Petition for Writ of Certiorari — Bazzetta v. Caruso (No. 05-1572)

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Suprem rt. US

ai je Court, U.S.

@ 051572 JUN 6 - 2006

NO- OFFIGE-OF THE CLERK

Su the

Supreme Court of the Anited States

MICHELLE BAZZETTA, ET AL.,

Petitioners,

KENNETH McGINNIS, er AL.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

DEBORAH LABELLE BARBARA LEVINE

Counsel of Record Co-Counsel

PATRICIA A. STREETER 9685 LookinG GLass Brook

MICHAEL BARNHART GRAND LepGE, MI 48837

221 NortTH Main (517) 626-6984

SurrE 300

ANN Arsor, MI 48104

(734) 996-5620

Counsel for Petitioners, Michelle Bazzetta, et al.

Il.

QUESTION PRESENTED

WHERE THIS COURT DID NOT GRANT

CERTIORARI ON THE ISSUE, THE PARTIES DID

NOT BRIEF THE ISSUE AND THE DECISION DID

NOT ADDRESS THE LOWER COURT’S RULING ON

PETITIONERS’ PROCEDURAL DUE PROCESS

CLAIMS, DID THE SIXTH CIRCUIT ERR IN

HOLDING THAT OVERTON ‘IMPLICITLY’

OVERRULED THE LOWER COURT’S RULING ON

PROCEDURAL DUE PROCESS?

WHERE THE USE OF VISITING RESTRICTIONS AS

PUNISHMENT FOR PRISONERS CAN RESULT IN

THE PERMANENT LOSS OF ALL FAMILY VISITS,

DOES THE IMPACT ON THE PETITIONERS’

FUNDAMENTAL RIGHTS TO INTIMATE

ASSOCIATION AND THE FACT THAT THE

PUNISHMENT IS ATYPICALLY SEVERE _ IN

MICHIGAN REQUIRE FOURTEENTH AMENDMENT

PROCEDURAL DUE PROCESS PROTECTIONS?

PARTIES TO. THE PROCEEDING

Petitioners are a certified class of incarcerated citizens

together with their family members who challenged a

permanent ban on all visitation based on two or more

misconduct tickets for substance abuse. Respondents are the

Michigan Department of Corrections and its Director.

TABLE OF CONTENTS

Page(s)

ee ne TEED os 0b ie eee Ee eR ee i

PARTIES TO THE PROCEEDING ........42¢:> li

SARI CATER fb oS ee ee tthe eee iii

EAI A ITT op ORC Re hea ee ee Vv

CP NE Ns ex CECE eles ee eee ees 1

PRUNE a ein eee ae wre ete ie és 2

CONSTITUTIONAL AND STATUTORY -

PRP VP SPORE ove hee eee ewe eek. 3

STAT Emer Or Pee CASE 2. ee eee eee 4

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

PFU kc ba te eo eee es 12

I. By holding that this Court, in Overton,

implicitly found that no procedural safeguards

are required before a State permanently

prohibits prisoners from having visits with

their families, even though this Court never

addressed that issue, the Sixth Circuit

misinterpreted Overton and created a result

hes COUN Sever Wileeded.. ke es 12

Ii. The Sixth Circuit reached its erroneous

conclusions that petitioners were not entitled to

due process protections by misinterpreting this

Court’s analysis in Overton and its own

decision in Austin v Wilkinson. ............ 19

Oe Sf, SM Ge Pee NED MEMIRG Pattee SR cE ee 25

APPENDIX A: 03/09/06 Sixth Circuit Order ....... la

APPENDIX B: 11/28/05 Sixth Circuit Amended

CE 6 WES een ee ee ees 3a

APPENDIX C: 06/10/04 Sixth Circuit Order ...... 21a

APPENDIX D: 02/11/04 District Court Order ..... 24a

APPENDIX E: 10/24/03 Sixth Circuit Order ...... 27a

APPENDIX F: 08/28/03 Sixth Circuit Order ...... 30a

APPENDIX G: 06/16/03 Supreme Court Opinion ... 32a

APPENDIX H: 12/02/02 Supreme Court Opinion ... 53a

TABLE OF AUTHORITIES

Cases

Austin v. Wilkinson, 372 F.3d 346 (2004),

aff'd in part and rev’d in part on other grnds,

Sa ee Be CE sk ea ere bees passim

Bazzetta v. McGinnis,

140 F. SUD COGS CEUOE) 6 eS eieweds 5.43

Bazzetta v. McGinnis,

Bee Poe ork CC BD bw kkk a eh eek 5, 6

Bazzetta v. McGinnis,

GOUT 20 Fr CE... MO) eee ie eee passim

Bazzetta v. McGinnis,

73 Fed. Appx. 842 (6th Cir. 2003) ............ 2

Bazzetta v. McGinnis,

Fe eee. Maem. TST Ce Ci. F008) os. ee 2

Bd. of Regents v. Roth, 408 U.S. 564 (1972)... .. 19, 20

Cordova v. LeMaster,

90 F.5d Tre, 136 N:M. 217 (2008) . ww kc ee eee 16

Friedman v. Maryland, 380 U.S. 51 (1965) ........ 20

Glover v. United States, 531 U.S. 198 (2001) ....... 15

Johnson v. California,

Jae oe bile Ce Ge. Doe) 2 6 SS 21

Kelly v. Lewis, 88 Fed. Appx. 282 (9th Cir. 2004) .. .. 21

Kentucky Dept. of Corrections v. Thompson,

ce Ait eg hg REE SOU ROE TT ere 10, 17

Maydak v. U.S., 363 F.3d 512 (D.C. Cir. 2004) .. 21, 22

Overton v. Bazzetta, 537 U.S. 1043 (2002) ......... 1,7

Overton v. Bazzetta, 539 U.S. 126 (2003) ...... passim

Sandin v. Conner, 515 U.S. 472 (1995) ........ passim

Santosky v. Kramer, 455 U.S. 745 (1982) ......... 20

Stanley v. Illinois, 405 U.S. 645 (1972) ........... 20

Turner v. Safley, 482 U.S. 78 (1987) .......... 21, 22

Wilkinson v. Austin,

545 U.S. 209, 125 S.Ct. 2384 (2005) ....... 11, 23

Yoder v. Wisconsin Dept. Of Corrections,

2004 WL 602647 (W.D. Wis. 2004) .......... 21

Rules

Be EE So PEELE WM ole ee eee oes 2

Dee RR 6 ds a Nip ee ee eRe 8, 20

OPIN NS AND PROCEEDINGS BELOW

Petitioners respectfully petition this Court to issue a writ

of certiorari to review the ruling of the United States Court of

Appeals for the Sixth Circuit, entered on November 28, 2005.

Bazzetta v. McGinnis, 430 F.3d 795 (6" Cir. 2005), App. 3a.

Plaintiffs’ Petition for Rehearing with Suggestion for En Banc

review of this decision was denied on March 9, 2006, App.

la. The Court of Appeals’ decision reversed the ruling of the

United States District Court for the Eastern District of

Michigan issued February 11, 2004, App. 24a.

This Court previously granted certiorari to respondents in

this case to address the questions of whether prisoners have a

right to non-contact visitation protected by the First and

Fourteenth Amendments; whether restrictions on visitation

imposed were reasonably related to legitimate penalogical

interests; and whether the restriction on visitation constituted

cruel and unusual punishment in violation of the Eighth

Amendment. Overton v. Bazzetta, 537 U.S. 1043 (2002),

App. 53a. This Court did not grant certiorari to review the

district court’s independent ruling that the manner in which

respondents imposed the permanent visitation restrictions on

petitioners was violative of their procedural due process

rights. This Court also declined to interfere with the district

court’s removal of petitioners’ permanent visitation

restrictions until Michigan developed a plan for basic

procedural due process protections. Overton v. Bazzetta,

May 17, 2002, Denial of Motion to Revoke the Mandate and

Stay Proceedings. This Court’s decision ruling that

Michigan’s visitation rules, including the permanent

restriction on visits for substance abuse misconducts, did not

violate Plaintiffs’ First or Eighth Amendment rights, did not

address the district court’s ruling and injunction requiring

Michigan to provide basic procedural due process protections

prior to imposing the permanent visitation ban on petitioners.

This Court’s decision on these issues is reported at Overton v.

Bazzetta, 539 U.S. 126 (2003), App. 32a.

Upon remand, the Sixth Circuit denied respondent’s

motion for peremptory reversal of the district court’s

injunction and remanded the case to the district court in light

of Overton. Bazzetta v. McGinnis, 73 Fed. Appx. 842 (6"

Cir. 2003), App. 27a, and Bazzetta v. McGinnis, 79 Fed.

Appx. 151 (6" Cir. 2003), App. 30a. The district court,

relying upon its prior findings, ruled that petitioners were

entitled to procedural due process protections prior to

respondent’s reimposition of permanent visitation restrictions,

App. 24a. The Sixth Circuit accepted an interlocutory appeal

to review the respondents’ claims that Overton precluded

recognition of petitioners’ right to due process protections in

connection with visitation restrictions. June 10, 2004 Order,

Bazzetta v. McGinnis, App. 21a.

The Sixth Circuit reversed the district court ruling based

on its belief that Overton implicitly foreclosed petitioners’

procedural due process rights, App. 3a.

JURISDICTION

Petitioners seek review of the amended opinion of the

United States Court of Appeals for the Sixth Circuit entered

on November 28, 2005. Bazzetta v. McGinnis, 430 F.3d 795

(6" Cir. 2005), App. 3a. The Sixth Circuit denied

petitioners’ request for rehearing and en banc review on

March 9, 2006, App. la. This Court has jurisdiction to

review the November 28, 2005 opinion of the Court of

Appeals pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend. I provides that:

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.

U.S. Const. amend. XIV provides that:

Section I. 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 State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State 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.

Michigan Department of Corrections’ Administrative Rule

791.6609 provides, in pertinent part:

R 791.6609 Limits on Visitation

(11) the director may permanently restrict all visitation

privileges, except with an attorney or member of the

clergy, for a prisoner who is convicted of or found guilty

of any of the following:

(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 this subrule (11) of

rule.

STATEMENT OF THE CASE

1. Factual Statement

Petitioners, a certified class of Michigan prisoners and

their family members, filed a civil rights action in August

1995 challenging a number of new restrictions on visitation.

One rule, relevant to the instant petition, allows for the

issuance of a permanent ban on all visitation (except with

clergy and attorneys) for prisoners receiving two or more

substance abuse misconducts. Petitioners challenged the rule

as a violation of their rights of association under the First and

Fourteenth Amendments and asserted that the punishment of

severing all visitation with family was cruel and unusual

punishment in violation of the Eighth Amendment.

Petitioners also asserted that the manner in which the

Department had imposed the ban on them was so arbitrary,

capricious and lacking in any criteria or process as to

constitute a violation of their procedural due process rights

under the Fourteenth Amendment.

In its 2001 decision after trial on the merits, the district

court held that the permanent restriction on visitation violated

petitioners’ First Amendment right of association and

constituted cruel and unusual punishment in violation of the

Eighth Amendment. The district court also found the process

by which respondents had implemented the permanent ban on

visitation violated petitioners’ procedural due process rights.

Bazzetta v. McGinnis, 148 F.Supp.2d 813, 858 (2001). (“The

inconsistency and uncertainty of enforcement and the failure

to provide any opportunity to be heard are all procedural

deprivations of constitutional dimension”).

The district court identified a wide array of procedural

problems associated with the implementation of the permanent

ban on visitation that resulted in inconsistent, arbitrary and

unchallengeable decisions to indefinitely restrict visitation

between spouses, parents, children and siblings. The district

court found that indefinite visitation restrictions were imposed

without notice of the existence of the rule prior to imposing

the punishment; without any written criteria regarding when,

and upon whom, the ban would be imposed resulting in

selective and arbitrary punishments; without any opportunity

for petitioners to have a hearing before imposition of the ban;

without any procedure for appealing or challenging the ban;

and without any standard criteria or review procedures for

removing the ban. Bazzetta, 148 F.Supp.2d at 836, 839-44.

From August 1995 through December 1999, 1 ,576 petitioners

had been placed on permanent bans without any due process.

Bazzetta, 148 F.Supp.2d at 842.

While the regulation permits the MDOC director to

remove the restriction after two years, as the district court

found, “the two-year time frame...is a threshold, not a cap.”

Bazzetta, 148 F.Supp.2d at 839. The court went on to hold:

Although the regulations provide for the possibility of

review after two years, there are many instances

where no such review occurs, or where reinstatement

of privileges after two years is denied. As of the date

of trial, over half of the restricted prisoners had been

on the permanent ban for more than twenty-seven

months; a significant number had been restricted for

over three and a half years. /d. at 858.

The majority of those placed on the ban in 1995 were still

on a permanent restriction five years later without any

mechanism available for having the ban lifted. /d. at 842.

The district court’s decision was affirmed on appeal.

Bazzetta v. McGinnis, 286 F.3d 311 (6" Cir. 2002). On May

16, 2002 the district court enjoined respondents from

continued implementation of the permanent ban and ordered

reinstatement of petitioners’ visitation. This Court on May

17, 2002, denied respondents’ request for a stay of the

injunctive order. Respondents filed a petition for writ of

certiorari which did not request review of the lower court

procedural due process rulings. Overton v. Bazzetta, 02-94,

Questions Presented.

This Court limited the writ of certiorari to the following

questions:

1) Whether prisoners have a right to non-contact

visitation protected by the First and Fourteenth

Amendments;

2) Whether the restrictions on non-contact prison

visitation imposed by the Michigan Department of

Corrections are reasonably related to legitimate

penalogical interests; and

3) Whether the restrictions on non-contact prison

visitation imposed by the Michigan Department of

Corrections constitute cruel and unusual punishment

in violation of the Eighth Amendment.

Overton v. Bazzetta, 537 U.S. 1043 (2002), App. 53a. In its

decision, the Court characterized the issues before it as:

[Whether the regulations violate the substantive due

process mandates of the Fourteenth Amendment or the

First or Eighth Amendments as applicable to the States

through the Fourteenth Amendment.

Overton v. Bazzetta, 539 U.S. 126, 128 (2003), App. 32a.

The judgment of the Sixth Circuit was reversed and the case

remanded for further proceedings in conformity with the

opinion. /d.

Thereafter, respondents moved for peremptory reversal of

the district court’s injunction and dismissal of the case below.

The Sixth Circuit refused to dissolve the district court’s

injunction, stating that this Court had reversed the Sixth

Circuit’s decision that “Michigan prisons’ regulations were

invalid on their face” but reserved argument on the

procedural due process issue, App. 25a. On August 28,

2003, the Sixth Circuit remanded the case to the district court

for further consideration in light of Overton, App. 30a.

On remand, respondents reasserted their right to impose

permanent visitation restrictions without hearing, process or

criteria for review. The district court affirmed respondents’

obligation to present a proposal to cure the procedural due

process violations arising from the imposition of permanent

bans on visitation, prior to imposing the permanent visitation

restrictions. Opinion and Order of December 23, 2003.

Respondents then began issuing permanent bans on visitation,

without addressing the procedural defects found by the district

court and continued to ignore the compliance order of the

Court. Petitioners sought and obtained a restraining order

after respondents had placed permanent visitation bans on

ninety petitioners without notice, hearing or any opportunity

for review.

On January 27, 2004 Defendants filed a motion for an

evidentiary hearing arguing that the district court’s prior

factual findings had been vacated by this Court’s opinion in

Overton and asked for the injunction to be dissolved. The

district court declined to lift its order enjoining respondents

from re-imposing permanent visitation bans until procedural

protections were in place. The district court reasoned that

this Court had neither granted certiorari as to petitioners’

procedural due process rights nor overruled the district

court’s findings on this issue. Order Denying Defendants’

Motion for Evidentiary Hearing and Certifying Interlocutory

Appeal Pursuant 28 U.S.C. § 1292(b), February 11, 2004,

App. 24a.

In their appeal of the February 11, 2004 order,

respondents argued that Overton stood for the proposition that

prisoners have no liberty interest in visitation and do not

retain any First Amendment right of association, precluding

any procedural due process requirements surrounding the

imposition of a permanent visitation ban. While

acknowledging that Overton, “did not grant certiorari or

otherwise expressly address the procedural due process

issue,” the Sixth Circuit found that the Overton Court had

“implicitly ruled on this issue, in a manner inconsistent with

the holding of the district court.” Bazzetta v. McGinnis, 430

F.3d at 802, App. 14a. The Sixth Circuit concluded that this

Court’s decision in Overton foreclosed petitioners’ due

process claims. App, 20a.

REASONS FOR GRANTING THE WRIT

When this Court granted respondents’ petition for

certiorari in 2003, it did not choose to review the lower

court’s holdings that Michigan was required to establish basic

procedural due process protections prior to imposing

permanent visitation restrictions on petitioners who had two

misconduct citations for substance abuse. This Court declined

to interfere with the district court’s decision to lift all the

permanent visitation bans then in effect and to enjoin future

such bans until criteria and procedures for implementation and

removal were established. This Court’s decision in Overton

assumed the existence of such protections for the individual

petitioners who had been subject to the permanent restrictions

when it issued two cautions for the future:

We agree the restriction is severe and if faced with

evidence that MDOC’s regulation is treated as a de

facto permanent ban on all visitation for certain

inmates, we might reach a different conclusion in a

challenge to a particular application of the regulation.

Those issues are not presented in this case, which

challenges the validity of the restriction of non-contact

Visits in all instances.

Overton at 134, App. 39a-40a; and

If the withdrawal of all visitation privileges were

permanent or for a much longer period, or if it were

applied in an arbitrary manner to a particular inmate,

the case would present different consideration. An

individual claim based on indefinite withdrawal of

visitation or denial of procedural safeguards, however,

would not support the ruling of the Court of Appeals

that the entire regulation is invalid.

Overton, at 137, App. 42a.

However, after this Court’s ruling, Michigan asserted an

unfettered right to impose permanent visitation restrictions

without hearings, criteria or any process for opposing the

imposition of restriction. Respondents asserted that the

district court’s factual findings as to the arbitrary and

capricious use of the ban were vacated by Overton and

imposed over- ninety individual bans without notice or

opportunity for hearings, before the district court issued its

February 11, 2004 order enforcing its injunction.

The Sixth Circuit ruling, that petitioners seek to have

reviewed, reversed the district court’s order because it found

it to be “inconsistent with Overton” based on its reading of

Overton’s “implicit” holding that petitioners’ claims for

procedural due process rights related to their visitation

restrictions were now foreclosed. The Sixth Circuit’s

interpretation of Overton is directly contrary to this Court’s

refusal to foreclose procedural due process claims

surrounding prisoners’ fundamental right of association.

Overton v. Bazzetta, 539 U.S. 126, 137, App. 42a (“If the

withdrawal of all visitation privileges were permanent or for

a much longer period, or if it were applied in an arbitrary

manner to a particular inmate, the case would present

different considerations”); Kentucky Dept. of Corrections v.

Thompson, 490 U.S. 454, 465 (“Nothing in the court’s

opinion forecloses the claim that a prison regulation

permanently forbidding all visits to some or all prisoners

implicates the due process clause in a way that the precise and

individualized restrictions at issue here do not”).

The Sixth Circuit’s decision finds that the highest court in

the nation has created law “implicitly” on an issue it chose

not to review and then misconstrues this Court’s ruling in a

manner contradictory to all indications of the Overton Court’s

actual intent. By making a sweeping holding that petitioners

do not possess any associational rights to visitation and

therefore have no claim to procedural protections, the Sixth

Circuit has exposed petitioners to the imposition of visitation

restrictions for indefinite periods without any procedural due

process safeguards and has created a deeply troubling

precedent.

The Sixth Circuit’s decision reversing the district court’s

order, erroneously finds that the district court’s ruling and the

Overton decision are inconsistent and ignores the recognition

of Plaintiffs’ fundamental First Amendment right of intimate

association as an independent source of Fourteenth

Amendment protections. :

The Sixth Circuit also erred by disregarding its own

decision in Austin v. Wilkinson, 372 F.3d 346 (2004), aff’d in

part and rev'd in part on other grnds, 545 U.S. 209 (2005).

Austin established that when conducting the analysis required

by Sandin v. Conner, 515 U.S. 472 (1995), the prison system

at issue is the appropriate baseline for determining when a

liberty interest, requiring due process safeguards, arises from

an atypical and significant hardship relative to the ordinary

incidents of prison life.

ARGUMENT

I. By holding that this Court, in Overton, implicitly

found that no procedural safeguards are required

before a State permanently prohibits prisoners

from having visits with their families, even though

this Court never addressed that issue, the Sixth

Circuit misinterpreted Overton and created a result

this Court never intended.

While acknowledging that this Court “did not grant

certiorari or otherwise expressly address the procedural due

process issue”, the Sixth Circuit concluded: “Nonetheless,

we find that the Court implicitly ruled on this issue, in a

manner inconsistent with the holding of the district court.”

To reach this conclusion, the panel had to take several

extraordinary steps.

First, the panel had to find that, after this Court excluded

the procedural due process claim from the list of questions on

which it chose to grant certiorari and without ever stating

explicitly that it was resolving that claim, this Court

nonetheless resolved the claim by making a single

comparative reference to a due process decision while

expressly deciding only an Eighth Amendment question.

Second, the panel had to disregard numerous indications

from this Court that it did, in fact, intend to require that

procedural safeguards be available to prisoners denied all

visits from family members for indefinite periods. A

punishment that may amount to a permanent denial of

virtually all visitation.

Third, the panel had to misinterpret existing law in two

critical ways. It ignored this Court’s recognition of the

fundamental right to intimate association as an independent

basis for requiring procedural safeguards and it failed to apply

its own decision about the correct baseline for determining

when a prison regulation creates an “atypical and significant

hardship” that cannot be imposed without due process

protections

A. The Sixth Circuit erroneously held that this Court

implicitly decided an issue of constitutional

significance and great practical importance that it

explicitly chose not to review.

The absence of any procedural safeguards when

permanent visiting bans were imposed on 1,715 people was

a major focus at trial. The district court made extensive

findings of fact on the issue. Bazzetta v. McGinnis, 148

F.Supp.2d 813, 833-45 (2001). A dozen lengthy footnotes in

its opinion (notes 36-47) summarized dozens of individual

examples of arbitrary and capricious decisions that resulted

from the lack of any criteria for when and how restrictions

should be imposed or when and how they should be lifted.

Id. at 837-44. Ultimately the court found that a permanent

visiting restriction constitutes an atypical and significant

hardship under Sandin v Conner, supra, for the purpose of

requiring due process protections before the restriction can be

imposed. Jd. at 857-59. It ordered that existing restrictions

be lifted and enjoined the imposition of further restrictions

until procedural safeguards were implemented. The Sixth

Circuit Court of Appeals affirmed.

Despite the constitutional and practical significance of the

issue, the defendants did not list the issue of procedural due

process among the questions on which it sought certiorari.

That is, they did not choose to contest the resolution of the

due process claim below. This Court, in granting certiorari,

revised defendants’ proposed list of questions for review, and

also did not include the procedural due process issue.

Therefore, the issue was not briefed by the parties or argued

orally. It was not mentioned at the beginning of the Overton

decision when the question before the Court was described.

Nowhere in the body of the opinion are the procedural

problems with che permanent restriction discussed.

Nonetheless, the Sixth Circuit found that the Overton

Court had implicitly overruled the district court’s Fourteenth

Amendment holdings. The panel “extrapolated” this

conclusion from the fact that the Overton Court found that

withdrawing visiting privileges for a limited period of time is

not such a dramatic departure from accepted standards as to

constitute cruel and unusual punishment under the Eighth

Amendment. The Overton Court buttressed its statement by

saying: “Cf. Sandin v. Conner...”, App. 42a.

This passing comparative reference to Sandin is far too

thin a reed to support the Sixth Circuit’s sweeping conclusion.

The fact that any particular punishment can be imposed

without violating the Eighth Amendment does not mean that

it can be imposed without observing basic procedural

safeguards. If that were true, no due process protections

would ever have to be employed in imposing routine prison

sentences on those convicted of crime. Even when the

punishment is imposed on one who is already a prisoner, the

conceptual distinction between a substantive violation of the

Eighth Amendment and the need for procedural due process

must be maintained.’

' Indeed, if a dramatic departure from accepted standards meant the

same thing in the Eighth and Fourteenth Amendment contexts, it

could lead to the anomalous result that prisoners are entitled to

procedural safeguards only when the punishment being imposed

Finding that this Court has created law “implicitly”, on an

issue its opinion in no way addresses, requires substantial

caution. Even more caution should be employed when this

Court had every opportunity to decide the issue and

deliberately chose not to. The Supreme Court does not decide

issues outside the questions presented by the petition for

certiorari. Glover v. United States, 531 U.S. 198, 205

(2001). Even stronger caution should be exercised where the

lower court is extrapolating, not from a reasoned analysis of

the Supreme Court after briefing and «* zument of the issue,

but rather from dicta to decide a constitutional issue not yet

addressed by the Circuit or this Court.

It should not be assumed that the Supreme Court intends

to reverse findings of constitutional violations in a manner

that is indirect, unstated and open to debate. Where both the

district and circuit courts have found a constitutional

violation, a Supreme Court opinion should only be interpreted

as. implicitly overturning that finding when no other

reasonable conclusion can be drawn. That is far from the

situation here.

B. An accurate reading of Overton, in its broader

context, reveals this Court’s intent to preserve the

district court’s ruling on procedural safeguards for

permanent visitation restrictions to ensure that this

restriction is not imposed in an arbitrary manner.

The Sixth Circuit ignored many positive indications that

this Court not only intended, but relied upon, the continuing

_ effectiveness of the district court’s due process ruling.

violates the constitutional prohibition against cruel and unusual

punishment and therefore cannot be implemented at all.

When this case reached the Supreme Court, the order

prohibiting the implementation of permanent visiting

restrictions without due process safeguards was in place.

That was the status quo the Overton Court chose not to upset

when it: 1) denied defendants’ petition to stay the mandate

affirming the plaintiffs’ procedural due process rights; and 2)

chose not to review the district court’s decision requiring

procedural safeguards. What is implicit throughout Overton

is the assumption that, in general, the ban is not being applied

arbitrarily because an appropriate decision-making process is

in place.

At the end of a short analysis of plaintiffs’ Eighth

Amendment claim, the Overton Court said:

If the withdrawal of all visitation privileges were

permanent or for a much longer period, or if it were

applied in an arbitrary manner to a particular inmate,

the case would present different considerations. An

individual claim based on indefinite withdrawal of

visitation or denial of procedural safeguards, however,

would not support the ruling of the Court of Appeals

that the entire regulation is invalid.

Overton, supra at 134. As an individual could not have a

claim that procedural safeguards were denied unless such

safeguards exist, the most reasonable reading of Overton is

that the Court intended to leave the procedural protections

required by the district court in place when it permitted the

withdrawal of visiting privileges as punishment and that it

intended to allow procedural due process violations to be

litigated by individuals when those protections were

inadequate or improperly applied in a given case. See also,

Cordova v. LeMaster, 96 P.3d 778, 784-85, 136 N.M. 217

(2004) (“by this language, we believe the Supreme Court

implicitly recognized that the withdrawal of an individual

inmate’s visitation privileges without affording that inmate

certain procedural safeguards would violate the due process

clause”).

Further, where this Court let stand the district court’s

ruling, reinstating visitation for those individual prisoners

whose restrictions were arbitrarily imposed between 1995 and

2001, it would be incongruous to allow Overton to stand for

the proposition that future restrictions could be imposed

without due process protections. —

There are other indicia that this Court’s decision in

Overton was not intended to preclude due process protection

claims for, what this Court acknowledged was, a “severe

punishment.” Overton was authored by Justice Kennedy,

whose concurrence in Kentucky Dept. of Corrections v

Thompson, 490 U.S. 454 (1989) is often cited. The narrow

holding in Thompson was that an individual visitor could be

excluded for cause without a hearing. Justice Kennedy wrote

separately to note that:

...this case involves a denial of prison access to

particular visitors, not a general ban on all prison

visitation. Nothing in the Court’s opinion forecloses

the claim that a prison regulation permanently

forbidding all visits to some or all prisoners implicates

the protection of the Due Process Clause in a way that

the precise and individualized restrictions at issue here

do not. Thompson, 490 U.S. at 465 (Kennedy,

concurring)

Given that the potential issue to 'which Justice Kennedy

was so attuned in Thompson was exactly the issue the district

court resolved in Overton, it seems unlikely that Justice

Kennedy would be inclined to overrule the district court in as

ambiguous and indirect a manner as the Sixth Circuit

suggests.

There is also the concurrence in Overton itself, authored

by Justice Stevens and joined by Justices Souter, Ginsburg

and Breyer. The concurring Justices stressed that the Eighth

Amendment is not the sole basis for protection of prisoners

constitutional rights:

Under that rejected view, the Eighth Amendment’s

prescription of cruel and unusual punishment would

have marked the outer limit of the prisoner’s

constitutional right. It is important to emphasize

nothing in the Court’s opinion today signals a

resurrection of any such approach in cases of this

kind.

These do not appear to be the words of Justices who are

inclined to overturn by implication Fourteenth Amendment

rights found by the district court and upheld by the court of

appeals. Yet leaving the Eighth Amendment as the only

protection available to prisoners facing years without any

visits is exactly what the Sixth Circuit has extrapolated from

the majority decision in Overton.

By taking this Court’s actions and language in Overton

wholly out of context, the Sixth Circuit has set a dangerous

precedent. The Overton majority was very cautious about not

construing a prisoner’s fundamental right to intimate

association more narrowly than was necessary for its decision.

Yet the Sixth Circuit has effectively interpreted Overton to

mean that this fundamental right can be taken away in as

arbitrary and capricious a manner as any state corrections

official chooses to employ, leaving prisoners without recourse

to the Fourteenth Amendment’s protections.

Il. The Sixth Circuit reached its erroneous conclusions

that petitioners were not entitled to due process

protections by misinterpreting this Court’s analysis

in Overton and its own decision in Austin v Wilkinson.

The Sixth Circuit erred in ruling that the district court’s

holding -: that prisoners are entitled to procedural safeguards

in connection with the imposition and lifting of permanent

visiting bans because they have a liberty interest at stake -

was reversed by Overton. The district court’s rulings were

based upon an understanding that this mbesty interest arises

from two independent sources.

First, since permanent bans apply to immediate family

members, the fundamental First Amendment right to intimate

association gives rise to a liberty interest that cannot be

restricted without appropriate procedural safeguards. Bd. of

Regents v. Roth, 408 U.S. 564, 572 (1972).

Second, although a limited use of visiting restrictions may

not be an uncommon form of prison discipline in some states,

the permanent visiting ban permitted by the Michigan rule is

such an “atypical and significant hardship. . . in relation to

the ordinary incidents of prison life” that it results in a state-

created liberty interest as contemplated by Sandin v. Connor,

575 U.S. 472, 484 (1995). The extreme nature of the

permanent ban for substance abuse is particularly apparent

when compared to the visitation permitted to Michigan

prisoners under all other circumstances, regardless of their

misconduct history or security classification. Austin v.

Wilkinson, 372 F.3d 346, 355 (2004) (baseline standard of

comparison is prison system under review).

As neither the district court’s extensive findings of fact,

nor the law upon which it relied, were reversed by this Court,

the district court correctly declined to dissolve its injunction

and held, instead, that Defendants may not impose permanent

visiting bans until the procedural due process violations

previously found have been cured. The Sixth Circuit’s

reversal of this opinion was based on its failure to fully apply

this Court’s analysis in Overton and its own precedent in

Austin and an improper analysis of petitioners’ First

Amendment rights of association.

A. The panel ignored the fundamental right of

intimate association as an independent basis for

requiring procedural safeguards.

The district court’s February 11, 2004 order stated:

Moreover, contrary to Defendants’ position here, the

Overton court expressly stated the limits of its

decision. “We do not hold, and we do not imply, that

any right to intimate association is altogether

terminated by incarceration or is always irrelevant to

claims made by prisoners.” Overton, __ U.S. at

___, 123 S.Ct. at 2167. It is well established that

constitutionally protected rights, like those at issue

here, constitute liberty interests that warrant

procedural due process protections. See Bd. of

Regents v. Roth, 408 U.S. 564, 572-73 (1972). See

also Santosky v. Kramer, 455 U.S. 745 (1982);

Stanley v. Illinois, 405 U.S. 645 (1972); Friedman v.

Maryland, 380 U.S. 51 (1965).

Order Denying Defendants’ Motion for Evidentiary Hearing

and Certifying Interlocutory Appeal Pursuant 28 U.S.C.

§ 1292(b), February 11, 2004, App. 25a.

The Sixth Circuit reversed, holding that Overton implicitly

foreclosed any guarantee. of due process protections for

prisoners arising out of claims of loss of visitation. Bazzetta

v. McGinnis, 430 F.3d at 802, 805. App. 5a. While Overton

has been interpreted by other courts as reaffirming prisoners’

fundamental right to intimate association, Maydak v. U.S.,

— 363 F.3d 512, 516 (D.C. Cir. 2004) (recognizing that

Overton confirms the proposition that prisoners retain a right

of intimate association that may be curtailed under appropriate

circumstances); Johnson v. California, 336 F.3d 1117, 1122

(9" Cir. 2003) (“Cf. Overton applying Turner to freedom of

association claims relating to family visitation.”); Kelly v.

Lewis, 88 Fed. Appx. 282 (9" Cir. 2004) (“recognizing that —

right to association survives incarceration” citing Overton);

Yoder v. Wisconsin Dept. Of Corrections, 2004 WL 602647

(W.D. Wis. 2004) (“The Supreme Court has assumed that

prisoners retain some right of familiar association,” citing

Overton), the Sixth Circuit refused without analysis to

acknowledge a right of intimate association as a basis for

petitioners’ due process protections.

Instead, the Sixth Circuit decision conflated its First

Amendment analysis with the second prong of the Sandin

test, i.e., whether corrections officials have imposed restraints

that “exceed [the prisoner’s] sentence in such an unexpected

manner as to give rise to protection by the Due Process

Clause of its own force.” The Sixth Circuit opinion states:

“This court has not addressed the issue of whether an

incarcerated felon has a constitutionally protected liberty

interest in prison visitation pursuant to the Due Process

Clause” (fn. omitted). It then concludes:

We know of no circuit court that has found an implicit

due process right to prison visitation. In fact, the

Sandin decision perpetuated the Court’s general

resistance to directly reading the Due Process Clause

without support from a positive source of law, absent

evidence of a “grievous loss.”

Bazzetta v. McGinnis, 430 F.3d at 804-05, App. 20a.

This conclusion ignores two critical points. First, the

constitutional right at issue is not a due process right to prison

visitation but the right to intimate association. Second, the

Overton Court itself refused to find that prisoners have no

right to intimate association that would require due process

protections. On the contrary, the majority opinion states:

We do not hold, and we do not imply, that any right

to intimate association is altogether terminated by

incarceration or is always irrelevant to claims made by

prisoners.

Overton v. Bazzetta, 539 U.S. at 131. See also Maydak v.

U.S., supra. The Overton Court then proceeded to apply to

the permanent restriction rule the four-factor analysis required

by Turner v. Safley, 482 U.S. 78 (1987) to determine

“whether a prison regulation affecting a constitutional right

that survives incarceration withstands constitutional

challenge.” Overton v Bazzetta, 539 U.S. at 132, App. 37a.

B. The panel’s decision conflicts with Sixth Circuit law

and misinterprets this Court’s rulings on the

appropriate standard for a state-created liberty

interest.

Petitioners assert that not only do they have a liberty

interest in associating with immediate family members under

the First Amendment, but that even under the test of Sandin,

they have a liberty interest in not having all their visits

permanently restricted without due process. Sandin held that

a state-created regulation gives rise to a liberty interest

requiring procedural safeguards when it “imposes atypical and

significant hardship on the inmate in relation to the ordinary

incidents of prison life.” Jd. at 483-84. Recognizing that the

Courts of Appeals have diverged, this Court recently declined

to resolve how courts should identify the appropriate baseline

for determining whether a hardship is “ordinary” or “atypical

and significant.” Wilkinson v. Austin, 545 U.S. 209; 125

S.Ct. 2384, 2394 (2005). In so doing, the standard

established by the Sixth Circuit in Austin was left intact: The

relevant inquiry is whether the punishment is atypical when

compared to the ordinary conditions of confinement for that

prison system:

[W]e reject emphatically the [defendant’s] argument

that the baseline should be out-of-state supermax

prisons. Whatever the “ordinary incidents of prison

life” may encompass, they must be decided with

reference to the particular prison system at issue. . .

Austin v. Wilkinson, 372 F.3d 346, 355 (6" Cir. 2004).

It is undisputed that permitting visitation is the norm in

Michigan. Visiting is permitted at every security level. Even

people housed in punitive segregation for assaulting staff or

other prisoners are entitled to visitors. When conditions in

Michigan’s prisons are used as the baseline, the district

court’s findings that a permanent prohibition on all visits is an

atypical and significant hardship were not clearly erroneous.

Nor was the district court’s requirement that respondents must

provide basic due process prior to imposing such permanent

bans so contrary to governing law as to constitute an abuse of

discretion.

The Sixth Circuit compounded its neglect of the critical

baseline determination by relying excessively on this Court’s

reference to Sandin in Overton. In the context of deciding

whether the regulation allowing for permanent visitation

restrictions was, on its face, “unusual” for Eighth

Amendment purposes, this Court compared Michigan’s rules

to those of other states and found that “withdrawal of

visitation privileges for a limited period as a regular means of

effecting prison discipline” was “not a dramatic departure

from accepted standards for conditions of confinement. C7.

Sandin v. Conner.” Overton v. Bazzetta, 539 U.S. 126, App.

42a.

That this Court found the use of visitation restrictions, as

discipline in general, to be not so unique as to violate the

Eighth Amendment’s prohibition on cruel and unusual

punishment, says nothing about the specific procedural due

process violations found by the district court to be present in

Michigan’s permanent visitation ban policies and procedures.

Nor does it undermine the district court’s finding that the

issuance of the permanent ban constitutes an “atypical and

significant hardship” on petitioners when compared to

ordinary prison life in Michigan. Nothing in Overton or

Sandin forecloses the district court’s ruling that the permanent

visit ban constituted an atypical deprivation as compared with

the ordinary conditions of confinement for a prisoner in

Michigan.

The Sixth Circuit erred in relying on the fact that this

Court found no Eighth Amendment violation, to reverse the

district court finding of Plaintiffs’ entitlement to procedural

safeguards when permanent restrictions are imposed. This

Court characterized even a two-year loss of visitation as a

“severe punishment” and said such a restriction “undoubtedly

makes the prisoner’s confinement more difficult to bear.”

Overton further cautioned that if the visitation ban were

“permanent or for a much longer period” that would present

different concerns even under the Eighth Amendment.

Nothing in this language undermines the district court’s

findings that the restriction placed on Plaintiffs - which did

just that - implicated a liberty interest requiring procedural

safeguards.

CONCLUSION

Petitioners urge this Court to summarily reverse the

Amended Opinion of the Sixth Circuit as a misinterpretation

of this Court’s decision in Overton v. Bazzetta and to affirm

the district court’s holdings regarding the petitioners’ rights

to procedural due process before permanent visiting

restrictions are imposed or, in the alternative, grant certiorari

for purposes of addressing petitioners’ rights to procedural

due process when their fundamental rights to intimate

association are indefinitely restricted by prison officials and

to address the baseline standard for analyzing whether

petitioners possess a sufficient liberty interest requiring

procedural protections when permanent visiting restrictions

are imposed as punishment for two substance abuse

misconducts, a punishment which constitutes an atypical and

significant hardship in relation ship to the ordinary incidents

of prison life in Michigan.

Respectfully submitted,

DEBORAH LABELLE

(Counsel of Record)

221 North Main Street

Suite 300

Ann Arbor, MI 48104

(313) 996-5620

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 04-1823

[Filed March 9, 2006]

MICHELLE BAZZETTA, ET AL.,)

)

Plaintiffs-Appellees, )

)

v. )

)

KENNETH MCGINNIS, )

DIRECTOR OF MICHIGAN )

DEPARTMENT OF )

CORRECTIONS, ET AL., )

)

Defendants-, >pellants. )

)

BEFORE: CLAY and SUTTON, Circuit Judges; and

OBERDORFER, District Judge.”

ORDER

* Hon. Louis F. Oberdorfer, United States District Judge for the

District of Columbia, sitting by designation.

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

case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

/s/

Leonard Green, Clerk

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 04-1823 _

[Filed November 28, 2005]

MICHELLE BAZZETTA, et al.,

Plaintiffs-Appellees,

)

KENNETH MCGINNIS, )

Director of Michigan Department _)

of Corrections; MICHIGAN )

DEPARTMENT OF )

CORRECTIONS, )

)

Defendants-Appeliants.

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

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

Before: CLAY and SUTTON, Circuit Judges;

OBERDORFER District Judge.”

AMENDED OPINION

OBERDOREFER, District Judge. This case marks another

chapter in a ten-year controversy between incarcerated felons,

their visitors, and the Michigan Department of Corrections

(“MDOC’”). In 1995, MDOC issued regulations affecting

prisoners’ visitation privileges, including a permanent ban on

virtually all visitation for prisoners found guilty of two or

more substance abuse violations. After a bench trial, the

district court ruled that MDOC’s visitation limitations,

including the substance abuse regulation, violated the

prisoners’ constitutional rights under the First and Eighth

Amendments and their Fourteenth Amendment substantive

and procedural due process rights. A panel of this court

affirmed the district court’s judgment and the district court

issued an order of compliance enjoining the MDOC from

implementing the regulations. The Supreme Court granted the

MDOC’s petition for certiorari on the prisoners’ First, Eighth

and Fourteenth Amendment substantive due process claims

and reversed this court’s affirmance in Overton v. Bazzetta,

539 U.S. 126, 123 S. Ct. 2162, 156 L. Ed. 2d 162 (2003).

The Court did not grant certiorari with respect to the

plaintiffs’ Fourteenth Amendment procedural due process

claim, nor otherwise address it directly. On remand, the

district court declined to dissolve its injunctive order of

compliance, ruling that its procedural due process holding

was not disturbed by the Supreme Court’s decision.

* The Honorable Louis F. Oberdorfer, United States District Judge

for the District of Columbia, sitting by designation.

MDOC appeals the district court’s refusal to dissolve the

injunction, arguing that although the Supreme Court did not

grant certiorari on this court’s procedural due process

holding, it implicitly foreclosed any facial procedural due

process challenges to the substance abuse regulation. Thus, at

issue is whether the district court abused its discretion in

failing to dissolve its injunctive order in light of Overton. For

the reasons stated below, we hold that the district court

abused its discretion because its procedural due process ruling

is inconsistent with Overton. Accordingly, we REVERSE the

district court’s opinion and order denying MDOC’s motion

for summary judgment and granting the plaintiffs’ motion to

enforce compliance. Our reversal is without prejudice to any

claim by an individual prisoner that the regulation, as applied

to that prisoner, imposes an “atypical and significant

hardship,” thus implicating a protected liberty interest.

I. BACKGROUND

In 1995, MDOC issued regulations limiting the visitation

rights of prisoners, in part to control the widespread use of

drugs and alcohol. Overton, 539 U.S. at 129-130. Among

other limitations, the regulations authorize the Director of the

MDOC to restrict permanently all visits for a prisoner who is

found guilty administratively of “(t}wo or more violations of

the major misconduct charge of substance abuse,” e.g.

possession of narcotics, alcohol, unauthorized prescription

drugs, or drug paraphernalia, or for failure to submit to a

drug test. Bazzetta v. McGinnis, 286 F.3d 311, 321 & n.2

(6th Cir. 2002) (internal quotations omitted). According to the

substance abuse regulation, prisoners whose visits have been

permanently restricted nevertheless receive visits from

“attorneys or [their] representative[s], [or] qualified clergy

and staff from the Office of the Legislative Corrections

Ombudsman .. . .” Bazzetta v. McGinnis, 148 F. Supp. 2d

813, 833 (E.D. Mich. 2001). Inmates may also request that

the visitation ban be lifted after six months or two years,

depending on the underlying infractions. /d. Reinstatement of

Visitation privileges is within the warden’s discretion. /d.

In August 1995, the plaintiffs, a class of prisoners

incarcerated by MDOC, and their prospective visitors,

challenged the substance abuse regulation on its face.' Id. at

815. They asserted that the permanent ban on visitors for two

violations of the drug abuse policy: (1) infringed the

prisoners’ First Amendment right of intimate association and

was not reasonably related to a valid penological objective;

(2) constituted cruel and unusual punishment prohibited by the

Eighth Amendment; and (3) violated the prisoners’ Fourteenth

Amendment procedural due process rights. /d. at 845-58. The

case proceeded to a bench trial and, on April 19, 2001, the

district court held that the regulations violated the prisoners’

rights under the First, Eighth and Fourteenth Amendments.

Id.

In addressing the plaintiffs’ procedural due process claim,

the court first asked whether Michigan prisoners have a

liberty interest in visitation that had been infringed by the

substance abuse regulation. /d. at 857. The court noted that

a liberty interest arises from two distinct sources -- from the

implicit guarantees of the Due Process Clause itself, or as a

result of state action. Jd. The court addressed only whether

' The Plaintiffs also challenged regulations that: (1) excluded, from

family members with whom inmates were entitled to non-contact

visits, any minor nieces and nephews and children as to whom

parental rights had been terminated; (2) required all children

visiting an inmate to be accompanied by a family member or legal

guardian; and (3) prohibited former inmates from visiting inmates.

These regulations are not the subject of the instant appeal.

the prisoners derive a liberty interest from the state-issued

substance abuse regulation. /d. Accordingly, it analyzed the

regulations under the formulation established by the Supreme

Court in Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293,

132 L. Ed. 2d 418 (1995) -- that a liberty interest arises

where the state’s regulations impose “freedom from restraint

which, while not exceeding the sentence in such an

unexpected manner as to give rise to protection by the Due

Process Clause of its own force, nonetheless impose[] [an]

atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life.” Jd. at 484.

In determining that the substance abuse regulation imposes

an “atypical and significant hardship,” the court considered

(1) the effect of the restraint on the length of prison

confinement; (2) the extent to which the prisoners’

confinement is altered from routine prison conditions; and (3)

the duration of the restraint. Bazzetta, 148 F. Supp. 2d at 857

(citing Jones v. Baker, 155 F.3d 810, 814 (6th Cir. 1998)

(Gilman, J., concurring)). It acknowledged that the

regulations do not affect the length of confinement but found

that they create “an unusually harsh and punitive environment

for the prisoners restricted.” Jd. at 858. Further, it found

significant that the restriction on visitation is permanent --

“[ajlthough the regulations provide for the possibility of

review after two years, there are many instances where no

such review occurs, or where reinstatement of privileges after

two years is denied.” Jd.

Recognizing a liberty interest in visitation that had been

infringed by the permanent visitation ban, the court then

asked “‘whether the procedures attendant upon that

deprivation were constitutionally sufficient.’” Jd. at 857

(citing Hewitt v. Helms, 459 U.S. 460, 472, 103 S. Ct. 864,

74 L. Ed. 2d 675 (1983)). It found many procedural problems

with the implementation of the permanent visitation ban --

notably that: (1) there are no written criteria to guide the

Director of the MDOC’s decision whether to impose the ban,

resulting in inconsistent enforcement, id. at 836-37; (2)

prisoners are not entitled to a hearing on the imposition of the

permanent ban or an opportunity to challenge the ban based

on unusual or extenuating circumstances, id. at 838, n.39;

and (3) there are no ascertainable criteria for the restoration

of visiting privileges, without any apparent uniform standard

being applied, id. at 839. The court thus determined that

“[t}he inconsistency and uncertainty of enforcement, the

absence of any criteria for reinstatement, and the failure to

provide any opportunity to be heard are all procedural

deprivations of constitutional dimension.” /d. at 858.

On April 16, 2002, a panel of this court affirmed the

district court judgment for the plaintiffs. Bazzetta v.

McGinnis, 286 F.3d 311, 324 (6th Cir. 2002). The district

court subsequently issued an order of compliance on May 16,

2002, directing MDOC to comply with the terms of the

court’s judgment and enjoining the Department from

enforcing the regulations “or any rule, policy, or procedure

which bans, restricts, prevents or limits visitation based on

prior or future misconducts for controlled substance

violations.” JA 75. In response to the district court’s order,

MDOC lifted the regulations on visitation privileges on all

inmates subject to the permanent ban. JA 189.

MDOC filed and the Supreme Court granted a petition for

certiorari. The Court limited its review, however, to “whether

the regulations violate the substantive due process mandate of

the Fourteenth Amendment, or the First or Eighth

Amendments . . . .” Overton, 539 U.S. at 128. On the

merits, the Court reversed, ruling that the regulations did not

facially infringe the prisoners’ First Amendment rights of

intimate association or violate their Fourteenth Amendment

substantive due process rights. Jd. at 131-36. In so holding,

the Court stated that it was not implying that “any right to

intimate association is altogether terminated by incarceration”

but it noted that “[w]e must accord substantial deference to

the professional judgment of prison administrators, who bear

a significant responsibility for defining the legitimate goals of

a corrections system and for determining the most

appropriate means to accomplish them.” /d. at 131-32; see

also id. at 134 (“Withdrawing visitation privileges is a proper

and even necessary management technique to inducc

compliance with the rules of inmate behavior, especially for

high-security prisoners who have few other privileges to

lose.”). The Court also held that the withdrawal of visitation

privileges did not “fall below the standards mandated by the

Eighth Amendment.” /d. at 137.

The Overton Court did not grant certiorari on the issue of

whether the regulations violated the prisoners’ procedural due

process rights under the Fourteenth Amendment. In the

context of its Eighth Amendment discussion, however, the

Court noted that the “withdrawal of visitation privileges for

a limited period as a regular means of effecting prison

discipline . . . . is not a dramatic departure from accepted

standards for conditions of confinement. Cf. Sandin v.

Conner, 515 U.S. 472, 485, 115 S. Ct. 2293, 132 L. Ed. 2d

418 (1995).” Id. The Court admonished that “[i]f the

withdrawal of all visitation privileges were permanent or for

a much longer period, or if it were applied in an arbitrary

manner to a particular inmate, the case would present

different considerations.” /d. at 137. It concluded, however,

that “[aJn individual claim based on indefinite withdrawal of

visitation or denial of procedural safeguards . . . would not

support [a] ruling . . . that the entire regulation is invalid.”

Id.

10a

On August 27, 2003, MDOC moved for peremptory

reversal of the district court’s order of compliance and

dismissal of the case. A panel of this court denied the motion

so that the district court could consider the validity of the

order in the first instance. Bazzetta v. McGinnis, 79 Fed.

Appx. 161, 2003 WL 22434575, at *1 (6th Cir. 2003). A

separate panel of this court remanded the case to the district

court “for further consideration in light of the Supreme Court

opinion.” Bazzetta v. McGinnis, 73 Fed. Appx. 842, 2003

WL 22071463, at *1 (6th Cir. 2003). This panel specifically

noted that the Supreme Court preserved “any argument that

an individual claim based on indefinite withdrawal of

visitation or denial of procedural safeguards would pass

muster under the First and Eighth Amendments. . . .” /d.

(internal quotations omitted).

Meanwhile, MDOC reinstated the regulation permitting

permanent visitation restrictions for two major misconduct

substance abuse violations, with a few minor revisions. JA

161-62. MDOC voluntarily chose not to reinstate the

restrictions on individual prisoners that were removed due to

the May 16, 2002 order of compliance. /d.

On October 17, 2003, MDOC moved for summary

judgment in the district court on the plaintiffs’ procedural due

process claims. JA 53-77. The plaintiffs countered with a

motion to enforce compliance. JA 78-91. On December 23,

2003, the district court denied MDOC’s motion for summary

judgment, granted the plaintiffs’ motion to enforce

compliance and confirmed MDOC’s obligation to present a

proposal to cure the procedural due process violations arising

from the imposition of the substance abuse regulation. JA

185-198. The district court acknowledged that MDOC had

revised the regulation but found that it failed to correct the

significant procedural problems associated with the

lla

implementation of the permanent ban on visitation. /d.

Further, the district court reyected MDOC’s mootness claim,

holding that “‘[i]t is well settled that a defendant’s voluntary

cessation of a challenged practice does not deprive a federal

court of its power to determine the legality of the practice.’”?

Id. at 189 (quoting Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs., 528 U.S. 167, 189, 120 S. Ct. 693, 145 L. Ed.

. 2d 610 (2000) (internal quotations omitted)).

Despite the district court’s December 23, 2003 order,

MDOC continued to issue permanent bans on visitation to

inmates committing two major misconduct substance abuse

violations. On February 11, 2004, upon further motions, the

district court issued a supplemental order confirming its

December 23, 2003 ruling and denying MDOC’s motion for

an evidentiary hearing. JA 299-301. The court, however,

certified the question of whether its order was fully consistent

with the Supreme Court’s decision in Overton for

interlocutory appeal, in accordance with 28 U.S.C. § 1292(b).

Id. at 301.

On February 23, 2004, MDOC petitioned for permission

to appeal, representing that the district court had certified the

question for review as “whether prisoners have a liberty

interest in visitation.” A panel of this court denied the petition

as unnecessary, holding that MDOC, in reality, was seeking

to appeal the district court’s “order refusing to dissolve the

injunctive relief previously ordered by the court [namely, the

* The court also held that the case was ripe for review because there

is no factual development needed to discover how the regulation

will be implemented, no indication that the MDOC will change its

position regarding the enforcement of the regulation, and the

hardship to the prisoners to wait until their visitation rights are

revoked is great. JA 190-91.

12a

May 16, 2002 order of compliance] pursuant to its finding

that the plaintiffs’ procedural due process rights were

violated.” JA 328-29. Thus, the panel treated the petition as

a notice of appeal pursuant to 28 U.S.C. § 1292(a)(1). Id. We

now entertain that appeal.

Il. ANALYSIS

A. Standard of Review for Procedural Due Process

Claims

The Fourteenth Amendment protects an individual from

deprivation of life, liberty or property, without due process of

law. “[T]hose who seek to invoke its procedural protection

must establish that one of these interests is at stake.”

Wilkinson v. Austin, 125 S. Ct. 2384, 2393, 162 L. Ed. 2d

174 (2005). Accordingly, a procedural due process analysis

addresses two questions. “[Tjhe first asks whether there exists

a liberty or property interest which has been interfered with

by the State, the second examines whether the procedures

attendant upon that deprivation were constitutionally

sufficient.” Kentucky Dep’t of Corr. v. Thompson, 490 U.S.

454, 460, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989)

(citations omitted).

In evaluating a claimed liberty interest by prison inmates,

courts are mindful that imprisonment necessarily “carries with

it the circumscription or loss of many significant rights.”

Hudson v. Palmer, 468 U.S. 517, 524, 104 S. Ct. 3194, 82

L. Ed. 2d 393 (1984). The “curtailment of certain rights is

necessary, as a practical matter, to accommodate a myriad of

‘institutional needs and objectives’ of prison facilities, chief

among which is internal security.” /d. at 524 (internal

citations omitted). Accordingly, not every “action taken for

13a

a punitive reason encroaches upon a liberty interest under the

Due Process Clause .. . .” Sandin, 515 U.S. at 484.

Prisoners, however, retain a “residuum of constitutionally

protected liberty,” Zhompson, 490 U.S. at 466 (Marshall, J.,

dissenting); see Meachum v. Fano, 427 U.S. 215, 224, 96 S.

Ct. 2532, 49 L. Ed. 2d 451 (1976) (“Our cases hold that a

convicted felon does not forfeit all constitutional protections

by reason of his conviction and confinement in prison.”), that

emanates from two discrete sources: (1) state law can

establish a protectible liberty interest, or (2) the Constitution

can create a liberty interest when a condition or restraint is so

egregious as to implicate the Due Process Clause itself. See

Austin, 125 S. Ct. at 2393.

Here, MDOC argues that the Supreme Court’s decision in

Overton implicitly held that the substance abuse regulation

neither creates a protectible liberty interest nor implicates the

guarantees of the Due Process Clause itself. MDOC claims

that because the Overton ‘Court foreclosed finding a liberty

interest on the face of the regulation, when it determined that

it did not constitute a “dramatic departure from acceptable

standards for conditions of confinement,” Overton, 539 U.S.

at 137, the district court lacks authority to continue to enjoin

its implementation of the substance abuse regulation, absent

additional procedural safeguards. Accordingly, MDOC

argues, the district court erred in refusing to dissolve its May

16, 2002 order of compliance.

The plaintiffs counter that the Supreme Court did not

grant certiorari on the procedural due process issue and, thus,

could not have overruled the holding of the district court that

the substance abuse regulation established a liberty interest in

visitation. In fact, the plaintiffs argue, the Overton Court

expressly preserved their right to assert an “as applied”

l4a

challenge to the regulation, such as the one sustained by the

district court in this case. Moreover, they contend that even

if the Supreme Court’s decision foreclosed finding a state-

created liberty interest arising from the substance abuse

regulation, the prisoners’ liberty interest in visitation is

implicit in the Due Process Clause.

We review a district court’s denial of a request to

dissolve an injunction for abuse of discretion. See Pinette v.

Capitol Square Review & Advisory Bd., 30 F.3d 675, 678

(6th Cir. 1994), aff'd, 515 U.S. 753, 115 S. Ct. 2440, 132 L.

Ed. 2d 650 (1995). However, a district court’s improper

application of governing law constitutes an abuse of

discretion. See United States v. Colahan, 635 F.2d 564, 566

(6th Cir. 1980); see also Mascio v. Public Emples. Retirement

Sys., 160 F.3d 310, 311 (6th Cir. 1998) (noting that a district

court’s decisions on injunctive relief are seldom disturbed

unless it relied on clearly erroneous findings of fact,

improperly applied governing law, or used an erroneous legal

standard).

B. Overton’s Implicit Holding

Plaintiffs first argue that the district court did not

improperly apply governing law, i.e. Overton, by refusing to

dissolve its May 16, 2002 injunctive order because the

Overton Court did not grant certiorari on the procedural due

process issue. Further, they claim that nothing in the Court’s

decision indirectly undermined the district court’s finding that

the substance abuse regulation violated the prisoners’

procedural due process rights. We agree that the Court did

not grant certiorari or otherwise expressly address the

procedural due process issue. Nonetheless, we find that the

Court implicitly ruled on this issue, in a manner inconsistent

with the holding of the district court.

15a

In the context of analyzing the “unusual” component of

the Eighth Amendment’s prohibition against cruel and unusual

punishment, the Overton Court held that the substance abuse

regulation was a “regular means of effecting prison

discipline” which did not constitute “a dramatic departure

from accepted standards for conditions of confinement.” This

statement is antithetical to the district court’s finding a liberty

interest in prison visitation because the regulation imposes on

prisoners an “atypical” hardship in comparison to the

ordinary incidents of prison life. See supra page 5.

Furthermore, the Overton Court cited Sandin in support

of its state»sent that the regulation was not a “dramatic

departure.” In Sandin, the only issue was the prisoners’ right

to procedural due process protection before placement in

segregated confinement for 30 days, imposed as discipline for

disruptive behavior. The Sandin Court observed that it had

previously employed a methodology for identifying state-

created liberty interests that emphasized “the language of a

particular [prison] regulation” instead of “the nature of the

deprivation.” 515 U.S. at 481. The Court abandoned this

methodology, significantly limiting the authority of courts to

find liberty interests stemming from positive state law in the

prison context. Instead, it stated that the relevant inquiry must

focus on the nature of the deprivation imposed on a prisoner,

holding that if the nature of the deprivation does not impose

an “atypical and significant hardship . . . in relation to the

ordinary incidents of prison life,” prisoners will not have a

liberty interest in avoiding the deprivation. “Applying this

refined inquiry, Sandin found no liberty interest protecting

against a 30-day assignment to segregated confinement

because it did not present a dramatic departure from the basic

contours of the conditions of [the inmate’s] sentence.” Austin,

125 S. Ct. at 2394 (internal quotations omitted).

16a

We extrapolate from Overton and Sandin that the

substance abuse regulation is neither a “dramatic departure,”

nor an “atypical and significant hardship” in relation to the

ordinary incidents of prison life. Thus, although the issue was

not directly before the Overton Court, Court precedent and

dictum has signaled against our finding a liberty interest on

the face of the substance abuse regulation.

C. “As Applied” Procedural Due Process Challenge

The plaintiffs claim, however, that the district court did

not rule that the regulation on its face violated the prisoners’

procedural due process rights. Instead, they assert, the district

court found that the regulation, “as applied” to Michigan

prisoners, triggered a state-created liberty interest. Citing the

Overton Court’s language that an individual prisoner could

bring a “claim based on indefinite withdrawal of visitation or

denial of procedural safeguards,” and that “if faced with

evidence that MDOC’s regulation is treated as a de facto

permanent ban on all visitation for certain inmates, we might

reach a different conclusion in a challenge to a particular

application of the regulation,” the plaintiffs maintain that

Overton expressly preserved their right to bring “as applied”

claims.

In arguing that their challenge, as sustained by the district

court, does not attack the substance of the regulation, but

merely its implementation, the plaintiffs misconstrue both the

nature of the district court’s ruling and the difference between

a facial and as applied procedural due process challenge. The

district court held that the substance abuse regulation, on its

face, created a liberty interest because it imposed an “atypical

and significant hardship” on all prisoners subject to the

restriction. See Bazzetta, 148 F. Supp. 2d at 858. While the

court cited examples of the treatment of particular inmates in

17a

its findings of fact to illustrate what it perceived as the general

procedural deficiencies in the implementation of the

regulation, id. at 836-43, it did not make factual findings as

to the application of the regulation to any particular prisoner

sufficient to support an as applied procedural due process

claim.

As detailed above, the Overton Court subsequently

foreclosed a facial procedural due process challenge under the

standard set forth in Sandin. The Court’s decision in Overton

does not preclude individual prisoners from challenging a

particular application of the substance abuse regulation on

First Amendment, Eighth Amendment or Fourteenth

-Amendment grounds but such “[a]n individual claim based on

indefinite withdrawal of visitation or denial of procedural

safeguards, . . . [does] not support the ruling . . . that the

entire regulation is invalid.” Overton, 539 U.S. at 137; see

also Jones v. Baker, 155 F.3d at 816 (Gilman, J., concurring)

(noting that Sandin’s principal directive is that “courts should

look to see if the particular inmate has been deprived of a

state-created interest of ‘real substance’”) (citing Sandin, 515

U.S. at 478); McClary v. Kelly, 4 F. Supp. 2d 195, 199

(W.D.N.Y. 1998) (“At its core, Sandin instructs courts to

look at the nature and extent of the particular deprivation in

deciding whether a protected liberty interest is implicated.”).

D. Implicit Guarantees of Due Process Clause

Finally, the plaintiffs argue that regardless of whether the

substance abuse regulation creates a liberty interest, such an

interest emanates from the Due Process Clause itself because

the permanent ban on visitation impinges on the prisoners’

constitutional right to intimate association.

18a

In addition to state-created liberty interests, the

Constitution itself can create protectible liberty interests, but

only if corrections officials impose restraints upon the

prisoner which “exceed [the prisoner’s] sentence in such an

unexpected manner as to give rise to protection by the Due

Process Clause of its own force.” Sandin, 115 S. Ct. at 2300.

In Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed.

2d 552 (1980), for example, the Supreme Court held that a

prisoner has a liberty interest in not being involuntarily

committed to a mental hospital that is implicit in the Due

Process Clause, thus triggering constitutional procedural

protections. Jd. at 489-90; see also Washington v. Harper,

494 U.S. 210, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990)

(concluding that a protectible liberty interest was implicated

where a prisoner was involuntarily administered psychotropic

drugs).

The “Due Process Clause does not protect every change

in the conditions of confinement having a substantial adverse

impact on the prisoner,” though. Sandin, 515 U.S at 478. In

fact, a prison inmate does not have a liberty interest in

transfer from one prison to another “for whatever reason or

for no reason at all,” within the State or to another State,

regardless of differing conditions in the prisons. Meachum v.

Fano, 427 U.S. 215, 228, 96 S. Ct. 2532, 49 L. Ed. 2d 451

(1976). Even a transfer to a maximum security facility with

more burdensome conditions is “within the normal limits or

range of custody which the conviction has authorized the State

to impose.” /d. at 225. This is true even though such a

transfer operates as a “real hardship” on the inmate who is

“effectively separated by the transfer from his only contact

with the world outside the prison.” Montanye v. Haymes, 427

U.S. 236, 242, n.4, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976)

(internal quotations omitted). Analysis of “the nature of the

interest involved . . . compels the conclusion” that such a

19a

transfer, even with its changed conditions of confinement,

“does not deprive an inmate of any liberty interest protected

by the Due Process Clause in and of itself.” Olim v.

Wakinekona, 461 U.S. 238, 248, 103 S. Ct. 1741, 75 L. Ed.

2d 813 (1983).

This court has not addressed the issue of whether an

incarcerated felon has a constitutionally protected liberty

interest in prison visitation pursuant to the Due Process

Clause.’ There is no question that inmates retain many of the

protections of the First Amendment, such as rights to free

expression, Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S.

Ct. 1874, 104 L. Ed. 2d 459 (1989); to petition the

government for the redress of grievances, Johnson v. Avery,

393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718 (1969), and

to free exercise of religion, O’Lone v. Estate of Shabazz, 482

U.S. 342, 348, 107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987).

But even “[{ijn the First Amendment context . . . some rights

are inconsistent with the status of a prisoner,” Shaw v.

Murphy, 532 U.S. 223, 229, 121 S. Ct. 1475, 149 L. Ed. 2d

420 (2001), and a prisoner retains only those rights “that are

not inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections system.”

Pell v. Procunier, 417 U.S. 817, 822, 94S. Ct. 2800, 41 L.

Ed. 2d 495 (1974).

> In Thompson, the Supreme Court held that whatever rights may

be retained by prisoners they do not have an implicit due process

right to “unfettered visitation.” 490 U.S. at 460; see also Spear v.

Sowders, 71 F.3d 626, 629-30 (6th Cir. 1995) (“It is clear that a

prisoner does not have a due process right to unfettered visitation

.... A fortiori, a citizen simply does not have a right to unfettered

visitation of a prisoner that rises to a constitutional dimension.”)

(citations omitted).

20a

We know of no circuit court that has found an implicit due

process right to prison visitation. In fact, the Sandin decision

perpetuated the Court’s general resistance to directly reading

the Due Process Clause without support from a positive

source of law, absent evidence of a “grievous loss.” Although

the substance abuse regulation at issue here is “severe,” see

Overton, 539 U.S. at 134, 156 L. Ed. 2d 162, we decline to

hold that, on its face, it rises to the level of egregious conduct

necessary to implicate the implicit guarantees of the Due

Process Clause.

Ill. CONCLUSION

For the foregoing reasons and in light of the Supreme

Court’s decision in Overton foreclosing plaintiffs’ procedural

due process claim, we hold that the district court, in so far as

it relied on the Fourteenth Amendment’s procedural due

process clause, abused its discretion in refusing to dissolve its

May 16, 2002 order of compliance. We therefore REVERSE

the district court’s February 11, 2004 order and REMAND

for further proceedings consistent with this opinion. Our

reversal is without prejudice to any claim by an individual

prisoner that the regulation, as applied to that prisoner,

imposes an “atypical and significant hardship,” thus

implicating a protected liberty interest.

21a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 04-0101

[Filed June 10, 2004]

MICHELLE BAZZETTA, et al.,

Plaintiffs - Respondents,

Director of Michigan Department

of Corrections; MICHIGAN

DEPARTMENT OF

CORRECTIONS,

Defendants - Petitioners.

)

PATRICIA L. CARUSO, )

)

ORDER

Before: MARTIN and SUTTON, Circuit Judges; QUIST,

District Judge.”

* The Honorable Gordon J. Quist, United States District Judge for

the Western District of Michigan, sitting by designation.

22a

The defendants in this prisoners’ civil rights case petition

for leave to appeal a district court order denying their motion

for an evidentiary hearing prior to enforcement of the district

court’s ruling in favor of the plaintiffs on their procedural due

process claims. The district court has certified the order for

interlocutory review under 28 U.S.C. § 1292(b).

On December 23, 2003, the district court entered a

memorandum opinion and order denying the defendants’

motion for summary judgment and granting the plaintiffs’

motion to enforce compliance with the findings and judgment

of the court. In granting the plaintiffs’ motion, the district

court ruled that the Supreme Court’s holding in Overton v.

Bazzetta, 539 U.S. 126 (2003), did not negate its finding that

the defendants’ regulation imposing a permanent ban on

visitation for prisoners with two or more major misconduct

charges of substance abuse violated the plaintiffs’ procedural

due process rights. See Bazzetta v. McGinnis, 148 F.Supp.2d

813 (E.D. Mich. 2001). Pursuant to that finding, and prior to

the Court’s holding in Overton, the district court had enjoined

the defendants from enforcing the permanent ban on visitation

and required them to post notice that visitation would

recommence.

On January 27, 2004, the defendants moved for “an

evidentiary hearing prior to the Court entering any order or

plan regarding implementation of prior orders concerning

alleged procedural due [process] issues.” The district court

denied the defendants’ motion by order entered on February

17, 2004; and sua sponte certified the order for immediate

appeal under 28 U.S.C. § 1292(b). Review under § 1292(b)

should be sparingly granted and then only in exceptional

cases. Kraus v. Board of County Road Comm'rs for Kent

County, 364 F.2d 919, 922 (6th Cir. 1966). An appeal may,

however, be taken as of right from “[i]nterlocutory orders of

23a

the district courts of the United States . . . granting,

continuing, modifying, refusing or dissolving injunctions, or

refusing to dissolve or modify injunctions.” 28 U.S.C. § 1292

(a)(1). The February 17, 2004, order was tantamount to an

order refusing to dissolve the injunctive relief previously

ordered by the court pursuant to its finding that the plaintiffs’

procedural due process rights were violated. Therefore, we

have jurisdiction to review it pursuant to § 1292(a)(1). See

Hadix v. Johnson, 228 F.3d 662, 668 (6th Cir. 2000).

The defendants’ petition for permission to appeal was filed

on February 23, 2004, within the time to take a direct appeal

and contained all necessary elements for a notice of appeal as

prescribed under Fed. R. App. P. 3. For that reason, the

petition will be denied as unnecessary and treated as a notice

of appeal. See Standard Asbestos Mfg. and Insulating Co. v.

United States, 676 F.2d 119 (Sth Cir. 1982). Cf. McMillan v.

Barksdale, 823 F.2d 981 (6th Cir. 1987).

The defendants’ petition for permission to appeal is

DENIED as unnecessary. The district court clerk is directed

to docket the petition as a valid notice of appeal. See Fed. R.

App. P. 4(g).

ENTERED BY ORDER OF THE COURT

/s/

Clerk

24a

APPENDIX D

UNITED STATES DISTRICT COURT EASTERN

DISTRICT OF MICHIGAN SOUTHERN DIVISION

Case No. 95-73540

[Filed February 11, 2004]

MICHELLE BAZZETTA, ET AL.,

Plaintiffs,

KENNETH McGINNIS, ET AL.,

)

Defendants. )

)

ORDER DENYING DEFENDANTS’ MOTION

FOR EVIDENTIARY HEARING AND

CERTIFYING INTERLOCUTORY APPEAL

PURSUANT TO 28 U.S.C. § 1292(b)

This matter comes before the Court on Defendants’

January 27, 2004 motion for an evidentiary hearing. Although

captioned as a motion for an evidentiary hearing, Defendants

are in essence seeking summary judgment on the issue

whether any viable constitutional claims exist after the

Supreme Court’s decision in Overton v. Bazzetta, U.S. _,

123 S. Ct. 658 (2002). Specifically, Defendants argue that

25a

Plaintiffs have no viable procedural due process claims

because the Overton Court determined that, on their face, the

challenged Michigan Department of Corrections (MDOC)

regulations governing non-contact prisoner visitations did not

violate Plaintiffs’ First Amendment, Eighth Amendment, or

Fourteen Amendment rights. For the reasons stated below,

Defendants’ motion is DENIED.

This Court has already considered and judgment raising

this same issue. In its December 23, 2003 Order, this Court

observed that the Overton Court did not grant certiorari or

address Plaintiffs’ procedural due process arguments, even

though both this Court and the Sixth Circuit held that

imposition of the ban on visitation in response to two

substance abuse violations violated prisoners’ procedural due

process rights. See Dec. 23, 2003 Order at 4. Moreover,

contrary to Defendants’ position here, the Overton Court

expressly stated the limits of its decision. “We do not hold,

and we do not imply, that any right to intimate association is

altogether terminated by incarceration or is always irrelevant

to claims made by prisoners.” Overton, _U.S.at__, 123

S. Ct. at 2167. It is well established that constitutionally

protected rights, like those at issue here, constitute liberty

interests that warrant procedural due process protections. See

Bd. of Regents v. Roth, 408 U.S. 564, 572-73 (1972). See

also Santosky v. Kramer, 455 U.S. 745 (1982); Stanley v.

Illinois, 405 U.S. 645 (1972); Freedman v. Maryland, 380

U.S. 51 (1965).

As to the facial challenge of the two-year bar on visitation

for inmates with two substance-abuse violations, the Overton

Court, applying Turner v. Safley, 482 U.S. 78 (1987), held

_ that “a bar which may be removed after two years, serves the

legitimate goal of deterring the use of drugs and alcohol

within the prisons.” Jd. at__, 123 S. Ct. at 2169 (emphasis

26a

added). Accordingly, Plaintiffs’ facial challenge of that prison

regulation was rejected. Contrary to Defendants’ argument

here, if a constitutional right were not at issue, Turner review

would have been superfluous. Moreover, when addressing

Plaintiffs’ arguments that visitation is not automatically

restored at the end of the two-year ban, the Court expressly

left open the issue whether an “as applied” procedural due

process challenge on the two-year ban would succeed: “if

faced with evidence that MDOC’s regulation is treated as a de

facto permanent ban on all visitation for certain inmates, we

might reach a different conclusion in a challenge to a

particular application of the regulation.” /d. In light of the

above, this Court concludes that Plaintiffs’ procedural due

process arguments are not barred by Overton.

Furthermore, because the Court is of the opinion that this

Order satisfies the criteria set forth in 28 U.S.C. § 1292(b),

it is certified for interlocutory appeal. Although in this

Court’s mind there does not exist a strong probability of

reversal on the above issue, the Court certifies it nonetheless

so as to provide the Sixth Circuit with an opportunity to

consider whether this Court’s decision is fully consistent with

Overton. The issue presents a controlling question of law

because, as Defendants argue, if Plaintiffs have no viable

constitutional claims after Overton, then they cannot go

forward with their procedural due process claims. Moreover,

an immediate appeal will expedite this litigation. If this

Court’s ruling is reversed, there will be no need for further

proceedings.

SO ORDERED.

Dated: Feb. 11, 2004 /s/

Nancy G. Edmunds

U.S. District Judge

27a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 02-1756/2096

[Filed October 24, 2003]

MICHELLE BAZZETTA, et al.,

Plaintiffs-Appellees,

of Michigan Department of

Corrections; MICHIGAN

DEPARTMENT OF

CORRECTIONS,

)

KENNETH MCGINNIS, Director )

)

Defendants-Appellants. )

)

JUDGES: Before: MARTIN and SUTTON, Circuit Judges;

MILLS, District Judge.”

* The Honorable Richard Mills, United States District Judge for the

Central District of Illinois, sitting by designation.

28a

ORDER

The defendants, The Michigan Department of Corrections

and its director (collectively MDOC), appeal two post-

judgment orders entered by the district court in this prisoners

civil rights case challenging certain Michigan prison visitation

regulations. MDOC now moves for peremptory reversal in

Case No. 02-1756. The plaintiffs oppose the motion and ask

that this matter be remanded to the district court for further

consideration. MDOC has filed a reply. In Case No. 02-2096,

MDOC moves to hold briefing in abeyance pending further

proceedings in the district court. The plaintiffs oppose the

motion.

Following a bench trial, the district court entered

judgment for the plaintiffs. Bazzetta v. McGinnis, 148 F.

Supp.2d 813 (2001). MDOC filed a timely appeal which was

docketed as Case No. 01-1635. On April 10, 2002, a decision

was entered in Case No. 01-1635 affirming the district court’s

judgment. Bazzetta v. McGinnis, 286 F.3d 311 (6th Cir.

2002).

The orders which are the subject of the present appeals

were entered in the district court on May 16, 2002, and

August 20, 2002. The May 16 order directed MDOC to

comply with the terms of the judgment affirmed on appeal in

Case No. 01-1635. The August 20 order granted the

plaintiff's motion for attorneys fees. The Supreme Court has

now issued an opinion reversing this court’s decision in Case

No. 01-1635. Overton v. Bazzetta, 539 U.S. 126, 123 S. Ct.

2162, 156 L. Ed. 2d 162 (2003). On August 28. 2003, an

order was entered by this court in Case No. 01-1635-vacating

its previous decision and remanding the case to the district

court for further consideration in light of the opinion in

Overton. The order explains that the Supreme Court reversed

29a

this court’s decision “holding that certain Michigan prison

regulations were invalid on their face,” but reserved “any

argument that an ‘individual claim based on indefinite

withdrawal of visitation or denial of procedural safeguards’

would pass muster under the First and Eighth Amendments as

incorporated by the Fourteenth Amendment.”

In seeking peremptory reversal, MDOC argues that the

district court’s May 16 order of compliance is no longer valid

in light of the Supreme Court’s opinion in Overton. The May

16 compliance order and the August 20 fee award were both

premised on the judgment that was appealed in Case No. 01-

1635. That case has now been remanded to the district court

for further consideration, and we are of the opinion that a

remand is also warranted in the present cases. The issues

MDOC seeks to raise, i.e., the validity of the May 16 order

in light of Overton and the plaintiffs’ status as a prevailing

party, should be considered by the district court in the first

instance.

The defendants’ motion for peremptory reversal in Case

No. 02-1756 is DENIED. Case Nos. 02-1756 and 02-2096

are hereby REMANDED to the district court for further

consideration in light of the Supreme Court’s opinion in

Overton v. Bazzetta, 539 U.S. 126, 123 S. Ct. 2162, 156 L.

Ed. 2d 162 (2003). The defendants’ motion to hold briefing

in abeyance in Case No. 02-2096 is denied as moot.

30a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 01-1635

[Filed August 28, 2003]

MICHELLE BAZZETTA,

STACY BARKER, TONI BUNTON,

DEBRA KING, SHANTE ALLEN,

ADRIENNE BRANAUGH,

ALESIA BUTLER,TAMARA PRUDE,

SUSAN FAIR, VALERIE BUNTON,

and ARTURO BUNTON,

through his next friend Valerie Bunton,

on behalf of themselves and all others

similarly situated,

Plaintiffs- Appellees

KENNETH McGINNIS,

Director of Michigan Department

of Corrections and MICHIGAN

DEPARTMENT OF CORRECTIONS,

Defendants-Appellants.

)

3la

BEFORE: MERRITT, CLAY and GILMAN, Circuit Judges.

ORDER VACATING and REMANDING

In the above-styled case the Supreme Court of the United

States on June 16, 2003, reversed the decision of this Court

holding that certain Michigan prison regulations were invalid

on their face, but also reserving any argument that “an

individual claim based on indefinite withdrawal of visitation

or denial of procedural safeguards” would pass muster under

the First and Eighth Amendments as incorporated by the

Fourteenth Amendment. In light of the Supreme Court’s

holding in this case, the previous judgment of this Court is

vacated and the case remanded to the District Court for

further consideration in light of the Supreme Court opinion.

Accordingly, it is so ORDERED.

32a

APPENDIX G

SUPREME COURT OF THE UNITED STATES

No. 02-94

{Filed June 16, 2003]

WILLIAM OVERTON, DIRECTOR, )

MICHIGAN DEPARTMENT OF )

CORRECTIONS, et al., )

)

Petitioners )

)

Vv. )

)

MICHELLE BAZZETTA et al. )

)

JUDGES: Kennedy, J., delivered the opinion of the Court, in

which Rehnquist, C. J., and Stevens, O’Connor, Souter,

Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a

concurring opinion, in which Souter, Ginsburg, and Breyer,

JJ., joined. Thomas, J., filed an opinion concurring in the

judgment, in which Scalia, J., joined.

OPINION

The State of Michigan, by regulation, places certain

restrictions on visits with prison-inmates. The question before

the Court is whether the regulations violate the substantive

due process mandate of the Fourteenth Amendment, or the

33a

First or Eighth Amendments as applicable to the States

through the Fourteenth Amendment.

The population of Michigan’s prisons increased in the

early 1990's. More inmates brought more visitors, straining

the resources available for prison supervision and control. In

particular, prison officials found it more difficult to maintain

order during visitation and to prevent smuggling or trafficking

in drugs. Special problems were encountered with the

increase in visits by children, who are at risk of seeing or

hearing harmful conduct during visits and must be supervised

with special care in prison visitation facilities.

The incidence of substance abuse in the State’s prisons

also increased in this period. Drug and alcohol abuse by

prisoners is unlawful and a direct threat to legitimate

objectives of the corrections system, including rehabilitation,

the maintenance of basic order, and the prevention of violence

in the prisons.

In response to these concerns, the Michigan Department

of Corrections (MDOC or Department) revised its prison

visitation policies in 1995, promulgating the regulations here

at issue. One aspect of the Department’s approach was to

limit the visitors a prisoner is eligible to receive, in order to

decrease the total number of visitors.

Under the MDOC’s regulations, an inmate may receive

visits only from individuals placed on an approved visitor list,

except that qualified members of the clergy and attorneys on

official business may visit without being listed. Mich.

Admin. Code Rule 791.6609(2) (1999): Director’s Office

Mem. 1995-59 (effective date Aug. 25, 1995). The list may

34a

include an unlimited number of members of the prisoner’s

immediate family and ten other individuals the prisoner

designates, subject to some restrictions. Mich. Admin. Code

Rule 791 .6609(2) (1999). Minors under the age of 1% may

not be placed on the list unless they are the children,

stepchildren, grandchildren, or siblings of the inmate. Rule

791.6609(2)(b); Mich. Comp. Laws Ann. § 791.2684 (West

Supp. 2003). If an inmate’s parental rights have been

terminated, the child may not be a visitor. Rule

791.6609(6)(1) (1999). A child authorized to visit must be

accompanied by an adult who is an immediate family member

of the child or of the inmate or who is the legal guardian of

the child. Rule 791.6609(5); Mich. Dept. of Corrections

Procedure OP-SLF/STF-05.03.140, p 9 (effective date Sept.

15, 1999). An inmate may not place a former prisoner on the

visitor list unless the former prisoner is a member of the

inmate’s immediate family and the warden has given prior

approval. Rule 791.6609(7).

The Department’s revised policy also sought to control the

widespread use of drugs and alcohol among prisoners.

Prisoners who commit multiple substance-abuse violations are

not permitted to receive any visitors except attorneys and

members of the clergy. Rule 791.6609(11)(d). An inmate

subject to this restriction may apply for reinstatement of

visitation privileges after two years. Rule 791.6609(12).

Reinstatement is within the warden’s discretion. /bid.

The respondents are prisoners, their friends, and their

family members. They brought this action under Rev Stat

§ 1979, 42 USC § 1983 [42 USCS § 1983], alleging that the

restrictions upon visitation violate the First, Eighth, and

Fourteenth Amendments. It was certified as a class action

under Federal Rule of Civil Procedure 23.

35a

Inmates who are classified as the highest security risks, as

determined by the MDOC, are limited to noncontact

visitation. This case does not involve a challenge to the

method for making that determination. By contrast to contact

visitation, during which inmates are allowed limited physical

contact with their visitors in a large visitation room, inmates

restricted to noncontact visits must communicate with their

visitors through a glass panel, the inmate and the visitor being

On opposite sides of 2 booth. In some facilities the booths are

located in or at one side of the same room used for contact

visits. The case before us concerns the regulations as they

pertain to noncontact visits.

The United States District Court for the Eastern District

of Michigan agreed with the prisoners that the regulations

pertaining to noncontact visits were invalid. Bazzetta v.

McGinnis, 148 F. Supp. 2d 813 (2001). The Sixth Circuit

affirmed, 286 F.3d 311 (2002), and we granted certiorari,

537 U.S. 1043, 123 S. Ct. 658, 154 L. Ed. 2d 514 (2002).

The Court of Appeals agreed with the District Court that

the restrictions on noncontact visits are invalid. This was

error. We first consider the contention, accepted by the

Court of Appeals, that the regulations infringe a constitutional

right of association.

We have said that the Constitution protects “certain kinds

of highly personal relationships,” Roberts v. United States

Jaycees, 468 U.S. 609, 618, 619-620, 104S. Ct. 3244, 82 L.

Ed. 2d 462 (1984). And outside the prison context, there is

some discussion in our cases of a right to maintain certain

familial relationships, including association among members

of an immediate family and association between grandchildren

36a

and grandparents. See Moore v. East Cleveland, 431 U.S.

494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977) (plurality

opinion); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625,

67 L. Ed. 1042 (1923).

This is not an appropriate case for further elaboration of

those matters. The very object of imprisonment is

confinement. Many of the liberties and privileges enjoyed by

other citizens must be surrendered by the prisoner. An inmate

does not retain rights inconsistent with proper incarceration.

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

433 U.S. 119, 125, 97S. Ct. 2532, 53 L. Ed. 2d 629 (1977);

Shaw v. Murphy, 532 U.S. 223, 229, 121 S. Ct. 1475, 149 L.

Ed. 2d 420 (2001). And, as our cases have established,

freedom of assoc’ation is among the rights least compatible

with incarceration. See Jones, supra, at 125-126, 97 S. Ct.

2532, 53 L. Ed. 2d 629; Hewitt v. Helms, 459 U.S., 103 S.

Ct. 864 460, 74 L. Ed. 2d 675 (1983). Some curtailment of

that freedom must be expected in the prison context.

We do not hold, and we do not imply, that any right to

intimate association is altogether terminated by incarceration

or is always irrelevant to claims made by prisoners. We need

not attempt to explore or define the asserted right of

association at any length or determine the extent to which it

survives incarceration because the challenged regulations bear

a rational relation to legitimate penological interests. This

suffices to sustain the regulation in question. See Turner v.

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

(1987). We have taken a similar approach in previous cases,

such as Pell v. Procunier, 417 U.S. 817, 822, 94S. Ct. 2800,

41 L. Ed. 2d 495 (1974), which we cited with approval in

Turner. In Pell, we found it unnecessary to decide whether an

asserted First Amendment right survived incarceration. Prison

administrators had reasonably exercised their judgment as to

37a

the appropriate means of furthering penological goals, and

that was the controlling rationale for our decision. We must

accord substantial deference to the professional judgment of

prison administrators, who bear a significant responsibility for

defining the legitimate goals of a corrections system and for

determining the most appropriate means to accomplish them.

See, e.g., Pell, supra, at 826-827, 94 S. Ct. 2800, 41 L. Ed.

2d 495; Helms, supra, at 467, 103 S. Ct. 864, 74 L. Ed. 2d

675; Thornburgh v. Abbott, 490 U.S. 401, 408, 109 S. Ct.

1874, 104 L. Ed. 2d 459 (1989); Jones, supra, at 126, 128,

97 S. Ct. 2532, 53 L. Ed. 2d 629; Turner, supra, at 85, 89,

107 S. Ct. 2254, 96 L. Ed. 2d 64; Block v. Rutherford, 468

U.S. 576, 588, 104 S. Ct. 3227, 82 L. Ed. 2d 438 (1984);

Bell v. Wolfish, 441 U.S. 520, 562, 99 S. Ct. 1861, 60 L.

Ed. 2d 447 (1979). The burden, moreover, is not on the

State to prove the validity of prison regulations but on the

prisoner to disprove it. See Jones, supra, at 128, 97 S. Ct.

2532, 53 L. Ed. 2d 629; O’Lone v. Estate of Shabazz, 482

U.S. 342, 350, 107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987);

Shaw, supra, at 232, 121 S. Ct. 1475, 149 L. Ed. 2d 420.

Respondents have failed to do so here.

In Turner we held that four factors are relevant in

deciding whether a prison regulation affecting a constitutional

right that survives incarceration withstands constitutional

challenge: whether the regulation has a “‘valid, rational

connection’” to a legitimate governmental interest; whether

alternative means are open to inmates to exercise the asserted

right; what impact an accommodation of the right would have

on guards and inmates and prison resources; and whether

there are “ready alternatives” to the regulation. 482 U.S., at

89-91, 107 S. Ct. 2254, 96 L. Ed. 2d 64.

Turning to the restrictions on visitation by children, we

conclude that the regulations bear a rational relation to

38a

MDOC’s valid interests in maintaining internal security and

protecting child visitors from exposure to sexual or other

misconduct or from accidental injury. The regulations

promote internal security, perhaps the most legitimate of

penological goals, see, e.g., Pell, supra, at 823, 94S. Ct.

2800, 41 L. Ed. 2d 495, by reducing the total number of

visitors and by limiting the disruption caused by children in

particular. Protecting children from harm is also a legitimate

goal, see, e.g., Block, supra, at 586-587, 104 S. Ct. 3227, 82

L. Ed. 2d 438. The logical connection between this interest

and the regulations is demonstrated by trial testimony that

reducing the number of children allows guards to supervise

them better to ensure their safety and to minimize the

disruptions they cause within the visiting areas.

As for the regulation requiring children to be accompanied

by a family member or legal guardian, it is reasonable to

ensure that the visiting child is accompanied and supervised

by those adults charged with protecting the child’s best

interests.

Respondents argue that excluding minor nieces and

nephews and children as to whom parental rights have been

terminated bears no rational relationship to these penological

interests. We reject this contention, and in all events it would

not suffice to invalidate the regulations as to all noncontact

visits. To reduce the number of child visitors, a line must be

drawn, and the categories set out by these regulations are

reasonable. Visits are allowed between an inmate and those

children closest to him or her--children, grandchildren, and

siblings. The prohibition on visitation by children as to whom

the inmate no longer has parental rights is simply a

recognition by prison administrators of a status determination

made in other official proceedings.

39a

MDOC’s regulation prohibiting visitation by former

inmates bears a self-evident connection to the State’s interest

in maintaining prison security and preventing future crimes.

We have recognized that “communication with other felons is

a potential spur to criminal behavior.” Turner, supra, at 91-

92, 107 S. Ct. 2254, 96 L. Ed. 2d 64.

Finally, the restriction on visitation for insiiates with two

substance-abuse violations, a bar which may be removed after

two years, serves the legitimate goal of deterring the use of

drugs and alcohol within the prisons. Drug smuggling and

drug use in prison are intractable problems. See, e.g., Bell,

supra, at 559, 99 S. Ct. 1861, 60 L. Ed. 2d 447; Block,

supra, at 586-587, 104 S. Ct. 3227, 82 L. Ed. 2d 438;

Hudson v. Palmer, 468 U.S. 517, 527, 104 S. Ct. 3194, 82

L. Ed. 2d 393 (1984). Withdrawing visitation privileges is a

proper and even necessary management technique to induce

compliance with the rules of inmate behavior, especially for

high-security prisoners who have few other privileges to lose.

In this regard we note that numerous other States have

implemented similar restrictions on visitation privileges to

control and deter substance-abuse violations. See Brief for

State of Colorado et al. as Amici Curiae 4-9.

Respondents argue that the regulation bears no rational

connection to preventing substance abuse because it has been

invoked in certain instances where the infractions were, in

respondents’ view, minor. Even if we were inclined, though,

to substitute our judgment for the conclusions of prison

officials concerning the infractions reached by the regulations,

the individual cases respondents cite are not sufficient to

strike down the regulations as to all noncontact visits.

Respondents also contest the 2-year bar and note that

reinstatement of visitation is not automatic even at the end of

two years. We agree the restriction is severe. And if faced

40a

with evidence that MDOC’s regulation is treated as a de facto

permanent ban on all visitation for certain inmates, we might

reach a different conclusion in a challenge to a particular

application of the regulation. Those issues are not presented

in this case, which challenges the validity of the restriction on

noncontact visits in all instances.

Having determined that each of the challenged regulations

bears a rational relationship to a legitimate penological

interest, we consider whether inmates have alternative means

of exercising the constitutional right they seek to assert.

Turner, supra, at 90, 107 S. Ct. 2254, 96 L. Ed. 2d 64.

Were it shown that no alternative means of communication

existed, though it would not be conclusive, it would be some

evidence that the regulations were unreasonable. That

showing, however, cannot be made. Respondents here do

have alternative means of associating with those prohibited

from visiting. As was the case in Pell, inmates can

communicate with those who may not visit by sending

messages through those who are allowed to visit. 417 U.S.,

at 825, 94 S. Ct. 2800, 41 L. Ed. 2d 495. Although this

option is not available to inmates barred all visitation after

two violations, they and other inmates may communicate with

persons outside the prison by letter and telephone.

Respondents protest that letter-writing is inadequate for

illiterate immiates and for communications with young

children. ‘They say, too, that phone calls are brief and

expensive, so that these alternatives are not sufficient.

Alternatives to visitation need not be ideal, however; they

need only be available. Here, the alternatives are of sufficient

utility that they give some support to the regulations,

particularly in a context where visitation is limited, not

completely withdrawn.

4la

Another relevant consideration is the impact that

accommodation of the asserted associational right would have

on guards, other inmates, the allocation of prison resources,

and the safety of visitors. See Turner, 482 U.S., at 90, 107 S.

Ct. 2254, 96 L. Ed. 2d 64; Hudson, supra, at 526, 112 S. Ct.

995, 117 L. Ed. 2d 156 (visitor safety). Accommodating

respondents’ demands would cause a significant reallocation

of the prison system’s financial resources and would impair

the ability of corrections officers to protect all who are inside

a prison’s walls. When such consequences are present, we

are “particularly deferential” to prison administrators’

regulatory judgments. Turner, supra, at 90, 107 S. Ct. 2254,

96 L. Ed. 2d 64.

Finally, we consider whether the presence of ready

alternatives undermines the reasonableness of the regulations.

Turner does not impose a least-restrictive-alternative test, but

asks instead whether the prisoner has pointed to some obvious

regulatory alternative that fully accommodates the asserted

right while not imposing more than a de minimis cost to the

valid penological goal. 482 U.S., at 90-91, 107 S. Ct. 2254,

96 L. Ed. 2d 64. Respondents have not suggested alternatives

meeting this high standard for any of the regulations at issue.

We disagree with respondents’ suggestion that allowing

visitation by nieces and nephews or children for whom

parental rights have been terminated is an obvious alternative.

Increasing the number of child visitors in that way surely

would have more than a negligible effect on the goals served

by the regulation. As to the limitation on visitation by former

inmates, respondents argue the restriction could be time

limited, but we defer to MDOC’s judgment that a longer

restriction better serves its interest in preventing the criminal

activity that can result from these interactions. Respondents

suggest the duration of the restriction for inmates with

substance-abuse violations could be shortened or that it could

42a

be applied only for the most serious violations, but these

alternatives do not go so far toward accommodating the

asserted right with so little cost to penological goals that they

meet Turner’s high standard. These considerations cannot

justify the decision of the Court of Appeals to invalidate the

regulation as to all noncontact visits.

Ill

Respondents also claim that the restriction on visitation for

inmates with two substance-abuse violations is a cruel and

unusual condition of confinement in violation of the Eighth

Amendment. The restriction undoubtedly makes the prisoner’s

confinement more difficult to bear. But it does not, in the

circumstances of this case, fall below the standards mandated

by the Eighth Amendment. Much of what we have said

already about the withdrawal of privileges that incarceration

is expected to bring applies here as well. Michigan, like

many other States, uses withdrawal of visitation privileges for

a limited period as a regular means of effecting prison

discipline. This is not a dramatic departure from accepted

standards for conditions of confinement. Cf. Sandin v.

Conner, 515 U.S. 472, 485, 115 S. Ct. 2293, 132 L. Ed. 2d

418 (1995). Nor does the regulation create inhumane prison

conditions, deprive inmates of basic necessities or fail to

protect their health or safety. Nor does it involve the

infliction of pain or injury, or deliberate indifference to the

risk that it might occur. See, e.g., Estelle v. Gamble, 429

U.S. 97, 97S. Ct. 285, 50 L. Ed. 2d 251 (1976); Rhodes v.

Chapman, 452 U.S. 337, 101 S. Ct. 2392, 69 L. Ed. 2d 59

(1981). If the withdrawal of all visitation privileges were

permanent or for a much longer period, or if it were applied

in an arbitrary manner to a particular inmate, the case would

present different considerations. An individual claim based

on indefinite withdrawal of visitation or denial of procedural

43a

safeguards, however, would not support the ruling of the

Court of Appeals that the entire regulation is invalid.

** *

The judgment of the Court of Appeals is reversed.

It is so ordered.

CONCUR: Justice Stevens, with whom Justice Souter,

Justice Ginsburg, and Justice Breyer join, concurring.

Our decision today is faithful to the principle that “federal

courts must take cognizance of the valid constitutional claims

of prison inmates.” Turner v. Safley, 482 U.S. 78, 84, 107

S. Ct. 2254, 96 L. Ed. 2d 64 (1987). As we explained in

Turner:

“Prison walls do not form a barrier separating prison

inmates from the protections of the Constitution.

Hence, for example, prisoners retain the constitutional

right to petition the government for the redress of

grievances, Johnson v.. Avery, 393 U.S. 483 [89 S.

Ct. 747, 21 L. Ed. 2d 718] (1969); they are protected

against invidious racial discrimination by the Equal

Protection Clause of the Fourteenth Amendment, Lee

v. Washington, 390 U.S. 333 [88 S. Ct. 994, 19 L.

Ed. 2d 1212} (1968); and they enjoy the protections of

due process, Wolff v. McDonnell, 418 U.S. 539 (94S.

Ct. 2963, 41 L. Ed. 2d 935] (1974); Haines v.

Kerner, 404 U.S. 519 [92 S. Ct. 594, 30 L. Ed. 2d

652] (1972). Because prisoners retain these rights,

‘when a prison regulation or practice offends a

fundamental constitutional guarantee, federal courts

will discharge their duty to protect constitutional

442

rights.” Procunier v. Martinez, 416 U.S. 396, 405-

406 [94 S. Ct. 1800, 40 L. Ed. 2d 224].” Ibid.

It was in the groundbreaking decision in Morrissey v.

Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484

(1972), in which we held that parole revocation is a

deprivation of liberty within the meaning of the Due Process

Clause of the Fourteenth Amendment, that the Court rejected

the view once held by some state courts that a prison inmate

is a mere slave. See United States ex rel. Miller v. Twomey,

479 F.2d 701, 711-713 (CA7 1973). Under that rejected

view, the Eighth Amendment’s proscription of cruel and

unusual punishment would have marked the outer limit of the

prisoner’s constitutional rights. It is important to emphasize

that nothing in the Court’s opinion today signals a

resurrection of any such approach in cases of this kind. See

ante, at Overton v. Bazzetta, 539 U.S. 126, 123 S. Ct. 2162,

156 L. Ed. 2d 162, 170 (2003). To the contrary, it remains

true that the “restraints and the punishment which a criminal

conviction entails do not place the citizen beyond the ethical

tradition that accords respect to the dignity and intrinsic worth

of every individual.” 479 F.2d, at 712.

Justice Thomas, with whom Justice Scalia joins,

concurring in the judgment.

I concur in the judgment of the Court because I would

sustain the challenged regulations on different grounds from

those offered by the majority.

45a

The Court is asked to consider “whether prisoners have a

right to non-contact visitation protected by the First and

Fourteenth Amendments.” Brief for Petitioners i. In my

view, the question presented, as formulated in the order

granting certiorari, draws attention to the wrong inquiry.

Rather than asking in the abstract whether a certain right

“survives” incarceration, ante, at 156 L. Ed. 2d, at 170, the

Court should ask whether a particular prisoner’s lawful

sentence took away a right enjoyed by free persons.

The Court’s precedents on the rights of prisoners rest on

the implicit (and erroneous) presumption that the Constitution

contains an implicit definition of incarceration. This is

manifestly not the case, and, in my view, States are free to

define and redefine all types of punishment, including

imprisonment, to encompass various types of deprivations--

provided only that those deprivations are consistent with the

Eighth Amendment. Under this view, the Court’s precedents

on prisoner “rights” bear some reexamination.

When faced with a prisoner asserting a deprivation of

constitutional rights in this context, the Court has asked first

whether the right survives incarceration, Pell v. Procunier,

417 U.S. 817, 822, 94S. Ct. 2800, 41 L. Ed. 2d 495 (1974),

and then whether a prison restriction on that right “bears a

rational relation to legitimate penological interests.” Ante, at

156 L. Ed. 2d, at 170 (citing Turner v. Safley, 482 U.S. 78,

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

Pell and its progeny do not purport to impose a

substantive limitation on the power of a State to sentence a

46a

person convicted of a criminal offense to a deprivation of the

right at issue. For example, in Turner, the Court struck down

a prison regulation that forbade inmates from marrying absent

permission from the superintendent. 482 U.S., at 89, 94-99,

107 S. Ct. 2254, 96 L. Ed. 2d 64. Turner cannot be properly

understood, however, as holding that a State may not sentence

those convicted to both imprisonment and the denial of a

constitutional right to marry.” The only provision of the

Constitution that speaks to the scope of criminal punishment

is the Cruel and Unusual Punishment Clause of the Eighth

Amendment, and 7urner cited neither that Clause nor the

Court’s precedents interpreting it. Prisoners challenging their

sentences must, absent an unconstitutional procedural defect,

rely solely on the Eighth Amendment.

The proper inquiry, therefore, is whether a sentence

validly deprives the prisoner of a constitutional right enjoyed

by ordinary, law-abiding, persons. Whether a sentence

encompasses the extinction of a constitutional right enjoyed

by free persons turns on state law, for it is a State’s

prerogative to determine how it will punish violations of its

law, and this Court awards great deference to such

determinations. See, e.g., Payne v. Tennessee, 501 U.S.

808, 824, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991)

(“Under our constitutional system, the primary responsibility

for defining crimes against state law [and] fixing punishments

’ A prisoner’s sentence is the punishment imposed pursuant to state

law. Sentencing a criminal to a term of imprisonment may, under

state law, carry with it the implied delegation to prison officials to

discipline and otherwise supervise the criminal while he is

incarcerated. Thus, restrictions imposed by prison officials may

also be a part of the sentence, provided that those officials are not

acting ultra vires with respect to the discretion given them, by

implication, in the sentence.

47a

for the commission of these crimes . . . rests with the

States”); see also Ewing v. California, 538 U.S. ,__, 538

U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108, 2003 U.S.

LEXIS 1952 (2003) (opinion of O’CONNOR, J.) (slip op., at

12) (“Our tradition of deferring to state legislatures in making

and implementing such important [sentencing] policy

decisions is longstanding”).

Turner is therefore best thought of as implicitly deciding

that the marriage restriction was not within the scope of the

State’s lawfully imposed sentence and that, therefore, the

regulation worked a deprivation of a constitutional right

without sufficient process. Yet, when the resolution of a

federal constitutional issue may be rendered irrelevant by the

determination of a predicate state-law question, federal courts

should ordinarily abstain from passing on the federal issue.

Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 61

S. Ct. 643, 85 L. Ed. 971 (1941). Here, if the prisoners’

lawful sentences encompassed the extinction of any right to

intimate association as a matter of state law, all that would

remain would be respondents’ (meritless, see Part II, infra)

Eighth Amendment claim. Petitioners have not asked this

Court to abstain under Pullman, and the issue of Pullman

abstention was not considered below. As a result, petitioners

have, in this case, submitted to the sort of guesswork about

the meaning of prison sentences that is the hallmark of the

Turner inquiry. Here, however, Pullman abstention seems

unnecessary because respondents make no effort to show that

the sentences imposed on them did not extinguish the right

they now seek to enforce. And for good reason.

It is highly doubtful that, while sentencing each

respondent to imprisonment, the State of Michigan intended

to permit him to have any right of access to visitors. Such

access seems entirely inconsistent with Michigan’s goal of

48a

segregating a criminal from society, see Morrissey v. Brewer,

408 U.S. 471, 482, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)

(incarceration by design intrudes on the freedom “to be with

family and friends and to form the other enduring attachments

of normal life”); cf. Olim v. Wakinekona, 461 U.S. 238, 103

S. Ct. 1741, 75 L. Ed. 2d 813 (1983) (upholding

incarceration several hours of flight away from home).

Though the question of whether the State of Michigan

intended to confer upon respondents a right to receive visitors

is ultimately for the State itself to answer, it must nonetheless

be confronted in this case. The Court’s Turner analysis

strongly suggests that the asserted rights were extinguished by

the State of Michigan in incarcerating respondents.

Restrictions that are rationally connected to the running of a

prison, that are designed to avoid adverse impacts on guards,

inmates, or prison resources, that cannot be replaced by

“ready alternatives,” and that leave inmates with alternative

means of accomplishing what the restrictions prohibits, are

presumptively included within a sentence of imprisonment.

Moreover, the history of incarceration as punishment supports

the view that the sentences imposed on respondents terminated

any rights of intimate association. From the time prisons

began to be used as places where criminals served out their

sentences, they were administered much in the way Michigan

administers them today.

Incarceration in the 18th century in both England and the

Colonies was virtually nonexistent as a form of punishment.

L. Friedman, Crime and Punishment in American History 48

(1993) (hereinafter Friedman) (“From our standpoint, what is

most obviously missing, as a punishment [in the colonia:

system of corrections], is imprisonment”). Colonial jails had

49a

a very limited function of housing debtors and holding

prisoners who were awaiting trial. See id., at 49. These

institutions were generally characterized by “disorder and

neglect.” McGowen, The Well-Ordered Prison: England,

1780-1865, in The Oxford History of the Prison: The Practice

of Punishment in Western Society 79 (N. Morris & D.

Rothman eds 1995) (hereinafter McGowen). It is not

therefore surprising that these jails were quite permeable. A

debtor could come and go as he pleased, as long as he

remained within a certain area (“‘prison bounds’”) and

returned to jail to sleep. Friedman 49. Moreover, a prisoner

with connections could get food and clothing from the

outside, id., at 50; see also W. Lewis, From Newgate to

Dannemora: The Rise of the Penitentiary in New York, 1796-

1848, p 49 (1965) (hereinafter Lewis) (“Many visitors

brought the felons such items of contraband as rum, tools,

money, and unauthorized messages”). In sum, “there was

little evidence of authority,” McGowen 79, uniformity, and

discipline.

Prison as it is known today and its part in the penitentiary

system were “basically a nineteenth-century invention.”

Friedman 48. During that time, the prison became the

centerpiece of correctional theory, while whipping, a

traditional form of punishment in colonial times, fell into

disrepute. The industrialization produced rapid growth,

population mobility, and large cities with no well-defined

community; as a result, public punishments resulting in

stigma and shame wielded little power, as such methods were

effective only in small closed communities. /d., at 77.

The rise of the penitentiary and confinement as

punishment was accompanied by the debate about the Auburn

and Pennsylvania systems, both of which imposed isolation

from: fellow prisoners and the outside. D. Rothman, The

50a

Discovery of the Asylum 82 (1971) (hereinafter Rothman)

(“As both schemes placed maximum emphasis on preventing

the prisoners from communicating with anyone else, the point

of dispute was whether convicts should work silently in large

groups or individually within solitary cells”); id., at 95.

Although there were several justifications for such isolation,

they all centered around the belief in the necessity of

constructing a special setting for the “deviant” (i.e.,

criminal), where he would be placed in an environment

targeted at rehabilitation, far removed from the corrupting

influence of his family and community. /d., at 71; A. Hirsch,

The Rise of the Penitentiary: Prisons and Punishment in Early

America 17, 19, 23 (1992); cf. Friedman 77 (describing the

changing attitudes toward the origin of the crime). Indeed,

every feature of the design of a penitentiary--external

appearance, internal arrangement, and daily routine--were

aimed at achieving that goal. Rothman 79-80; see also id. , at

83.

Whatever the motives for establishing the penitentiary as

the means of combating crime, confinement became

standardized in the period between 1780 and 1865.

McGowen 79. Prisons were turned into islands of

“undeviating regularity,” Lewis 122, with little connection to

the outside, McGowen 108. Inside the prisons, there were

only prisoners and jailers; the difference between the two

groups was conspicuously obvious. /d., at 79. Prisoners’

lives were carefully regulated, including the contacts with the

outside. They were permitted virtually no visitors; even their

letters were censored. Any contact that might resemble

normal sociability among prisoners or with the outside world

became a target for controls and prohibitions. /d., at 108.

To the extent that some prisons allowed visitors, it was

not for the benefit of those confined, but rather to their

Sla

detriment. Many prisons offered tours in order to increase

revenues. During such tours, visitors could freely stare at

prisoners, while prisoners had to obey regulations

categorically forbidding them to so much as look at a visitor.

Lewis 124. In addition to the general “burden on the

convict’s spirit” in the form of “the galling knowledge that he

was in all his humiliation subject to the frequent gaze of

visitors, some of whom might be former friends or

neighbors,” presence of women visitors made the

circumstances “almost unendurable,” prompting a prison

physician to complain about allowing women in. /bid.

Although by the 1840's some institutions relaxed their

rules against correspondence and visitations, the restrictions

continued to be severe. For example, Sing Sing allowed

convicts to send one letter every six months, provided it was

penned by the chaplain and censored by the warden. Each

prisoner was permitted to have one visit from his relatives

during his sentence, provided it was properly supervised. No

reading materials of any kind, except a Bible, were allowed

inside. S. Christianson, With Liberty for Some: 500 Years of

Imprisonment in America 145 (1998). With such stringent

regimentation of prisoners’ lives, the prison “had assumed an

unmistakable appearance,” McGowen 79, one which did not

envision any entitlement to visitation.

Although any State is free to alter its definition of

incarceration to include the retention of constitutional rights

previously enjoyed, it appears that Michigan sentenced

respondents against the backdrop of this conception of

imprisonment.

52a

In my view, for the reasons given in Hudson v.

McMillian, 503 U.S. 1, 18-19, 112 S. Ct. 995, 117 L. Ed. 2d

156 (1992) (Thomas, J., dissenting), regulations pertaining to

visitations are not punishment within the meaning of the

Eighth Amendment. Consequently, respondents’ Eighth

Amendment challenge must fail.

53a

APPENDIX H

SUPREME COURT OF THE UNITED STATES

No. 02-94

{Filed December 2, 2002]

WILLIAM OVERTON, DIRECTOR,

MICHIGAN DEPARTMENT

OF CORRECTIONS

¥v.

)

“MICHELLE BAZZETTA, ET AL. )

)

JUDGES: Rehnquist, Stevens, O’Connor, Scalia, Kennedy,

Souter, Thomas, Ginsburg, Breyer.

OPINION

The petition for a writ of certiorari is granted limited to

the following Questions: 1. Whether prisoners have a right to

non-contact visitation protected by the First and Fourteenth

Amendments. 2. Whether the restrictions on non-contact

prison visitation imposed by the Michigan Department of

Corrections is reasonably related to legitimate penological

interests. 3. Whether the restrictions on non-contact prison

visitation imposed by the Michigan Department of Corrections

constitute cruel and unusual punishment in violation of the

Eighth Amendment.

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