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.
WSL Wc ace Allee th nM ee ea Nak clr
PO SD ay BRE
ee
Le SRP
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.