Filed: Feb. 07, 2019
Latest Update: Mar. 03, 2020
Summary: 18-525 Malave v. Weir UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PART
Summary: 18-525 Malave v. Weir UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY..
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18‐525
Malave v. Weir
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City
of New York, on the 7th day of February, two thousand nineteen.
PRESENT:
AMALYA L. KEARSE,
DENNIS JACOBS,
ROBERT D. SACK,
Circuit Judges.
__________________________________
EDUARDO SHANE LUIS MALAVE,
JACQUELYNN MARIE GRUNERT,
Plaintiffs‐Appellants,
‐v.‐ 18‐525
KIMBERLY WEIR, (Warden) Individually
and in their Official Capacities,
OTERO‐NEGRON, (Deputy Warden)
Individually and in their Official Capacities,
OUELLETTE, (Deputy Warden) Individually
and in their Official Capacities, GARJUILO
(Captain) Individually and in their Official
Capacities, ALEXANDER, (Lieutenant)
Individually and in their Official Capacities.
Defendants‐Appellees.
__________________________________
FOR PLAINTIFFS‐APPELLANTS: Alan H. Bowie, Jr. (with Damian K.
Gunningsmith, on the brief), Carmody
Torrance Sandak & Hennessey LLP, New
Haven, CT.
FOR DEFENDANTS‐APPELLEES: James W. Caley, Assistant Attorney General,
for George Jepsen, Attorney General of the
State of Connecticut, Hartford, CT.
Appeal from a judgment of the United States District Court for the District of
Connecticut (Meyer, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
The plaintiffs, Eduardo Shane Luis Malave and Jacquelynn Marie Grunert,
bring claims against various prison officials under the First, Eighth, and
Fourteenth Amendments, on the ground that Grunert was denied visitation with
her husband, Malave, while he was serving a term of imprisonment in the Carl
Robinson Correctional Institution. Plaintiffs appeal from a judgment of the
United States District Court for the District of Connecticut (Meyer, J.) dismissing
their claims on the ground of qualified immunity. We assume the parties’
familiarity with the underlying facts, the procedural history, and the issues
presented for review.
The plaintiffs argue that the district court incorrectly defined the right at
issue for the purposes of its qualified immunity analysis.
When a defendant invokes qualified immunity, courts consider whether
the plaintiff has shown “(1) that the [defendant] violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of
the challenged conduct.” Wood v. Moss, 572 U.S. 744, 757 (2014) (quoting
2
Ashcroft v. al‐Kidd, 563 U.S. 731, 735 (2011)). “A right is clearly established
only if its contours are sufficiently clear that ‘a reasonable official would
understand that what he is doing violates that right.’” Carroll v. Carman, 135
S.Ct. 348, 350 (2014) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
“[C]ourts must calibrate, on a case‐by‐case basis, how generally or specifically to
define the right at issue.” Golodner v. Berliner, 770 F.3d 196, 205 (2d Cir. 2014).
The definition must be “particularized in the sense that the contours of the right
must be sufficiently clear that a reasonable official would understand that what
he is doing violates that right.” Id. at 206 (internal quotation marks and
alteration omitted).
The plaintiffs define the pertinent rights as the rights of a married prisoner
and his or her spouse not to be permanently deprived of all visitation.1 They
allege that the deprivation of visitation was permanent because, when Warden
Weir informed them that their visitation rights were terminated, she did not give
a time when they would be reinstated. The warden ultimately reinstated full
visitation rights. Plaintiffs argue nevertheless that the official action they
challenge was the threat of a permanent deprivation of their visitation rights, and
that the right must be defined commensurate to that threat.2 The district court
1 On September 15, 2015, after Malave was accused by prison informants of smuggling
drugs into the prison during his visits with Grunert, Warden Weir removed Grunert
from Malave’s visitation list, and terminated Malave’s telephone privileges with
Grunert. Warden Weir reinstated the phone privileges between Grunert and Malave
on March 28, 2016; reinstated non‐contact visitation on May 24, 2016; and Acting
Warden Ouellette restored Grunert to active visiting status on July 19, 2016. A total of
ten months elapsed between the denial of visitation on September 15, 2015 and the
restoration of Grunert’s active visiting status on July 19, 2016. However, the district
court calculated the total deprivation as eight months, because Malave had been
deprived all visitation through November 2015 due to other disciplinary reports, which
he does not challenge in this case.
2 The plaintiffs suggest that Malave did not commit the contraband offense for which
visitation was denied. But they do not challenge the denial on the ground that it was
arbitrary or unsupported.
3
defined the right more narrowly, acknowledging that the deprivation lasted
eight months for full‐contact visitation (and less for telephonic and non‐contact
visitation), and was therefore not permanent. The district court thus focused on
the actual deprivation suffered by the plaintiffs, rather than on the threatened
permanent deprivation. The court properly “particularized” the right to match
the harm that was actually suffered by the plaintiffs. Golodner, 770 F.3d at 206.
Moreover, the letter sent to Grunert advising her that she had been
removed from Malave’s visitation list did not describe the removal as permanent
or identify any time frame for deprivation. In an affidavit submitted to the
district court, Warden Weir described the removal only as “indefinite”. App’x
326.
One prong of the qualified immunity test is whether the right claimed by
the plaintiffs was clearly established. The plaintiffs incorrectly assert that the
right to be free from permanent deprivation of visitation was clearly established
by the Supreme Court in Overton v. Bazzetta, 539 U.S. 126 (2003). However,
Overton did not consider whether there is a First Amendment right to visitation
in prison: “We need not attempt to explore or define the asserted right of
association at any length or determine the extent to which it survives
incarceration . . . .” Id. at 131‐32. Cases in this circuit also have not clearly
established a right to spousal visitation in prison. Plaintiffs cite a summary
order, Mills v. Fischer, 497 F. App’x 114 (2d Cir. 2012), which merely
“assume[d]” (without deciding) that “inmates and their families have a right to
visitation protected by the First Amendment.” Id. at 116. In any event, a
summary order does not have precedential value and therefore does not create
clearly established law.
Accordingly, the district court correctly defined the right at issue for the
purposes of qualified immunity.3
3 Because we agree with the district court that qualified immunity is appropriate, we
need not address the district court’s alternative basis for dismissing the procedural due
process claims‐‐that the State of Connecticut Department of Correction Administrative
4
We have considered the plaintiffs’ remaining arguments and find them to
be without merit. For the foregoing reasons, we AFFIRM the judgment of the
district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
Directive 10.6 (governing visitation rights in prisons) did not establish a protected
liberty interest.
5