Opposition Brief — Bazzetta v. Caruso (No. 05-1572)
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SEP 7 - 2006
No. 05-1572 | OFFICE OF THe OLBeaK
In the Supreme Court
of the Gnited States
MICHELLE BAZZETTA, et al
Petitioners,
V.
PATRICIA L. CARUSO, Director of Michigan
Department of Corrections; MICHIGAN
DEPARTMENT OF CORRECTIONS,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit
RESPONDENTS’ BRIEF IN OPPOSITION
Michael A. Cox
Attorney General
Thomas L. Casey
Solicitor General
Counsel of Record
P.O. Box 30212
Lansing, MI 48909
(517) 373-1124
Leo H. Friedman
Assistant Attorney General
Co-Counsel of Record -
Lisa C. Ward
Special Assistant Attorney General
Attorney for Respondents
i
QUESTION PRESENTED
Does an incarcerated felon in Michigan have a
constitutionally protected liberty interest in prison
visitation pursuant to the Fourteenth Amendment to the
United States Constitution?
ii
PARTIES TO THE PROCEEDING
This case involves an eleven-year-old controversy
between incarcerated felons, their visitors and the Michigan
Department of Corrections ("MDOC"). Petitioners include
eleven class representatives, on behalf of themselves and all
others similarly situated, including all inmates incarcerated by
MDOC and non-incarcerated potential visitors of MDOC
inmates. Respondents are the Michigan Department of
Corrections and the Director of the Michigan Department of
Corrections.
ili
TABLE OF CONTENTS
SR Re NI EER ciiceiticiiansconctvvesdicncetnbiineyainteisisieiction i
PARE Tse PO TEM PROC EIING occccsecesoscvcccerovencesverscososcvees ii
ee Fe TEE dhitihereskesesinsexsiritaminbinanisssonenctionn iv
Te A EE Se itiicesiassnenincnensenpiiedaeniahensnaatianens 1
REASONS FOR DENYING WRIT .............cscsscscscsssoersossesssees 5
1. Incarcerated felons in Michigan have no liberty
SRGRONE: FE GENER WRI, cacensisinioivinconiicvistademsteineninionaveeterepesseses 5
A. In Overton this Court held that incarcerated
felons have no liberty interest in prison visitation
under the Fourteenth Amendment. ........................006.. 8
B. Incarcerated felons in Michigan have no liberty
interest in prison visitation under the Due Process
Clause of the Fourteenth Amendment...................+ 11
CONCLUSION
iv
TABLE OF AUTHORITIES
Page
Cases
Austin v Wilkinson,
372 F 3d 346 (CA 6 2004),
affr in part, rev’d in part, 545 US 209; 125 S Ct 2384;
SR Be BRD ta cictinenisnsipincsisdacenasseanviedsntoertieteienes 4
Bazzetta v McGinnis,
148 F Supp 2d 813 (ED Mich 2001)............cessesesessesenees 1
Bazzetta v McGinnis,
FS PO Fd) hinitnicishctedsiervistcssatmneicaioniaennis 1
Bazzetta v McGinnis,
Oe ee ee OD ots poses vnisnsrhanehdnisinntiandinheocsdannnsens 3
Bazzetta v McGinnis,
EF Oe Fh DN) ices ccsccsicsonicsconticveteshinns 4,9, 15
Bd of Regents v Roth,
te iii Cpccntsssnascndaitoesainntcarqnnectnchiuinnaisaniiits 14
Caraballo-Sandoval v Honsted,
ee Oe TAE TOAh EE TSDG) ccccsesnccccvsininisétcssnannsvesncnssesavosinta 14
Copeland v Machulis,
Be Fe I 6 FIGS) vsccsccenvesnacciticrsonnpniossboanshaidiommnente 13
Freedman v Maryland,
Re CO is cascicbsstvcntininnbiontensonaaiownansicaiolanilmega 14
Hewitt v Helms,
ee CAO hrcisnectscncnnicnceicsinieenicimncumnnbinpabectiontnn 5
Hudson v Palmer,
4GB. US S17 (99G4) oc cievericosorescsccsassosersessoepcovascccossecceoessverense 6
Johnson v Avery,
SS CF CF) i sitnscreeernsisscesnsevvnevincnetccirviecimnantaeneitan 6
Ky Dept of Corrections v Thompson,
ATS 84 CIS rcistscceccescereavnsinceesiunnsinatniineds 5, 11, 14
Meachum v Fano,
Se Pe ee CP OU Pncek sisecisindtb cists decsignesiaininioniitbactntina 7,8
Montanye v Haymes,
ie REESE Ds aS IE en Ndr 7,11
Montayne v Haymes,
Ee EF re Se FFD aitisiahvsiicdothnciisanitnibiaeananitcoeataiis 7
Olim v Wakinekona,
Se Sa ND csisclihesicecspsnsnachinlunnicanietecinbinicanaet Fy the ae
O'Lone v Estate of Shabazz,
I Ue Se IIIS i iesiscrenicoscionscinabeipnasustisueses dias Mutptabiectatei 6
Overton v Bazzetta,
PE I IN GN ciciacinsstcininsiciikcaeintitecaptussmimanionbiondiniani passim
Pell v Procunier,
tac | SRRRREAERS SS ota ets Oman aon arm rniRi Eew RTC 6
Price v Johnston,
bs Sete Ameer Dee Romane be ee Bes en eG 6
Sandin v Conner,
a aA SM AP Nicci sncictivnibuniaccibpilncechiatiniissbiceinateamelcinaits passim
Santosky v Kramer,
ee EE Pe eR istiiccwscchicecnchschniicgiitegineceaaiaticnlpicciabcabstonaiis 14
Shaw v Murphy,
Pe i EB discdecsicdssinscchensceas ote dbcoeracdinomianieoasnccoansconmpaneiacin 6
Spear v Sowders,
GE ee AR BOD cesinccitictsieesntebiceciheclcsiiadtilancneistaiioa 13
Stanley v Illinois,
I eT Oe icaicctaneinsisisribseasseiantacasinctienitnimiasctatelines 14
Thornburgh v Abbott,
ooh costes oe Lg, SERINE oA EO PT 6
Turner v Safley,
kg i py MSEC Spear ne OMe errs! 2, 6, 14
Ware v Morrison,
Pe ee AG ID ices tchcevesetsiiccnciecoirnsnticeriens 13, 14
vi
Other Authorities ,
Merolli, Note and Comment, "Atypical and Significant
Hardship" Signals the Demise of State-Created Liberty
Interests for Prisoners, 15 St. Louis U Pub L Rev 93
STATEMENT OF THE CASE
On Jur .° , 2003, this Court unanimously reversed the
April 10, 2002 vp sion of the United States Court of Appeals for
the Sixth Circuit,' in its entirety.” Rather than repeat the lengthy
and complex history in this case, Respondents rely on the factual
and procedural background set forth in Overton.’ In its decision,
this Court held that MDOC’s 1995 prison visitation restrictions,
as they pertain to non-contact visits, did not violate the First,
Eighth, or Fourteenth Amendments to the United States
Constitution. On August 28, 2003, in accordance with this
Court's decision, the Court of Appeals vacated its decision
affirming the District Court's April 19, 2001 Findings of Fact and
Conclusions of Law,* and remanded the case back to the lower
court for further consideration in light of this Court's decision.”
On September 29, 2003, the District Court held a status
conference in which Petitioners took the position that the District
Court's determination that MDOC's ban on visitation for a
minimum of two years for any inmate found guilty of two or
more major misconducts for substance abuse violated the
Fourteenth Amendment, was still valid i in spite of the unanimous
reversal by this Court in Overton.® After the parties briefed the
issue, and the District Court heard argument by both sides, the
District Court determined that because this Court did not
specifically grant Respondents’ writ of certiorari on the
procedural due process issue, Petitioners’ claim of procedural te
process violations and the District Court's findings an
conclusions on that issue were still valid after Overton. oa
regard to Petitioners’ assertion that the District Court had the
authority to enforce its May 16, 2002 Order of Compliance in
' Bazzetta v McGinnis, 286 F 3d 311 (CA 6 2002).
? Overton v Bazzetta, 539 US 126 (2003).
> Overton, 539 US 126.
* Bazzetta v McGinnis, 148 F Supp 2d 813 (ED Mich 2001).
> Pet, App. pp. 30a-31a.
Overton, 539 US 126.
7 Overton, 539 US 126.
spite of Overton,® the District Court agreed with Petitioners’
position, and scheduled a conference with Counsel to discuss
implementation of specific provisions of the May 16, 2002 Order
of Compliance.’
Prior to the scheduling conference, Respondents filed a
motion requesting an evidentiary hearing in the District Court. In
their motion, Respondents argued that in order for the lower court
to have the authority to enforce its May 16, 2002 Order of
- Compliance based on Petitioners' procedural due process
argument, it had to find that inmates in Michigan have a liberty
interest in prison visitation. Because the District Court's finding
that MDOC's substance abuse visitation restriction policy was
unique among state prison systems was no longer valid after
Overton,'® the District Court's conclusion that MDOC's policy
imposed an atypical and significant hardship on inmates, and
thus, violated the Fourteenth Amendment, was reversible error.
Sandin v Connor.’ Petitioners opposed Respondents' request for
an evidentiary hearing by taking the position that incarcerated
felons have a liberty interest in prison visitation pursuant to the
First Amendment right to intimate association.
The District Court issued an Order Denying Defendants’
Motion for Evidentiary Hearing and Certifying Interlocutory
Appeal Pursuant to 28 USC § 1292(b).'* The District Court ruled
that Petitioners’ procedural due process claim was not barred by
Overton,'® because the Supreme Court relied on Turner v
Safley,'* which only applies if a constitutional right is at issue.
However, the District Court did certify the issue of whether
inmates in Michigan have a liberty interest in prison visitation for
8 Overton, 539 US 126.
* Res. App. pp. 17b-32b.
10 Overton, 539 US 126.
1 sandin v Conner, 515 US 472 (1995).
12 det. App. pp. 24a-26a.
'3 Overton, 539 US 126.
14 Turner v Safley, 482 US 78 (1987).
appeal. Respondents’ Petition for Permission to Appeal was
timely filed pursuant to 28 USC § 1292(b) on February 20, 2004.
On March 2, 2004, Petitioners filed their Brief in Opposition to
the Petition for Permission to Appeal.
On June 10, 2004, the Court of Appeals entered an Order
denying Respondents’ Petition for Permission to Appeal as
unnecessary and treating the petition as a timely filed notice of
appeal pursuant to 28 USC § 1292(a)(1).'° The Court of Appeals
issued its decision reversing the District Court's December 23,
2003 opinion and order that had denied Respondents’ motion for
summary judgment regarding the procedural due process issue
and had granted Petitioners’ motion to enforce compliance of the
District Court's May 16, 2002 Order of Compliance.'® As support
for its decision, the Court of Appeals noted that, although the
Supreme Court did not grant certiorari on the procedural due
process issue, based on its analysis of the "unusual" component of
the Eighth Amendment's prohibition against cruel and unusual
punishment and its determination that MDOC's substance abuse
visitation restriction policy at issue was not a "dramatic departure
from acceptable standards for conditions of confinement," the
Supreme Court implicitly ruled that inmates in Michigan do not
have a liberty interest in prison visitation."’
Petitioners’ Petition for Rehearing with Suggestion for En
Banc Review was filed in the Court of Appeals on September 26,
2005. In their petition, Petitioners argued that the Court of
Appeals erred when it held that this Court had already addressed
the procedural due process issue in Overton, and that the Overton
decision was inconsistent with the District Court's ruling that its
May 16, 2002 Order of Compliance was still valid, after this
Court's unanimous reversal of the lower courts' decisions in
Overton. Although it was not included as an issue in
Respondents’ appeal of right, Petitioners also argued that the
'S Pet, App. pp. 21a-23a.
'© Bazzetta v McGinnis, 423 F3d 557 (CA 6 2005). Res. App. pp. 1b-16b.
'” Overton, 539 US 126, and Sandin, 515 US 472.
Court of Appeals erred when it did not address the issue of
whether minor children can be accompanied by an adult
immediate family member of the prisoner or the child. After
Respondents filed a response opposing Petitioners’ petition, the
Court of Appeals issued an Amended Opinion and an Amended
Judgment.” A review of the Court of Appeals’ Amended
Opinion reveals that the only substantive change from its
September 13, 2005 Opinion was in the conclusion."’ In its
Amended Opinion, the | Court of Appeals clarified that this Court's
decision in Overton,” foreclosed Petitioners’ procedural due
process claim, and therefore, the District Court abused its
discretion when it refused to dissolve its May 16, 2002 Order of
Compliance. In addition, on that same day, the Court of Appeals
issued a letter requesting that Counsel for Petitioners determine
whether the Suggestion for En Banc Review be withdrawn.
On December 12, 2005, Petitioners filed a Memorandum
of Law in Supplemental Support of En Banc Review. In their
Memorandum of Law, Petitioners raised exactly the same issues
that they had raised in their September 26, 2005 Petition for
Rehearing with Suggestion for En Banc Review.”’ The Court of
Appeals’ Order denying Petitioners' Suggestion for Rehearing En
Banc and their petition for rehearing was entered on March 9,
18 Bazzetta v McGinnis, 430 F 3d 795 (CA 6 2005). Pet. App. pp. 3a-20a.
'9 Bazzetta, 430 F 3d at 805. Pet. App. pp. 20a.
20 Overton, 539 US 126.
21 nan attempt to find some other basis for complying with the requirement of
FRAP 35, Petitioners argued that the panel's September 13, 2005 decision was
in conflict with another d=-ision of this Court, Austin v Wilkinson, 372 F 3d
346 (CA 6 2004), aff’r in part, rev'd in part, 545 US 209; 125 S Ct 2384; 162
L ED 2d 174 (2005). However, Austin involved a liberty interest that was
created by Ohio state regulations concerning the placement of a small
percentage of inmates -- "the worst of the worst" -- in Ohio's only super
maximum facility. In contrast, the Michigan substance abuse visitation
restriction policy applies to prisoners generally, unlike the "supermax"
condition at issue in Austin. There is absolutely no dispute in this case that
neither Michigan state statutes nor MDOC's regulations create a liberty interest
in prison visitation.
2006.” Petitioners' March 14, 2006 Motion to Stay the Mandate
was denied by the Court of Appeals on March 24, 2006. This
Court denied Petitioners' March 31, 2006 Application for Stay of
Mandate by letter on April 5, 2006. Petitioners’ Petition for Writ
of Certiorari was filed on June 6, 2006.
REASONS FOR DENYING WRIT
As set forth below, this Court has never held that an
incarcerated felon has a constitutionally protected liberty interest
in prison visitation pursuant to the Fourteenth Amendment of the
United States Constitution. In addition, the November 28, 2005
Amended Opinion of the Court of Appeals is not in conflict with
a decision of any other courts of appeal. Therefore, the
November 28, 2005 Amended Opinion of the Court of Appeals
was correct and this Court should deny Petitioners’ Petition for
Writ of Certiorari.
I. Incarcerated felons in Michigan have no liberty
interest in prison visitation.
The Fourteenth Amendment protects an individual from
being deprived of life, liberty or property, without di process of
law. A due process claim is examined in two steps. First, the
Court must first ask whether the individual possess a liberty or
property interest which has been interfered with by the State.
Second, the Court must ask ‘whether the procedures attendant
upon that deprivation were constitutionally sufficient.~> Thus, in
order for the District Court to have the authority to require
Respondents to make any changes to their substance abuse
visitation restriction policy, it must first find that inmates in
Michigan have a liberty interest in prison visitation.
In evaluating claims of constitutional rights by prison
inmates, it is important to always bear in mind the special
22 pet. App. pp. la-2a.
Ky Dept of Corrections v Thompson, 490 US 454, 459-460 (1989) (citing
Hewitt v Helms, 459 US 460, 472 (1983)).
principles that apply in the unique prison context. Although
"[p]rison walls do not form a barrier separating prison inmates
from the protections of the Constitution," Turner v Safley,“
"imprisonment carries with it the circumscription or loss of many
significant rights." Hudson v Palmer’ ("prisoners have no
legitimate expectation of privacy and .. . the Fourth
Amendment's prohibition on unreasonable searches does not
apply in prison cells"). "The curtailment of certain rights is
necessary, aS a practical matter, to accommodate a myriad of
‘institutional needs and objectives’ of prison facilities, Wolff v
McDonnell, [418 US 539, 555 (1974)], chief among which is
internal security, see Pell v Procunier, [417 US 817, 823
(1974)}."*° "Lawful incarceration brings about the necessary .
withdrawal or limitation of many privileges and rights,” Pell.~’
There can be no dispute that inmates retain many of the
protections of the First Amendment, such as rights to free
expression, Thornburgh v Abbott’; to petition the government for
the redress of grievances, Johnson v Avery”’; and to free exercise
of religion, O'Lone v Estate of Shabazz.” But even "{iJn the First
Amendment context . . . some rights are inconsistent with the
status of a prisoner," Shaw v Murphy,”' 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."*”
The "ordinary incidents of prison life” include conditions
that impair visitation. "[T]he Due Process Clause does not
4 Turner, 482 US at 84.
25 Hudson v Palmer, 468 US 517, 524, 530 (1984).
* Hudson, 468 US at 524.
27 Pell vy Procunier, 417 US 817, 822 (1974) (quoting Price v Johnston, 334
US 266, 285 (1948)).
Thornburgh v Abbott, 490 US 401, 407 (1989).
29 Johnson v Avery, 393 US 483 (1969).
3° O'Lone v Estate of Shabazz, 482 US 342, 348 (1987).
3 Shaw v Murphy, 532 US 223, 229 (2001).
32 ell, 417 US at 822; Turner, 482 US at 95.
protect every change in the conditions of confinement having a
substantial adverse impact on the prisoner."*> The Due Process
Clause liberty interest of a duly convicted prison inmate is not
infringed when he is transferred 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.”
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."”° 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."*° Analysis of "the nature of the interest involved .
compels the conclusion" that such a 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."”
In Meachum v Fano,” this Court explicitly acknowledged
that protected liberty interests could spring from two discrete
sources. Not only could a state independently establish a
protected liberty interest on the basis of State law, but if the
conditions of confinement are egregious, a liberty interest could
arise from the Due Process Clause itself. Moreover, in
Meachum,”” this Court noted that not all changes in conditions of
confinement that have a substance adverse impact on prisoners is
33 sandin, 515 US at 478.
4 Meachum v Fano, 427 US 215, 228 (1976); Montanye v Haymes, 427 US
236 (1976); Olim v Wakinekona, 461 US 238 (1983).
., Meachum, 427 US at 225.
36 Montanye, 427 US at 242, n 4 (quoting from the Court of Appeals decision,
305 F 2d 977, 981 (CA 2 1974)).
», Oli, 461 US at 248.
38 Meachum, 427 US 215.
™ Meachum, 427 US 215.
sufficient to invoke the protections of the Due Process Clause.””
Petitioners have not alleged the existence of a State-created
liberty interest in prison visitation and, neither Michigan statutes
nor Michigan's 1995 prison visitation regulations create such a
liberty interest. Therefore, in order for Petitioners to prevail on
this issue, this Court would have to find that the Due Process
Clause of the Fourteenth Amendment, itself, is the source of a
liberty interest with regard to incarcerated felons and prison
visitation.
A. In Overton this Court held that incarcerated felons
have no liberty interest in prison visitation under
the Fourteenth Amendment.
In its June 16, 2003 decision, this Court addressed various
procedural aspects of MDOC's 1995 visitation restrictions
imposed as a result of two or more substance abuse misconducts.
Not only did this Court acknowledge that reinstatement of
visitation was entirely within the warden's discretion, but it also
noted that the substance abuse misconducts at issue may involve
"minor" infractions of the rules*':
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 respondent's 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 non contact visits.
Respondents also contest the 2-year bar and note
40 Meachum, 427 US at 224. For a good analysis of Supreme Court decisions
issued prior to Sandin, see: Merolli, Note and Comment, "Atypical and
Significant Hardship" Signals the Demise of State-Created Liberty Interests for
Prisoners, 15 St. Louis U Pub L Rev 93 (1995).
*' Overton, 539 US 15 134.
that reinstatement of visitation is not automatic
even at the end of two years. We agree the
restriction is severe. And if faced with evidence
that MDOC's regulation is treated 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 non contact visits in all instances.
(Emphasis added). .
Thus, it is simply untrue that this Court's decision did not deal
with Petitioners' claim that MDOC's 1995 visitation restrictions
violated Petitioners’ rights to procedural due process. Although
the questions presented to this Court for review did not
specifically include the procedural due process claim, both parties
briefed the issue and this Court reversed the lower courts' rulings
that Respondents violated Petitioners’ procedural due process
rights. In addition, this Court noted that the lower courts’ rulings
in this case would not support an “individual claim" of a
procedural due process violation "based on indefinite withdrawal
of visitation."*
The Court of Appeals' review of Overton in its November
28, 2005 Amended Opinion, reveals that the Court of Appeals
was correct when it determined that this Court ruled that MDOC's
substance abuse visitation restriction policy did not implicate a
liberty interest under the Due Process Clause of the Fourteenth
Amendment.”
*? Overton, 539 US at 137. The fact that the Court of Appeals quoted this
same language in its August 28, 2003 Order Vacating and Remanding does not
change the fact that Petitioners' Third Amended Complaint does not raise "an
individual claim based on indefinite withdrawal of visitation or denial of
procedural safeguards." Pet. App. pp. 30a-31a.
> Bazzetta, 430 F 3d at 795. Pet. App. pp. 3a-20a.
10
In Overton this Court said“:
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 Connor, 515 U.S. 472, 485, 132 L. Ed2d
418, 115 S. Ct. 2293 (1995). ... 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.
Therefore, the Court of Appeals' November 28, 2005 Amended
Opinion was correct in determining that this Court's unanimous
reversal of the lower courts’ rulings that MDOC's 1995 visitation
restrictions violated Plaintiffs' procedural due process rights
because the policy was not a dramatic departure from accepted
standards for conditions of confinement. Thus, Petitioners’
procedural due process claims are without merit and their Petition
for Writ of Certiorari should be denied.
4 Overton, 539 US at 136-137.
11
B. Incarcerated felons in Michigan have no liberty
interest in prison visitation under the Due Process
Clause of the Fourteenth Amendment.
In Ky Dept of Corrections v Thompson,” this Court
upheld prison regulations that precluded certain persons from
visiting with incarcerated felons, determining that there is no
Fourteenth Amendment right to prison visitation.
Respondents do not argue - nor can it seriously be
contended, in light of our prior cases - that an
inmate's interest in unfettered visitation is
guaranteed directly by the Due Process Clause.
We have rejected the notion that any change in the
conditions of confinement having a substantial
adverse impact on the prisoner involved is
sufficient to invoke the protections of the Due
Process Clause. . . . The denial of prison access to
a particular visitor is well within the terms of
confinement ordinarily contemplated by a prison
sentence, Hewitt v Helms, 459 US at 468; 74 L Ed
2d 675; 103 S Ct 864, and therefore is not
independently protected by the Due Process
Clause.*°
Previously in Olim v Wakinekona,*’ this Court held that the
transfer of a state prisoner from Hawaii to California did not
violate the Due Process Clause and that Hawaii's prison
regulations regarding transfers did not create a protected liberty
interest under the Fourteenth Amevsimeat. "Respondent's
argument to the contrary is unpers.* ve. The Court in
Montanye® took note that among the haruships that may result
45 Kentucky, 490 US at 454.
“© Kentucky, 490 US at 460-461.
*7 Olim, 461 US 238.
” Montayne, 427 US 23.
ie
from a prison transfer are separation of the inmate from home and
family, separation from inmate friends, placement in a new and
possibly hostile environment, difficulty in making contact with
counsel, and interruption of educational and rehabilitative
programs. ... These are the same hardships respondent faces as a
result of his transfer from Hawaii to California."*”
Recently, in Sandin, this Court refused to find that any
State action taken for a punitive reason encroaches upon a liberty
interest protected by the Due Process Clause of the Fourteenth
Amendment:
The punishment of incarcerated prisoners, on the
other hand, serves different aims than those found
invalid in Bell and Ingraham. The process does
not impose retribution in lieu of a valid
conviction, nor does it maintain physical control
over free citizens forced by law to subject
themselves to state control over the educational
mission. It effectuates prison management and
prisoner rehabilitation goals. . . .
Discipline by prison officials in response to a
wide range of misconduct falls within the
expected perimeters of the sentence imposed by a
court of law.
The exact issue before the Supreme Court in Sandin was whether
punishment imposed pursuant to Hawaii's regulations regarding
prison discipline created a liberty interest protected under the
Fourteenth Amendment. The minimum two-year prison visitation
ban at issue in this case is also imposed as the result of a prison
disciplinary proceeding.”
49 Olim, 461 US at 248.
50 it should be noted that the Court of Appeals has already determined that
MDOC's misconduct hearing process meets the requirements of the Due
13
In Sandin, *' this Court specifically addressed the question
whether disciplinary confinement of inmates itself implicates
constitutional liberty interests. The conditions of such
confinement were "concededly punitive" but the case "does not
present a dramatic departure from the basic conditions of
Connor's indeterminate sentence," so the Court held that
"discipline in segregated confinement did not present the type of
atypical, significant deprivation in which a State might
conceivably create a liberty interest."°” "The regime to which he
was subjected as a result of the misconduct hearing was within
the range of confinement to be normally expected" for one
serving such a prison sentence.”°
The Court of Appeals has not directly addressed the issue
of whether an incarcerated felon in Michigan has a
constitutionally protected liberty interest in prison visitation
pursuant to the Due Process Clause of the Fourteenth Amendment
to the United States Constitution. However, in Spear v
Sowders,™ the Court of Appeals noted that a person seeking to
enter a penal institution to visit an inmate does not have the same
constitutional rights as that person would have on a public street
or in his or her home. "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."* In addition, the other
circuits that have addressed the issue of whether there is a liberty
interest in prison visitation have determined that the Due Process
Clause of the Fourteenth Amendment does not protect an inmate's
right to visitation.”° "Ware's loss of visitation privileges is within
Process Clause of the Fourteenth Amendment. Copeland v Machulis, 57 F 3d
S76 (CA 6 1995).
=, Sandin, 515 US at 485.
** Sandin, 515 US at 485.
», Sandin, 515 US at 487.
= Spear v Sowders, 71 F 3d 626 (CA 6 1995).
® Spear, 71 F 3d at 629-630 (citations omitted).
© Warev Morrison, 276 F 3d 385 (CA 8 2002).
14
the ordinary incidents of confinement and cannot be considered
an atypical and significant hardship.... We agree with the
Eleventh Circuit in Caraballo-Sandoval and we hold that Ware
had no constitutionally protected interest implicated by the
suspension of his visitation privileges.""’ See also, Caraballo-
Sandoval v Honsted,* where the Eleventh Circuit upheld the
denial of visitation for two years to an inmate and his visitor who
misled prison authorities about their relationship.
As set forth above, in this case there is absolutely no
dispute that MDOC's prison regulations regarding visitation do
not create a liberty interest in prison visitation protected by the
Fourteenth Amendment. In its February 11, 2004 Order, the
District Court determined that MDOC's substance abuse visitation
restriction policy must involve a constitutionally protected liberty
interest, or this Court's analysis under Turner, ® in Overton v
Bazzetta,” would have been superfluous. As support for its
February 11, 2004 Order, the District Court referred to prior
decisions of this Court dealing with constitutionally protected
liberty interests.°’ However, none of the cases cited by the
District Court involved incarcerated felons. This error by the
District Court is critical because this Court has repeatedly upheld
prison policies that would be unconstitutional if applied to free
citizens.” A review of prior decisions of this Court involving
prisoners reveals that the Court has never held that the Due
Process Clause of the Fourteenth Amendment itself creates a
constitutionally protected liberty interest in prison visitation.” In
addition, none of the other circuit courts that have addressed this
*” Ware, 276 F 3d at 387-388.
58 Caraballo-Sandoval v Honsted, 35 F 3d 521 (CA 11 1994).
» Turner, 482 US 78.
© Overton, 539 US 126.
®' Bet. App. pp. 24a-26a.
62 Bd of Regents v Roth, 408 US 564, 572-73 (1972); Santosky v Kramer, 455
US 745 (1982); Stanley v Illinois, 405 US 645 (1972); and Freedman v
Maryland, 380 US 51 (1965).
- Kentucky, 490 US at 454.
15
issue have found a liberty interest in prison visitation protected by
the Due Process Clause of the Fourteenth Amendment.
Defendants submit that given this Court's holding in
Overton, that MDOC's substance abuse visitation restriction
policy is not a dramatic departure from accepted standards for
conditions of confinement. The Court of Appeals’ November 28,
2005 Opinion was correct when it determined that incarcerated
felons in Michigan have no liberty interest in prison visitation
under the Due Process Clause of the Fourteenth Amendment.
"Although the substance abuse regulation at .“sue here is ‘severe,’
see Overton, 539 US 126 at 134, ... 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."™
This Court also failed to find that incarcerated felons have a
liberty interest in prison visitation under the Fourteenth
Amendment. Thus, the District Court had no authority to
require Defendants to make any changes to MDOC's substance
abuse visitation restriction policy. Therefore, the November 28,
2005 Amended Opinion of the Court of Appeals reversing the
February 11, 2004 Order of the District Court was correct and this
Court should deny Petitioners’ Petition for Writ of Certiorari.
® Bazzetta, 430 F 3d 795. Pet. App. pp. 3a-20a.
® Overton, 539 US 126.
16
CONCLUSION
The petition for writ of certiorari should be denied.
Dated: September 2006
Respectfully submitted
Michael A. Cox
Attorney General
Thomas L. Casey
Solicitor General
Counsel of Record
P.O. Box 30212
Lansing, MI 48909
(517) 373-1124
Leo H. Friedman
Assistant Attorney General
Co-Counsel of Record
Lisa C. Ward
Special Assistant Attorney General
Attorney for Respondents
SS
APPENDIX
II.
-ib-
TABLE OF CONTENTS
Page
Opinion of U.S. Court of Appeals for the Sixth
Circuit
Decided September 13, 2005
Bazzetta, et al. v. McGinnis, et al.
Ae Sey PIP AINIIE vccaninieicineiniiuaicinicjabenebusiiciunieteenmpenmneneuie 1b
Opinion and Order of U.S. District Court for the
Eastern District of Michigan
Decided December 23, 2003
Bazzetta, et al. v McGinnis, et al.
CE a Sr Re vinesscsindinincisavsednaninnnecatutinieviniiatisis 17b
-1b-
MICHELLE BAZZETTA, et al.,
Plaintiffs-Appellees, v. KENNETH
MCGINNIS, Director of Michigan
Department of Corrections;
MICHIGAN DEPARTMENT OF
CORRECTIONS, Defendants-
Appellants.
No. 04-1823
UNITED STATES COURT OF
APPEALS FOR THE SIXTH
CIRCUIT
June 8, 2005, Argued
September 13, 2005, Decided
September 13, 2005, Filed
COUNSEL: ARGUED: Lisa C. Ward, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellants.
Deborah A. LaBelle, LAW OFFICES OF DEBORAH
LaBELLE, Ann Arbor, Michigan, for Appellees.
ON BRIEF: Lisa C. Ward, Leo H. Friedman, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellants.
Deborah A. LaBelle, Patricia A. Streeter, LAW OFFICES OF
DEBORAH LaBELLE, Ann Arbor, Michigan, Michael J.
Barnhart, Detroit, Michigan, for Appellees.
JUDGES: Before: CLAY and SUTTON, Circuit Judges;
OBERDORFER, District Judge. *
* The Honorable Louis F. Oberdorfer, United States
District Judge for the District of Columbia, sitting by
designation.
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OPINIONBY: Louis F. Oberdorfer
OPINION:
OBERDORFER, 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, 156 L.
Ed. 2d 162, 123 S. Ct. 2162 (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.
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
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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 "two 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]
representatives, [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. Jd.
In August 1995, the plaintiffs, a class of prisoners
incarcerated by MDOC, and their prospective visitors,
challenged the substance abuse regulation on its face. n1 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 crue] and unusual punishment prohibited by the
Eighth Amendment, and (3) violated the prisoners' Fourteenth
Amendment procedural due process rights/Jd. at 845-58. The
case proceeded to a bench trial and, on April 19, 2001, the
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district court held that the regulations violated the prisoners’
rights under the First, Eighth and Fourteenth Amendments. Id.
nl 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.
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 prisoners
derive a liberty interest from the state-issued substance abuse
regulation. Jd. Accordingly, it analyzed the regulations under
the formulation established by the Supreme Court in Sandin v.
Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293
(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." Id. 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
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the length of confinement but found that they create "an
unusually harsh and punitive environment for the prisoners
restricted." Id. at 858. Further, it found significant that the
restriction on visitation is permanent -- “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."
Id.
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." /d. at 857 (citing Hewitt v. Helms,
459 U.S. 460, 472, 74 L. Ed. 2d 675, 103 S. Ct. 864 (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 "the 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
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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. 7d. 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 "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."
Id. at 131-32; see also id. at 134 ("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."). The Court also held that the
withdrawal of visitation privileges did not “fall below the
standards mandated by the Eighth Amendment." Id. 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 "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." Id. at 137. It concluded,
however, that "an individual claim based on _ indefinite
-Tb-
withdrawal of visitation or denial of procedural safeguards . .
would not support [a] ruling . . . that the entire regulation is
invalid.” Id.
On August 26, 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 .. . ." Id. (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. Id.
On October 15, 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 implementation of the
permanent ban on visitation. /d. Further, the district court
rejected MDOC's mootness claim, holding that "‘it is well
-8b-
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.” n2 Jd. at 189 (quoting
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 528
U.S. 167, 189, 145 L. Ed. 2d 610, 120 S. Ct. 693 (2000)
(internal quotations omitted)).
n2 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.
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 20, 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
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. § 1291(a)(1). Id. We now
entertain that appeal.
-9b-
iI, 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. "Those who seek to invoke its procedural protection must
establish that one of these interests is at stake." Wilkinson v.
Austin, 162 L. Ed. 2d 174, 125 S. Ct. 2384, 2393 (2005).
Accordingly, a procedural due process analysis addresses two
questions. "The 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, 104 L. Ed. 2d
506, 109 S. Ct. 1904 (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, 82 L. Ed. 2d 393, 104 S.
Ct. 3194 (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." Id. at 524 (internal citations
omitted). Accordingly, not every "action taken for a punitive
reason encroac’es upon a liberty interest under the Due
Process Clause ..." Sandin, 515 U.S. at 484.
Prisoners, however, retain a "residuum of constitutionally
protected liberty," Thompson, 490 U.S. at 466 (Marshall, J.,
dissenting); see Meachum v. Fano, 427 U.S. 215, 224, 49 L.
Ed. 2d 451, 96 S. Ct. 2532 (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.
-10b-
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”
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), gaff's, 515 U.S. 753, 132 L. Ed. 2d 650, 115 S. Ct. 2440
(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).
-11b-
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.
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 statement 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." 575 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
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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).
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
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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
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 “an 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.
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Ill, CONCLUSION
For the foregoing reasons, we hold that the district court
abused its discretion in refusing to dissolve its May 16, 2002
order of compliance in light of the decision of the Supreme
Court in Overton. We REVERSE the district court's December
23, 2003 opinion and order denying MDOC's motion for
summary judgment and granting the plaintiffs’ motion to
enforce compliance 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.
-17b-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Bazetta, et. al.,
Plaintiffs, Case No. 95-73540
v. Honorable Nancy G. Edmunds
McGinnis, et. al.,
Defendants.
OPINION AND ORDER (1) DENYING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT; (2) GRANTING
PLAINTIFFS' MOTION TO
ENFORCE COMPLIANCE; AND (3) DENYING
DEFENDANTS' MOTION
TO PLACE ATTORNEY FEES IN ESCROW
This matter came before the Court on three motions:
(1) Defendants’ third motion for summary judgment; (2)
Plaintiffs’ motion to enforce compliance; and (3) Defendants’
motion to place attorneys’ fees in escrow. Defendants' motion
for summary judgment is DENIED because the Supreme
Court's ruling in this case did not overturn this Court's
judgment as to Plaintiffs' procedural due process claim.
Plaintiffs' motion to enforce compliance is GRANTED.
Defendants’ motion to place attorneys’ fees in escrow is
DENIED.
L Factual and Procedural Background
These motions arise out of Plaintiffs’ objections to the
following Michigan Department of Corrections (MDOC)
regulations governing non-contact prisoner visitations:
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(a) Mich. Admin. Code Rule § 791.6609(9),
defining what persons are in an inmate's immediate family;
(b) Mich. Admin. Code Rule § 791.6609(2),
limiting the number of visitors for a prisoner to an approved
list of ten, not including immediate family and requiring
visitors and immediate family members to be on a prisoner's
list of approved visitors;
(c) Mich. Admin. Code Rule 791 .6609(2)(b), (5),
and (6), restricting prisoner's access to minors, in that minors
under the age of 18 are not permitted to visit unless they are the
child, stepchild, or grandchild of the prisoner accompanied by
an adult immediate family member or a legai guardian, and
prohibiting a child to visit an incarcerated parent if the prisoner
parent's rights have been terminated;
(d) Mich. Admin. Code Rule 791.6609(7),
prohibiting former prisoners from visiting unless they are the
immediate family of a prisoner or unless prior approval for the
visit is Obtained from the warden of the institution where the
visit will occur;
(e) Mich. Admin Code Rule 791.6609(11),
permanently banning all visitation (other than attorneys or
clergy) for prisoners with two or more major misconduct
charges of controlled substance violations.
On April 19, 2001, following a bench trial, this Court
granted judgment for Plaintiffs. Bazzetta v. McGinnis, 148 F.
Supp. 2d 813 (E.D. Mich. 2001). This Court ruled that all of
the contested regulations violated the prisoners’ First
Amendment rights. This Court also held that the last rule,
imposing a visitation ban for prisoners with two controlled
substance violations, violated the Eight Amendment's
prohibition against cruel and unusual punishment and the
Fourteenth Amendment's procedural due process requirements.
On appeal, the Sixth Circuit affirmed each of these
conclusions.
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On May 16, 2002, this Court issued an Order of
Compliance directing the MDOC to comply with the terms of
the Court's judgment, and specifically enjoined the MOOC
from enforcing Rule 791.6609(11 )(d) or any rule, policy, or
procedure which bans, restricts, prevents or limits visitation
based on prior or future misconducts for controlled substance
violations.
Following this Court's entry of judgment in favor of
Plaintiffs, Plaintiffs moved for attorneys’ fees as provided by
Statute. This Court granted Plaintiffs’ motion after the Sixth
Circuit affirmed the judgment. The Court granted the motion
in two orders: an interim order dated June 27, 2002, which
awarded $224,036.92 interim attorney fees, and an order dated
August 19, 2002, which awarded the remaining $570,167.35 of
requested fees, for a total of $794,204.27. Defendants paid
Plaintiffs’ attorneys the interim attorney fees, but posted a bond
pending appeal of the second award.
The Supreme Court granted Defendants’ petition for
certiorari, limited to the following three 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 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.
Overton v. Bazzetta, 123 S. Ct. 658 (2002).
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The Supreme Court reversed the Sixth Circuit, ruling
that none of the regulations facially violated the prisoners’ First
Amendment rights, and that the controlled substance violations
did not facially violate the prisoners’ Eighth Amendment rights.
Overton v. Bazzetta, 123 S. Ct. 2162 (2003). The Court neither
granted certiorari nor actually decided whether the controlled
substance regulations violated the prisoners’ procedural due
process rights.
On August 28, 2003, the Sixth Circuit issued an Order
Vacating and Remanding, stating:
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 his 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.
In light of the Supreme Court's ruling, Defendants
moved for the Sixth Circuit to reverse the May 16, 2002 Order
of Compliance, but the Sixth Circuit denied their motion so
that this Court could consider the validity of the order in the
first instance.
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I. Analysis
A, Defendants' Third Motion for Summary
Judgment
Defendants move for summary judgment on Plaintiffs’
procedural due process claims because (1) the Supreme Court
implicitly rejected Plaintiffs' procedural due process argument,
or in the alternative (2) Plaintiffs’ procedural due process claim
is moot.
The Supreme Court did not rule on Plaintiffs' due
process argument, even though both this Court and the Sixth
Circuit held that the permanent ban on visitation in response to
two substance abuse violations violated prisoners’ procedural
due process rights. In fact, the Supreme Court did not grant its
writ of certiorari on the due process issue, but instead the only
questions before the Court were the First Amendment and
Eighth Amendment issues. Therefore, this Court's decision
that the regulation violates the prisoners’ procedural due
process rights is still valid.
Defendants also argue that this Court lacks subject
matter jurisdiction over Plaintiffs' due process claims because
this Court's May 16, 2002 Order of Compliance enjoined
Defendants from enforcing the contested regulation or "any
rule, policy or procedure which bans, restricts, prevents or
limits visitation based on prior or future misconducts for
substance abuse." The MDOC removed all inmates from the
visitation restriction list on May 17, 2002. After the Supreme
Court's decision, the Department of Corrections reinstated the
restriction on visitation based on two substance abuse
violations. Defendants conclude that Plaintiffs’ claims for
injunctive and declaratory relief based on procedural due
process violations became moot as of May 17, 2002.
Defendants’ temporary lifting of the regulation in
compliance with this Court's Order and their subsequent
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reinstatement of it does not render this controversy moot. The
Supreme Court has held that:
It 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.’ ' it did, the courts
would be compelled to leave ' defendant. free to
return to his old ways.’ In accordance with this
principle, the standard we have announced for
determining whether a case has been mooted by
the defendant's voluntary conduct is stringent:
‘A case might become moot if subsequent events
made it absolutely clear that the allegedly
wrongful behavior could not reasonably be
expected to recur.’
Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., 528 U.S.
167, 708 (2000) (internal citations omitted).
More specifically, when an official agency removes an
offending policy under court order pending an appeal of the
lower court's order, the case is not mooted.
Temporary compliance with a decree pending
appeal, for example, clearly should not moot a
case, unless other circumstances show that
official policies really have changed. It is
equally easy to deny mootness if officials who
have changed their practices warn that former
practices may be resumed at any time, or if
officials who have not changed their practices
simply argue that they may change some day in
the future.
13A Charles Allen Wright et al., Federal Practice and
Procedure § 3533.7 (2d ed. 1984). See also Ammex v. Cox,
___ F.3d__, No. 01-2392 (6th Cir. December 3, 2003)
(refusing to find that a withdrawn official action mooted the
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case). Therefore, Plaintiffs’ procedural due process claims
regarding the ban on visitation after two substance abuse
violations are not moot.
In a case decided on December 3, 2003, the Sixth
Circuit held that the Michigan Attorney General's withdrawal
of a notice of intent to enforce a statute against the plaintiff did
not moot the case, but that the case was no longer ripe. Ammex
v. Cox, __ F.3d___, No. 01-2392 (6" Cir. December 3,
2003). The Court stated: "Where, as in this case, the statute at
issue has not been enforced against Ammex, and indeed where
a notice of intent to enforce has been explicitly withdrawn, the
ripeness doctrine provides the appropriate analysis for
determining whether this case should be heard at this time." Jd.
Even though neither party frames the issue as one of ripeness,
Ammex indicates that it may be the most appropriate
framework to analyze this issue.
A court should weigh three factors to determine if an
issue is ripe for adjudication:
One aspect of the "judicial fitness of the issues"
is the extent to which the legal analysis would
benefit from having a concrete factual context.
The second aspect of the "judicial fitness of the
issues" is the extent to which the enforcement
authority's legal position is subject to change
before enforcement. The third consideration
deals with the "hardship to the parties of
withholding court consideration."
Id.
In Ammex, the Sixth Circuit held that all three factors
weighed against ripeness. First, the court found that factual
development would enhance the court's review of the
constitutionality of the challenged statutory scheme.
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Ammex is not challenging a specific rule or
finding of the Michigan Attorney General, but
rather the general applicability of a statutory
scheme to its conduct. Analysis of any
preemption or Commerce Clause issue would
benefit from knowledge of just what was
forbidden by the MCPA, and what the effects of
the state's regulation would be on the policies
underlying the Interstate and Foreign Commerce
Clauses and the federal statutes relied upon by
Ammex.
Second, the court found that there was a strong
possibility that the agency would change its position, especially
since it withdrew its notice of enforcement. Third, the court
did not find the hardship to the plaintiff in waiting was strong
enough to outweigh the other two factors where there was no
threat of criminal liability or huge immediate expense in
temporary complying with the challenged statute.
Applying these three factors to the present case, Court
concludes that this issue is ripe. First, there is no factual
development needed to discover how the regulation will be
implemented, since there was a full evidentiary hearing which
established how it was implemented in the past. Second, there
is no indication that the MDOC will change its position
regarding the enforcement of the regulation. Third, hardship to
the prisoners to wait until their visitation rights are revoked is
great: after the revocation, they will not be permitted any
visitors until the parties meander through the legal process.
The Court therefore denies Defendants’ motion for summary
judgment.
B. Plaintiffs' Motion to Enforce Compliance
On August 26, 2003, Defendants issued Director's
Office Memorandum 2003-14, which, among other things,
reinstated the permanent restrictions for substance abuse
violations, stating:
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The Supreme Court decision also allows the
Department to again restrict visits for substance
abuse misconducts, even if the misconduct is
unrelated to a visit. Therefore, in accordance
with Paragraph EE of PD 05.03.140, a prisoner
who is found guilty of the major misconduct
violation of "Substance Abuse" for behavior
which occurs on or after August 27, 2003 shall
have his/her visits limited to non-contact for 30
days. In addition, Wardens shall recommend to
the Director that the visits of a prisoner be
permanently restricted in accordance with
Paragraphs BBB through EEE of PD 05.03.140
if the prisoner has been found guilty of two or
more major misconduct violations of "Substance
Abuse which do not arise from the same
incidence. Although the Supreme Court
decision allows the Department to reinstate
restrictions removed due to he (sic) lower
courts’ rulings, it has been decided that the
restrictions will not be reinstated; however,
recommendations shail be made to permanently
restrict a prisoner's visits if his/her second or
subsequent misconduct is based on behavior that
occurs on or after September 1, 2003, regardless
of when the first misconduct occurred.
(Attached as Supp. to Def. Third Mot. for Summ. J.)
This new DOM requires wardens to recommend a
restriction regardless of when the first misconduct occurred.
The original rules required both misconducts to have occurred
after the rule's effective date. This change creates problems
with notice because the first misconduct could have occurred
before the rule was imposed, and problems with fairness
because there can be years between the first and second
substance abuse misconducts.
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The new DOM also prohibits imposition of a second
violation arising from the same incident. Plaintiffs argue that
this new provision does not adequately address the Court's
concern that the ban may be imposed for two incidents which
were only hours apart and part of the same "pattern of
behavior,” because it is unclear how the MDOC defines “same
incident."
On October 21, 2003, (after these motions were filed)
Defendants issued DOM 2003-15, which further modifies the
rule imposing visitation restrictions for substance abuse
violations. (Attached as Pl. Reply to Def. Resp. in Opp. to PI.
Mot. to Enforce Compliance, Ex. 1.) Plaintiffs claim that the
new procedures fail to correct the significant procedural
problems associated with the implementation of the permanent
ban on visitations in the following ways:
(1) The policy still provides that the warden is to
submit the recommendation to impose a permanent ban to the
regional prison administrator who, in turn, forwards a
recommendation to the deputy director. If the deputy director
agrees that the restriction is warranted the recommendation
shall be submitted to the director for a final determination.
There are no criteria or time limits for the passing on any of the
recommendations.
(2) There are no written criteria to guide the
director's decision whether or not to impose the restriction.
(3) There is no hearing procedure for a prisoner to
challenge the imposition of the ban, and there is no appeal
procedure.
(4) DOM 2003-15 prohibits a warden from
submitting a recommendation for removal of the restriction if a
prisoner has a subsequent substance abuse misconduct or a non
bondable misconduct. Thus, the new rule even further limits a
warden's discretion. The warden has the discretion not to
recommend removal of the restriction for any other reason, and
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there are not written standards which establish a basis on which
a prisoner can rely to ensure reinstatement.
(5) The new procedure requires that a warden make
a recommendation for permanent restriction no more than
fourteen days after the second or subsequent substance abuse
misconduct guilty finding. Plaintiffs contend that this does not
adequately resolve the problem of excessive time between a
guilty finding and the imposition of the restrictions because
there are no consequences should the warden fail to make the
recommendation within fourteen days. There are also no time
limits for when the recommendation, which is sent by the
warden to the Regional Prison Administrator, must be
forwarded from the RPA to the Deputy Director or when the
Deputy Director must forward it to the Director and/or when
the actual decision must be made by the Director.
This Court previously held that the rule deprived
prisoners of their procedural due process rights by the
"inconsistency and uncertainty of enforcement, the absence of
any Criteria for reinstatement, and the failure to provide any
opportunity to be heard." 148 F. Supp. 2d at 858. Plaintiffs
request the following procedural mechanisms be required to
address the Court's procedural due process concerns:
(1) Written substantive criteria for imposing and
lifting permanent visiting restrictions that are relevant to the
Stated purposed of reducing substance abuse;
(2) Aclear decision-making process that identifies
the official who is actually responsible for making final
decisions and insuring the restrictions are applied fairly and
consistently;
(3) Time limits on the age of the misconducts that
can be used to support a restriction;
(4) Limits on the time that can elapse between the
second guilty finding and imposition of the restriction;
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(5) Restricting imposition of visitation ban while
underlying misconducts are being challenged through the
appeal process;
(6) A hearing process before imposition of a
permanent restriction to ensure that all criteria are met and no
extenuating Circumstances exist that warrant waiving the
restriction or reducing its severity (e.g. by shortening its length,
limiting it to non-contact visits, or limiting it to non-immediate
family members), as occurs for individual visitor restrictions
pursuant to PD 05.03.140, subsections OO-AAA;
(7) Adequate notice to the prisoner class before any
misconduct findings can be used; and
(8) | An appeal mechanism for the imposition of a
permanent ban on visitation.
Plaintiffs also request that another rule be modified to
comply with Overton v. Bazzetta. The rule limiting who can
bring a child to visit an incarcerated parent states that a child
must "be accompanied by an adult immediate family member
or legal guardian” without indicating whether the adult must be
an immediate family member of the child or the prisoner. The
Supreme Court expressly interpreted the rule to permit visits if
the child is "accompanied by an adult who is an immediate
family member of the child or the inmate."
To ensure that the rules are not in fact inconsistent with
the Supreme Court's findings, Plaintiffs request this Court to
order Defendants to amend subsection KK of PD 05.03.140 to
specify that eligible minor children may be accompanied by an
adult who is an immediate family member of either the child or
the prisoner.
Defendants contend that Overton v. Bazzetta rendered
this Court's judgment unenforceable and that the Sixth Circuit
recognized in its Order Vacating and Remanding and its
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October 24, 2003 Order (denying Defendants’ motion to vacate
this Court's order of compliance) that this Court's findings of
fact and conclusions of law are no longer valid, and therefore
cannot be enforced. Those Sixth Circuit orders, however, did
not vacate this Court's judgment for Plaintiffs or otherwise
render it invalid. Rather, the Sixth Circuit remanded the case
to this Court "for further consideration in light of the Supreme
Court opinion.” (Order Vacating and Remanding at 2.) The
Court therefore grants Plaintiffs’ motion to enforce compliance
and orders a conference with counsel on January 13, 2004 at
3:00 to discuss implementation of specific provisions.
c Defendants' Motion to Place Attorney Fees in
Escrow
On June 27, 2002, this Court ordered Defendants to pay
Plaintiffs' "undisputed" interim attorney fees and costs.
Defendants did not seek any rehearing of this order nor did
they appeal it. It is the money paid pursuant to this order that
Defendants move to place in escrow. On August 19, 2002, this
Court granted Plaintiffs' Motion for Attorney Fees, awarding
$570,167.35 in additional fees. Defendants appealed this
second Order, and filed a supersedeas bond for $570,167.35
pending appeal. Following the Supreme Court's decision, the
Sixth Circuit remanded the appeal to this Court "for further
consideration in light of the Supreme Court's opinion in
Overton v. Bazzetta, 123 S. Ct. 2162 (2003)." Defendants
argued in their briefs that Plaintiffs are not the prevailing
parties, and. that the attorney “ees awarded to them should be
placed in escrow pending fina’ disposition of this matter.
In Hensley v. Eckerhart, 416 U.S. 424, 437 (1983), the
Supreme Court provided the framework for determining
attorney fee awards under Section 1988. First, as a threshold
matter, a district court must determine whether the plaintiff is a
"prevailing party.” In this regard, the Hensley Court indicated
that "[a] typical formulation is that ‘plaintiffs may be
considered "prevailing parties" for attorney's fees purposes if
they succeed on any significant issue in the litigation which
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achieves some of the benefit the parties sought in bringing
suit’." Id. 461 U.S. at 433 (quoting Nadeau v. Helgemoe, 581
F.2d 275, 278-79 (1st Cir. 1978)). Once plaintiffs have crossed
this threshold, they are considered a "prevailing party" within
the meaning of Section 1988 and are entitled to a fee award of
some kind. Texas State Teachers Ass'n v. Garland Indep. Sch.
Dist., 489 U.S. 782, 791- 92 (1989). As the Supreme Court
explained, "[t}he degree of the plaintiff's overall success goes
to the reasonableness of the award under Hens/ey, not to the
availability of a fee award vel non." Id. at 793.
Based on this standard, it is apparent that Plaintiffs
remain a prevailing party. They have prevailed on a number of
significant issues including the procedural due process
violation, their request for injunctive relief, expanded visits for
minor children, and recognition of constitutional limits on
prisoner visiting restrictions. Given the decision by the
Supreme Court, however, it seems that there should be some
further consideration of the reasonableness of the attorney fees
previously awarded. This issue must be briefed before the
Court can rule.
With respect to the issue of escrow, the Court finds
such a request to be untimely and unnecessary. Defense
counsel missed their opportunity to request that the funds be
put in escrow at the outset, and have cited no legal authority to
support their argument that nearly eighteen months after money
has been paid, the Court can order it into escrow.
The Court orders briefing on the issue of whether the
amount of attorneys' fees should be reduced since Defendants
prevailed at the Supreme Court on most of the issues (except
the procedural due process issue). In reconsidering the
attorneys’ fees, the Court will consider the entire amount of
awarded fees, $794,204.27, not just the limited amount
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awarded in the August 19, 2002 appealed order.’ The Court
denies Defendants’ motion for escrow.
Ill. Conclusion
For the reascns stated above, the Court (1) denies
Defendants’ motion for summary judgment; (2) grants
Plaintiffs’ motion to enforce compliance; and (3) denies
' Plaintiffs contend that the interim fees paid pursuant to this
Court's June 27, 2002 Order cannot now be placed in escrow as
those fees were undisputed, Defendants never appealed that
Order and that Order is not pending before this Court. Even so,
the reasoning supporting the interim fee award was included in
Defendants’ appeal of the Court's August 19, 2002 Order
Granting Plaintiffs' Motion for Attorneys' Fees. That Order
granted Plaintiffs’ request only as to the total amount requested,
$794,204.27, less the amount of the interim award of
$224,036.92, which equaled $570,167.35. The Court awarded
Plaintiffs the requested $570,167.35. Thus, Plaintiffs are
correct that by appealing the August 19, 2002 award of
$570,167.35, Defendants did not appeal the interim award of
$224,036.92 since that award was not addressed in the Court's
August 19, 2002 Order. But to deny any reconsideration of the
interim award of attorneys’ fees seems overly formalistic.
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Defendants’ motion to place attorney fees in escrow.
The Court orders that counsel appear for a conference on
January 13, 2004 at 3:00 to discuss implementation of the
Court's prior orders and orders cross briefing on the issue of
attorney fees by January 16, 2004.
ls/
Nancy G. Edmunds
U. S. District Judge
Dated: 12/23/03
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.