Petition for Writ of Certiorari — Bazzetta v. McGinnis

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Supreme Court, U.S.

t) FILED

9271800 May 4 -1998

GFFIGE—OF-FHE-CEERK

No. 97-___

In The

Supreme Court of the United States

October Term, 1997

¢

MICHELLE BAZZETTA, et al.,

Petitioners,

KENNETH McGINNIS, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

+

PETITION FOR WRIT OF CERTIORARI

e

DesorAH LABELLE Martin A. GEER

(Counsel of Record ) JEFFREY Murray

221 North Main ARTHUR RENKWITZ

Suite 300 University of Baltimore

Ann Arbor, MI 48104 School of Law

(734) 996-5620 1420 N. Charles Ave.

Baltimore, MD 21210

(410) 837-5649

I].

If.

IV.

QUESTIONS PRESENTED

DID THE DISTRICT COURT AND THE APPEALS

COURT BELOW ERR AS A MATTER OF LAW IN

FINDING THAT NEITHER PRISONERS NOR

THEIR FAMILY MEMBERS POSSESS ANY

CONSTITUTIONAL RIGHTS IMPACTED BY

PROHIBITIONS ON VISITATION WITH EACH

OTHER.

WHERE THE SIXTH CIRCUIT FOUND THE

TURNER v SAFELY STANDARD TO BE ONE OF

LAW AND HELD THAT THE FACTUAL

PRESUMPTIONS OF RULE 56 DO NOT APPLY TO

A REVIEW OF PRISON REGULATIONS, DID THE

COURT ERR.

DID THE CIRCUIT COURT ERR IN AFFIRMING

THE DISTRICT COURT WHERE THE COURT

FAILED TO PERFORM AN ADEQUATE INQUIRY

AS REQUIRED BY TURNER.

DID THE CIRCUIT COURT ERR IN APPLYING A

LOWER SCRUTINY TEST TO REVIEW

PETITIONERS’ EQUAL PROTECTION CLAIM ON

BEHALF OF MINOR SIBLINGS OF PRISONERS.

il

PARTIES TO THE PROCEEDING

Petitioners, Michelle Bazzetta, Stacy Barker, Toni

Bunton, Debra King, Shante Allen, Adrienne Bronaugh,

Alesia Butler, Tamara Prude, Susan Fair, Valerie Bunton and

Arturo Zavala, through his Next Friend Valerie Bunton, on

behalf of themselves and all others similarly situated and

represent a certified class of individuals comprised of

members of the public and community prisoners under the

jurisdiction of the Michigan Department of Corrections

whose ability to visit with each other was prohibited by the

Michigan Department of Corrections’ administrative rules

restricting visitation in Michigan’s prisons.

Respondents are Kenneth McGinnis, Director of the

Michigan Department of Corrections and the Michigan

Department of Corrections.

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iii

TABLE OF CONTENTS

SURFERS EUPIA WPREIOBIN TO 665s ccivecevececeseie i

PARTIES TO THE PROCEEDING............... il

UTE PE, SPUR TEES onc co hooves ncuccicscess ill

6 Be ae ge 84g | oh Ue ae V-X

SI SR sy o's Sk be 5 boo. oa pin sin die oveuce's |

SEM oe 6p os ks iin 5 Gas Cea we As a |

CONSTITUTIONAL PROVISIONS AND STAT-

SN Ns oo es aa ved wok baie ns |

OMURMEMOEEET E> COE? BRED GAGE 6 vis ic civ ccevevess 2

REASONS FOR GRANTING THE WRIT........ 9

1. BOTH THE DISTRICT COURT AND THE

APPEALS COURT BELOW ERRED AS A

MATTER OF LAW IN FINDING THAT

THERE IS NO CONSTITUTIONAL ASSO-

CIATIONAL RIGHT TO VISITATION WITH

PRMRROE WEPIUNNERIRDS 6b Socce ic ea euk ewes Gas 10

Il. THE SIXTH CIRCUIT HAS ABROGATED

THE STANDARDS AND FACTUAL

REVIEW REQUIREMENTS OF TURNER vy

SAFELY FINDING THE STANDARD TO BE

ONE OF LAW AND MISINTERPRETING

THIS COURT’S POLICY OF DEFERENCE

TO FIND THAT THE FACTUAL PRESUMP-

TIONS REQUIRED BY THE RULE AND

LAW OF SUMMARY JUDGMENT DO NOT

APPLY TO THE RULING AND CONFLICTS

WITH THIS COURT AND DECISIONS OF

OTHER FEDERAL COURTS ON THE

TURNER STANDARD OF REVIEW ........ 14

III.

IV.

iV

TABLE OF CONTENTS — Continued

Page(s)

THE CIRCUIT COURT ERRED IN AFFIRM-

ING THE DISTRICT COURT WHERE THE

COURT FAILED TO PERFORM AN ADE-

QUATE INQUIRY AS REQUIRED BY

PALI REG 6 a A ued LER OER ER ERS

THE CIRCUIT COURT ERRED IN APPLY-

ING A LOWER SCRUTINY TEST TO

REVIEW PETITIONERS’ EQUAL PROTEC-

TION CLAIM ON BEHALF OF MINOR SIB-

LEPC COP Peete cca eb case cane une

CPG GEES ik A 9S a) 64 000 AOR OS

20

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Adickes v. S.H. Kress & Co., 398 U.S. 144

Ce 6 ees Seah e whe eUw 1k & ec ous 24

Anderson vy, Liberty Lobby, 477 U.S. 242 (1986)...... 25

Aristotle P. v. Johnson, 721 F. Supp. 1002 (N.D.

a ROP e ce oad iat See oe oi a ee 12

Ashelman v. Wawrzaszek, 111 F.3d 674 (9th Cir.

SNES hy eae ee le eee eae ns Sie 17

Barnett v. Centoni, 31 F.3d 813 (9th Cir. 1994) ....13

Bazzetta v. McGinnis, 902 F. Supp. 765 (E.D.

Mich. 1998); 124 F.3d 774 (6th Cir. 1998) ....... |

Bedford v. Sharp, 120 F.3d 270 (10th Cir. 1997)... ... 19

Bell vy. City of Milwaukee, 746 F.2d 1205 (7th

Rally ROE ho 6 bans cas te ae os Ue es cee 12

Berch v. Stahl, 373 F. Supp. 412 (W.D. NC 1974) ....24

Blackburn v. Snow, 771 F.2d 556 (1st Cir. 1985) ....28

Block v. Rutherford, 468 U.S. 576 (1983).......... 12

Board of Directors of Rotary International vy.

Rotary Club of Duarte, 481 U.S. 537 (1987) ....12

Boudin v. Thomas, 533 F. Supp. 786 (S.D.N_Y.

at INGE ene En anLOr ery Dry Toten pea syne sm Luna pea 12, 24

Bromley v. Michigan Education Association —

NEA, 82 F.3d 686 (6th Cir. 1996) .......... RO

Bryant-EL vy. Smith, 46 F.3d 1133, 1995 US.

App. LEXIS 6887 (7th Cir. 1995) .............. 17

vi

TABLE OF AUTHORITIES — Continued

Page

Buehl v. Lehman, 802 F. Supp. 1266 (E.D. Pa.

OI se Nh ek hak ie CR RN RRS 13, 17

Buie v. Jones, 717 F.2d 925 (4th Cir. 1983) ....... 12

Celotex Corp. v. Catrett, 477 U.S. 317

‘<, | Sere prer re Pr Re rte oe Tn ge 15,17, 20

Ching v. Lewis, 895 F.2d 608 (9th Cir. 1989)...... 13, 17

Cole v. Rahija, 114 F.3d 778 (8th Cir. 1997) ...... 13

Daugherty v. Campbell, 33 F.3d 554 (6th Cir.

oo. | IRR etare na ten are Torrone i i ek i 28

Dreher vy. Sielaff, 636 F.2d 1141 (7th Cir. 1980) ...... 13

Friedman v. State of Arizona, 912 F.2d 328 (9th

ar MR |” Deane nip iy ye Pantene eney marae eer yk a banc ak 18

Giano vy. Senkowski, 54 F.3d 1050 (2nd Cir.

Dee ee gi Gu a Ae Nase Oh SAR RON 17

Gluksberg v. Washington, 117 S.Ct. 2258 (1997) .... 11

Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991) ....17

Howard v. United States of America, 864 F.

Supp. 1019 (D. Colo. 1994).......6.- sere reese: 18

Iron Eyes v. Henry, 907 F.2d 810 (8th Cir. os See 8

Johnson vy. Avery, 393 U.S. 483 (1969).......-.55 13

Jones v. Diamond, 636 F.2d 1364 (Sth Cir. en

ater SOREN 5 oi ek ks Seeds 2s PEATE TSS ee SS 12

Levy v. Louisiana, 391 U.S. 68 (1978) ..-.....++-. 11

Lewis v. Casey, 116 S.Ct. 2174 (1996) .......--++. 12

re DOANE Ne en TAR

Vil

TABLE OF AUTHORITIES — Continued

Page

Local Union 1937 v. Norfolk Southern Corp.,

ay: wae eee COU OO, TOPE icc Sih eee ta aces 26

Long v. Norris, 929 F.2d 1111 (6th Cir.), cert.

eg re Aas BOR CADRE ao i hopes eae wees 10, 11

PDB: Me Dhabas AEF °S: CR; SES GGG): «ok cis 11

Mann v. Reynolds, 46 F.3d 1055 (10th Cir. 1995). .19, 20

Massey v. Wilson, 484 F. Supp. 1332 (D. Colo.

RPT nis ig oi ae a eres a 12

Mayo v. Lane, 867 F.2d 374 (7th Cir. 1989)....... 12

McMurey vy. Phelps, 533 F. Supp. 742 (W.D. La.

1982), rev. on other grounds, Thorne J. Jones,

Fue Wee REET COUN GR TSE bak wisale coe vcdewa 13

Moore v. City of East Cleveland, 431 U.S. 494

5 28 eee AS EO eee phan bn: GMEar ety Tooeanengt 1]

Mosier v. Maynard, 937 F.2d 1521 (10th Cir.

DERE Sis Caan Ver sae On tas ACERS TE dot Ohi es 17

Navin v. lowa, 843 F. Supp. 500 (N.D. Iowa

REE Ab k pR iis baat ok hy not COS we GAO Boas 12

Olim v. Wakinekona, 461 U.S. 238 (1983) .:....... 11

Philadelphia Police and Fire Associate for

Handicapped Children, Inc. vy. City of Phila-

delphia, 874 F.2d 156 (3rd Cir. 1989)........... 13

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ....11

Procunier v. Martinez, 416 U.S. 396 (1974) ....... 13

Rhem v. Malcom, 371 F. Supp. 594 (S.D. NY

DPE IPEENEE Iie? oii RSC eg ye 24

vill

TABLE OF AUTHORITIES — Continued

Page

Robinson vy. Palmer, 619 F. Supp. 344 (D.D.C.

NN Ge ES ate aOR CRT RES eee Ea 13

Routman vy. Automatic Data Processing, Inc., 873

F.2d 970 (6th Cir. 1989) ...... 0. cece cece e re neee 27

Salaam v. Lockhart, 905 F.2d 1168 (8th Cir.

A os oe kb ke ee he RA Seek RNA) 20

Santosky v. Kramer, 455 U.S. (: = BO) 7: eae 11

Sappington vy, Ulrich, 868 F. Supp. 194 (B.D.

SO, TI ie os a eRe heed ees Fie Cem reeks nes 13

Smith v. Couglin, 748 F.2d 783 (2nd Cir. 1984) ....13

Smith v. McDonald, 869 F. Supp. 918 (D. Kansas

Co og pny en rear rear y oe y eae eae 13

Stanley v. Illinois, 405 U.S. 645 (1972) ........55. 11

Stewart v. Gates, 450 F. Supp. 583 (C.D. Cal.

CF Si vig oh eon CERN SES RTE TERS a ae

Thornburgh vy. Abbott, 490 U.S. 401 $s Se 27

Turner v. Safely, 482 U.S. 78 (1987)........:. passim

University of Texas v. Camenisch, 451 U.S. 390

(EGR oink Raa reks Wen e RE ee hokey bree sares 25

Valentine v. Englehardt, 474 F. Supp. 294 (D.

2.) PR eae eraay ey ey ete war tas at iz, 2)

Ward v. Walsh, 1 F.3d 873 (9th Cir. 1993)..... 21, 24

Washington v. Harper, 494 U.S. 210 (1990).... 19, 20

id) eee ee pero uNT Pel Ser are ey Sone sk 17, 20

ix

TABLE OF AUTHORITIES — Continued

Page

White Motor Company v. United States, 372 U.S.

po SRL | BRR UTR RUE We aS Aeon Rie Roy OR ea Nee 8, 24

Whitney v. Brown, 882 F.2d 1068 (6th Cir.

ar ae aia Chace Nat) ne 13, 18

FEDERAL STATUTES

BEG CE er ee ii Rent ei |

PE as a a NN A ee eS &

OTHER AUTHORITIES

Michigan Register, August 1995 Michigan

Department of Corrections Administrative

Rules:

Oe ir da ee ate cue Sen a aay 2, 4

in POO 5 arcs: ak hn taba Seale

l

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Sixth Circuit is published at 124 F.3d 774 (1998), App. 8.

A Supplementary Opinion by the Sixth Circuit is published

at 133 F.3d 382 (1998), App. 3. The Sixth Circuit’s order

denying Plaintiffs’ Motion for Rehearing and Suggestion for

Rehearing En Banc is reprinted as App. 1. The opinions of

the United States District Court for the Eastern District of

Michigan, from which appeal were taken are published at

902 F. Supp. 765 and reprinted at App. 22, and reprinted at

App. 40.

JURISDICTION

The opinions of the United States Court of Appeals for the

Sixth Circuit were issued on September 4, 1997 and January

5, 1998 (Supplementary Opinion). Plaintiffs request for

rehearing and suggestion for rehearing en banc were denied

on February 2, 1998. This court has jurisdiction pursuant to

28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The Constitutional, statutory provisions and

Administrative Rules applicable to this case begin at App.

53.

2

STATEMENT OF THE CASE

A. Factual Statement

This class action was filed on behalf of members of the

public community and prisoners in the State of Michigan to

challenge prison rules restricting visitation between prisoners

and members of their families and prisoners and community

workers.

Visitation with prisoners in Michigan is governed by a

series of Rules and Regulations. There are strict limitations

on the number of visits allowed per year for each prisoner.

The length and type of visit are conditioned upon the

prisoners’ security level and the visitors behavior. Prisoners

are strip searched before and after each visit. Visitors are

searched by metal detectors and clothed body searches are

performed on each visitor. The visiting rooms are monitored

by surveillance and in-person staff. Petitioners do not

challenge these pre-existing restrictions.

However, on August 16, 1995, new regulations

identifying, by category, who could visit prisoners in

Michigan were enacted. (App. 54, R 791.6609). It is these

restrictions for which review is sought. Prison authorities

instituted a rule requiring preapproval, after a thorough

screening of a detailed application, of all non-attorney

visitors prior to being placed on a prisoners’ approved visitor

list. (App. 55). Certain categories of people are excluded

from consideration for the approved visitor list: 1) anyone

under the age of eighteen (18) unless proven to be the child,

step-child or grandchild of the prisoner; 2) the child, step-

child or grandchild may not visit unless accompanied by a

court-appointed legal guardian or by an immediate family

member, as separately defined by the prison authorities.

(App. 57). Further, the child, step-child or grandchild of a

prisoner may not visit if parental rights have been terminated

3

by adoption or any other mechanism, irrespective of

visitation agreements or court orders for visitation.

The regulations prohibit visitation between prisoners and

their minor brothers, sisters, nieces, nephews, godchildren

and children who have been parented by a prisoner but who

are not the natural child of that prisoner. The rules prohibit

visitation between incarcerated parents and their children

where the parent has placed the child with an individual who

does not conform to the prison authorities’ definition of an

immediate family member or legal guardian. '

The visitation restrictions also prohibit volunteer groups,

community workers, tutors and counselors from visiting more

than one prisoner in Michigan.

The regulations severely impinge on the surviving

mechanism to maintain integral family relations with

incarcerated individuals.

Petitioner Alesia Butler and her husband raised their 11

year old nephew, Nicholas, as their own son, since his

mother (Ms. Butler’s sister) was shot and killed when he was

three months old. Ms. Butler was incarcerated when Nicholas

was six years old for a sentence of 10 years and Ms. Butler’s

husband, with whom Nicholas continues to reside, had

brought him for weekly visits for five years until the rules

prohibited Ms. Butler from any visitation with Nicholas

despite their parent/child relationship and the fact that she is

the only mother Nicholas has ever known. The child will not

be able to see his putative mother for seven years, when he

reaches the age of 18, or until Petitioner completes her

sentence.”

'It was estimated that this restriction alone would result in prohibiting

over 50% of the visits between children and their incarcerated parents.

*While the Rules potentially allow for visits by aunts or uncles of

prisoners if they served as surrogate parents to the prisoner, the rules do

not recognize that prisoners may serve in the capacity “as a surrogate

4

Petitioner Arturo Zavala, a 15 year old who suffers from

cerebral palsy and a severe speech defect is prohibited from

visiting his only sibling, Petitioner Toni Bunton, herself only

17 years old upon incarceration. It was unchallenged below

that there was no real alternative association available to

Petitioner Arturo Zavala and other minor children who either

by age or disability could not effectively communicate by

letter or telephone.

Petitioner Stacy Barker, after being sentenced to a life

sentence, voluntarily terminated her parental rights with her

8 year old daughter, Donna, by placing her in an open

adoption in order to provide her with a stable and nurturing

family environment. All parties to the adoption agreed it was

in the child’s best interest to maintain regular visitation with

her birth mother and Donna was taken to the prison for

weekly visits. Under the challenged regulations, the visitation

restriction constitutes a lifetime ban on any visits between

this mother and child. (App. at 56, R 791.6609(6)).

Petitioner Debra King voluntarily terminated her parental

rights to allow her mother to legally adopt her 10 year old

daughter to maintain her child’s stable and loving

environment during her incarceration. Ms. King continued to

parent her child, receiving regular visits with her mother and

natural child. The new rules prohibit all future visits.

The rules prohibit any visitation between an incarcerated

parent and their child who resides with an adult who

maintains full power of attorney to exercise parental authority

on her behalf. If the adult is not a full legal guardian nor an

immediate family member as defined by prison authorities,

but rather the caretaker designated by the parent, the

child is not allowed to visit.

The named Petitioners’ circumstances are not unusual,

parent” to their own nieces or nephews. (App. 57, R 791.6609(a)).

5

rather are reflective of the situation of many children of

incarcerated parents. The majority of incarcerated prisoners

are parents and the vast majority of women prisoners are the

sole custodians of their children at the time of their

incarceration. Upon incarceration, children are often placed

with family members who do not meet the Michigan prison

authorities’ definition of what shall constitute an "immediate

family" member but rather are reflective of both

socioeconomic and cultural backgrounds in which extended

families constitute the norm. Most women prisoners lack the

financial resources necessary to establish legal guardianship

with the caretakers of their children and the district court

took judicial notice both of the fact that the parent Petitioners

rarely have an opportunity to establish legal guardianships

prior to incarceration and that conferring such a status on a

caretaker endangers the parental rights of incarcerated

parents by making them vulnerable to a termination petition.

B. Proceedings Below

The Petitioner class, compromised of both non-prisoners

and prisoners, filed suit on August 23, 1995 alleging inter

alia that the regulations’ blanket prohibitions on visitation

impermissibly impinged upon prisoners and their families’

First and Fourteenth Amendment rights to association.

Petitioners obtained a temporary restraining order prohibiting

the implementation of these restrictions until resolution of the

preliminary injunction motion.

At the preliminary injunction hearing it was undisputed

that loss of visitation between children and their parental

figures, beyond the obvious separation trauma resulting from

incarceration would result in severe or permanent impairment

of the Petitioners children. The emotional toll from feelings

of abandonment and the loss of the emotional attachment and

the impact on the children was undisputed.

6

The prohibiticn on family visitation and on visitation by

community workers, including domestic violence volunteers,

substance abuse counselors, mental health workers and

members of prisoner assistance groups was acknowledged to

have a detrimental effect on rehabilitative goals and on

prisoners’ reintegration into the community upon release.

Defendants presented three fluid arguments as to the

penological objectives behind these restrictions. Defendants

initially asserted that the restrictions were to control the

volume of visits within Michigan’s prisons.

Yet prison authorities were unaware of the number of

minors visiting Michigan prisons and unaware of how the

rules would impact volume. Prison authorities could not

articulate why they simply did not further reduce the number

of allowable visits as opposed to prohibiting certain

categories of visitors. Defendants then articulated the

rationales of preventing the introduction of contraband and

protecting children from harm in the Visiting rooms as their

objectives. (App. at 49).

There was no assertion that any of the restricted

categories of visitors had been an instrument for introduction

of contraband or that children were more likely than other

permitted visitors to bring in contraband despite the district

court directly seeking this information at the preliminary

injunction hearing.

It would be interesting to have some proof that

the categories of people being excluded are the

people through whom, you know, contraband or

weapons even occasionally come in, and, you

know with Ms. Burke’s vast experience, she

hasn’t had a single incident that she can point to

of a child bringing it in.

Further, prison officials never identified how prohibition

7

of non-contact visits could be related to a prevention of the

introduction of contraband.

The final "penological" interest articulated, was to prevent

harm to children.

During the preliminary injunction proceedings, when the

parties attempted to explore Defendants’ assertion of harm to

children because children might see improper things in

visiting rooms, the district court curtailed the inquiry stating:

But don’t spend your time telling me that kids

are, you know, that kids might get hurt in the

waiting room or that they are exposed to bad

words or that, you know, there are incidents of

somebody fondling someone and they are going

to see that. It’s just not going to impress me.

In cross examining Bolden on his testimony that sexual

misconducts occur in the visiting room and children could

see them, the court again precluded an inquiry as to whether

the sexual misconduct was simply a prohibited hug or a kiss

between a husband and wife stating, "Well I’m not really

interested in going through that exercise."

Defendants did not articulate how a concern for children’s

welfare was rationally related to regulations that allowed

some children in but prohibited other children or how it

related to prohibition of non-contact visits as well as contact.

With regard to other harm to children, Defendants presented

one incident where a child was abused in a Visiting room but

readily acknowledged that had prison authorities enforced

visiting rules, the incident would have been prevented.

At the close of the hearing, the district court in evaluating

the four factors necessary to decide whether to issue a

preliminary injunction ruled that:

Even assuming that the court would find that the

8

Plaintiffs have met their burden as to [irreparable

injury, balance of harms and public interest], since the

Plaintiffs’ cannot show that a ’serious question’ as to

the merits exists, this court cannot find in their favor.

(App. at 51)

The district court declined to perform a Turner analysis

upon determining that the rules did not impinge constitutional

rights.

After the court issued the denial of a preliminary

injunction, Plaintiffs filed an appeal and Defendants, in lieu

of filing an answer to Plaintiffs’ Complaint, filed a Motion

for Summary Disposition/Summary Judgment relying upon

the district court’s Opinion denying preliminary injunction as

the sole basis for dismissal. Defendants did not present any

affidavits nor testimony in support of théir motion. Plaintiffs

opposed the motion arguing that they had stated a cause of

action, there were material facts in dispute and discovery had

not yet occurred.

The district court, relying solely upon the preliminary

injunction record, dismissed Petitioners’ suit reiterating the

absence of any constitutional right of association for

prisoners and non-prisoners and concluding in summary

fashion that Plaintiffs failed to meet their burden to

demonstrate that Defendants’ rules did not address legitimate

State interests or that Defendants’ regulations were an

exaggerated response to such interests. Plaintiffs appealed

and the issue was consolidated with the pending appeal of the

denial of preliminary injunctive relief.

C. Circuit Review

*The district court had not scheduled the prerequisite discovery status

conference pursuant to Fed. R. Civ. P., Rule 26.

9

On appeal the Sixth Circuit affirmed the district court’s

grant of summary judgment and in so doing ruled that

Plaintiffs’ appeal of the denial of preliminary injunctive relief

was moot. (App. at 8).

The Sixth Circuit’s reference to the visitation restrictions

applying only to restrict contact visits, necessitated a motion

for rehearing to clarify that the rules, as written and

subsequently implemented, prohibited both contact and non-

contact visits for the Petitioners. Both parties agreed in their

filings to the Sixth Circuit that the regulation prohibited all

visitation from minors and community workers, except for

the child, step-child and grandchild exception.*

The Sixth Circuit issued a Supplementary Opinion

reiterating its belief that the rules applied only to restrictions

on contact visits and that the alternative of non-contact visits

survived and affirmed the district court’s dismissal of

Petitioners’ challenge to the regulation. Petitioners’ Motion

for Rehearing and Suggestion for Rehearing En Banc was

denied. (App. 1).

REASONS FOR GRANTING THE WRIT

The Sixth Circuit has diminished the rights of community

members and prisoners in the fundamental constitutional area

of family relationships by affirming that neither prisoners nor

their family members possess First Amendment rights of

association and therefore let stand categorical prohibitions on

all forms of visitation. The Sixth Circuit reached this

holding by finding that this Court’s requirements for review

‘Although the parties sought different relief. Defendants urged that

the Sixth Circuit’s analysis could be extended to approve the restrictions

on both contact and non-contact visits. Plaintiffs requested a remand to

further develop the factual record or a rehearing to allow the appellate

court to correct its misapprehension on the extent of the restrictions.

10

of prison regulations that impinge on constitutional rights set

forth in Turner v. Safely, 482 U.S. 78 (1987), are essentially

questions of law not requiring a factual inquiry to resolve.

The Sixth Circuit further held that to the extent facts were

relevant, the deference to be accorded prison authorities did

not allow application of the presumptions required by Rule

56 in deciding whether to grant summary judgment. The

Sixth Circuit’s allowance of prohibitions on visitation

between prisoners and families goes beyond any prior

interference with family association approved by this Court

and applies to all prisoners and communities within the Sixth

Circuit’s jurisdiction. :

Further, the Sixth Circuit’s holding with regard to both

the Turner standard and the deference afforded prison

authorities is representative of the disturbing direction being

taken by lower courts in this area, requiring affirmation of

the meaning of the Turner standards.

I. BOTH THE DISTRICT COURT AND THE

APPEALS COURT BELOW ERRED AS A

MATTER OF LAW IN FINDING THAT

THERE IS NO CONSTITUTIONAL

ASSOCIATIONAL RIGHT TO VISITATION

WITH FAMILY MEMBERS.

As previously described, the Michigan Department of

Corrections’ visitation policies preclude any visits between

prisoners and various family members. The policies further

preclude visitation by community workers and volunteers.

The district court below held that the Sixth Circuit had not

yet found that a First Amendment right of association in the

context of prison visits. (App. at 29). See Long v. Norris,

929 F.2d 1111, 1118 (6th Cir.), cert. den. 502 U.S. 863

(1991). The lower court then concluded, "A survey of case |

law from other circuits leads this court to find that the |

1]

greater weight of authority holds that no First Amendment

right of freedom of association exists for prisoners." (App.

at 29). The district court also found no associational rights

exist for non-prisoners in the visitation context. The district

court opined, "As stated by the Supreme Court, the

inaccessibility of a prisoner to his family does not deprive an

inmate of a liberty interest protected by the Due Process

Clause in and of itself." (Citing Olim v. Wakinekona, 461

U.s. 238 (1983). (App. at 33). The appellate court left the

ruling below intact, affirming the opinion below and left

Long v. Norris, supra as the law in that circuit.

A. Family Associational Rights

The Michigan prison policies totally preclude visitation

within families: minor siblings; children in the designated

care of another where the inmate retains all parental rights;

children of voluntary open adoptions with visitation

agreements; cousins; nephews and nieces are all prohibited

from visitation with incarcerated parents and family

members. These same policies permit visits with non-family

members, some minor children and certain other family

members deemed sufficiently "immediate" by prison

authorities.

This Court has historically and currently acknowledged

the highest value in the fundamental right to parenting. See,

M.L.B. v. S.L.J., 117 S.Ct. 555 (1996); Gluksberg v.

Washington, 117 S.Ct. 2258, 2267 (1997) (citing Meyer v.

Nebraska, 262 U.S. 390 (1923) and Pierce vy. Society of

Sisters, 268 U.S. 510 (1925)); Stanley v. Illinois, 405 U.S.

645, 651 (1972); Santosky v. Kramer, 455 U.S. 745 (1982);

Moore v. City of East Cleveland, 431 U.S. 494 (1977); Levy

v. Louisiana, 391 U.S. 68 (1978). As Justice Souter recently

opined, this right among others, such as marriage (Turner)

and religion (O’Lone), are not lost to all family members

12

simply because one member may be incarcerated. Lewis v.

Casey, 116 S.Ct. 2174, 2205 (1996) (Justice Souter

concurring and dissenting). This Court has never addressed

the family integrity rights of association in the visitation

context with post-trial, long-term incarcerations. When

addressing family relationship rights of prisoners, this Court

specifically found marriage to be a fundamental right of

prisoners, especially in relationship to non-prisoners, and

struck down a ban on such marriages. Turner v. Safely,

supra. Certainly, parental rights of already established

families, are equally sacroscent.

Some visitation with family of an inmate, as in this case,

has been found to be a protected interest under the

Constitution. See Valentine v. Englehardt, 474 F. Supp. 294

(D. New Jersey, 1979); Navin v. lowa, 843 F. Supp. 500,

502 (N.D. Iowa 1994)(both inmate-parent and child have

First Amendment associational/family rights); Stewart v.

Gates, 450 F. Supp. 583, 586 (C.D. Cal. 1978); Boudin v.

Thomas, 533 F. Supp. 786 (S.D.N.Y. 1982); Massey v.

Wilson, 484 F. Supp. 1332 (D. Colo. 1980); Buie v. Jones,

717 F.2d 925 (4th Cir. 1983)(an absolute prohibition of visits

between inmate and child is "almost certainly

unconstitutional.") See also, Jones v. Diamond, 636 F.2d

1364, 1376 (Sth Cir. en banc 1981).5

The courts have recognized a constitutional First or

Fourteenth Amendment family associational right between

siblings. See Aristotle P v. Johnson, 721 F. Supp. 1002

(N.D. Ill. 1989); Mayo v. Lane, 867 F.2d 374, 375 (7th Cir.

1989); See Gen. Board of Directors of Rotary Int’l v. Rotary

Club of Duarte, 481 U.S. 537, 545 (1987); Bell v. City of

Milwaukee, 746 F.2d 1205, 1247 (7th Cir. 1984):

*The court in Block v. Rutherford, 468 U.S. 576 (1983), recently

noted the very short term impact of a denial of contact visits, "at most a

few days or weeks..." Jd. at 578 (emphasis added).

13

Philadelphia Police and Fire Assoc. for Handicapped

Children, Inc. v. City of Philadelphia, 874 F.2d 156, 165

(3rd Cir. 1989); Robinson v. Palmer, 619 F. Supp. 344, 347

n. 6(D.D.C. 1985); Smith v. McDonald, 869 F. Supp. 918,

919 (D. Kansas 1994) ("[T]he court would carefully

scrutinize a policy which created a blanket prohibition on

visitation by minors."); McMurey v. Phelps, 533 F. Supp.

742, 764-65 (W.D. La. 1982), overruled on other grounds,

Thorne vy. Jones, 765 F.2d 1270 (Sth Cir. 1985).

In other areas of fundamental rights which require

visitation, contact and association to implement, this Court

and the circuits have found state preclusions to violate the

Constitutional protections under the Sixth, Eighth and

Fourteenth Amendments. See Procunier v. Martinez, 416

U.S. 396 (1974) (right of prisoners to meet with paralegals

and law students employed by their attorneys); Johnson v.

Avery, 393 U.S. 483 (1969) (between inmates to maintain

access to the courts); Dreher v. Sielaff, 636 F.2d 1141 (7th

Cir. 1980); Ching v. Lewis, 895 F.2d 608, 609 (9th Cir.

1990) (right to contact visits with attorneys); Buehl v.

Lehman, 802 F. Supp. 1266, 1270 (E.D. Pa. 1992) ("for

example, a perfectly valid general visitation policy may not

necessarily be employed to bar a visit by counsel or legal

personnel if this would unduly impair an inmate’s Sixth

Amendment rights"); Smith v. Couglin, 748 F.2d 783, 789

(2nd Cir. 1984); Barnett v. Centoni, 31 F.3d 813, 816 (9th

Cir. 1994); Whitney v. Brown, 882 F.2d 1068 (6th Cir.

1989)(First Amendment association); Cole v. Rahija, 114

F.3d 778 (8th Cir. 1997) (right to have medical care outside

the prison, despite security risks if medically necessary);

Monmouth County Correctional Institutional Inmates v.

Lanzaro, 834 F.2d 326 (3rd Cir. 1987) (access to abortion

services outside the jail); Sappington v. Ulrich, 868 F. Supp.

194 (E.D. Tex. 1994)(medical care outside the prison).

The district court found that there are no fundamental

14

family rights were at issue, despite the explicit language and

impact of the state regulations. (App. at 30-33). The district

court’s dismissed the claim, as a matter of law,

distinguishing Moore, supra, as it concerned families who

were not impacted by prison regulations and limited to

grandparent/grandchild relationships. (App. at 30-33). The

district court further opined that as incarceration itself

interfered with family relationships, any further restrictions

could not be viewed as impinging on any surviving

constitutional rights. (App. at 31). The Sixth Circuit affirmed

this decision without even addressing these constitutional

questions.

The constitutional rights of family members who are not

prisoners was given equally short shrift by both the district

court and the court of appeals below despite this Court’s

admonition that careful scrutiny must be applied when the

fundamental rights of non-prisoners are restricted. See

Turner, 482 U.S. at 96.

Allowing the Sixth Circuit decision to stand results in a

Standard of law for the Sixth Circuit which is inconsistent

with other federal courts and ignores this Court’s rulings on

the importance of family integrity and association. Certainly,

it cannot be the law that visitation is permitted between

inmates and paralegals, as a matter of constitutional law, but

is totally precluded between close family members.

Il. THE SIXTH CIRCUIT HAS ABROGATED

THE STANDARDS AND FACTUAL REVIEW

REQUIREMENTS OF TURNER vy SAFELY

FINDING THE STANDARD TO BE ONE OF

LAW AND MISINTERPRETING- THIS

COURT’S POLICY OF DEFERENCE TO FIND

THAT THE FACTUAL PRESUMPTIONS

REQUIRED BY THE RULE AND LAW OF

SUMMARY JUDGMENT DO NOT APPLY TO

15

THE RULING AND CONFLICTS WITH THIS

COURT AND DECISIONS OF OTHER

FEDERAL COURTS ON THE TURNER

STANDARD OF REVIEW.

In reviewing the district court’s application of the

standards of Turner v Safely, the Sixth Circuit below held, as

part of its ruling on questions of law, that:

The important word, one that appears

specifically or by implication in all pertinent

Supreme Court opinions, is ’deference.’

Appellants attempt to avoid the concept of

deference by arguing that, because the district

court proceeded by grant of summary judgment,

it should have construed the evidence in the light

most favorable to them. Indeed, because

appellees moved for summary judgment before

filing their answer, appellants contend that every

allegation in their complaint should have been

accepted as true. We are not persuaded.

Utilization of these summary judgment concepts

would not be an act of deference. It would,

instead, be a usurpation of the original decision-

making process which the Supreme Court has

placed in the hands of the prison officials.

The issue in the instant case was basically

one of law...

PIS + APE hk DADA Neale ee Le AEE ES aie aah ct Sa ‘ ye < aetae wren 7 .

(App. at 17).

This ruling takes the policy considerations of "deference"

and extends the carefully drafted standards for factual

analysis of this Court under Turner v Safely, Fed. R. Civ. P.

Rule 56 and this Court’s interpretation of this Rule in Celotex

Corp. v. Catrett, 477 U.S. 317 (1986), as well as the

16

essential role of the federal courts in constitutional

adjudication to an absurdity.

While some courts have taken the Turner analysis to a

point of virtual meaninglessness in reviewing fundamental

constitutional rights, the Sixth Circuit pushes the "deference"

policy to an extreme not yet visited by any other federal

court. Further, this Sixth Circuit’s decision reinforces the

disturbing propensity of some lower courts and other circuits’

use of the "deference" policy to avoid following the careful

test enunciated in Turner.

In Turner, this Court carefully reviewed the factual record

below, developed after trial, using a carefully drafted four

part standards for factual review. Turner at 482 U.S. at 92.

After a careful, de novo review of the facts, this Court

concluded that the state’s ban on the fundamental right to

marriage between prisoners and non-prisoners violates the

fundamental right to marriage. /d. at 99. There is absolutely

nothing in this Court’s ruling to support the Sixth Circuit's

finding that the Federal Rules of Civil Procedure are

suspended in prison cases raising constitutional questions. If

anything, the Turner court was careful to delineate what

factual review means under its new “reasonableness” test.

As discussed, infra, Petitioners here not permitted to

develop a record, engage in discovery nor have the standards

and presumptions apply to their constitutional claims.

In invoking the Turner standards of factual review, other

circuits have clearly stated that the review is factual and

neither Rule 56, nor any other federal procedural rules, are

suspended simply because the constitutional challenge is to

prison regulations:

We review the district court’s grant of summary

judgment de novo, United States ex rel Glass v.

Medtronic, Inc. . . . We must decide whether

the record shows that there is no genuine issue

17

as to any material fact and whether the moving

party is entitled to judgment as matter of law.

Weiler v. Purkett, 46 F.3d 1137 (8th Cir. 1995) (reversing

and remanding a district ruling granting summary judgment

on a claim that a prison regulation violated the First and

Fourteenth Amendment).

The Seventh Circuit has similarly held:

We review the district court’s grant of summary

judgment de novo, construing the evidence in the

light most favorable to Bryant-El and Hinton-Bey

and according them the benefit of all reasonable

inferences.

Bryant-EL v. Smith, 46 F.3d 1133, 1995 U.S. App. LEXIS

6887 (7th Cir. 1995) (citing Rule 56, applying Turner v.

Safley, and reversing the district court granting summary

judgment to prison officials when a First Amendment issue

was raised).

The Second Circuit, in reviewing a grant of summary

judgment under a Turner v. Safely analysis similarly found:

"To prevail on a motion for summary judgment, the moving

party must show that there are no genuine issues of material

fact and that it is entitled to judgment as a matter of law."

(citing Celotex and Rule 56) and Giant v. Senkowski, 54 F.3d

1050 (2nd Cir. 1995); See also, Ashelman vy. Wawrzaszek,

111 F.3d 674 (9th Cir. 1997); Ching v. Lewis, 895 F.2d 608

(9th Cir. 1989); Buehl v. Lehman, 802 F. Supp. 1266, 171

(E.D. Pa. 1992).

Other circuits, unlike the Sixth Circuit below, circuits

have found that, "The reasonableness inquiry of Turner is a

mixed question of law and fact." /ron Eyes v. Henry, 907

F.2d 810, 813 (8th Cir. 1990); Mosier v. Maynard, 937

F.2d 1521, 1525 (10th Cir. 1991); Hall v. Bellmon, 935 F.2d

18

1106, 1113 (10th Cir. 1991); Friedman v. State of Arizona,

912 F.2d 328, 331 (9th Cir. 1990); Howard v. United States

of America, 864 F. Supp. 1019, 1024 (D. Colo. 1994).

Still other courts have degraded the Turner inquiry to little

more than a rate inquiry as to whether prison officials can

articulate any plausible explanation for their impingement on

constitutional rights. See e.g., Dei, The New Standard of

Review for Prisoners Rights: A Turner For The Worse?, 33

Villino L.Rev. 383 (1998) (proposed a middle ground analysis

for total abridgment of constitutional rights and suggested by

the Second Circuit in Abdul Wali v. Coughlin, 754 F.2d 1015

(2nd Cir. 1985). Another panel of the Sixth Circuit

eloquently stated the risks of improperly taking the policy of

"deference" too far:

Perhaps the greatest weakness in the prison

officials’ arguments is their misunderstanding of

Turner and O’Lone as holding that federal courts

will uphold prison policies which can somehow

be supported with a flurry of disconnected and.

self-conflicting points. They seem to read

Turner and O’Lone as saying that anything

prison officials can justify is valid because they

have somehow justified it. In an argument

typical of their conclusory approach to the

problem, the prison officials maintain that the

Passover Seders should be banned because ’any

time the normal routine of an institution is

altered, the good order and security of that

facility are potentially compromised.’ Prison

officials’ Brief at p. 8. The fact remains,

however, that prison officials do not set

constitutional standards by fiat.

Whitney v. Brown, 882 F.2d 1068, 1073 (6th Cir. 1989): See

19

also, Washington v. Harper, 494 U.S. 210, 235 (Justice

Stevens, concurring/dissenting).

All the Turner factors must be fully reviewed under the

required standards. See Mann v. Reynolds, 46 F.2d 1055,

1058-61 (10th Cir. 1995); Bedford v. Sharp, 120 F.3d 270

(10th Cir. 1997); Weiler, supra.

Courts must be required to actually apply the Turner

analysis or the fears reflected by Justice Stevens will be

realized Turner at 99.

In light of a disturbing trend in the misapplication and

pattern of ignoring the Turner standards of review, and the

extreme extension of Turner by the Court below in finding

the Turner analysis is simply a legal issue which does not

require full fact finding and development below and that the

requirements of Rule 56 do not apply to constitutional claims

involving prisoners, this Court should reiterate and clarify

the efficacy of its decision in Turner.

The analysis must begin with the right being

circumscribed. Otherwise, a regulation validly

circumscribing one right, or even a mere privilege,

may be employed to impair other, perhaps more

fundamental rights incidently effected by that

regulation but not contemplated with its adoption and

as to which application of the Turner factors might

result in a very different calculus.

Buehl v. Lehman, supra at 1270.

The district court declined, however, to analyze the

challenged piison regulations under Turner, finding there to

be an insufficient impingement on the constitutional rights of

the Petitioners to warrant an inquiry, with one exception.

However, the court’s initial decision was improper.

20

Il. THE CIRCUIT COURT ERRED IN

AFFIRMING THE DISTRICT COURT WHERE

THE COURT FAILED TO PERFORM AN

ADEQUATE INQUIRY AS REQUIRED BY

TURNER.

A. The Court Failed to Determine Whether the

Regulations Were Reasonably Related to

Legitimate Penological Objectives.

[A]ny burden placed upon a prisoners’ constitutional

rights requires the federal court to take the next step to

determine whether it is ‘reasonably related’ to

legitimate penological objectives, or whether it

represents a exaggerated response’ to those concerns.

482 U.S. at 86.

Mann v. Reynolds, 46 F.3d 1055, 1059 (10th Cir. 1995).

The district court ignored this mandate with one

exception. With regard to the regulation that a child be

accompanied by an approved "immediate family member" or

full legal guardian in order to visit with an incarcerated

parent, the district court did identify but failed to analyze the

regulations pursuant to the four factors set forth in Turner.

(App. at 33).

Turner requires an inquiry "after an independent review

of the evidence" of whether the challenged regulation is an

exaggerated response to prison concerns. Turner, supra, at

90-91: See also, Salaam v. Lockhart, 905 F.2d 1168, 1171

(8th Cir. 1990), cert den. 498 U.S. 1026 (1991).

Consideration of whether a regulation is an exaggerated

response includes an inquiry as to the existence of

alternatives, Washington v. Harper, 494 U.S. 210, 225

(1990) (whether there is any inconsistency in the application

of the regulation); Weiler v. Purkett, 46 F.3d 1137 (8th Cir.

21

1995); Thornburgh v. Abbott, supra at 417 n. 15.; Ward v.

Walsh, 1 F.3d 873 (9th Cir. 1993), cert. den. 510 U.S. 1192

(1994).

The district court noted that Defendants had articulated

that family members and guardians are best suited to

controlling children citing the testimony of Bolden. The

referenced testimony simply did not support this finding.

The testimony related to the opinion of Bolden that children

will be more protected "when a child is there visiting their

parent." The testimony had nothing to do with the regulation

requiring who can bring a child to visit their parent. (App.

at 34). The district court noted no other articulation of a

penological goal for this regulation which the court

acknowledged could preclude over 50 percent of the

visitation between children and their incarcerated parents.

The Sixth Circuit further adopted the protection of

children as a recognized penological interest to support all of

the challenged regulations with regard to minors. However,

[I]t simply does not lie with jail officials to

determine what is in the best interest of the

inmates’ children. The jail officials have taken

it upon themselves to deny all these individuals

who are incarcerated for whatever reason and

their children one of the most fundamental of all

human rights. The rule forbidding incarcerated

parents from seeing their children is not only

arbitrary, it is an exaggerated response to a

concern which does not properly rest with jail

authorities.

Valentine v. Englehardt, 474 F. Supp. 294, 302 (D. NJ.

1979).

Nor was there any recognition of the obvious lack of

rationale relationship between the goal of protecting children

22

and a regulation that prohibits only certain minors from

Visiting their family members. Even assuming Defendants’

concerns can be valid penological goals, there exists

alternatives available to the prison authorities that would have

preserved the Petitioners’ constitutional rights.

With regard to the regulation requiring an immediaie

family member or a legal guardian to bring a child for a

visit, the concern was that an appropriate adult be present to

protect a child in the visiting room. The court in Stewart v.

Gates, 540 F. Supp. 583 (C.D. Cal. 1978), noted:

[It is understandable that the defendants are

reluctant to receive unaccompanied minors as

visitors at the jail. On the other hand a prisoner

may have teenage children that are fully capable

of coming alone and who otherwise would be

unable to visit their parent. Accordingly,

inmates should be permitted, upon prior request,

to receive unaccompanied visits from their minor

child.

For minors under 16, the prison authorities could adhere

to state practices which allow the transfer of parental rights

by a power of attorney. This would allow in the parent, who

has the authority to determine what is in the best interest of

the child to designate an appropriate adult, and provide a

mechanism for the prison authorities to ascertain that the

adult had the requisite authority to supervise the child.

_-With regard to the concern over children being exposed

to inappropriate behavior in a visiting room, enforcement of

the policies against such inappropriate behavior of others

would resolve this matter. Alternatively, a separate visitation

Si dy hla

Sa ee RT ee. Eee

nit

23

time for children could be created.°

Where prison authorities acknowledge that the majority of

contraband is brought in by adults, where prison authorities

pose no restrictions on adults other than only 10 adults

outside of immediate family members may be listed on an

approved visitor list, the prohibition of any minor children

from entering the prison based on a concern for introduction

of contraband is an exaggerated response to this concern.

Further, the adults are allowed full contact visits, in the

absence of any misconduct by the visitors in attempting to

introduce contraband. In such case, the visitor may be

restricted to non-contact visits for a period of time. This

rationale does not support a full prohibition on visits both

contact and non-contact with minors.

Defendants’ prohibition on visits between birth mothers

and their children if there has been a termination of the

parental rights had no articulated rationale. Even assuming

that prison authorities wish to prevent such visits under a

belief that it was not in the best interests of the child, prison

authorities could require that child to be brought by the

adoptive parent, who presumably has at least as much

interest in their child as prison authorities. Further, if the

concern was for an involuntary termination of parental rights,

the rule could be restricted to prohibition of visits where

rights were involuntarily terminated in the absence of a court

order finding visitation appropriate.

Had Petitioners had the opportunity to develop the record,

the obvious alternatives and their potential costs to the prison

authorities could have been explored allowing the court to

make an appropriate Turner analysis.

° Petitioners believe an adequately developed record would further

demonstrate that there is less harm to a minor child in the potential of

viewing inappropriate behavior in the visiting room than being prohibited

from visitation with their sibling or parent.

24

However, in this instance, where the record did not allow

for a full analysis of the alternatives, summary judgment was

improper. Ward v. Walsh, 1 F.3d 873 (9th Cir. 1993), cert.

den. 510 U.S. 1192 (1994).

The Sixth Circuit’s belief that the restrictions only applied

to contact visits further demonstrate the error in the granting

of summary judgment without development of the factual

record. The record clearly is not adequate to perform a

Turner inquiry where the extend of the visitation restrictions

on minors remained unclear. Boudin v. Thomas, 533 F.

Supp. 786 (S.D. NY 1982) (deprivation of contact visits with

child is an unreasonable exaggerated response). Rhem vy.

Malcom, 371 F. Supp. 594 (S.D. NY 1994); Berch v. Stahl,

373 F. Supp. 412 (W.D. NC 1974) (the state cannot restrict

the right to communicate directly with loved ones short of a

demonstration of compelling interests since the hope of

rehabilitation depends at least in part on the maintenance of

affirmative social relationships).

B. The Preliminary Injunction Record Was

Inadequate for Purposes of a Full Inquiry.

The district court’s failure to allow meaningful discovery

prior to deciding the summary judgment motion, resulted in

an inadequate record for the court to decide these questions

of constitutional law requiring the specific factual analysis

under Turner. While this Court has not specifically

addressed the issue in the context of a Turner analysis, this

Court has cautioned against granting summary judgment

under analogous circumstances. Adickes v. S.H. Kress &

Co., 398 U.S. 144, 159 (1970) (where evidence presented in

support of motion does not establish the absence of a genuine

issue, semmary judgment must be denied); White Motor Co.

v. United States, 372 U.S. 253 (1963) (summary judgment is

not appropriate where motive and intent play leading roles);

25

Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (summary

judgment should be refused where the non-moving party has

not had an opportunity to discover information essential to

his opposition).

Despite the acknowledgement that this case presented

constitutional issues that had not yet been resolved by the

Sixth Circuit or this Court, and where a central disputed

issue was the motivation and rationality of Defendants’

policies, the court’s grant of summary judgment without

allowing adequate opportunity for discovery was an abuse of

discretion. (App. at 45-46).

The district court granted summary judgment based solely

on the testimony presented in the context of a preliminary

injunction hearing. Where the inquiry is different than a

summary judginent proceeding:

The purpose of a preliminary injunction is

merely to preserve the relative positions of the

party until a trial on the merits can be held.

Given this limited purpose, and given the haste

that is often necessary if those positions are to

be preserved, a preliminary injunction is 3%

customarily granted on the basis of procedures

that are less formal and evidence that is less

complete than in a trial on the merits. A party

thus is not required to prove his case in full at a

preliminary injunction hearing.

University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)

(reliance upon preliminary injunction finding as a basis for

granting summary judgment improper).

The district court argued that while it could not grant

summary judgment merely on the basis that preliminary

injunction was denied because of lack of likelihood of

success on the merits, however, the court could grant

26

summary judgment relying upon the preliminary injunction

record to determine whether a genuine of material fact exists.

(App. at 27-28). Whether or not the district court issued a

separate opinion based upon the same findings and rulings in

the opinion denying preliminary injunction or not is not the

issue. The point is that the burden on the parties and inquiry

at issue in a preliminary injunction hearing are not

interchangeable with the burden and inquiries relevant to a

summary judgment review. The inquiry at a preliminary

injunction hearing is focused on the threat of irreparable

harm to the Plaintiffs if the injunction is not granted; whether

on balance that harm outweighs the harm to opposing party

if a stay is granted; the harm, if any, to the public interest if

an injunction issues; and the strength of the applicant’s

demonstration that they are likely to prevail on the merits.

Local Union 1937 v. Norfolk Southern Corp. , 927 F.2d 900,

903 (6th Cir. 1991), cert. den. _ U.S. ___ (1991).

The facts presented in the context of a preliminary

injunction hearing for purposes of the court balancing the

above four factors, differ significantly from the summary

judgment inquiry of whether there existed genuine factual

dispute. Celotex Corp. v. Catreit, 477 U.S. 317 (1986). The

district court did not allow Plaintiffs to develop the record to

demonstrate a factual dispute as to the articulated criteria set

forth under Turner v. Safely, prior to granting summary

judgment. The evidence of alternatives available to the

Defendants to the challenged regulations which impinge

Petitioners’ constitutional rights, and evidence relating to

Defendants’ exaggerated response to a perceived problem,

was likely to be in the possession of the Defendants and

Plaintiffs should have been provided the opportunity to

conduct discovery on this issue which was not a salient

inquiry in the preliminary injunction hearing, where the rules

had not yet been implemented. Anderson v. Liberty Lobby,

supra, at 249-250; Bromley v. Michigan Education

27

Association - NEA, 82 F.3d 686 (6th Cir. 1996) (summary

judgment in constitutional cases should follow meaningful

discovery, and reliance solely upon an arbitration record was

improper); Routman v. Automatic Data Processing, Inc. , 873

F.2d 970, 971 (6th Cir. 1989) (the notice requirements for

summary judgment include sufficient time for discovery).

IV. THE CIRCUIT COURT ERRED IN APPLYING

A LOWER SCRUTINY TEST TO REVIEW

PETITIONERS’ EQUAL PROTECTION

CLAIM ON BEHALF OF MINOR SIBLINGS

OF PRISONERS.

The district court sua sponte dismissed Plaintiffs’ equal

protection claim on behalf of the minor siblings and children

of prisoners asserting that a fundamental right was not at

issue and that Defendants’ had "articulated legitimate state

interests." The court found the prison authorities’ mere

articulation of a desire to protect the minor children of

prisoners to satisfy the rational basis test applied by the

district court to dispose of this claim. (App. at 37-38). The

Sixth Circuit relied upon Thornburgh v. Abbott, 490 U.S.

401 (1989) to conclude that if the prison regulations do not

violate prisoners’ constitutional rights, the effect on

prisoners’ children and family members is irrelevant. (App.

at 19).

Where the penological interest alleged is the protection of

non-prisoners, not internal prison security concerns, the

lower scrutiny afforded constitutional impingement on

prisoners’ rights is improper. Further, this analysis does not

apply to Petitioners’ claim of equal protection violations for

prison authorities’ discrimination between groups of non-

prisoner visitors.

The prison authorities’ only other articulated interest,

prevention of introduction of contraband, is unrelated to

28

Defendants’ prohibition of some minor family members

where: 1) Defendants allow full contact visits with adult

visitors and other minor children; 2) there is no allegation

that contraband was ever introduced through the categories

of prohibited minor sibling visitors; and 3) introduction of

contraband is not a concern for non-contact visits which are

also prohibited.

Rather than allow a circuit decision to stand which asserts

that Abbott requires that the constitutional rights of non-

prisoners are never to be analyzed separately from prisoners

in challenging prison regulations, this Court should clarify

that in circumstances where the fundamental rights of non-

prisoners are at issue and the articulated governmental

concern is with protection of non-prisoners’ safety, a closer

relationship between the regulation and the purpose it serves

is required. Thornburgh v. Abbott, supra at 412; See also

Blackburn v. Snow, 771 F.2d 556 (1st Cir. 1985); Daugherty

v. Campbell, 33 F.3d 554 (6th Cir. 1994).

CONCLUSION

Petitioners urge this Court to grant certiorari for purposes

of clarifying the appropriate standard for analyzing

restrictions on the Petitioners’ First Amendment rights to

association and Fourteenth Amendment rights to family

integrity in the context of visitation between prisoners and

their families and to remand this matter for development of

29

a factual record adequate for implementing this standard.

Respectfully submitted,

DEBORAH LABELLE

(Counsel of Record)

221 North Main Street

Suite 300

Ann Arbor, MI 48104

(313) 996-5620

MARTIN A. GEER

JEFFREY MURRAY

ARTHUR RENKWITZ

University of Baltimore

School of Law

1420 N. Charles Ave.

Baltimore, MD 21210

(410) 837-5649

DATED: May 4, 1998

App. 1

No.95-2181

MICHELLE BAZZETTA; ET AL, Filed

Feb. 02 1998

Plaintiffs- Appellants

Order

Vv.

KENNETH McGINNIS, DIRECTOR,

MICHIGAN DEPARTMENT OF

CORRECTIONS, ET AL,

Defendants-Appellants.

Before: SILER, COLE, and VAN GRAAFEILAND,!

Circuit Judges.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en banc, the petition for

rehearing has been referred to the original panel.

The panel has further reviewed the petition for rehearing

and concludes that the issues raised in the petition were fully

considered upon the original submission and decision of the

*The Honorable Elisworth A. Van Graafeiland, Circuit Judge of the

United States Court of Appeals for the Second Circuit, sitting by

designation.

App. 2

case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

Leonard Green /s/

Leonard Green, Clerk

App. 3

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MICHELLE BAZZETTA; STACY

BARKER; TONI BUNTON;

DEBRA KING; SHANTE ALLEN:

ADRIENNE BRONAUGH; Nos. 95-2181

ALESIA BUTLER; TAMARA 96-1559

PRUDE; SUSAN FAIR; VALERIE

BUNTON; ARTURO ZAVALA,

through his Next Friend

VALERIE BUNTON, on behalf

of themselves and all others

similarly situated,

Plaintiffs-Appellants

Sed Ga Scale NS ALOT DU obi Os PA OER as Cab a Pee dit

¥.

KENNETH McGINNIS, Director

of Michigan Department of

Corrections, MICHIGAN

DEPARTMENT OF

CORRECTIONS,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit,

No. 95-73540--Nancy G. Edmunds, District Judge

Argued: February 4, 1997

Decided and Filed January 5, 1998

App. 4

Before: SILER, COLE, and VAN GRAAFEILAND’,

Circuit Judges.

SUPPLEMENTARY OPINION

VAN GRAAFEILAND, Circuit Judge. On September 4,

1997, this Court affirmed certain limitations on prisoner

visitation imposed by the district court. See 124 F.3d 774.

Because the Michigan Department of Corrections construes

our opinion in a manner that was not intended, this

Supplementary Opinion is written solely for the purpose of

clarification.

The Department’s brief on appeal contains the following

clearly expressed and significantly emphasized statement:

It is important to note that the visitation restrictions at

issue involve limitations on contact visitation between

members of the public, including minor children, and

convicted felons.

There was nothing new or novel in this definition of the

issue. The Department took the same position in the district

court. In its response to the plaintiffs’ motion for a

preliminary injunction, it said:

It is important to emphasize that the challenged

Visitation policies at issue in this case concern limitations

on contact visitation. Since contact visitation involves

personal, face-to-face contact by convicted/incarcerated

*The Honorable Ellsworth A. Van Graafeiland, Circuit

Judge of the United States Court of Appeals for the Second

Circuit, sitting by designation.

App. 5

felons with members of the public, the sheer volume of

visitations alone (2300 contact visits each day, averaging

69,000 visits each month, for about 820,000 visits

annually) must be restricted for reasons of security and

administrative concerns related to maintaining internal

order and discipline throughout all MDOC prison

facilities. There can be no dispute that 820,000 visits

annually presents a very difficult penological problem for

MDOC with regard to the scheduling, screening,

supervision and monitoring of contact visitation.

The Department continued:

Although MDOC is mindful of the close familial

relationships that exist between a father and/or mother

with their children, significant security and related

administrative concerns caused by the high volume of

contact visitation mandate a more narrow definition of the

minor children (children, stepchildren and grandchildren)

that are allowed contact visitation at MDOC facilities.

Given MDOC’s legitimate penological interest in

maintaining order and security at its prison facilities and

the real dangers involved whenever children participate in

contact visits, these visitor restrictions are a reasonable

response to important competing interests.

The evidence submitted by the Department was addressed

to the issue of contact visitation, and this too was referred to

in the above-mentioned response:

As the attached affidavits of Deputy Director Bolden,

Warden Burke and Warden Langley reveal, contact

visitation between minor children and incarcerated

felons presents a continuing problem for MDOC with

regard to the security of its prison facilities and the

App. 6

safety of the minor children at these facilities.

The Department’s motion for summary judgment also

addressed the issue as that of contact visitation:

Limiting the number of minor children who are involved

in contact visitation with incarcerated felons will enable

MDOC to more closely monitor these visits to insure that

no abuse or smuggling occurs as a result of contact

visitation.

. . . Plaintiffs also argue that the visitor restrictions are

unconstitutional because the restrictions limit the right of

members of the public to visit incarcerated felons.

However, because members of the public have alternate

methods to communicate with incarcerated felons,

restrictions on contact visits between members of the

public and inmates are not unconstitutional.

When the litigation moved to this Court, contact visitation

was the obvious concern expounded in the Department’s

brief. At page 9 of its brief, the Department said "contact

visits invite a host of security problems," and then proceeded

to describe them. At page 13, the Department said that

"because members of the public have alternate methods to

communicate with incarcerated felons, restrictions on contact

visits between members of the public and inmates are not

unconstitutional." On page 14, it said that "limiting the

number of minor children who are involved in contact

visitation with incarcerated felons will enable MDOC to more

closely monitor these visits to insure that no abuse or

smuggling occurs as a result of contact visitation."

It is not surprising, therefore, that we held that "the visits

at issue are ’contact visits,’ i.e., visits that customarily take

Ee ee ae

App. 7

place in a ’visitation room’ or other area set aside for this

purpose and permit innocent-only physical contact between

prisoner and visitor." 124 F.3d at 775. However, counsel for

the Department now inform the Court that the Court erred in

accepting counsel’s definition of the issue and "apologize for

any misstatement in earlier briefs that may have led the

Court to believe the rule changes apply only to contact

visits. “

Overlooking the fact that Rule 791.6614 bears the caption

"Noncontact visitation," Department counsel contend that

Rules 791.6607 to 791.6614 apply to both contact and non-

contact visits, and they assert that "this Court’s September 4,

1997 Opinion can easily be extended to both." The

Department did not make this argument in either the district

court or this Court. It cannot be made here and now. This

opinion is intended simply to make that point clear.

App. 8

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MICHELLE BAZZETTA; STACY

BARKER; TONI BUNTON;

DEBRA KING; SHANTE ALLEN:

ADRIENNE BRONAUGH; Nos. 95-2181

ALESIA BUTLER; TAMARA 96-1559

PRUDE; SUSAN FAIR; VALERIE

BUNTON; ARTURO ZAVALA,

through his Next Friend

VALERIE BUNTON, on behalf

of themselves and all others

similarly situated,

Plaintiffs-Appellants

V.

KENNETH McGINNIS, Director

of Michigan Department of

Corrections, MICHIGAN

DEPARTMENT OF

CORRECTIONS,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit,

No. 95-73540--Nancy G. Edmunds, District Judge

Argued: February 4, 1997

Decided and Filed September 4, 1997.

era cn ap ACA Te he gee PEIN Ee a ON eR Tee ey

App. 9

Before: SILER, COLE, and VAN GRAAFEILAND"”,

Circuit Judges.

OPINION

VAN GRAAFEILAND, Circuit Judge. Plaintiffs, certified

classes of Michigan prison inmates and prospective prison

visitors, appeal the denial of their motion for a preliminary

injunction and the dismissal of their 42 U.S.C. § 1983

challenge to State regulations restricting prison visitation

rights. The visits at issue are "contact visits," i.e., visits that

customarily take place in a "visitation room" or other area

set aside for this purpose and permit innocent-only physical

contact between prisoner and visitor. Non-contact visits, on

the other hand, take place in smali booths or cubicles, and no

contact of any sort is permitted.

Michigan grades its prisoners on the basis of their

dangerous propensities. The grades are numbered I through

VI, and the most dangerous inmates are placed in either

grade V or grade VI. With rare exceptions, contact visits are

not permitted in either of these two grades, and this

restriction is not at issue herein. The Supreme Court has

said: "that there is a valid, rational connection between a ban

on contact visits and internal security of a detention facility

is too obvious to warrant extended discussion." Block v.

Rutherford, 468 U.S. 576, 586, 82 L. Ed. 2d 438, 104 S.

Ct. 3227 (1984).

In recent years, Michigan prison officials have attempted

to accommodate to some extent the visitation desires of the

more tractable prisoners in the lower grades and here they

*The Honorable Ellsworth A. Van Graafeiland, Circuit

Judge of the United States Court of Appeals for the Second

Circuit, sitting by designation.

App. 10

have run into problems. The Block Court’s summary

description of such problems is apt:

Contact visits invite a host of security problems. They

open the institution to the introduction of drugs, weapons,

and other contraband. Visitors can easily conceal guns,

knives, drugs, or other contraband in countless ways and

pass them to an inmate unnoticed by even the most

vigilant observers. And these items can readily be slipped

from the clothing of an innocent child, or transferred by

other visitors permitted close contact with inmates.

Id.

The Court also recognized the additional expense involved

in the allowance of contact visitation:

The reasonableness of petitioners’ blanket prohibition is

underscored by the costs--financial and otherwise--of the

alternative response ordered by the District Court. Jail

personnel, whom the District Court recognized are now

free from the "complicated, expensive, and time-

consuming processes" of interviewing, searching, and

Processing visitors would have to be reassigned to

perform these tasks, perhaps requiring the hiring of

additional personnel. Intrusive strip searches after contact

visits would be necessary. Finally, as the District Court

noted, at the very least, "modest" improvements of

existing facilities would be required to accommodate a

contact visitation program if the county did not purchase

or build a new facility elsewhere. These are substantial

costs that a facility’s administrators might reasonably

attempt to avoid.

Id. at 588 n.9 (citation omitted).

The instant litigation is a challenge to certain amendments

App. 11

of the Michigan Administrative Code that were promuigated

by the Michigan Department of Corrections in August 1995.

Briefly summarized, they provide that a visitor under

eighteen must be a prisoner’s child, step-child or grandchild

and must be accompanied by an immediate family member

or legal guardian; that prisoners may not visit with their

natural children if their parental rights have been terminated

for any reason; that prisoners may have only ten non-family

individuals on their approved visitors list; that general

members of the public may be on only one prisoner’s

visitation list; that a former prisoner may visit a current

prisoner only if the former prisoner is an immediate family

member or a person with special qualifications such as a

lawyer, clergyman or government representative.

The above amendments did not evolve out of thin air; they

were the end result of careful and thorough consideration by

prison officials. An understanding of the amendments the

officials promulgated requires some knowledge of the

problems they faced. An appropriate starting point is a

description of what constitutes a contact visit. The reader

who visualizes such a visit as a wholesome and exclusive

family get-together without the usual travails of a penal

institution must quickly disabuse himself of that notion.

The meetings are held in large rooms with numerous

people in attendance. Luella Burke, the warden at Saginaw

Correctional Facility, testified at the preliminary injunction

hearing that the visitation area there could handle 133 visitors

at one time. Sally Langley, the warden at Florence Crane

women’s facility in Coldwater, Michigan, testified that the

Visitation room there had a seating capacity of 45. Both

wardens, and Daniel Bolden, Deputy Director for the Bureau

of Correctional Facilities, the State’s third witness, testified

that these rooms were not "nice places" for children. When

asked to elaborate, he said:

App. 12

Conduct of other visitors is the primary concern in terms

of sexual behavior. We’ve had actual fist fights in there,

we've had people assault people, lot of groping and other

inappropriate behaviors that go on that people were

visiting, and those things were observed and viewed by

these children.

Rules of conduct were imposed for visitation areas,

including a prohibition against touching or exposing breasts,

buttocks or the genital area, but there were numerous

infractions of this rule. Bolden acknowledged that prison

officials had had "literally hundreds of cases regarding sexual

misconduct."

Warden Burke testified about a letter she had received

from a visiting wife which "talked about seeing triple X stuff

in the visiting room, and she was referring to the groping,

genital groping, breast groping, things of that sort which,

you know, does goon... ."

Visitors were assigned specific seats or tables and were

expected to remain where assigned. However, these

expectations often were not realized. This was particularly

true with respect to child visitors, who often left their

assigned positions and mingled with other children or even

with other prisoners. It was during such a wandering period

that a three-year-old child was sexually assaulted by an

inmate, an incident that the district judge described as a

"public relations disaster" and Bolden termed "a nightmare."

Bolden stated this "incident exacerbated and accelerated some

things that we were already working on, and they may have

prompted us to go further than we probably intended on our

very Own, what we were first looking at. But we were

looking at some change on our visiting policies."

When the visiting rooms were fully occupied and visitors

had to abide their turn in a waiting room in which there was

no assigned seating, child management was even more of a

App. 13

problem. Warden Langley’s description is informative:

Well, first of all, the children have to wait, sometimes for

an extended period of time in a very small waiting area

outside the gate. They get antsy, they are -- it’s hard for

them to sit still and, consequently, my officers have to ask

the people that are escorting these children to keep them

under control.

They run up and down the hallways, they try to climb

up the front of the information desk, they bump into the

front gate, which causes a problem because it’s an electric

gate, and that can be problematic. They stick their little

hands in the key bumper areas and, you know, they’re

children and they have a hard time trying to deal with

waiting for long periods of time.

The prison officials made it clear, however, that their

concern over the children’s presence was not directed solely

to the welfare and safety of the children. As Warden Burke

pointed out, when the guards "have to spend time following

a child and retrieving the child and bringing the child back,

then their eyes are not watching what I view they really need

to be watching."

By this statement, Burke was not referring simply to the

improper sexual conduct but also, and perhaps more

importantly, to the introduction of contraband. Warden

Langley testified that “visitation is the largest source of the

introduction of contraband into the system." Warden Burke

testified that the visiting process is the most common method

for the introduction of contraband into the system,

“absolutely no doubt about it." Deputy Director Bolden

agreed: "unquestionably." See /Jnmates of Allegheny County

Jail v. Pierce, 612 F.2d 754, 759 (3d Cir. 1979). The

Department’s Administrative Standards provide:

App. 14

It is imperative that prisoners and visitors be closely

monitored at all times to ensure that contraband is not

passed and that inappropriate behavior does not occur.

Unfortunately the volume of people who enter the prisons

as visitors makes close monitoring of all of them difficult, if

not impossible.

Bolden testified that in 1995 well over 800,000 people

visited Michigan prisons and that this created "monumental

problems in terms of trying to manage resources, both space

and staff resources." He continued:

Our staff is extremely over taxed now, trying to

manage -- I don’t think anyone can visualize trying to

process 800,000 visitors a year in terms of staff resources

involved and trying to get people in, get people out, and

maintain some degree of order, some degree of security

in those visiting areas. That’s just an overwhelming

responsibility for those folks who are trying to do that.

Warden Burke testified that between May of 1994 and

May of 1995, Saginaw, a 1,224 bed facility, averaged over

4,500 visitors per month, with May of 1995 seeing 6,200.

She continued:

Any time you allow anyone to traverse the secure

perimeter of a facility, you take a risk. Our job is

protection of public, number one. The visiting program is

something that the Department has supported, but when

you have that number of folks coming into a prison, there

is the opportunity for contraband of all nature to be

entered. Contraband gets in in a number of ways, but

most contraband in a correctional facility get in via the

visiting process.

App. 15

When asked later whether 133 visitors at one time was a

significant number of people to be inside the walls of prison

during visiting hours, she responded:

I guess I come back to my initial statement. Any time

anyone traverses the secure perimeter of the facility,

that’s a challenge for us and so, yes, at any one time

having 133 people inside your facility is certainly

something that we are aware of and need to monitor

closely.

Q. And why is it that you need to monitor it?

Throughout, you know, our system, and I think

probably nationwide, it is well recognized that the

visiting process is the process by which most illegal

contraband gets inside a correctional facility, and when

you have illegal contraband, albeit drugs, weapons, a

sharp-ended anything, you have a management issue.

Our job, again, is protection. It starts with running

a safe, secure prison, and when drugs get inside a

facility, that creates a whole culture, a whole issue

where individuals can get hurt, staff or prisoners.

People will go to no ends to manipulate that system. It

just simply is a very serious security concern.

With respect to the amending regulations at issue herein,

she said:

I’m hopeful, and we have some indications already

looking at our numbers that we will have fewer visits.

The sheer number of visits that we have at our facility is

a major issue to manage within the confines of a

correctional facility, and so any reduction in numbers will

App. 16

make our job easier.

Hopefully, we will not run our visiting room at

capacity as often as we have had to do in the past. That

would make our officers’ job easier to supervise both the

indoor and outdoor visiting room. It will make visiting a

more positive experience for the individuals who are

visiting. We have many family members who want to

come and visit and have an honest visit with their

incarcerated family member.

Warden Langley, after describing the unruly conduct of

visiting children, testified that a reduction in their number

would help "to give the officers within the visiting room and

the other areas of the visiting room better opportunity to

closely monitor these types of other activities that they’re

supposed to be monitoring."

Visitations in Michigan’s penal institutions during the

period preceding the amendments at issue herein averaged

2,300 a day. This required 2,300 searches by guards at the

prison gates and at the entrances to the visitation areas.

Departure and reentry searches of those who found it

necessary to leave the visitation area temporarily also were

required. Constant surveillance of the visitation area itself

had to be conducted whenever it was occupied. Thorough

post-visitation searches of the inmates also was required to

uncover the possible possession of contraband. These duties

clearly fall within the ambit of "complicated, expensive, and

time-consuming processes" referred to by the Supreme Court

in Block, supra, 468 U.S. at 588 n.9. We now are asked to

hold that these burdens, with all their unfortunate

ramifications, can be imposed upon Michigan’s penal

institutions as a matter of constitutional right. We decline to

do so.

In arriving at this decision, we apply the standard of

App. 17

review stated and reiterated by the Supreme Court; viz., that

problems of prison administration are peculiarly for

resolution by prison authorities and their resolution should be

accorded deference by the courts. See Washington v. Harper,

494 U.S. 210, 224, 108 L. Ed. 2d 178, 110 S. Ct. 1028

(1990); Turner v. Safley, 482 U.S. 78, 84-96, 96 L. Ed. 2d

64, 107 S. Ct. 2254 (1987); O’Lone v. Estate of Shabazz,

482 U.S. 342, 349, 96 L. Ed. 2d 282, 107 S. Ct. 2400

(1987); Bell v. Wolfish, 441 U.S. 520, 547, 60 L. Ed. 2d

447, 99 S. Ct. 1861 (1979). Moreover, where, as here, a

state penal system is involved, federal courts have "additional

reason to accord deference to the appropriate prison

authorities." Turner, supra, 482 U.S. at 86 (citing Procunier

v. Martinez, 416 U.S. 396, 405, 40 L. Ed. 2d 224, 94S. Ct.

1800 (1974)). The important word, one that appears

specifically or by implication in all the pertinent Supreme

Court opinions, is "deference."

Appellants attempt to avoid the concept of deference by

arguing that, because the district court proceeded by grant of

summary judgment, it should have construed the evidence in

the light most favorable to them. Indeed, because appellees

moved for summary judgment before filing their answer,

appellants contend that every allegation in their complaint

should have been accepted as true. We are not persuaded.

Utilization of these summary judgment concepts would not be

an act of deference. It would, instead, be a usurpation of the

original decision-making process which the Supreme Court

has placed in the hands of the prison officials.

The issue in the instant case was basically one of law,

viz., were the amendments of the prison regulations

reasonably related to and supportive of legitimate penological

interests. If they were, the district court’s inquiry could be

terminated. See Block, supra, 468 U.S. at 589; see also

O’Bryan v. County of Saginaw, 741 F.2d 283, 285 (6th Cir.

1984). We find no merit in appellant’s belated claims that

App. 18

they should have had an opportunity for discovery as to the

motive and intent of the prison officials. No request for such

discovery was made in the district court; prison officials

were examined at length in connection with appellants’

preliminary injunction motion, and no motive or intent other

than legitimate penological interests is even suggested. The

prison officials’ purpose in promulgating the regulations at

issue was to protect both the penal institutions and their

visitors. Comments by attorneys on both sides indicated that

the officials were well along in the accomplishment of this

purpose. The district court properly concluded that nothing

in the Constitution precluded the officials from pursuing their

salutary efforts.

Our decision to affirm is supported by the well-established

principle that there is no inherent, absolute constitutional

right to contact visits with prisoners. See Bellamy v. Bradley,

729 F.2d 416, 420 (6th Cir.) ("Prison inmates have no

absolute constitutional right to visitation."), cert. denied, 469

U.S. 845, 83 L. Ed. 2d 93, 105 S. Ct. 156 (1984); O’Bryan,

supra, 741 F.2d at 285; Percy v. Jabe, 823 F. Supp. 445,

448 (S.D. Mich. 1993). A properly imposed ban on contact

visits will survive claims of Due Process violation. Kentucky

Dep't of Corrections v. Thompson, 490 U.S. 454, 460-61,

104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989): see Hewitt v.

Helms, 459 U.S. 460, 468, 74 L. Ed. 2d 675, 103 S. Ct.

864 (1983). The same is true of the First Amendment right

of association. See Jones v. North Carolina Prisoners’ Labor

Union, Inc., 433 U.S. 119, 129-30, 53 L. Ed. 2d 629, 97 S.

Ct. 2532 (1977); Southerland v. Thigpen, 784 F.2d 713, 717

(Sth Cir. 1986). Restrictions, in the nature and amount of

those involved herein, cannot be said to constitute cruel and

unusual punishment under the Eighth Amendment. Appellants

err in their contention that the restrictions at issue apply to

both contact and non-contact visits. A fair reading of the

amendments makes it clear that they apply only to the

App. 19

former. Moreover, to the extent, if any, that they may be

construed as “punishments," they are punishments that are

imposed upon every prisoner at the time of sentencing. They

are the "rules of the game" pursuant to which the Michigan

penal system operates.

Depending upon how it is construed and applied, the rule,

which denies a prisoner all visitation privileges upon his or

her having been found guilty of violating two major

regulations involving substance abuse, might be construed as

a form of punishment that merits different treatment.

However, the district court did not believe that this issue was

ripe for resolution, and we cannot quarrel with this

determination. In its present form, the rule requires the

fleshing out that comes from attempted enforcement. See,

e.g., Alabama State Federation of Labor v. McAdory, 325

U.S. 450, 461, 89 L. Ed. 1725, 65 S. Ct. 1384 (1945).

Viewed from a constitutional standpoint, if, as we now

hold, the prison officials properly limited the visitation rights

of the prisoners because the limitations were reasonably

related to legitimate penological interests, the effect of these

regulations upon persons outside the prison was largely

irrelevant. In Thornburgh v. Abbott, 490 U.S. 401, 410 n.9,

104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989), the Court said:

We do not think it sufficient to focus, as respondents

urge, on the identity of the individuals whose rights

allegedly have been infringed. Although the Court took

special note in Procunier v. Martinez, 416 U.S. 396,

40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974), of the fact

that the rights of nonprisoners were at issue, and stated

a rule in Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d

64, 107 S. Ct. 2254 (1987), for circumstances in

which "a prison regulation impinges on inmates’

constitutional rights," /d., at 89 (emphasis added), any

attempt to forge separate standards for cases

App. 20

implicating the rights of outsiders is out of step with

the intervening decisions in Pell v. Procunier, 417

U.S. 817, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974);

Jones v. North Carolina Prisoners’ Labor Union, Inc.,

433 U.S. 119, 53 L. Ed. 2d 629, 97 S. Ct. 2532

(1977); and Bell v. Wolfish, 441 U.S. 520, 60 L. Ed.

2d 447, 99 S. Ct. 1861 (1979). These three cases, on

which the Court expressly relied in Turner when it

announced the reasonableness standard for "inmates’

constitutional rights" cases, all involved regulations

that affected rights of prisoners and outsiders.

In Goodwin v. Turner, 908 F.2d 1395, 1399 (8th Cir. 1990),

the court enlarged upon this legal exposition:

We cannot subject prison regulations to strict scrutiny

every time a family member is affected by the prison

regulation. Incarceration necessarily deprives an

individual of the freedom "to be with family and friends

and to form the other enduring attachments of normal

life." Morrissey v. Brewer, 408 U.S. 471, 482, 92 S. Ct.

2593, 2600, 33 L. Ed. 2d 484 (1972). By its very nature,

incarceration necessarily affects the prisoner’s family. See

Southerland v. Thigpen, 784 F.2d 713, 717-18 (Sth Cir.

1986). For example, a wife’s constitutional right to

freedom of association is directly impinged by prison

regulations which limit her ability to visit with her

husband while he is incarcerated. We would not,

however, subject such a regulation to strict scrutiny

merely because her associational rights were implicated.

Such restrictions on the prisoner’s liberty would be

sustained if they were reasonably related to achieving a

legitimate penological objective. To that extent, the wife’s

associational rights are not relevant.

App. 21

In Brewer v. Wilkinson, 3 F.3d 816, 823 n.9 (Sth Cir.

1993), cert. denied, 510 U.S. 1123, 127 L. Ed. 2d 397, 114

S. Ct. 1081 (1994), the court said:

Thus, the Thornburgh Court stressed Turner’s mandate

that even though prison regulations or practices might

burden the fundamental rights of “outsiders,” the proper

inquiry was whether the regulation or practice in question

was reasonably related to legitimate penological

objectives.

Similar reasoning has been applied in Federal Sentencing

Guidelines cases in which prisoners seek special treatment

because of family circumstances. Although "the imposition

of prison sentences normally disrupts spousal and parental

relationships," United States v. Daly, 883 F.2d 313, 319 (4th

Cir. 1989), cert. denied, 496 U.S. 927, 110 L. Ed. 2d 643,

110 S. Ct. 2622 (1990), and "it is not uncommon for

innocent young family members, including children . . . to

suffer as a result of a parent’s incarceration," United States

v. Brewer, 899 F.2d 503, 508 (6th Cir.) (internal quotation

marks omitted; alteration in original), cert. denied, 498 U.S.

844, 112 L. Ed. 2d 95, 111 S. Ct. 127 (1990), "the spectre

of harm to innocent family members should not be permitted

to insulate a felon from the condign consequences of his

criminal deportment, nor to entrammel the execution of a

fair and just sentence," United States v. DeCologero, 821

F.2d 39, 44 (ist Cir. 1983).

In sum, we hold that the district court correctly ruled with

respect to both the prisoners and the outsiders, and we affirm

its judgment. That portion of the appeal directed to the denial

of the preliminary injunction motion thus becomes moot.

App. 22

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Michelle Bazzetta, Stacy Barker,

Toni Bunton, Debra King,

Shante Allen, Adrienne Bronaugh,

Alesia Butler, Tamara Prude,

Susan Fair, Valerie Bunton and

Arture Zavala, through his Next

Friend Valerie Bunton, on behalf

of themselves and all others

similarly situated,

No. 95-73540

Plaintiffs, Hon. Nancy G. Edmunds

=

Kenneth McGinnis Director of

Michigan Dep’t of Corrections,

Dan Bolden, Deputy Director of

the Correctional Facilities,

Michigan Dep’t of Corrections,

Defendants

/

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION TO DISMISS

AND/OR FOR SUMMARY JUDGMENT

This matter comes before the court on Defendants’ motion

to dismiss and/or for summary judgment. Plaintiffs

originally brought this case challenging new Michigan prison

rules restricting the visitation rights of state prisoners in state

court. Defendants thereafter removed the case to federal

App. 23

court. Plaintiffs sought a preliminary injunction, but this

court denied their motion on the basis that Plaintiffs had

failed to prove a likelihood of success on the merits.

Defendants now bring this motion to dismiss and/or for

summary judgment.

I. FACTS

Plaintiffs are a group of women prisoners and their

prospective visitors pretesting new Michigan Correctional

rules regarding visitation. The new rules in question are:

l.

Prisoners may only receive visitors under the age of 18

who are their children, step-children or grandchildren

(thus prisoners may not see minor siblings, cousins,

nieces, nephews, etc.)(Rule 791.6609(2)(b));

. Prisoners may not visit with their natural children if

their parental rights have been terminated for any

reason (Rule 791.6609(6)(a));

. Prisoners may only have 10 visitors who are not

"immediate family" (immediate family does not include

nieces, nephews, aunts, uncles, cousins, in-laws)(Rule

791 .6609(2));

. No minor children may visit unless accompanied by an

adult legal guardian with proof of legal guardianship or

an immediate family member (Rule 791.6609(5));

. Members of the public may be on only one prisoner’s

visitation list (not including immediate family

members), thus activists cannot visit more than one

prisoner (Rule 791.6609(2)(a));

App. 24

6. Prisoners may be denied all visitors (except from

clergymen or an attorney) upon two major misconducts

involving substance abuse (Rule 791.6609(11)(d));

7. All former prisoners are excluded from visiting current

prisoners who are not "immediate family."

Plaintiffs sought a preliminary injunction to enjoin

enforcement of the new rules. This court denied the motion

on the basis that Plaintiffs could not show a likelihood of

success on the merits. Thereafter, Plaintiffs sought to certify

their case as a class action, which this court granted, dividing

Plaintiffs into two sub-classes: one class made up of

prisoners and the other made up of non-prisoners affected by

the new prison regulations. In their Second Amended

Complaint, Plaintiffs contend that the rules violate their First,

Eighth and Fourteenth Amendment Constitutional rights. In

particular, they allege in:

Count I: the visitation restrictions with family members

violate Plaintiffs’ fundamental right to integrity in family

relationships in violation of the First, Ninth and

Fourteenth Amendments;

Count II: the visitation restrictions prohibiting the public

from visiting with more than one prisoner in the State of

Michigan during any given interval of time violates both

sub-classes’ right to freedom of speech and association

under the First Amendment;

Count III: the visitation restrictions constitute cruel and

unusual punishment in violation of the Eighth

Amendment;

App. 25

Count IV: the visitation restrictions violate the equal

protection clause of the Fourteenth Amendment;

Count V: the visitation restrictions that permanently

restrict all visitation for a Plaintiff prisoner found guilty

of two misconducts related to substance abuse constitute

cruel and unusual punishment in violation of the Eighth

Amendment.

Defendants now seek to have the court grant their motion to

dismiss and/or for summary judgment.

Il. Standards of Review

A. Motion to Dismiss

A motion to dismiss under Rule 12(b)(6) tests the

sufficiency of a complaint. Elliot Co., Inc. v. Caribbean

Utilities Co., Ltd., 513 F.2d 1176, 1182 (6th Cir. 1975). In

so doing, the court "must construe the complaint in the light

most favorable to the plaintiff, accept all factual allegations

as true, and determine whether the plaintiff undoubtedly can

prove no set of facts in support of his claims that would

entitle him to relief.". Jn re Delorean Motor Company, 991

F.2d 1236, 1240 (6th Cir. 1993). The complaint must

include direct or indirect allegations "respecting all the

material elements to sustain a recovery under some viable

legal theory." Jd. (citations omitted). the motion to dismiss

should not be granted "unless it appears beyond doubt that -

plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Elliot, 513 F.2d at 1182.

B. Standard of Summary Judgment

Summary judgment is appropriate only when there is no

App. 26

genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. Fed.R. Civ. P.

56(c). The central inquiry is "whether the evidence presents

a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a

matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251-52 (1986). After adequate time for discovery and

upon motion, rule 56(c) mandates summary judgment against

a party who fails to establish the existence of an element

essential to that party’s case and on which that party bears

the burden of proof at trial. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).

The movant has an initial burden of showing "the absence

of a genuine issue of material fact." Celotex, 477 U.S. 317,

323. Once the movant meets this burden, the non-movant

must come forward with specific facts showing that there is

a genuine issue for trial. Matsushita Electric Industrial Co.,

Lid. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To

demonstrate a genuine issue, the non-movant must present

sufficient evidence upon which a jury could reasonably find

for the non-movant; a "scintilla of evidence" is insufficient.

Liberty Lobby, 477 U.S. at 252.

The court must believe the non-movant’s evidence and

draw “all justifiable inferences” in the non-movant’s favor.

Liberty Lobby, 477 U.S. at 255. The inquiry is whether the

evidence presented is such that a jury applying the relevant

evidentiary standard could "reasonably find for either the

plaintiff or the defendant." Liberty Lobby, 477 U.S. at 255.

Ill. Analysis

As a preliminary matter, Plaintiffs contend that the

evidence adduced during the preliminary injunction hearing

is not suitable for this court to consider in determining a

summary judgment motion. Plaintiffs cite University of

App. 27

Texas v. Camenisch, 451 U.S. 390, 395 (1981) and Wilcox

v. U.S., 888 F.2d 1111, 1114 (6th Cir. 1989) in support of

this assertion. These cases, however, stand for a different

proposition. In Camenisch, the Supreme Court stated the

general rule,

A party thus is not required to prove his case in full at

a preliminary injunction hearing. . . . and the findings

of fact and conclusions of law made by a court

granting a preliminary injunction are not binding at

trial on the merits. . . . In light of these

considerations, it is generally inappropriate for a

federal court at the preliminary-injunction stage to give

a final judgment on the merits.

Camenisch, 451 U.S. at 395. This reasoning was followed by

the Sixth Circuit in Wilcox. In that case, the district court

denied the plaintiff's motion for preliminary injunction

against the Internal Revenue Service. Thereafter, the district

court granted the IRS’ summary judgment motion on the

basis that the preliminary injunction hearing was dispositive

"because it was the law of the case." /d. at 1113. The Sixth

Circuit reversed, holding that "decisions on preliminary

injunctions do not constitute law of the case and parties are

free to litigate the merits." /d. at 114 (quoting with approval

Golden State Transit Corp. v. City of Los Angeles, 754 F.2d

830, 832 n. 1 (9th Cir. 1985)(further quotations and citations

omitted). Hence, this court may not grant Defendants’

summary judgment merely on the basis that Plaintiffs’

preliminary injunction motion was denied because of a lack

of likelihood of success on the merits. Despite Plaintiffs’

assertions to the contrary, however, this court may consider

testimony and evidence introduced at the preliminary

injunction hearing as party of the record in determining

whether a genuine issue of material fact does not exist

App. 28

requiring the court to grant Defendants’ motion for summary

judgment. The counts of Plaintiffs’ Complaint will be

addressed separately.

A. Count!

In Count I, Plaintiffs allege that the new visitation rules

restricting visitation with family members under the age of

eighteen are an unreasonable and arbitrary deprivation of the

Plaintiffs’ rights to freedom of association, family integrity,

privacy and due process under the First, Ninth and

Fourteenth Amendments.

iB Prisoner’s first Amendment Claim

Convicted prisoners generally have no absolute, unfettered

constitutional right to unrestricted visitation with any person

regardless of whether that person is a family member or not.

Lynott v. Henderson, 610 F.2d 340 (Sth Cir. 1980). Rather,

visitation privileges are subject to the discretion of prison

officials. McCray v. Sullivan, 509 F.2d 1332 (Sth Cir.),

cert. denied, 423 U.s. 859 (1975). In Jones v. North

Carolina Prisoners’ Labor Union, Inc. , 433 u.S. 119 (1977),

the Supreme Court stated,

The fact of confinement and the needs of the penal

institution impose limitations on constitutional rights,

including those derived from the First Amendment,

which are implicit in incarceration . . . Perhaps the

most obvious of the First Amendment rights that are

necessarily curtailed by confinement are those

associational rights that the First Amendment protects

outside of prison walls. The concept of incarceration

itself entails a restriction on the freedom of inmates to

associate with those outside the penal institution.

App. 29

433 U.S. at 125. The Sixth Circuit has yet to opine whether

prisoners have a First Amendment freedom of association

right to visitation. Long v. Norris, 929 F.2d 1111 (6th Cir.),

cert. denied, 502 U.S. 863 (1991)("[W]e have not decided

ee

association. . . . Given the sparse authority on this issue, we

hold that any such right, if it exists, is not clearly

established." /d. at 1118). A survey of caselaw from other

circuits leads this court to find that the greater weight of

authority holds that no First Amendment right of freedom of

association exists for prisoners. See, e.g., White v. Keller,

438 F. Supp. 110, 115 (D. Md. 1977), aff'd per curiam, 588

F.2d 913 (4th Cir. 1978); Thorne v. Jones, 765 F.2d1270,

1274 (Sth Cir. 1985), cert. denied, 475 U.S. 1016 (1986).

Accordingly, the Plaintiff prisoners’ First Amendment claim

fails to state a claim upon which relief can be granted.

2. _Non-prisoners’ First Amendment Claim

The First Amendment rights of the non-prisoner class are

similarly restricted by the fact of the restrictions placed upon

the prisoners. See, White v. Keller, 438 F. supp. 110, 115

(D. Md. 1977), aff'd per curiam, 588 F.2d 913 (4th Cir.

1978). the court in White explained,

It is the further opinion of this court that the Supreme

Court itself has suggested there is no general right to

prison visitation for either the prisoners or the public.

In Pell v. Procunier, . . . the court held that prisoners

have no constitutional right to visit with members of

the press and that members of the press have no

constitutional right to visit with selected prisoners.

Although the Court’s principal concern was freedom of

expression --press and speech-- rather than freedom of

association, the result was nonetheless that the two

App. 30

groups had no right to visit with each other. Implicit

in the Court’s opinion is that prisoners have no right

to associate face-to-face with any particular member of

the public, and members of the public have no right to

SO associate with any particular prisoner. . . . The

foregoing clearly explains why this court believes there

is no right among prisoners to receive visitors. The

court believes that the non-existence of a right among

would-be visitors to visit prisoners is a necessary

corollary whose justification is apparent by resort to

the reductio ad absurdum.

White, 438 F. Supp. at 117-119 (aff'd per curiam). See also,

Fennell v. Carlson, 466 F. Supp. 56, 59 (W.D. Okla. 1978).

Whereas First Amendment rights are implicated in the

censorship of mail, prisoners and visitors have no First

Amendment right to visitation because alternative means of

exercising their First Amendment rights are available. The

Plaintiff non-prisoners First Amendment Count therefore also

fail to state a claim upon which relief can be granted.

3. Plaintiffs’ Family Integrity Claim

Plaintiffs also claim that the visitation rules restricting

which minor children may visit a prison violate the prisoners’

fourteenth Amendment fundamental right to family integrity.

the Fourteenth Amendment prohibits a State from depriving

a person of life, liberty, or property without due process of

law and protects "the individual against arbitrary action of

government." Wolff v. McDonnell, 418 U.S. 539, 558

(1974). Plaintiffs are attempting to extend the reasoning of

Moore v. City of Cleveland, 431 U.S. 494 (1977), to the

current context.

In Moore, the Supreme Court struck down the City’s

zoning laws which prohibited a grandmother from living with

App. 31

her son and her grandson. /d. The Court held that the

concept of liberty in the Fourteenth Amendment includes the

right to associate and reside with one’s relatives. /d. The

Plaintiffs here argue that the new rules impermissibly

interfere with family relationships as did the zoning

ordinance in Moore, and thus violate the Plaintiffs’ liberty

interest in family association.

The instant case, however, is distinguishable from Moore.

In Moore, the Supreme Court was concerned with the fact

that a grandmother and grandson could not live together. In

this case, grandparents and parents may see their minor

grandchildren and children. The Plaintiffs are seeking to

extend the reasoning of Moore, to even further extensions of

the family tree. While dicta in Moore discusses extended

family relationships, holding for the Plaintiffs in this case

would go well beyond established precedent.

Furthermore, Moore involved free citizens who wished to

live together. That case is quite distinct from the current case

where prisoners are petitioning for visitation rights.

Incarceration by its very nature necessarily restricts the

familial relationship in ways that would be unacceptable in

free society: imprisonment deprives inmates of the freedom

"to be with family and friends and to form the other enduring

attachments of normal life." Morrissey v. Brewer, 408 U.S.

471, 482 (1972). For example, it is well established that

prisoners have no right to conjugal visits. Turner, 482 U.s.

at 95-96. The new regulations restricting the visitation of

minor children do not infringe upon the Plaintiffs’

fundamental right of family integrity.

Plaintiffs argue that this court "ruled only that [the right

to family integrity] is limited to the parent/child/grandchild

relationship" and, therefore, that Plaintiffs have stated a

Claim. The only regulation to which Plaintiffs could be

referring is that regulation prohibiting minor children from

visiting the prison unless accompanied by an immediate

App. 32

family member or adult legal guardian. The visitation rule

may have the effect of preventing some children from

visiting their parents, step-parents or grandparents because no

qualified individual is available to bring the child to the

prison. This circumstance does not require the court to find

the rule unconstitutional. In fact, courts have held that it is

constitutional to transfer prisoners from a prison near their

family to one too far away for the family to visit, despite the

obvious limitation on family visitation. See €.g., Pitts v.

Meese, 684 F. Supp. 303, 312 (D.D.C. 1987), aff'd, Pitts v.

Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989). The Pitts

court followed and extended the reasoning laid out by the

Supreme Court in Olim y. Wakinekona, 461 U.S. 238 (1983).

In Olim, the Court held that a prisoner “has no justifiable

expectation that he will be incarcerated in any particular

prison within a State, [and] he has no justifiable expectation

that he will be incarcerated in any particular State." Jd. at

245. The court went on to instruct.

In short, it is neither unreasonable nor unusual for an

inmate to serve practically his entire sentence in a

State other than the one in which he was convicted and

sentenced, or to be transferred to an out-of-state prison

after serving a portion of his sentence in his home

State. . . . Even when, as here, the transfer involves

long distances and an ocean crossing, the confinement

remains within constitutional limits. . . . The reasoning

of Meachum [v. Fano, 427 U.S. 215 (1976)] and

Montayne [v. Haymes, 427 U.S. 236 (1976)] compels

the conclusion that an interstate prison transfer,

including one from Hawaii to California, does not

deprive an inmate of any liberty interest protected by

the Due Process of Clause in and of itself.

Id. at 247-48. Following this reasoning, the court in Pitts

App. 33

found that the incarceration of women prisoners in a facility

far from their families did not infringe on their constitutional

rights. Pitts, 684 F. Supp. at 312.

Similarly, in this case, prisoners may be prevented from

seeing their children because no qualified adult is available

to bring the children into the prison. However, as stated by

the Supreme Court, the inaccessibility of a prisoner to his

family "does not deprive an inmate of any liberty interest

protected by the Due Process Clause in and of itself." Jd.

Even if Plaintiffs could survive a motion to dismiss as to

this claim, they cannot survive a motion for summary

judgment. Any restriction on a fundamental right must be

"reasonably related to legitimate penological interests."

Turner v. Safley, 482 U.S. 78, 79 (1987). In Turner, the

Court listed four factors that courts should consider in

determining whether such a prison regulation is reasonable:

1. whether a valid, rational connection between the prison

regulation and the legitimate governmental interest put

forward to justify it exists;

2. whether there are alternative ways for the prisoner to

exercise the implicated constitutional right;

3. what impact would accommodation of the implicated

constitutional right have on the prison administration;

4. whether the regulation is an exaggerated response to

prison concerns.

Id. at 89-90

Witnesses for the Defendants testified during the

preliminary injunction hearing that their legitimate

penological interests in limiting visitation of minors are: 1)

preventing children from suffering physical and sexual abuse,

App. 34

2) preventing children from being injured in the non-child

proofed visitation rooms, and 3) limiting the instances in

which children can be used to smuggle weapons, drugs or

other contraband into the prisons; and 4) reducing the volume

of visits to ensure the safety of both prisoners and visitors.

(See testimony of Warden Burke, Tr. Vol. I at 119-24, Vol.

II at 8, 10-11, testimony of Warden Langley, Tr. Vol. II at

65-78; testimony of Deputy Director Bolden, Tr. Vol. II at

82-86, 100). Defendants further articulated that family

members and guardians are best suited to controlling

children. (See testimony of director Bolden, Tr. Vol. I at

98). For example, when asked about the penological

interests sough to be served by the new regulations, Director

Bolden answered,

Well, I think our interest was to minimize the

opportunity for harm or risk to come to children that

come to our facilities. Our experience has also taught

us that there has been less Opportunity or less

occurrence of a child that’s the child of the person

they’re visiting being victimized by someone else.

Most of the cases we looked at, particularly the

Higgen situation, the child that was brought up there

was not the child of any prisoner that she was visiting,

and there seemed to be a more protective atmosphere

when a child is there Visiting their parent, and they

seemed to keep up with that child a little more, and

you don’t run into the risk of some other person who

may not be visiting that child, molesting that child.

(Testimony of Director Bolden, Tr. Vol. I at 98). Director

Bolden further testified that he anticipated an overall decrease

of ten to fifteen percent in visitation. (/d. at 99).

Courts have consistently held that the maintenance of

App. 35

prison security and prevention of contraband from entering

the prison are “legitimate penological" interests. See Turner,

482 U.S. at 92-93; Procunier, 416 U.S. at 413-14; Bell v.

Wolfish, 441 U.S. at 520 (1979). Having found the

penological interest to be legitimate, then

In the absence of substantial evidence in the record to

indicate that the officials have exaggerated their

response to these consideration[,] courts should

ordinarily defer to [prison administrators’] expert

judgment in such matters.

Block v. Rutherford, 468 U.S. 576, 586-89 (1984). In this

case, the Plaintiffs have failed to come forward with

substantial evidence that the Michigan prison officials

exaggerated their response. Moreover, Defendants articulated

problems associated with supervising children and their

position that family members are best suited to control a

child. (See Testimony of Director Bolden, Tr. Vol. I at 98).

Having put forth a valid, legitimate interest, and in the

absence of any evidence showing that officials have

exaggerated their response, the court finds that Plaintiffs

have failed to meet their burden to demonstrate that a

genuine issue of material fact exists.

4. Plaintiffs’ Ninth Amendment Claim

Plaintiffs also brought suit pursuant to the Ninth

Amendment, claiming that their right to privacy has been

violated by the new prison visitation regulations. Plaintiffs,

however, can cite no case supporting this claim. Plaintiffs

thus have failed to state a claim as a matter of law in count

I of their Second Amended Complaint. Consequently, Count

I of the Plaintiffs Complaint is dismissed.

App. 36

B. Count Il

In Count II, Plaintiffs contend that the new prison

visitation regulations that restrict members of the public from

visiting more than one non-immediate family member

prisoner within a certain time interval is a violation of the

non-prisoner’s rights to freedom of association. This cause

of action fails to state a claim. Once again, the rights of

non-prisoners are similarly restricted by the incarceration of

the prisoner.

C. Count Ill

In Count III, Plaintiffs allege that the new regulations

constitute cruel and unusual punishment in violation of the

Eighth Amendment. Eighth Amendment violations occur

when prison conditions result in the "unnecessary and wanton

infliction of pain," are "grossly disproportionate to the

severity of the crime warranting imprisonment," or result in

an "unquestioned and serious deprivation of basic human

needs." Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981).

However, "to the extent that conditions are restrictive and

even harsh, they are part of the penalty that criminal

offenders pay for their offense against society." Jd. at 347.

The Sixth Circuit has indicated that prohibiting visitation to

prisoners does not violate the Eighth Amendment. Beilany

v. Bradley, 729 F.2d 416 (6th Cir. 1984). Other circuit

courts of appeals have also found no Eighth Amendment

violations where visitation privileges have been restricted.

See e.g., Furrow y. Magnusson, No. 91-1585, 1992 WL

73154, *2 (1st Cir. April 10, 1992)("Prisoner grievances

involving visitation privileges and confiscation of

‘See discussion at page 7, supra.

App. 37

photographs obviously are not nearly weighty enough to

implicate the Eighth Amendment’s ban on cruel and unusual

punishment."); Smith v. Farley, No. 94-1046, 1995 WL

216896, *4 (7th Cir. April 4, 1995)(citing Wilson v. Seiter,

501 U.S. 294 (1961)). Plaintiffs, therefore, have no claim

that the regulations violate the Eighth Amendment.

D. Count IV

In Count IV, Plaintiffs allege that the rules prohibiting: 1)

visits from former prisoners except with immediate family

members; 2) the public from visiting more than one prisoner

during any given interval of time; and 3) visits from non-

immediate family members under the age of eighteen years,

violate the non-prisoners’ First Amendment rights and their

Fourteenth Amendment right to equal protection.

ae First Amendment Claim

As to the non-prisoner plaintiffs, their rights to visit

prisoners are similarly restricted by the fact of the prisoner’s

incarceration.”

b. The Equal Protection Claim

Plaintiffs also claim that the new regulations violate their

Fourteenth Amendment right to equal protection. The

Supreme court has instructed,

[U]nless a classification warrants some form of heightened

review because it jeopardizes exercise of a fundamental

right or categorizes on the basis of an inherently suspect

*See discussion at page 7, supra.

App. 38

characteristic, the Equal Protection Clause requires only

that the classification rationally further a legitimate state

interest.

Nordlinger v. Hahn, 112 S. Ct. 2326, 2331-32 (1992).

Here, a fundamental right is not jeopardized, and the alleged

discrimination is not on the basis of an inherently suspect

characteristic. Consequently, the regulations must only pass

the requirements of the rational basis test. Defendants have

articulated legitimate state interests: the preservation of

order within the prison system by preventing contraband

from entering the premises and the protection of minor

children by ensuring that they are properly supervised.

Furthermore, the regulations are properly tailored to

rationally achieve those interests. Plaintiffs have come

forward with no evidence demonstrating that the regulations

will not achieve the legitimate state interests. Accordingly,

Defendants’ motion for summary judgment will be granted.

E. Count V

As previously noted by this court, Plaintiffs’ Claims that

the visitation rule restricting all visitation privileges upon a

prisoner’s being found guilty of two major misconducts

involving substance abuse violates the Eighth and Fourteenth

Amendments is not ripe for decision. Plaintiffs have failed

to come forward with any example of a prisoner being denied

Visitation rights as a result of this rule. As the Supreme

Court stated, "[a] hypothetical threat is not enough." United

Public Workers v. Mitchell, 330 U.S. 75, 89-91 (1947).

Because this claim is not ripe, Plaintiffs do not have standing

at this time. Accordingly, Count V of Plaintiffs’ Second

Amended Complaint is properly dismissed.

App. 39

IV. Conclusion

For the foregoing reasons, the court hereby GRANTS

Defendants’ motion to dismiss and/or for summary judgment.

NANCY C. EDMUNDS

U.S. District Judge

Dated: Apr 09, 1996

App. 40

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Michelle Bazzetta, Stacy Barker,

Toni Bunton, Debra King,

Shante Allen, Adrienne Bronaugh,

Alesia Butler, Tamara Prude,

Susan Fair, Valerie Bunton and

Arturo Zavala, through his Next

Friend Valerie Bunton, on behalf

of themselves and all others

similarly situated,

No. 95-73540

Plaintiffs, Hon. Nancy G. Edmunds

Vv.

Kenneth McGinnis Director of

Michigan Dep’t of Corrections,

Dan Bolden, Deputy Director of

the Correctional Facilities,

Michigan Dep’t of Corrections,

Defendants

/

MEMORANDUM OPINION AND ORDER

DENYING PLAINTIFFS’ MOTION FOR

PRELIMINARY INJUNCTION

This matter comes before the court on Plaintiffs’ motion

for preliminary injunction to prevent enforcement of certain

Michigan prison regulations restricting prisoner's visitation

rights. For the following reasons, Plaintiffs motion for

preliminary injunction is denied.

App. 41

I. Facts

Plaintiffs are a group of women prisoners and their

prospective visitors protesting new Michigan Correctional

Rules regarding visitation. The new rules in question are:

l.

Prisoners may only receive visitors under the age of 18

who are their children, step-children or grandchildren

(thus prisoners may not see minor siblings, cousins,

nieces, nephews, etc.) (Rule 791.6609(2)(b));

Prisoners may not visit with their natural children if

their parental rights have been terminated for any

reason (Rule 791.6609(6)(a));

. Prisoners may only have 10 visitors who are not

"immediate family" (immediate family does not include

nieces, nephews, aunts, uncles, cousins, in-laws) (Rule

791.6609(2));

. No minor children may visit unless accompanied by an

adult legal guardian with proof of legal guardianship or

an immediate family member (Rule 791.6609(5));

. Members of the public may be on only one prisoner’s

visitation list (not including immediate family

members) thus activists cannot visit more than one

prisoner (Rule 791.6609(2)(a));

. Prisoners may be denied all visitors (except from

clergymen or an attorney) upon two major misconducts

involving substance abuse (Rule 791.6609(11)(d));

. All former prisoners are excluded from visiting current

prisoners who are not "immediate family."

App. 42

Plaintiffs contend that the above rules violate their First,

Eighth and Fourteenth Amendment Constitutional rights, and

brought suit in Michigan State Court pursuant to 42 U.S.C.

§ 1983. The rules were scheduled to go into effect on

October 2, 1995, so Plaintiffs brought a motion for a

temporary restraining order and preliminary injunetion to

enjoin enforcement of the new rules. The Defendants

removed the action to this court under the authority of 28

U.S.C. §§ 1441(a) and 1446. The court entered a temporary

restraining order enjoining enforcement of the rules until a

preliminary injunction hearing could be held.

I. Standard for Preliminary Injunction

The availability of injunctive relief is a procedural

question that is governed by federal law. Southern Milk

Sales, Inc. v. Martin, 924 F.2d 98 (6th Cir. 1991). The Sixth

Circuit has held that a court must consider four factors in

deciding whether to issue a preliminary injunction:

1. whether the movant has shown a strong or substantial

_ likelihood of success on the merits:

2. whether the movant has demonstrated irreparable

injury;

3. whether the issuance of a preliminary injunction would

Cause substantial harm to others; and

4. whether the public interest is served by the issuance of

an injunction.

Parker v. U.S. Dept. of Agric., 879 F.2d 1362, 1367 (6th

Cir. 1989). The foregoing factors should balanced. In re

DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985).

App. 43

Where the three factors other than the likelihood of success

ail strongly favor issuing the injunction, a district court is

within its discretion in issuing a preliminary injunction if the

merits present a sufficiently serious question to justify a

further investigation. /d. at 1230. Alternatively, the court

may also issue a preliminary injunction if the movant “at

least shows serious questions going to the merits and

irreparable harm which decidedly outweighs any potential

harm to the defendant if an injunction is issued." Frisch’s

Restaurant, Inc. v. Shoney’s Inc., 759 F.2d 1261, 1270 (6th

Cir. 1985) (citations omitted).

Ill. Analysis

A. Likelihood of Success on the Merits

To prevail in a civil rights action under 42 U.S.C. §

1983, a plaintiff must plead and prove that the defendants,

acting under color of state law, deprived the plaintiff of a

right secured by the Constitution and laws of the United

States. Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420,

101 S. Ct. 1908 (1981), overruled on other grounds, Daniels

v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct.

662 (1986). Section 1983 alone creates no substantive rights;

rather, it is a vehicle by which a plaintiff may seek redress

for deprivations of rights established in the Constitution or

federal laws. Baker v. McCollan, 443 U.S. 137, 144 n.3, 61

L. Ed. 2d 433, 99 S. Ct. 2689 (1979). The statute applies

only if there is a deprivation of a federal right. See e.g.,

Paul v. Davis, 424 U.S. 693, 699-701, 47 L. Ed. 2d 405, 96

S. Ct. 1155 (1976); Baker, 443 U.S. at 146-47. Thus, "the

first inquiry in any § 1983 suit . . . is whether the plaintiff

has been deprived of a right ‘secured by the Constitution and

laws’" of the United States. Baker, 443 U.S. at 140.

App. 44

visitation rules will deprive them of rights under the First,

Eighth and Fourteenth Amendments to the United States

Constitution. Prison regulations that implicate a prisoner’s

constitutional rights will be upheld when "it is reasonably

related to legitimate penological interests." Turner v. Safley,

482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987).

The non-prisoner Plaintiffs claim that the new rules will

deprive them of rights under the First and Fourteenth

Amendments. Prison regulations must respect the

constitutional rights of non-prisoners and are subject to that

level of scrutiny determined by the Supreme Court for the

particular constitutional violations in question. Cf. Procunier

v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94S. Ct.

1800 (1974) (Court applied strict scrutiny analysis to

infringement of non-inmate’s First Amendment rights).

1. Are the Constitutional Rights of the Plaintiff Prisoners

Implicated by the New Regulations?

a. Rules restricting visitation of minor children and

the overall number of visitors

Plaintiffs first claim that the regulations restricting

visitation of minor children and the overall number of

visitors a prisoner may see to ten, violate their constitutional

right of freedom of association. Convicted prisoners,

however, have no absolute, unfettered constitutional right to

unrestricted visitation with any person, regardless of whether

that person is a family member or not. Bellamy v. Bradley,

729 F.2d 416, 420 (6th Cir.), cert. denied, 469 U.S. 845, 83

L. Ed. 2d 93, 105 S. Ct. 156 (1984); Lynott v. Henderson,

610 F.2d 340 (Sth Cir. 1980). Rather, visitation privileges

are subject to the discretion of prison officials. McCray v.

Sullivan, 509 F.2d 1332 (Sth Cir.), cert denied, 423 U.S.

859, 46 L. Ed. 2d 86, 96 S. Ct. 114 (1975). In Jones v.

App. 45

North Carolina Prisoners’ Labor Union, Inc. , 433 U.S. 119,

53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977), the Supreme Court

stated,

The-fact of confinement and the needs of the penal

institution impose limitations on constitutional rights,

including those derived from the First Amendment,

which are implicit in incarceration . . . . Perhaps the

most obvious of the First Amendment rights that are

necessarily curtailed by confinement are those

associational rights that the First Amendment protects

outside of prison walls. The concept of incarceration

itself entails a restriction on the freedom of inmates to

associate with those outside the penal institution.

433- U.S. at 125-25. The Sixth Circuit has yet to opine

whether prisoners have a First Amendment freedom of

association right to visitation. Long v. Norris, 929 F.2d 1111

(6th Cir.), cert. denied, 502 U.S. 863, 112 S. Ct. 187, 116

L. Ed. 2d 148 (1991) ("We have not decided the degree to

which prison inmates retain their freedom of association. . .

. Given the sparse authority on this issue, we hold that any

such right, if it exists, is not clearly established." /d. at

1118). Other Circuit courts have held that no First

Amendment right to visitation exists. White v. Keller, 438 F.

Supp. 110, 115 (D. Md. 1977), aff'd per curiam, 588 F.2d

913 (4th Cir. 1978) (finding that prisoner visitation occurs

for social rather than ideological purposes and further that

“visitation does not seem to be a right, but merely one means

of effecting a wholly distinct right." Id. at 117); Thorne v.

Jones, 765 F.2d 1270, 1274 (Sth Cir. 1985), cert. denied,

475 U.S. 1016, 89 L. Ed. 2d 313, 106 S. Ct. 1198, 106 S.

Ct. 1199 (1986) (finding no First Amendment right of

freedom of association for prisoners to have physical

association). Courts have further held that constitutional

App. 46

challenges asserting a right to visitation fail even to state a

claim. McCray, 509 F.2d at 1334. Moreover, courts in this

district have previously held that prisoner’s constitutional

rights are not implicated by the restriction of visitation.

O'Bryan v. County of Saginaw, Mich. (O’Bryan Ill), 529 F.

Supp. 206, 211 (E.D. Mich. 1981); Mawby v. Ambroyer,

568 F. Supp. 245, 249 (E.D. Mich. 1983).

This court is aware that other courts have come to a

different conclusion. See e.g., Laaman v. Helgemoe, 437 F.

Supp. 269, 320 (1977) (and cases cited therein); Nicholson

v. Choctaw County, 498 F. Supp. 295, 310 (S.D. Alla.

1980). Yet the stronger reasoning and weight of authority

lead this court to find that no First Amendment right of

freedom of association exists for prisoners.

Plaintiffs next argue that the visitation rules restricting

which minor children may visit a prison violate their

Fourteenth Amendment fundamental right to family integrity.

The Fourteenth Amendment prohibits a State from depriving

a person of life, liberty, or property without due process of

law and protects “the individual against arbitrary action of

government." Wolff v. McDonnell, 418 U.S. 539, 558, 41 L.

Ed. 2d 935, 94 S. Ct. 2963 (1974). Plaintiffs are attempting

to extend the analysis and reasoning of Moore v. City of East

Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932

(1977) (plurality opinion), to the current context.

In Moore, the Court struck down the city’s zoning laws

which prohibited a grandmother from living with her son and

her grandson. /d. The Court held that the concept of liberty

in the Fourteenth Amendment includes the right to associate

and reside with one’s relatives. Jd. The Plaintiffs here argue

that the new rules impermissibly interfere with family

relationships as did the zoning ordinance in Moore, and thus

violate the Plaintiffs’ liberty interest in family association.

Plaintiffs’ argument is unavailing. The Supreme Court in

Moore was concerned with the fact that a grandmother and

= App. 47

grandson could not live together. In this case, grandparents

and parents may see their minor grandchildren and children.

The Plaintiffs are seeking to extend the reasoning of Moore

to even further extensions of the family tree. While dicta in

Moore discusses extended family relationships, holding for

the Plaintiffs in this case would go well beyond established

precedent. Furthermore, Moore involved free citizens who

wished to live together. That case is quite factually distinct

from the current case where prisoners are petitioning for

visitation rights. Incarceration by its very nature necessarily

restricts the familial relationship in ways that would be

unacceptable in free society: imprisonment deprives inmates

of the freedom "to be with family and friends and to form

the other enduring attachments of normal life." Morrissey v.

Brewer, 408 U.S. 471, 482, 33 L. Ed. 2d 484, 92 S. Ct.

2593 (1972). For example, it is well established that

prisoners have no right to conjugal visits. Turner, 482 U.S.

at 95-96. The new regulations do not infringe upon the

Plaintiffs’ fundamental right of family integrity.

The Plaintiffs also contend that the rules restricting

visitation are cruel and unusual punishment in violation of the

Eighth Amendment. Eighth Amendment violations occur

when prison conditions result in the "unnecessary and wanton

infliction of pain," are "grossly disproportionate to the

severity of the crime warranting imprisonment," or result in

an “unquestioned and serious deprivation of basic human

needs." Rhodes v. Chapman, 452 U.S. 337, 346-47, 69 L.

Ed. 2d 59, 101 S. Ct. 2392 (1981). However, "to the extent

that conditions are restrictive and even harsh, they are part

of the penalty that criminal offenders pay for their offense

against society." Jd. at 347. The Sixth Circuit has indicated

that prohibiting visitation to prisoners does not violate the

Eighth Amendment. Bellamy v. Bradley, 729 F.2d 416 (6th

Cir. 1984). Plaintiffs, therefore, have no claim that the

regulations violate the Eighth Amendment.

App. 48

b. Rule prohibiting prisoners from visiting with their

natural children if their parental rights have been

terminated for any reason.

Parents who terminate their parental rights lose all

constitutional rights in regard to those children upon entrance

of the termination order. See Davis v. Thornburgh, 903 F.2d

212, 220 (3d Cir. 1990). Thus, the children are treated as

non-family members. Once again, prisoners have no absolute

constitutional right to visitation with strangers, and thus this

rule does not violate any of the prisoners’ rights.

c. Rule prohibiting minor children from visiting the

prison unless accompanied by an immediate family

member or adult legal guardian with proof of legal

guardianship.

Assuming that Moore may be read to find a fundamental

right of parents and grandparents to associate with their

immediate family members within the prison context, any

restriction on that right must be "reasonably related to

legitimate penological interests." Turner v. Safley, 482 U.S.

78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). In Turner,

the Court listed four factors that courts should consider in

determining whether such a prison regulation is reasonable:

1. whether a valid, rational connection between the

prison regulation and the legitimate governmental

interest put forward to justify it exists;

2. whether there are alternative ways for the prisoner to

exercise the implicated constitutional right;

3. what impact would accommodation of the implicated

constitutional right have on the prison administration;

Pee TY ee ee aN Sisal wees we

App. 49

4. whether the regulation is an exaggerated response to

prison concerns.

Id. at 89-90.

The Defendants stated in their brief and during the

preliminary injunction hearing, that their legitimate

penological interests are: 1) preventing children from

suffering physical and sexual abuse, 2) preventing children

from being injured in the non-child-proofed visitation rooms,

and 3) limiting the instances in which children can be used

to smuggle weapons, drugs or other contraband into the

prisons. Defendants further articulated that family members

and guardians are best suited to controlling children.

Courts have consistently held that the maintenance of

prison security and prevention of contraband from entering

the prison are "legitimate penological" interests. See Turner,

482 U.S. at 92-93; Procunier, 416 U.S. at 413-14; Bell v.

Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861

(1979). Having found the penological interest to be

legitimate, then in the absence of substantial evidence in the

record to indicate that the officials have exaggerated their

response to these considerations[,] courts should ordinarily

defer to [prison administrators’] expert judgment in such

matters. Block v. Rutherford, 468 U.S. 576, 586-89, 82 L.

Ed. 2d 438, 104 S. Ct. 3227 (1984). In this case, the

Plaintiffs have failed to come forward with substantial

evidence that the Michigan prison officials exaggerated their

response. Moreover, Defendants articulated problems

associated with supervising children and their position that

family members are best suited to control a child. Having put

forth a valid, legitimate interest, and in the absence of any

evidence showing that officials have exaggerated their

response, the court finds no constitutional violation.

App. 50

d. Rules restricting members of the public to being on

only one prisoner’s visitation list at a time and

prohibiting former prisoners from visiting prisoners

other than immediate family.

As to the non-prisoner plaintiffs, their rights to visit

prisoners are similarly restricted by the fact of the prisoner’s

incarceration. The court in White explained,

It is the further opinion of this court that the Supreme

Court itself has suggested there is no general right to

prison visitation for either the prisoners or the public. In

Pell v. Procunier, . . . the Court held that prisoners have

no constitutional right to visit with members of the press

and that members of the press have no constitutional right

to visit with selected prisoners. Although the Court’s

principal concern was freedom of expression --press and

speech-- rather than freedom of association, the result was

nonetheless that the two groups had no right to visit with

each other. Implicit in the Court’s opinion is that

prisoners have no right to associate face-to-face with any

particulas member of the public, and members of the

public have no right to so associate with any particular

prisoner... . . The foregoing clearly explains why this

court believes there is no right among prisoners to receive

visitors. The court believes that the non-existence of a

right among would-be visitors to visit prisoners is a

necessary corollary whose justification is apparent by

resort to the reductio ad absurdum.

White, 438 F. Supp. at 117-119 (aff’d per curiam). See also,

Fennell v. Carlson, 466 F. Supp. 56, 59 (W.D. Okla. 1978).

Plaintiffs cite Procunier v. Martinez for the proposition

that this rue should be evaluated under the higher strict

App. 5i

scrutiny standard because the rights of non-prisoners are

implicated. That case did not hold that all cases implicating

the rights of non-prisoners should be evaluated under strict

scrutiny, rather, it held that prison regulations censoring a

non-prisoner’s mail restricted the non-prisoner’s. First

Amendment rights, and as such had to be evaluated under the

strict scrutiny standard. Courts have consistently

distinguished between the rights of prisoners to communicate

by way of mail and the ability of prisoners to receive

visitors. Whereas First Amendment rights are implicated in

the censorship of mail, prisoners and visitors have no First

Amendment right to visitation because alternative means of

exercising their First Amendment rights are available. Hence,

no constitutional right is implicated by this rule.

e. Rule permitting prison officials to permanently deny

all visitation privileges upon two major misconducts

involving substance abuse

This rule is discretionary, and at this time, Plaintiffs

cannot demonstrate that any person of their class will be

permanently deprived of all visitation upon two major

misconducts involving substance abuse. Thus, this claim is

not ripe for the court to adjudicate.

B. __Irreparable Injury, Balance of Harms and Public

Interest

Even assuming that the court would find that the Plaintiffs

have met their burden as to these factors, since the Plaintiffs

cannot show that a "serious question" as to the merits exists,

this court cannot find in their favor.

App. 52

IV. The Eleventh Amendment

As a final matter, the Defendants contend that the

Plaintiffs’ have effectively sued the State of Michigan, and

thus, this lawsuit is barred by the Eleventh Amendment. The

Eleventh Amendment bars suits against a State or its agencies

unless the State waives its immunity or Congress specifically

abrogates the State’s immunity. Claims for injunctive and

declaratory relief made against state officials in their official

capacity, such as those made in this case, however, are not

barred by the Eleventh Amendment. Doe v. Wigginton, 21

F.3d 733, 737 (6th Cir. 1994) (citing Edelman v. Jordan,

415 U.S. 651, 688, 39 L. Ed. 2d 662, 94 S. Ct. 1347; Ex

Parte Young, 209 U.S. 123, 159-60, 52 L. Ed. 714, 28 S.

Ct. 441).

V. Conclusion

Being fully advised on the merits and the pleadings, for

the foregoing reasons, the court hereby DENIES Plaintiffs’

motion for preliminary injunction.

NANCY G. EDMUNDS

U.S. District Judge

Dated: OCT 06 1995

App. 53

The First Amendment of the United States Constitution

provides:

Congress shall make no law _ respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress

of grievances.

The Fourteenth Amendment of the United States Constitution

provides, in relevant part:

Section 1. All persons born or naturalized in the

United States,.and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No States shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any States deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

42 U.S.C. §1983 provides in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

App. 54

other proper proceeding for redress.

28 U.S.C. §1343 provides in pertinent part:

(a) The district courts shall have original jurisdiction

of any civil action authorized by law to be commenced

by any person:

(3) To redress the deprivation, under color of

any State law, statute, ordinance, regulation,

custom or usage, of any right, privilege or

immunity secured by the Constitution of the

United States or by any Act of Congress

providing for equal rights of citizens or of all

persons within the jurisdiction of the United

States;

(4) To recover damages or to secure equitable or

other relief under any Act of Congress providing

for the protection of civil rights, including the

right to vote.

MICHIGAN REGISTER, August 1995

MICHIGAN DEPARTMENT OF CORRECTIONS

ADMINISTRATIVE RULES

R 791.6609 Limits on visitation.

Rule 609. (1) Except as otherwise provided in this rule,

any person who is not subject to a current visitor restriction

pursuant to the provisions of R 791.6611 may visit a prisoner

if all of the following provisions are complied with:

App. 55

(a) The person presents valid and adequate proof of

identification.

(b) The person is on the prisoner’s list of approved

visitors, as provided in subrule (2) of this rule.

(c) The visit is within the allowable quota established

by the department.

(d) The visit does not constitute a threat to the

prisoner’s physical or mental well-being.

(e) The visit does not constitute a threat to public safety

or to the order and security of the institution.

(f) Allowing the visit is not harmful to the prisoner’s

rehabilitation.

(g) The purpose of the visit is not to commit an illegal

act.

(2) Except as provided in R 791.6607(2) and subrule

(3) of this rule, a person may visit a prisoner only if he or

she is on the list of approved visitors for that prisoner, which

shall consist of the prisoner’s immediate family members and

not more than 10 other persons. The approved visitors list

shall be subject to all of the following restrictions:

(a) A person may be on the approved visitors list of

any prisoner to whom she or he is related as an immediate

family member, but shall be on the list of only 1 prisoner at

a time to whom she or he is not related as an immediate

family member.

(b) A person on an approved visitor list shall be not

less than 18 years of age, unless he or she is the child,

stepchild, or grandchild of the prisoner or an emancipated

minor who can show proof of emancipation.

(c) If the person is claimed to be an immediate family

member, the prisoner shall present adequate proof of the

relationship, as determined by the warden or his or her :.

(d) A prisoner may add or delete names of immediate

family members from his or her approved visitors list any

time, but shall be allowed to add or delete other names only

App. 56

once ever 6 months.

(e) A person shall be removed from a prisoner’s

approved visitors list upon written request by the listed

person.

(f) A warden may deny placement of anyone on a

prisoner’s approved visitors list for reasons of safety or

security of the institution, protection of the public, previous

violations of visiting room rules by the person, or for other

cause as determined by the warden. A denial of placement

on the list may be appealed through the prisoner grievance

process.

(3) The warden may allow a single visit between a

prisoner and a person who is not on the approved visitors list

of the prisoner if the warden determines the visit is in the

best_interest of the prisoner and is not a threat to the good

order and security of the facility.

(4) Each institution shall prescribe and display

reasonable rules of conduct for visits to preserve public

safety and institutional security and order and to prevent

conduct that may be offensive to others who may be present.

If a prisoner or visitor violates the provisions of this subrule,

then the visit may be terminated and the prisoner and visitor

_may be subject to sanctions up to and including a permanent

restriction of all visits or restriction to noncontact visiting

only.

(5) Subject to the restrictions in subrule (6) of this rule,

a child who is under the age of 18 may visit a prisoner only

if the child is on the prisoner’s approved visitors list and is

accompanied by an adult immediate family member or a legal

guardian, unless the individual is an emancipated minor.

(6) A child who is under the age of 18 shall not be

permitted to visit if any of the following provisions apply:

(a) The parental rights of the prisoner to the child have

been terminated.

(b) There is a court order prohibiting visits between the

App. 57

child and the prisoner.

(c) The prisoner has been convicted of child abuse,

criminal sexual conduct, or any other assaultive or violent

behavior against the child or a sibling o the child, unless

specific approval for the visit has been granted by the

director.

(7) Except as provided in subrule (8) of this rule, a

prisoner, a former prisoner, a probationer, or a parolee shall

not be allowed to visit with a prisoner unless the person is on

the prisoner’s approved visitors list and all of the following

criteria are met:

(a) The person is an immediate family member of the

prisoner.

(b) Prior approval for the visit is obtained from the

warden of the institution where the visit will occur.

(c) In the case of a probationer or parolee, prior

approval for the visit is obtained from the warden of the

institution and the supervising field agent.

(8) A former prisoner shall be allowed to visit if she or

he is one of the individuals identified in R 791.6607(2).

(9) For purposes of this rule, "immediate family

member" means any of the following persons:

(a) Grandparent.

(b) Parent.

(c) Stepparent.

(d) Spouse.

(e) Mother-in-law or father-in-law.

(f) Child.

(g) Stepchild.

(h) Grandchild.

(i) Sibling.

(j) | Stepbrother or stepsister.

(k) Aunts and uncles if verification is provided that they

served as surrogate parents.

App. 58

(10) A prisoner who is hospitalized may receive visitors

only if he or she is critically ill, as verified by the attending

physician, and prior approval is granted by the warden or

deputy warden.

(11) The director may permanently restrict all visitation

privileges, except with an attorney or member of the clergy,

for a prisoner who is convicted or found guilty of any of the

following:

(a) A felony or misdemeanor that occurs during a visit.

(b) A major misconduct violation, as defined in R

791.5501, that occurs during a visit or is associated with a

visit.

(c) An escape, attempted escape, or conspiracy to

escape.

(d) Two or more violations of the major misconduct

charge of substance abuse.

(12) The director may grant reconsideration and removal

of a permanent visitor restriction of all visitation privileges

that is imposed pursuant to subrule (11) of this rule.

(13) Nothing in this rule creates an enforceable right of

the prisoner to receive a visit or of a visitor to visit a

prisoner.

R 791.6614 Noncontact visitation.

Rule 614. (1) Visits by members of the public with

prisoners who are classified to security levels V, VI, and

segregation and who are housed in an institution or housing

unit of that security level may be limited to noncontact visits,

except that a contact visit between a prisoner and his or her

attorney shall be allowed if requested by the attorney, except

as provided in subrule (2) of this rule.

(2) Visits by members of the public with prisoners who

are housed in any security level may be limited to noncontact

visits for any of the following reasons:

GER ticks tei Latte tise ay a Gidea Re? Nae Be i ae ee a

ea hes

ETO PON NT ON a LOL OT Mt ee ere

App. 59

(a) A search of the visitor pursuant to the provisions of

R 791.2210 cannot be conducted due to the presence of a

cast, prosthetic device, oxygen tank, or any medically

required device.

(b) A prisoner is being monitored for suicidal behavior

and noncontact visiting is determined by the warden to be

necessary to ensure the prisoner’s physical safety.

(c) It is determined by the warden, based on a review

of a hearing officer’s finding of guilt of a major misconduct

charge or upholding of a visitor restriction, that a prisoner or

visitor demonstrates unmanageable behavior that is related to

contact visiting.

(d) A prisoner is found guilty of a major misconduct

violation of substance abuse.

(3) Notwithstanding the provisions of subrules (1) and

(2) of this rule, contact visits between a prisoner and staff

from the office of the legislative corrections ombudsman

shall be allowed if requested by the ombudsman’s staff

member.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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