEIE to the inmate, even when

the items themselves are permissible, the package is shipped from an approved

 

 

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vendor at the innate's request, and the vendor itself does not charge a price
for the item. ?mere are no exceptions to this prohibition even for bone Eide
charitable organizations such as book donation programs operated by private or
public libraries, bookstores or colleges, churches and other religious groUps,
or philanthropic arms of comnercial enterprises or foundations.

21. Further, when a package arrives for an inmate at a TV Facility, he or
she oust produce a copy of a MS "distursanent form" or other proof
that it was paid for using a facility check drawn on his or her inmate account,
or the package will be automatically returned Lmopened and uninventoried to
sender without giving the innate any opportunity to object or challenge it, and
in many cases without even a record being created of Were the package came from
or was returned to. No language in any D0035 ?irective or regulation even
arguably justifies this practice.

22. Thus, in effect, tMse Facility Restrictions" completely ban
family, friends, attorneys, crumches, charities, colleges and universities,
publishers, and many other persons who have legitimate reasons and rights to do
so from ever sending books, magazines and other periodicals, educational
supplies, religious materials, art supplies, and other constitutionally and

statutorily protected materials to irrnates, or from purchasing them from

commercial sources for delivery to inmates.

23. Also, the TV Facility Eastrictions severely restrict the Lmiverse of
protected materials actually available to inmtes at TV Facilities. Many
imates simply do not have any funds to purchase 531m. alany vendors only do
culine ordering, have no print catalogs, and do not accept mail orders, or if
they do they ignore Letters free inmates requesting catalogs, so as a practical
matter it is impossible to order from them. (Plaintiff, for example wrote to

Staples to request a catalog to order exhibit tabs, paper and other legal

 

 

 

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supplies, and also wrote to several book: publishers requesting catalogs, and
never received any responses.) Further, there is no way to purchase items from
charities and other sources that have no prices or fixed inventories or product
lists because they theuselves depend on donations. ?uid the Facility
Ecstrictions prevent in?ates from receiving books and magazines which they
themselves or friends and family already own, mien are explicitly listed as
allowed itens in Directive ##911. See Directive ?3 (used books,
magazines and periodicals are allowed); 1d,, ett. Jig F532?a2 (books, magazines
and periodicals may be received from sources other than publishers and
distritmtors).

25.. Further exacerbating the TV Facility Restrictions, BEETS Diractives
do not clearly distinguish between men irlcoming parcels are to be treated as
"cerresporrience" not subject to the Facility Restrictions and when they are
to be treated as "packages" subject to those Restrictions, reSUlting. in
haphazard and arbitraryr treatment of certain items, particularly books,
magazines, and other publications.

25. Under the Facility Restrictions nunerous irrnates have been denied
receipt of books, magazines, educational and art supplies, and religious
materials, all of which are constitutionally protected, as well as other items
permissible under Directive #34911, includng but not limited to the following:

?ew the TR Facility Restrictions Have Bum Applied

26. Packages containing permissible items purchased for inmates at 
Facilities by family, friends, and other personal sources from approved vendors
for delivery to those inmates have been rejected upon arrival at the facilities
for not having been paid for by the intended innate recipient using a facility

check: drawn on his or her innate accolmt. Iilerutzral Office Review

 

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Cunnittee the body which makea final decisions on inmate grievances
pursuant to Corr. L. 139 and WERE Part 7?01, has denied inmate grievances
Whining about those package rejections. See CORE decisions attached as
Exhibit D.

Packages cmtaining books purchased by family and friends of inmates
at TilF Facilities from apprwed yardors for delivery to those inmates have been
rejected upon arrival at the facilities for not having been paid for by the
intended innate recipient using a facility check drawn on his or her inmate
account. CORE has upheld those rejections. See GURU decisions attached
as Exhibit E.

23. Packages containing religious books and materials shipped to irmates
at TV Facilities by religious organizations including the Philadelphia Church of
God, Stillwaters Ministries, the Islamic Center of Springfield Missouri, and a
Buddl?st temple, have been rejected upon arrival at the facilities because the
items 1were free and thus the intended innate recipients could not shoeT that they
had "pirchased" the itenls. GJRG has upheld those rejections. See DUCCS
records and CORE decisions attached as Exhibit F.

29. Packages shipped to inmates at Facilities containing books and
magazines including an inmate's personal Holy Bible by family and frimds of
those innates have been rejected upon arrival at the facilities, and in at least
one case the recein magazinea were destroyed, bacause according to 
family, friends, and other ?personal sources" may not send any items to inmams
at Facilities except food twice per year. CURE: upheld those
rejections and destruction. See DUCCS records and CORE decisions attached as
Whit G.

312]. Pac'aages containing materials from a religious correspondence course

provided by the Hunt Zion Bible Institute sent to an inmate at a TV Facility

 

 



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were rejected upon arrival at the facility for not having been paid for by the
intended innate recipient using a facility check drawn on his innate accomt.
MEGS umeld the rejection. See attached Whit 1-1.

31. a package shipped to Plaintiff by a chapter of Books ?Ihrough Bars, a
bona fide charitable organization that sends books to prisoners at no cost, 1ass
rejected upon arrival at (If and returned to sender without being opened or
invventcried, witl'mt Plaintiff having any opportimitv to learn what books he was
being denied or to challenge the rejection, and without any record being made of
each chapter of Books Through Bars sent the package or where it VHS returned
to. DUCKS upheld the rejection. See attached Exhibit I.

32. A package shipped to Plaintiff by Mitten containhlg "The Skeptic's
emotated Bible," which had bean paid for using Plaintiff's own Ema-is in the
by a family member acting on his behalf, was rejected upon arrival at
(IT and returned to sender, even tl'lwgh Plaintiff had in fact ordered and paid
for the boob: himself, and withnut Plaintiff having any rappertunitj,I to request a
religious exanption from the TV FacilityI Rastrictions pursuant to Carrotherwise challenge the rejection. upheld the
rejection. See attached Exhibit .1.

33. Correspondeme from the Editor of The voice, a magazine Twhich
publishes inmate poetry and other writing, was sent to an innate at muse
personal writings had been published in that issue, and upon arrival at it
was treated as a "package" rather than correspondence and rejected for not
having haen paid for using a facility check drawn on his inmate accomt. See
attached Exhibit E.

33+. Dimmersz other inmates Tl? Facilities whose families, friends, and
others are willing to and did purchase books, magazines and other
permissible items have refrained from requesting that items be purchased



 

 

 

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and instructed them not to make any additional purchases, and as a result have
had the amount and breadth of matet'iaia they receive and read substantially
diminished, because theyr are aware that upon arrival any package not paid for
using a facility check drawn on their inmate accounts will be rejected. See
attacked Exhibit L.

35. Frivileged corresporrience sent to inmates at TV Facilities, including
to Plaintiff at CEF by a legal services organisation from all prior
correspondence had properly been treated as privileged correspondence, and to an
innate at Great Mendow by the U.S. Rational Archives and Records Administration,
has been opened and read outside of the innates? presence, treated as a
"package," and rejected for not having been paid for using a facility check
drawn on the intended inmate recipient's inmate account. Dill-L33? CURE: upheld the
rejection notwithstanding the fact that the rejected materials are admittedly
privileged and that there is not now and never has been any DUCKS Directive,
rule or regulation requiring inmates to "purchase" privileged correspondents.
See attached End-libit M.

36. Packages mich in fact have been paid for by innates using facility
checks drawn on their inmate accounts from approved vendors have bean rejected
upon arrival at the facilities because the innate could not innediateiy produce
a disbursement form to prove the source of funds, and on other occasions because
inmates purchased the items while at a different facility than the one he was at
when the package was delivered, and DECS has refused to previde refunds
notwithstanding asserting that such rejections are an "error." CORE has
upheld these rejections. See attached Exhibit H.

Upon information ard belief, the above represent only a tiny fraction
of the total interferences DOSES has made with receipt of permissible items, as

the various IV Facilities cellectively confine many thousands of inmates and the

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Facility Restrictions have been applied in the foregoing manner for several
years, at least since 2005.

I 38. To see through various assertions that the Facility
Restrictions are based on and authorized by Directive #65921, a correct
understanding of how they carve about is necessary, because acros? justifications

are in fact based on misrepresentation and deliberate disregard of history.

The History of 1V Facility Desing-ations and Mega Restrictions

39. Many of the records of exactly Mien arsi the circunstames which
these designations took place have been destroyed pursuant to state retention
schedules. See attached Exhibit D. But upon information and belief, the basis
of which is conversations with Class manners and review of still available
records obtained through FOIL and from Class ?ashers, DODGE has been designating
facilities as Facilities" since the mid-1930's, as follows.

in). The first facility to ever be designated a IV Facility was Harrie,
sometime around the year 1935. This designation took place before the first
version of Directive #921 existed.

ill. The first ever version of Directive #151921 was prormlgeted on
Bfl?fis??. A copy is attached as Exhibit F. Section II of that Directive
provided:

Facilities, with the written approval of the Comnissioner, may allow

individual innatee to own a television set. The receipt of all personal

packages, inclwiing those containing foodstuffs from inmate family,
friends, or personal packages from other sources is prohibited. Innates
may order or receive from approved manufacturer or retailer [sicl itens of
clothing, foodstuffs, toiletries, and any other items, tape decks,
cusical instrument, etc., which have been approved by the facility

Superintendent.

The oneness version of Directive #921 thus categorically prohibited receipt

of any packages "fron innate family, friends, or . . . other personal sources"

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but provided that inmates could "order receive" packages from coccnercial
sources. It contained no restriction on source of funds, and contained no
specific procedures for designating a facility a facility" other than
requiring the "written approval of the Cotunissioner.? Further. television sets
were to be sold on connissary, and Section imposed a requirement on DOES
(then the Department of Correctional Services) that "The make, model and screen
size (not; to exceed 12? diagonal Dissent-mt} will be decennined by the
Department for purposes of standardization and lowest possible cost." See 
(musis added}.

42. On 8;?221?1986 DEEDS amended section 11 of the Directive
#13921 to provide an exception to the complete prohibition on receipt of packages
from "personal sources" as follows:

Exception: An imuate, upon written request to and approve]. by the

Superintendent, may receive two packages per year containing foodstuffs.

One package may be for hisfher birtl'ndsy and the second package for a

religious holiday of hisfher choice. The maxinum weight permitted is
pounds.

a copy of that revision is attached as Exhibit Q. There were still no specific
procedures for designating a facility a facility," and the requirement that
televisions have the ?lowest possible cost" remained in HEB).

as. On IIZWIQBQ D0335 issued a 95.1 Directive superseding the one
issued 6322x1935 as amended Bf22f1936. The UZWIQEQ version, for the first
time, set forth a detailed procedure for designating a facility a facility,"
and required that it he done by bizarre, "irreversible" Lung process. The new
procedure provided:

Facilities may allow irmates to own television sets,r subject to the
following procedure:

- Written permission from the Gounissioner.

Inmates must he informed of the conditions under which television
sets may be permitted.

- The inmate population will be allowed to vote via secret ballot.

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- a majority vote must be received.

- lEllnce voted, the results are irreversible, and all inmates at the
facility will be subject to the guidelines [restricting receipt of
packages] regardless of their individual choice to own a television
or not.

See Directive #5921 11 attached as Exhibit E. Section 11 went on
to provide that packages from "personal sources" would be limited to two twenty
pomd food packages per year, but that inmates could continue to "order or
receive" packages from commercial sources and contained no restriction on source
of funds. Further, 111(3) continued to impose the requirement on DUCCS that
televisions be selected for "lowest possible cost."

so. DDCES thus created a procedure with the Directive #1921
which was truly outlandish: Essentially, would allow a facility "vote" 
one time -- on whether the population would be allowed to buy televisions on
coronissary, at the trade-off of packages from "personal sources" being
restricted to two per year containing food only and weighing no more than 20
pounds; if that particular set of inmates "voted" in favor of W's, it would be
"irreversible," every other innate forever would be denied personal
packages, even if later populations' preferences went the other way.

5.5. Also, the "voting" process DECS devised suffered from an even more
serious flaw: 1t restricted receipt of constitutionally-protected materials 
books, magazines, and publications, educational and art supplies, and religious
materials -- based on majoritarian preference for one privilege (televisions)
over another (food packages). end it did so not just in.disregard of the rights
of the voting population {whose constitutional could not be, and were
not, diminished because a majority preferred the privilege of televisions), but
in disregard of the rights of all subsequent imlates who arrived at the facility

later after the vote.

 

as. Further, DOSES included no procedures whatsoever to protect against

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inmates being threatened, exhorted, bribed, or otherwise coerced to "vote" in
favor of televisions even if they actually preferred to vote against them.

AL Notwithstanding the fatal flaws of the "voting" procedure, DUCES went
ahead with it anyway.

A3. The first facility to "vote" was Attica in the end of 1990. On or
about then Superintendent Halter R. Kelly requested the
Ccmnissioner's "pertnission to run the personal television survey at Attica, as
some inmates [had] expressed an interest recently." {Rhodesioner Thomas A.
Cbughlin, granted his approval on 10/131999.

A9. A memorandmu was distributed to the innates who made up the Attics
population on that a vote would be conducted on 101?211?1990. The
nermrandun stated:

'fou stuuld understand that voting to have personal televisions will mean

mat the innate population will be allowed to receive two packages from

home per year -- one on their birthday and one on a religious holiday of
their choice. Inmates will also be allowed to receive food packages up to

35 pomcls a from approved vandors. Innates may also receive other

articles such as clothing, toiletries, tape decks from vendors which have

been approved by the Superintendent.
There was no mention of restrictions on the source of funds used to pay for
packages from vendors.

50. A second. memorandunl explained the "voting" 'procedure. Although
Directive #4921 II required that the population "will be allowed to vote by
secret ballot?' the voting procedure followed at Attica did not provide for
mat. Instead, it provided that ballots which had the voting inmate's name,
DIN, and cell location -- would be counted by locates: the ILC Sergeant, the ILC.
President, and the IGRC. President, "and a correction officer." Further, the
"ballot" itself did not resemble any conventional "up or down vote" ballot. It
created a false dichotany where "Yes" meant am voting to have personal

televisions knowing that I must give up personal packages from friends,

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relativesll and other sources" and "No" meant do not want personal televisions
under any conditions." (Emphasis added.) The "votes" were counted, and it was
393 forII 523 against. Dn eflTr'f199l smother mermrandmn was distritmmd intentng
the then?population that the "antenna system" to support the televisions would
be operational on or about Iiul?19y?1991 and that "the modification to the package
program will be put in place two weeks after the antenna system is operational."

51. Records of the Attica vote and designation process are attached as
E?dbit S.

52. The next facility to be designated a TV facility was Clinton, in late
1993. Limited records are available for this vote, but a memorandmu was issued
on Bfl?f1993 that the vote would be conducted on "via secret ballot"
with the bizarre rule that "no identification will be necessary on the font."
Despite the lack of any provision auttlorizing the exclusion of any inmates in
Directive #921. Clinton did not allow inmates who were confined to SHU or in
the Hospital the right to vote. The memorandum justified this on the excuse
that "these two areas of the institution will not be equipped for inecell
personal television use," but apparently ignored the fact that SHU and
Hospital in?ates would likely be returning to general population at some point.
me memorst further stated that televisions would have a price of
"approximately $60 to and like the Attica namranda made no mantion that
in?ates would be restricted Eran receiving packages based on the source of funds

used to pay for than. 'lhe ballot voting procedures, and exact vote
results are unknown as records are no longer available, but apparently the

"vote" went in favor of televisions as a ?fl9?99e menorandum explained. the

procedure for purchasing a television. Records of the Clinton vote and
designation process are attached as Exhibit T.

53. The next to be designated was Elmira, in May, 199?. Limited

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Case Document 1 Filed 09/29/17 Page 17 of 30

records are available for this facility as well. a mermrandum
explained the voting process. Paragraph 5 of that menorandum stated that
"locates may receive from an approved manufacturer or retailer items of
clothing, food stuffs, toiletries and any other items such as tape decks which
have been approved by the Superintendent." As with the other facilities, no
mantion of source of funds being a restriction was made. Further, Paragraph Ea
stated that inmates could receive two food packages per year from personal
sources, but notwithstanding Directive #ssn?s limitation of these packages to
20 pounds, the mensrandLm stated they could be pounds each. a subsequent
3f19/1993 memorandum, however, stated the limitation to be 20 pounds. Tue
?flg?gg? memorandum also stated "You will be allowed to continue to receive
packages from approved venders [sic] designated by the Superintendent" and no
restriction on source of funds was mentioned. Records of the Elmira vote and
designation process are attached as Exhibit LI.

5s. The next facility was Great Meadow, in July, 199?. a 
"Interdepartmean Cuammication" to the inmate population stated siu'qsly "you
will be offered an opportunity to vote on whether or not you want televisions in
your cells.? It went on to state "packages are limited to two per year from
time, although you may continue to receive packages from approved vendors for
all itens you receive from family and friends." No mantion of a restriction on
source of funds was made. The vote tools place on ?f1&f199?, and a 3f23f1993
commication stated that as of that date, income could only receive "two
packages per year from family and friends." Notwithstanding Diractive 
limitation to receipt of those packages on an innate's birthday and a religious
holiday, the SIEHIIQQB communication stated they could be received "at any
time." Records of the Great Meadow vote and designation process are attached as
Exhibit V.

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Case Document 1 Filed 09/29/17 Page 18 of 30

55. Bedford Hills in 1993 and Five Points in 2001 were designated nest,
without votes having taken place, apparently in violation of Directive #43921.
See Exhibit and Exhibit ID.

56. Throughout the entire time after the various votes (and two
unauthorised designations), 000:5 did not restrict packages based on source of
funds or have the current requirement that, in essence, all items received have
a non-zero price. Family, friends and others continued to be allowed to
pitchase items for delivery to at TV Facilities without issue as they
could before the Tv facility designations. The only CDRE decision involving
Directive #4921 that was located before the year 2005 is a single decision on a
grivance filed by an innate at Attica on 13?31'20120, complaining that Directive
#921 was unenforceable and invalid because it had never been filed with the
Secretary of State as required. 0n 331.32000 0330 denied the grievance, stating:

CDRC asserts that Directive #4921, Innate Television Sets, is not a "rule"

subject to the rule making procedures of the State administrative Procedure

Act. The application of Directive ##921 depends upon the democratic vote

of inmat? at the facility. The majority vote indicates that the inmates

conclude that the TN. privilege in conjunction with the limited package
privileges as outlined in Directive #921, exceeds the value of the
privileges afforded to irvnates under Directive #59311, Packages and Articles

Sent er Brought to facilities. Further, Directive #1921 deals with the

department's internal management and dose not: significantly affect the

general mblic.
a copy is attached as Exhibit W.

There was no mention of any other justification for the than-existing
Tv facility package restrictions in that DDRC decision. The sole justification
was that they reflected the "democratic vote" of the inmates.

58. Further, assertion that Directive #921 "deals with the
deparbnent's internal management and does not significantly affect the general
public" was untenable. Directive #5921 severely restricted the liberty of all

innates at Tv facilities, and also severely restricted the liberty of the

18

 

Case Document 1 Filed 09/29/17 Page 19 of 30

non?incarcerated public. Directive #5321 had nothing to do with DOSES staffing,
payroll, or anyng else enterpassed within meaning of "internal
managenent" as that term is used in the sees.

59. Do DDCES issued another Directive #4921 that superseded the
version. A copy is attached as Exhibit Ii. The efl?fm?? Directive
generally restyled the overall language and appearance to conform to many
other Directives at the time, but there was no indication of any intent to
change the substantive meaning or procedures. The Directive #5921
still required that a "vote" by the population take place before a facility
could be designated a TV Facility, provided that the vote "will not be
reversed," and restricted receipt of packages from "personal sources" for
innates at TV Facilities to two 2U pound food packages per year. One change was
ultimately to become problematic: The language of the package restrictions in
the prior 11 was moved to a new 111(5) and restyied to state:

B. Package Restrictions. en inmate who has the option to own a personal

television set may only receive:

1. two packages per calendar year (Jan. Dec.) from family, friends, or

other personal sources l:ttmese packages may only contain food items and may

not exceed 20 pounds); and

2. items ordered directly by the innate Eran approved vendors.

See Directive #13921 (111MB) (Mezzo-oz). Further, the requirement that
televisions be selected for "lowest possible cost" was retained but moved to
HELENE).

ED. Despite the change in language, establishing that no change in
meaning was intended, continued to allow irmates at TV Facilities to
receive packages from approved vendors without regard to the source of funds
used to pay for them for the nest 3 years.

E11. However, on or about WZWZUGS, for the first time Attica rejectej an
inmate's package and returned it to sender because his wife had paid for it.

Tue innate filed a grievance, which was assigned Grievance No. eagles-o5. On

19

 

 

 

 

Case Document 1 Filed 09/29/17 Page 20 of 30

9128;912:105, CURE. denied the inmate's grievance, taking the position that the
language in Directive #4921 limiting inmatea to receipt of "itens
ordered dirEctiy by the innate from approved vendors," which did not exist at
the time Attica was designated a TV facility and had never been previously
interpreted in this manner, "requires the items to be ordered directly by the
innate," and though matated, meant that items were only considered "ordered
directly by the innate" if they had been paid for using a facility check drawn
on his or he: innate account. According to acne, the package was not allowed
bezauae "[r]eview with inmate accounts confirmed there was no outgoing funds to
this empathy." a copy of the CORE decision is attached as Eatdbit 

5-2. Other facilities continued to follow the proper procedure of not
rejecting packages based on source of funds. In or around Etecernber, 2005,
though, Great Meadow copied attica and rejected a package based on source of
funds. On than Superintendent Gary Greene issued an
"Interdepartmental asserting that "Security staff in the Package
Room were not enforcing DOCS Directive 1554921, specifically Ill, that he
had "no idea why it was not implenented [at Great bieadowJ", and that the last 335
years were an "error." The facility IGRC, in Grievance No. {3-1-39916-06, agreed
that the source of funds limitation was not part of "the original terms that
were T?noted for" and that DOSES shouid either adhere to the original proposal or
a rewote must be conducted. The IGRC. also took issue with "the legality and due
process" of the new practice, complaining that it was a "breach of contract."
(The proper argunent would have been that promissory estoppel bound DUGCE to
the original terms, but the IGRC. was clearly eiqoressing that the new practice
would not have been voted for by the population.) The Superintendent, hmzever,
denied the grievance, asserting "no provisions for a rayote under any

circumstantes?I and that BUSES could make "periodic revisions to any applicable



 

Case Document 1 Filed 09/29/17 Page 21 of 30

directives." a copy of the memorande and grievance are attached as Exhibit E.

53. On issued another version of Directive 
superseding the Ml??ml version. The version added a Wists" to the
"Policy" section requiring innate voting before a facility is designated a 
Facility: 'Ihe note excluded 'hewly constructed correctional facilities" from the
policy, allowing the Commissioner to designate such facilities Facilities by
fiat. 'Ihere was no explanation for this exception, and it highlights that when
the Cunnissioner designated Five Points and Eedford Hills as Facilities
without a vote, it was unauthorized. a copy of the version of
Directive ##921 is attached as Exhibit as.

Ed. Dn D0035 again superseded Directive ##921. This time, it
stripped out the requirth that had existed in all prior versions that
televisions be selected for "lot-est possible cost." Since doing so,I the cost of
talevisions at all facilities has increased substantially. a copy of the
Directive ##921 is attached as Exhibit BB.

55. On MINEDDB, Elmira followed Attics and Great Meadow and issued a
memram?um stating that:

[E]ffective May 11. ENE all. incoming packages received from an 

vendor must have been requested by the innate in order to be allowed.

There must be a corresponding disbursement form on file showing that the

innate ordered the items and payment was approved for the wrchase. No

longer will friends or family be allowed to purchase from the vendor and
then have the items shipped to the innate.

(This was delayed until Fifi/2008, apparently due to a technical problem with the
facility Pa system.) There was no explanation for the sudden change. Elmira
had been following the proper procedure of not interfering with packages based
on source of payment for more than a decade after the facility and more
than 6 years site: the MISIEDDE Directive restyled the origiml language
to the requirement that packages be "ordmed directly by the innate from

 

 


Case Document 1 Filed 09/29/17 Page 22 of 30

approved vendors." Further, the change directly contradicted the pre-vote
senor-ande that if inmates voted in favor of televisions, they would "be allowed

to continue to receive packages from approved venders [sic] designated by the
Superinterrient" as may could before the vote, i.e. without regard to source of
payment. Exhibit U. A copy of the Elmira memrandmn is attached as Exhibit CC.

66. ?Uotes at Shawangunh and Sing Sing took place on or about 3f11f2?10
and sometime before 201a, respectively. As with the other votes, there was no
indication that receipt of packages would be restricted based on source of
payment. Records of the Shawangunk and Sing Sing vote and designation processes
are attached as Exhibit. DD.

In the meantime, at unknown dates the other TV Facilities started
rejecting packages based on source of funds and rejecting free items. These
practices eventually spread to all the TV Facilities.

63. The TV Facility Restrictions took on an exceptionally arbitrary
nature in 2012. Cm Efldfi?li Clinton imate Cedric Golston filed Crievarce No.
challenging the implementation of Directive ##921. The ICRC
"deadlocked," and ultimately CDRC denied the grievance, asserting its by than
usual reliance on Directive ##921 language that items must be
"ordered directly by the inmate from approved vendors." tin-raver, it took the

Restrictions even further, asserting that "a third party, such as a friend, may

 

not purchase an item from a We: and have it sent to a facility that permits
innates the option to own a personal television, regardless of who provides the
my. CDRC asserts that all such purchases must be made by the inmate directly
from approved vendors." According to CCRC then, even if a "third party? makes a
parchase on behalf of an inmate at a TR Facility {which is necessary for the
countless vendors imnates cannot order from directly), even that is not

permitted; the only items that can be received are those paid for by the innate

22

 

 

Case Document 1 Filed 09/29/17 Page 23 of 30

using a facility check drawn on his or her innate account. a copy of the CORE
decision is attested as Exhibit E.

69. Golaton, rather than giving up, filed an Article It'd proceeding,
Golston v. Fischer, Clinton Uomty Soprano. Court Index No. 2012-1669,
challenging the sauce of funds restriction. Hui on May 31, 2013 Han. Timothy
J. iawliss ruled in Golstoo's favor, holding correctly that "Directive
. . . does not contain a provision that requires that the items
ordered also he paid for by funds in the inmate's accomt." Judge Lawliss
ammlled the mac's decision and remitted for further proceedings. a copy of
the Decision a Order is attached as Exhibit FF.

Golaton's victory was stun-lived, Upon remarri, m5 did
not grant his grievance. Instead, it denied it again with an "attended" BERG
decision that was identical in every respect to the original, except that CCRC
invented newly-formed security rationalisation, asserting that

to allow imam at a TM. facility to receive packages not ordered and

paid for directly by them with their own imate account funds mid enahle

then to shield monetary judgments andfor settlemnts from restitution owed
to crime victims or from court ordered mandatory obligations, create
opportunities to strong hold or extort one another and to omit rand upon
persons outside the facility, as well as promte other various illegal
activitieL (IE1: finds no compelling reason to revise current policy and
procedures regarding the ordering of packages in TN. facilities.

A copy of the "amended" CURE decision is attached as Exhibit GG.

F1. Eolston subsequently moved twice to hold DUCCS in contempt. DUES
then evaded a decision on the merits by retaliating against him by transferring
him to a Ron Facility, without ever disclosing the true history of the Ti?
Facility Restrictions.

H. In recent CURE decisions, DECS has asserted the sane semrity
excuses and, in at least one decision, disingemmusly asserted that the Court in

Golston "accepted" the amended decision, when in fact the merits of 

23

 

 

Case Document 1 Filed 09/29/17 Page 24 of 30

security rationalizations were never fully considered.

concerns in the smarded CHRIS. decision are baseless and nothing
more than post hoc rationalisations intended to evade Judge lawliss' Decision 6:
?rder that Directive #321 provides no basis for denying packages based on
curse of payment. The purported cornern that in?ates would be able to "shield
monetary judgments ar?for ??ttl?l?lt? from restitution owed to crime victims or
from court ordered mandatory obligations'I was clearly baseless. [relates at 
Facilities are no more likely than inmates at the Facilities to receive
settlements or judgments, and there are elaborate statutory mechanisms for
enforcing restitution and court obligations. Tne concerns about imates being
able to "strong hold or extort one another and to remit fraud on persons
outside the facility" also made no sonse, as DEEDS permits anyone to send 
to any innate, and it is absurd to suggest an imate would extort or defraud
someone for a food package rather than money.

M. ?bre importantly, the rationalisations made by CURB had not been made
at any time in the previous 2? years. Rather, from 1936 until 2013 when DOCCS
lost the Article TB proceeding, it maintained the explicit position tint "me
application of Directive #41921 depar?s upon the democratic vote of inmates at
the facility." Exhibit E. If ooccs gaminer was cornerned about security in
restricting source of funds, it wode never be a matter for innate voting --
hmates are obviously not allowed to vote on security measures.

In the meantime, on #192013 DUCKS issued anon-1e: superseng
version of Directive #4921. Tue version altered the "Note" first
added in the version. In the silo/2013 version, the "Note" allows the
Coornissioner to designate a_ny facility, not just "nesly ones, a TV
Facility without a vote. Ihis change made Directive #921 II plainly
self?contradictory and nonsensical; as amended, it effectively states that 



 

Case Document 1 Filed 09/29/17 Page 25 of 30

policy is that no facility may be designated a TV Facility without an inmate
vote, unless a designation is done without a vote. In other words, a vote is
stated to be both mandatory not maI?niatory. A copy of the sfl?f2013 version
of Directive #agil is attached as Exhibit II.

While no additional substantive changes have been made to Directive
##921 since the sfl?fZ?lS version, beginning with the "emergency rule" filed
DDCES has included a provision at Part in, Packages and
Articles East or to Institutions, specifically which
provides:

This Part Part in) applies to inmates housed in facilities

Wher?i? the innate population has elected to possess personal television

sets, however, package privileges for such irlnates are restricted in

accordance 1nith the department's directive on innate television sets."
DOECS repeatedly filed various versions of Part sea for years beginning
in 2005 as "emergency rules." But at no point in any of its nmnerous filings
has it ever disclosed that resign; imposes such severe restrictions, nor has
it ever filed Directive #921. Instead it has simply incorporated it by
reference and repeatedly amended it without filing. a copy of the history of 

WERE Part no is attached as Exhibit ii.

We
TL Thus, the present state and history of the TV Facility Restrictions

can be sunnariaed as follows:

a. created a procedure whereby the majoritarian preference of a
single group of innates for one privilege over another would forever be used as
the basis for restricting both the privileges and constitutional rights of all

irritates, present and future, at the facility;

B. The various "votes" did not follow anything resembling a rational,

25

 

 

 

Case Document 1 Filed 09/29/17 Page 26 of 30

fair election process;

(1. Leading up to the votes, D0605 repeatedly made unequivocal, explicit
prunises that in?ates would be able to continue to receive packages from vendors
as they then did, without regard to the source of the payment;

After generally adhering to the original proposals for nearly 212}
years, in 2005 DUCCS suddenly and without explanation began rejecting packages
based first on source of ?nds, and eventually based on whether the itens have a
non-zero price. As justification, it relied on an arbitrary reinterpretation of
language added as nothing more than a general restyling of Directive ##921,
language mich it had completely ignored for more than 3 years. It also
relieved itself of a substantive obligation to select televisions for "lowest
possible cost";

E. When innate-s at essentially every TV Facility cottplained that DEUCE
had dishonored the promises it had made to get the inmate popllations' votes in
the first place, DUKES disregarded their legitimate complaints and simply
maintained that their votes were binding even if DOECS changed what they meant
after the fact;

F. After losing an Article ?3 proceeding challenging its arbitrary
interpretation of directive #4921, REES concocted after-the-fact security
"concerns" it had never expressed or even suggested were an issue at any time in
the previous three decades, and transferred the innate who had brought that
Article i'B to evade having to live up to its original promises; and

G. Throughout the entire time, DOSES never filed Directive #4921 with
the Secretary of State to make it legally effective, and in principle simply
disregarded the fact that fundamentally, it is severely restricting receipt of
protected materials for no reason other than it sells overpriced televisions on

cornnissary at some facilities.

25

 

 

Case Document 1 Filed 09/29/17 Page 27 of 30

OF ADIIHISIERTIVE WIFE

TB. Plaintiff has exhausted multiple grim challenging the TV
Facility Restrictions, including Grievance tbs. m-F?sGB-l?, 
and Although he timely appealed all the denials to
to data CURE has not decided any of the appeals and the 30-day time limit
for CURE to decide them, NYCER has long passed, and

 

pursuant to tl'aose appeals are considered constractively
denied. Additionally, has denied numerous other grievances filed by Class
starters. There are no further administrative reoediea available.

Plaintiff has not filed any other civil action, in this or any other
cmrt, challenging the TR Facility Restrictions.



 

RU. FIRST: The application of the TR Facility Restrictions to inmates who
were not given any opportunity to vote on whether to elect to own personal
television Esta rather than receive personal packages as normally provided for
in [Inactive H911 violates the rights to due process of lawr and equal
protection of law, in violation of 11.5. Coast. earl. KW.

81. sense: The application of the TV Facility Restrictions to inmates
who are too poor to have any realistic option to purchase and own a television
set, to inmates who have not done so, and to innates who have no desire to do so
violates the rights to due process of law and equal protection of law, in
violation of (Joust. and. RIF.

32. THIRD: The application of the TV Facility Restrictions to books,
magazines, periodicals and other medications, educational and art supplies, and

2?

 

Case Document 1 Filed 09/29/17 Page 28 of 30

religious materials violates the rights to due process of law, equal protection
of law, freedom of speech, freedom of the press, and free exercise of religion,
in violation of U.S. Const. Amds. I and EN.

83. FOURTH: The application of the Facility Restrictions to prohibit
receipt of free and donated items violates the rights to due process of law,
equal protection of law, freedom of speech, freedom of the press, and free
exercise of religion, in violation of Coast. studs. I and XIV.

so. FIFIH: The application of the TV Facility Restrictions to religious
materials imposes a substantial burden on the exercise of religion but does not
serve any compelling governnental interest by the least restrictive means, in
violation of ti 1.1.5.13. Emilee-Ilia}.

85. SIXTH: The practices under the TV Facility Restrictions of
automatically returning to sender unopened and uninventoried any "package" for
which an inmate cannot produce a disharsenent form or other proof
showing the items contained therein were paid for using a facility check drawn
on his or her inmate account, of not docmenting deliveries and returns to
sender, of not providing any written explanation or opportunity for lrnzates to
object or request a religious accommodation for religious materials violate the
rights to due process of law, equal protection of law, freedom of speech,
freedom of the press, and free exercise of religion, in violation of (LS. Const.
Ponds. I and HIV, and inposes a substantial burden on the exercise of religion
but does not serve any compelling governmental interest by the least restrictive
means, in violation of 42 U.S.C. 

36. The application of the Facility Restrictions to
privileged correspondence violates the rights to due process of law, assistance
of counsel, freedom of speech, and petition the government for redress of

grievances, in violation of LLS. Boost. saris. I and KW.

23

 

 

Case Document 1 Filed 09/29/17 Page 29 of 30

EIGHTH: The failure of DDEES Directives #1315121, and #5311 to
clearly distinguish wnen incoming parcels and permissible items are to he
treated as "correspondence" and when they are to be treated as "packages"
renders them unconstitutionally vague and violates the right to due process of
law, in violation of 11.5. IZonst. Fund. KW.

38. Plaintiff has no cones-late and adequate remedy at law.

PRAYER FDR RELIEF
WHEREFDRE Plaintiff respectfully demands judsment against the defendant:

a. Declaring that DOSES Directive #4921 is unconstitutional, violates a2

 

11.5.13. and is unenforceable;
B. Declaring that T2s.2(b) is unconstitutional, violates a2

 

u.s.c. and is unenforceable;

C. Declaring that the Facility Restrictions and the application and
enforcement thereof are unconstitutional and violate 42 U.S.C. 

D. Declaring that DODGE Directive #911 11(3) is unconstitutional,
violates r2 11.5.63. and is unenforceable;

E. [.?leclariner that receipt of "packages" by inmates at Attica, Bedford
Hills, Clinton, Elmira, Five Points, Great Meadow, Shawangunk, Sing Sing,
Upstate and Hattie Correctional Facilities is governed by Directive #513911

 

witl'nut regard to 3? thereof, without regard to DDCES Directive #3921, and
without regard to Ir? mew);

F. Preliminarin and permanently enjoining the deferriant and any
successors, agents, employees, and others acting in concert with him from any
further enforcement or application of the TV Facility Restrictions, peg;
Directive #921, DDCES Directive ##911 or 

29

Case Document 1 Filed 09/29/17 Page 30 of 30

G. Awarding Plaintiff nominal, compensatory and punitive damages for the
eomleined of violations of eonstitutional rights;

H. Awarding Plaintiff eosts and attorneys fees pursuant to as 
1933; end

I. Granting such other and further relief as the Court deans just and

proper: .

use: fj'le/er 


DIN: 
Clinton Correctional Facility
115:?: Route 31%
9.0. Box 2001
Clemson, NY 12929
VERIFICATIEIJ
I, declare under of perjury that I es] the
plaintiff herein, that I have read the foregoing Verified Cmmleint and know the
contents thereof, and that the same is true and corteet, exoept es to matters

alleged upon infoneetioo and belief and as to such matters I believe them to be

true.

we Zea/me