# James M. Thompson v. Commonwealth of Kentucky, Dept. Of Corrections

> Court of Appeals for the Sixth Circuit · January 6, 1988 · 833 F.2d 614

URL: https://www.frixlaw.com/law-library/cases/9476934

## Case

- **Full name:** James M. THOMPSON, Et Al., Plaintiffs-Appellees, v. COMMONWEALTH OF KENTUCKY, DEPT. of CORRECTIONS, Et Al., Defendants-Appellants
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 6, 1988
- **Citations:** 833 F.2d 614
- **Precedential status:** Published
- **Opinion:** Concurrence by Wellford
- **Judges:** Merritt, Martin, Wellford
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

WELLFORD, Circuit Judge,
concurring:
I concur in the remand with some reluctance because of my reservation about creation of a liberty interest under the Procedures Memorandum. I concur that lack of a hearing in the Kentucky procedures does not violate the consent decree, and would conclude that the consent decree creates no liberty interest “enforceable beyond a district court’s traditional power to enforce its orders.”
My reluctance about creation of a liberty interest involves the following considerations. Visitation is merely a part of the daily operation of the prison, which affects only the circumstances of the prisoner’s situation in prison. By contrast, parole and good-time credit decisions affect a prisoner’s release from custody, which fully implicates his “liberty” in the ordinary meaning of the word. Moreover, “[t]he concept *620 of incarceration itself entails a restriction on the freedom of inmates to associate with those outside of the penal institution.” Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 126 , 97 S.Ct. 2532, 2538 , 53 L.Ed.2d 629 (1977). Decisions concerning visitation privileges, therefore, involve, in my view, even less of an encroachment on a prisoner’s remaining “freedoms” while in prison than do decisions concerning his associational rights or placement within the prison. Administrative or disciplinary segregation directly affects the prisoner’s “liberty” in that it further restricts his freedom to be in certain areas or associate with certain inmates. The decision to exclude an outside visitor does not affect in the same sense or degree the “freedoms” of association or placement within the prison. Furthermore, excluding a certain visitor but allowing others to visit the prisoner represents a relatively minor “deprivation.” I recognize also that a state may create a liberty interest in freedom from even relatively minor deprivations. See Hewitt v. Helms, 459 U.S. 460, 470-71 , 103 S.Ct. 864, 871 , 74 L.Ed.2d 675 (1983).
Applying these Hewitt criteria to the facts of this case presents a very close question for resolution. Prison officials had established guidelines for denying visits, but mere guidelines to “channel the decisionmaking of prison officials” do not create a liberty interest. Hewitt, 459 U.S. at 471 , 103 S.Ct. at 871 . The question is whether the state went beyond mere guidelines by using “mandatory language” in connection with “specific substantive predicates,” id. at 472 , 103 S.Ct. at 871 , or, in the words of Olim v. Wakinekona, 461 U.S. 238 , 103 S.Ct. 1741 , 75 L.Ed.2d 813 (1983), placed “substantive limitations on official discretion” with “particularized standards.” Id. at 249 , 103 S.Ct. at 1747.
The only “mandatory” language in the consent order or policy statements at issue appears once in the consent order — “Defendants shall continue their open visiting policy,” 541 F.Supp. at 37 — and once in the policy statement — “An inmate is allowed three separate visits per week.” (Emphasis added). This is considerably less than the “repeated use” of mandatory language in the statute at issue in Hewitt. See 459 U.S. at 470 n. 6, 103 S.Ct. at 871 n. 6 (“The inmate shall be notified ... [a]n investigation shall begin immediately ... the inmate must be released [if] ... the institutional representative shall ... [s]uch hearing shall be held within four (4) days....”) (emphasis added).
The degree of discretion left to the Kentucky prison officials in determining which visitors may be denied is not entirely clear. The policy provides that a visitor “may be denied a visit ... if one or more of the following exists or there are reasonable grounds to believe that” one of the listed reasons exists. The policy also leaves the final decision and considerable discretion to deny a visit, “for the above reasons,” to the Duty Officer.
This policy does not fall neatly into either of the categories outlined by Bills v. Henderson, 631 F.2d 1287 (6th Cir.1980). The guidelines arguably leave the Duty Officer with broad discretion and do no more than “channel [his] decisionmaking” along the stated guidelines. See Hewitt, 459 U.S. at 471 , 103 S.Ct. at 871 . This policy does not, however, leave the Duty Officer with “complete discretion” to deny a visit for any reason or for no reason at all. Cf. Olim, 461 U.S. at 249 , 103 S.Ct. at 1747 ; Bills, 631 F.2d at 1293 .
I doubt that the policy here involved establishes “particularized standards” or “objective and defined criteria” that place sufficient limitation on the officials' discretion to create a liberty interest. The policy at issue is not as detailed as some of the statutes and policies found to create liberty interests. See, e.g., Beard v. Livesay, 798 F.2d 874, 878 (6th Cir.1986) (describing “very detailed procedures, together with the substantive limitation ... ”); Franklin v. Aycock, 795 F.2d 1253 , 1260 and 1260 n. 5 (6th Cir.1986) (rather detailed procedures). In this case, a visit can be denied only for listed reasons. In contrast, the procedures in Wolff v. McDonnell, 418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974), for reporting and determining whether a prisoner committed “serious misconduct” were rather elaborate, see id. at 548-53 and *621 n. 8, 94 S.Ct. at 2970 -73 and n. 8, and the Court decided that procedures were necessary because of the importance of the determination of serious misconduct.
I am mindful that other decisions not heretofore discussed in detail have found liberty interests to exist after consideration of the language involved in the statute or regulation. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 , 99 S.Ct. 2100 , 60 L.Ed.2d 668 (1979); Bills v. Henderson, 631 F.2d 1287 (6th Cir.1980); Mayes v. Trammell, 751 F.2d 175, 178-79 (6th Cir.1984).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476934. Public record. Not legal advice.