Deja Bost v. Csco Henson, et al.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

DEJA BOST,

Plaintiff, 1:25-cv-1076

(ECC/MJK)

v.

CSCO HENSON, et al.,

Defendants.

Deja Bost, Plaintiff, pro se

Hon. Elizabeth C. Coombe, United States District Judge:

MEMORANDUM-DECISION AND ORDER

Plaintiff Deja Bost commenced this proceeding by the filing of a Complaint, and sought

leave to proceed in forma pauperis (IFP). Dkt. Nos. 1, 3. This matter was referred to United States

Magistrate Judge Mitchell J. Katz who, on August 26, 2025, granted Plaintiff’s application to

proceed IFP and issued a Report-Recommendation, recommending that Plaintiff’s Complaint be

dismissed with leave to replead. Dkt. No. 4. Plaintiff was informed that she had fourteen days

within which to file written objections to the report under 28 U.S.C. § 636(b)(1), and that the

failure to object to the report within fourteen days would preclude appellate review. Dkt. No. 4, at

10. No objections to the Report-Recommendation have been filed.

As no objection to the Report-Recommendation has been filed, and the time for filing

objections has expired, the Court reviews the Report-Recommendation for clear error. See

Petersen v. Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory

committee’s note to 1983 amendment. Having reviewed the Report-Recommendation for clear

error, the Court adopts Magistrate Judge Katz’s recommendation that the Complaint be dismissed

with leave to amend for the following reasons.

Plaintiff alleges violations of her First and Fourteenth Amendment rights pursuant to 42

U.S.C. § 1983, as well as state law negligence claims, stemming from the Defendants’ conduct

during her attempts to visit an inmate at Coxsackie Correctional Facility (Coxsackie C.F.). See

generally Dkt. No. 1. Plaintiff further alleges she was subjected to “unequal treatment and gender-

based discrimination.” Id. at 2. A recitation of Plaintiff’s factual allegations is included in

Magistrate Judge Katz’s Report-Recommendation. Dkt. No. 4 at 1-2.

To the extent Plaintiff asserts a violation of her right to visitation under the First

Amendment, Plaintiff’s allegations fail to state a plausible claim. At the outset, neither the

Supreme Court nor the Second Circuit has outright recognized an individual’s right to visitation

with an incarcerated family member under the First Amendment, although the Second Circuit has

not foreclosed the possibility altogether. See Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (“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 . . . .”); Malave v. Weir, 750 F. App’x 65, 67 (2d Cir.

2019) (recognizing that, for purposes of qualified immunity analysis, “[c]ases in this circuit . . .

have not clearly established a right to spousal visitation in prison”); Mills v. Fischer, 497 F. App’x

114, 116 (2d Cir. 2012) (assuming without deciding that “inmates and their families have a right

to visitation protected by the First Amendment.”). Other courts in this district have declined to

recognize such a right under the First Amendment. See Adeyola v. Gibon, 537 F. Supp. 2d 479,

481 (W.D.N.Y. 2008) (“[T]here is no absolute constitutional right to visitation, and, at the very

least, first amendment values must give way to reasonable considerations of prison management.”)

(internal citations omitted); Midalgo v. Bass, 9:03-cv-1128, 2006 WL 2795332, at *16 (N.D.N.Y.

Sept. 26, 2006) (“[F]amily visitations for inmates only constitute a privilege and not a right”).

Even if this Court were to recognize such a right under the First Amendment, Plaintiff has

failed to provide any factual allegations establishing her relationship, if any, to the incarcerated

individual she was visiting at Coxsackie C.F. Furthermore, under these circumstances, where

Plaintiff was denied visitation due to the abnormal results of a security body scan, but permitted

to return the following day at which time she was admitted for visitation, Plaintiff’s allegations

fail to amount to a violation of Constitutional proportion. See Overton, 539 U.S. at 137

(acknowledging that “[i]f the withdrawal of all visitation privilege were permanent or for a much

longer period, or if it were applied in an arbitrary manner to a particulate inmate, the case would

present different considerations.”); see also Marrero v. Weir, No. 3:13-cv-0028, 2014 WL

4799228, at *6 (D. Conn. Sept. 26, 2014) (“Indeed, the Court is required to grant ‘wide-ranging

deference’ to prison administrators ‘in the adoption and execution of policies and practices that in

their judgment are needed to preserve internal order and discipline and to maintain institutional

security.’”) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)).

To the extent Plaintiff seeks to bring a claim of retaliation under the First Amendment, she

has also failed to plausibly allege a claim. “The First Amendment protects the right to free speech

and to association as well as the right not to be subject to retaliation for the exercise of one’s right

to free speech or association.” Roberts v. City of New Haven, 210 F. Supp. 3d 347, 354 (D. Conn.

2016). In order to prove a claim of First Amendment retaliation, a plaintiff must show that: (1)

she has engaged in protected speech or association; (2) defendant took adverse action against her;

and (3) there was a causal connection between the protected speech or association and the adverse

action. See Gonzalez v. Hasty, 802 F.3d 212, 222 (2d Cir. 2015); Dolan v. Connolly, 794 F.3d

290, 294 (2d Cir. 2015) (same). Not every perceived slight constitutes “adverse action” subject to

a First Amendment retaliation claim; to the contrary, in the context of a First Amendment

retaliation claim, the Second Circuit has held that “only retaliatory conduct that would deter a

similarly situated individual of ordinary firmness from exercising his or her constitutional rights

constitutes an adverse action.” Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006).

Here, the Court liberally construes Plaintiff’s allegations to assert that the Defendants

refused her visitation on July 26, 2025 in retaliation for appealing the one-year visitation ban

assessed against her as a result of her May 3, 2025 visitation denial. Dkt. No. 1 at 1-2. However,

in order to successfully plead a claim, Plaintiff must allege either that the retaliation resulted in the

actual chilling of the exercise of her constitutional rights, or that she suffered some independent,

concrete harm. See Brink v. Muscente, No. 11 Civ. 4306, 2013 WL 5366371, at *7 (S.D.N.Y.

Sept. 25, 2013) (“Where a plaintiff has sufficiently alleged a concrete harm, and in the absence of

a subjective chilling requirement, Second Circuit courts have only required a showing (1) that the

First Amendment protected the plaintiff’s conduct, and (2) that ‘defendants’ conduct was

motivated by or substantially caused by [the plaintiff’s] exercise of speech.’”) (quoting Hafez v.

City of Schenectady, 894 F. Supp. 2d 207, 222 (N.D.N.Y. 2012), aff’d, No. 12 Civ. 1811, 2013

WL 1876610 (2d Cir. 2013)). Here, there is no suggestion that the Defendants’ conduct actually

chilled the exercise of Plaintiff’s First Amendment rights to speech and/or association. Plaintiff

alleges that despite being denied on July 26, 2025, she returned the following day, at which time

she was permitted entry for visitation. Plaintiff does not otherwise allege that she was subsequently

deterred from pursuing visitation, nor does she allege any other forms of concrete harm that have

been accepted in place of the actual chilling requirement. See, e.g., Zherka v. Amicone, 634 F.3d

642, 645–46 (2d Cir. 2011) (“Hurt feelings or a bruised ego are not by themselves the stuff of

constitutional tort.”). Accordingly, Plaintiff fails to state a claim.

Plaintiff also asserts claims pursuant to the Fourteenth Amendment, alleging she was

subjected to unequal treatment and gender-based discrimination. Although it is unclear what

specific rights Plaintiff contends to be at issue, the Court liberally construes the Complaint to raise

violations of Plaintiff’s due process and equal protection rights. With respect to the former,

Plaintiff has failed to state a claim. A prerequisite to a due process claim is that Plaintiff possess

a protected liberty interest. As previously set forth, it is unclear from Plaintiff’s allegations what,

if any, relationship she bears with the incarcerated individual she sought to visit, i.e. whether they

were married or otherwise related, and the nature of the purported visit. Moreover, “[p]rotected

liberty interests may be derived from two sources—the Due Process Clause itself and the laws of

the States.” Cromwell v. Coughlin, 773 F. Supp. 606, 610 (S.D.N.Y. 1991) (citing Hewitt v. Helms,

459 U.S. 460, 466 (1983)). “[C]ourts in the Second Circuit have consistently held that neither the

Due Process Clause nor New York state law create a protected liberty interest for inmates with

respect to contact visits.” Paul v. Capra, No. 20-cv-5154, 2022 WL 992845, at *9 (S.D.N.Y. Mar.

31, 2022) (quoting Hernandez v. Sposato, No. 14-cv-4593, 2015 WL 4097784, at *4 (E.D.N.Y.

July 8, 2015)). “The same can be said for inmates’ family and friends.” Id. (citing Malavé v. Weir,

No. 3:16-cv-00009, 2018 WL 500644, at *7 (D. Conn. Jan. 22, 2018), aff’d, 750 F. App’x 65 (2d

Cir. 2019) (“The upshot is that the law of the Second Circuit does not recognize a clearly

established right of married partners to engage in either in-person visitation or telephonic

communication with one another while one of those persons is in prison.”); see U.S. v. Madoff,

No. 09 Cr. 213, 2016 WL 11551475 at *2 (S.D.N.Y. Nov. 23, 2016) (“The denial of prison access

to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison

sentence, . . . and therefore is not independently protected by the Due Process Clause.”) (quoting

Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)); Gatson v. Selsky, No. 94-cv-

292, 1997 WL 159258, at *4 (N.D.N.Y. Apr. 4, 1997) (holding the plaintiff’s wife did not have a

liberty interest in family reunion or conjugal visits).

Even assuming Plaintiff plausibly alleged a protected liberty interest, to the extent Plaintiff

alleges a procedural due process claim it is clear that Plaintiff was provided an opportunity to be

heard by using her right to appeal the one-year visitation ban, which she successfully challenged.

See Capra, 2022 WL 992845 at *9. Alternatively, to the extent Plaintiff alleges a substantive due

process claim, Plaintiff fails to allege how any of the denials of her visitation consisted of

“action[s] so egregious or outrageous that [they] can be said to [have] shock[ed] the [Plaintiff’s]

conscience.” Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005); see also Hirsch v. City of New

York, 300 F. Supp. 3d 501, 512 (S.D.N.Y. 2018) (“In order to shock the conscience and trigger a

violation of substantive due process, official conduct must be outrageous and egregious under the

circumstances; it must be truly brutal and offensive to human dignity.”) (internal quotation marks

and citations omitted). For all of these reasons, Plaintiff fails to allege a due process claim under

the Fourteenth Amendment.

To the extent Plaintiff’s Complaint can be read to assert a gender-based discrimination

claim under the equal protection clause of the Fourteenth Amendment, this too fails. While there

“is an obligation on the part of the [C]ourt to make reasonable allowances” when reviewing pro se

submissions, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (internal

quotation marks omitted), more than bare legal conclusions are nonetheless required for these

claims to survive, see Iqbal, 556 U.S. at 678–79. Here, Plaintiff’s general assertions of

discrimination amount to the one-time denial of her visitation rights because “a body scan showed

what she disclosed was a tampon,” and that the Defendants “mocked” Plaintiff referencing her

prior denied visit which was based on an odor of marijuana. At minimum, Plaintiff has failed to

allege facts supporting a plausible inference that “discriminatory intent was a motivating factor.”

Okin v. Village of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 438 (2d Cir. 2009) (citing

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977)); see White v. City of

New York, 206 F. Supp. 3d 920, 931 (S.D.N.Y. 2016) (describing how plaintiffs may show

discriminatory intent by pointing to animus on the part of individual officers, an official municipal

policy of discriminatory treatment, or a pattern of failing to provide an adequate police response

to a protected class) (citation omitted). Moreover, to the extent Plaintiff’s claim could be construed

as premised on a selective-enforcement or class-of-one theory, Plaintiff has failed to allege facts

establishing that others were similarly situated to her. See Levine v. New York State Police, No.

21 Civ. 1181, 2022 WL 1987845, at *11 (N.D.N.Y. June 6, 2022) (dismissing class-of-one equal

protection claim where the plaintiff failed to allege a particular, similarly situated comparator who

was treated differently); Weinberg v. Village of Clayton, New York, No. 17 Civ. 21, 2018 WL

4214363, at *19 (N.D.N.Y. Mar. 21, 2018) (dismissing selective enforcement equal protection

claim where the plaintiffs failed to plead “sufficient facts for the Court to determine that it is

plausible that a jury could ultimately determine that the comparators are similarly situated”)

(internal quotation and citation omitted). Accordingly, Plaintiff’s claims sounding in

“discrimination” and “unequal treatment” fail to plausibly state a claim.

Finally, Plaintiff raises a state law claim of negligence in conjunction with the loss of her

cell phone, which she alleges was stolen from a locker during her July 27, 2025 visit. Dkt. No. 1

at 2. In the absence of any specific allegation, the Court seriously questions whether Plaintiff has

pled sufficient facts from which the Court can reasonably infer that the amount in controversy

exceeds $75,000 for purposes of establishing diversity jurisdiction. See Pucci v. Brown, 423 F.

App’x 77, 78 (2d Cir. 2011) (“[A]lthough [the plaintiff] and the defendant are alleged to be diverse

in citizenship, [the plaintiff] has failed to plead any amount in controversy, let alone an amount in

excess of $75,000.”); see also Fed. R. Civ. 8(a). Moreover, because the Court is dismissing

Plaintiff's federal claims, supplemental jurisdiction over Plaintiff's state law claims is not

appropriate. See Kolari v. New York Presbyterian Hosp., 445 F.3d 118, 120 (2d Cir. 2006) (district

court has discretion to decline to exercise supplemental jurisdiction over state law claims because

all claims over which the federal court has original jurisdiction have been dismissed). Finally,

notwithstanding the jurisdictional issues, Plaintiff has not alleged facts establishing that the

Defendants had a duty to the Plaintiff, that the Defendants breached that duty, and resulting injury

to the Plaintiff. Lloyd v. City of New York, 246 F. Supp. 3d 704, 730-31 (S.D.N.Y. 2017).

For these reasons, it is hereby

ORDERED that Magistrate Judge Katz’s Report-Recommendation, Dkt. No. 4, is

ADOPTED; and it is further

ORDERED that Plaintiff's Complaint, Dkt. No. 1, is DISMISSED with leave to amend;

and it is further

ORDERED that any amended complaint must be filed within thirty (30) days of the date

of this Order. Any amended complaint must be a complete pleading which will replace the current

complaint in total; and it is further

ORDERED that if Plaintiff files a timely amended complaint, it shall be referred to

Magistrate Judge Katz for review; and if Plaintiff fails to file a timely amended complaint, the

Clerk is directed to close this case; and it is further

ORDERED that the Clerk serve a copy of this Order on Plaintiff in accordance with the

Local Rules.

IT IS SO ORDERED.

Dated: December 3, 2025 y Af A

Elizabeth C. Coombe

U.S. District Judge

.