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Malave v. Weir

United States District Court, D. Connecticut

July 28, 2016

KIMBERLY WEIR, et al, Defendants.


          Jeffrey Alker Meyer United States District Judge

         Plaintiffs Eduardo Malave and Jacquelynn Grunert are husband and wife, and they have sued several defendant correctional officials for preventing them from visiting each other while Malave serves a term of imprisonment at the Carl Robinson Correctional Institution in Enfield, Connecticut. Plaintiffs have moved for a preliminary injunction, and I now conclude in light of changed circumstances-most significantly, the restoration of plaintiffs' rights to non-contact visits-that plaintiffs cannot establish ongoing irreparable harm to justify a grant of preliminary injunctive relief. Accordingly, I will deny their motion for a preliminary injunction, without prejudice to their right to seek injunctive relief if additional visitation restrictions are imposed and without prejudice to their claims for monetary damages from defendants' prior denial of visitation.[1]


         On January 5, 2016, plaintiffs filed their pro se complaint alleging that defendants have unconstitutionally deprived them of visitation privileges. The complaint alleges that Grunert was barred from visiting Malave or speaking to him by telephone because of a false disciplinary report by defendant Lt. Nathan Alexander that accused Grunert of smuggling contraband into the prison to Malave during a social visit in August 2015. Plaintiffs sought injunctive and monetary damages relief on the basis of their rights to freedom of association under the First Amendment, as well as the right of Malave to be free from cruel and unusual punishment under the Eighth Amendment and his right to procedural and substantive due process under the Fourteenth Amendment. I have previously issued an initial review order examining the potential legal grounds for plaintiffs' claims and concluding that the claims were sufficient on their face to allow the matter to proceed. See Doc. #8-2.

         On April 8, 2016, plaintiffs moved for preliminary injunctive relief, alleging irreparable harm to their marriage from the continued denial of visitation since August 25, 2015. Defendants filed an opposition to the motion for preliminary injunctive relief, contending that plaintiffs could not show the requisites for preliminary injunctive relief, including irreparable harm and a likelihood of success on the merits.

         Defendants submitted extensive materials in support of their position. According to an affidavit signed by Lt. Alexander (Doc. #35-3 at 2-3), he took the action that led to this lawsuit on the basis of information he received from two inmate informants in August 2015 that Malave was the main supplier of narcotics at the prison, and that Grunert would pass the drugs to him with a kiss during visitations. He further stated that, following a visit from Grunert with Malave on the evening of August 25, 2015, he allegedly observed Malave on camera drink a large cup of water, then lean over as if he was attempting to regurgitate something.[2]

         On the following day, Lt. Alexander conducted a search of Malave and his housing unit. A strip search of Malave did not yield any contraband, but a drug-sniffing dog allegedly alerted to narcotics in Malave's bunk area. Officers found a pencil eraser cap-which Lt. Alexander characterized as a homemade smoking pipe with marijuana residue-and a needle.

         The searches of Malave and his bunk area also led to discovery of a "Biker" magazine with sexually explicit photos and evidence on Malave's forearm that he had acquired new tattoos while incarcerated. Malave was charged with three Class A disciplinary violations (for the contraband, for the photos, and for the tattoos) to which he pleaded guilty on August 28, 2015. The disciplinary reports reflect that he was subject to the following sanctions: punitive segregation through September 15, 2015, and loss of phone and visitation privileges through November 14, 2015. See Doc. #47-2 at 2-13 (discipline reports).

         Warden Kimberly Weir has attested in an affidavit to the Court that she advised Grunert by letter on September 15, 2015, that she had been removed from Malave's visiting list, because she had conspired to convey contraband into the prison. Warden Weir also approved an order at that time to bar Malave from speaking with Grunert by telephone. On March 28, 2016, Warden Weir allowed Malave to resume telephone communication with Grunert but continued as of that date to bar Grunert from visiting Malave for an indefinite time period.

         At an earlier point in this litigation, defendants opposed plaintiffs' motion for injunctive relief in part on the basis of defendants' claim that "there is no credible evidence that [Malave] is married." Doc. #35 at 2. In response, plaintiffs filed a copy of their marriage certificate with the Court showing that they have been married as of December 2012. See Doc. #37 at 10.

         On July 18, 2016, 1 convened a status conference hearing to determine how to proceed with respect to plaintiffs' preliminary injunction motion. Of particular concern to me was that defendants had wrongly claimed that plaintiffs were not married. Defendants' counsel conceded at this hearing that plaintiffs were not only married but also that this fact was known to the Department of Correction, because plaintiffs were married while Malave was previously incarcerated at another Connecticut prison.

         I was also troubled by additional information I learned at the hearing. I was told by defendants' counsel that at some point before the hearing that Warden Weir had orally "offered" to restore plaintiffs' visiting privileges upon learning that plaintiffs were married but that Malave had said that he had no interest. I did not understand why the warden of a prison facility would bargain by means of an "offer" to an inmate to restore his visiting privileges and what the inmate would be presumably required to give up in return for such an "offer".[3] I can think of no legitimate reason why this kind of bargaining process would take place between a warden and an inmate, rather than the warden simply restoring visiting privileges to an inmate if there is no longer a continuing penological objective for a particular visiting restriction to remain.

         After the status conference of July 19, defendants filed motions to dismiss plaintiffs' motion for preliminary injunctive relief on the ground that this request for injunctive relief was now moot. Docs. #45 and #47. Based on a sworn affidavit from defendant Paul Ouellette in his capacity as the prison's acting warden, defendants represented that Grunert had now been restored as of July 19, 2016, to Malave's active visiting list for non-contact visits and that- absent additional misconduct-she would be restored to his list for contact visits on September 15, 2016.

         The asserted reason for delay in restoration of contact visits was that Malave remained subject to a one-year bar on contact visitation as a result of each of his three Class A disciplinary violations (for drug contraband, for sexually explicit photos, and for tattoos) that stemmed from the search of his person and his bunk area on August 26, 2015. According to defendants, it is an unwritten policy at the Robinson Correctional Institution to prohibit contact visits for one year following a Class A disciplinary violation, with the one-year time period measured as of the date that an inmate is released from punitive segregation for the disciplinary violation.[4] Because at most only one of the three Class A disciplinary violations (for drug contraband allegedly received by Malave from Grunert) forms the ...

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