Bazzetta v. McGinnis, 01-1635.

• Decision Date: 10 April 2002
• Docket Number: No. 01-1635.,01-1635.
• Citation: 286 F.3d 311
• Parties: 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, v. Kenneth McGINNIS, Director of Michigan Department of Corrections, and Michigan Department of Corrections, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

286 F.3d 311

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, v. Kenneth McGINNIS, Director of Michigan Department of Corrections, and Michigan Department of Corrections, Defendants-Appellants.

No. 01-1635.

United States Court of Appeals, Sixth Circuit.

Argued: November 30, 2001.

Decided and Filed: April 10, 2002.

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Michael J. Barnhart, Detroit, MI, Deborah A. LaBelle (argued and briefed), Law Offices of Deborah LaBelle, Ann Arbor, MI, Patricia A. Streeter (briefed), Detroit, MI, for Plaintiffs-Appellees.

Lisa C. Ward (argued and briefed), Asst. Attorney Gen., Leo H. Friedman (briefed), Office of the Attorney General, Corrections Division, Lansing, MI, Mark W. Matus (briefed), Michigan Department of Attorney, Lansing, MI, for Defendants-Appellants.

Jill M. Wheaton (briefed), Dykema Gossett PLLC, Detroit, MI, Michael J. Steinberg (briefed), Kary L. Moss (briefed), American Civil Liberties Union Fund of Michigan, Detroit, MI, for Amici Curiae.

Before: MERRITT, CLAY, and GILMAN, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

Plaintiffs, a class of prisoners incarcerated by defendant Michigan Department of Corrections, and their prospective visitors, sue the department under 42 U.S.C. § 1983, claiming that restrictions on prison visitation imposed in 1995 violate their rights under the First, Eighth, and Fourteenth Amendments.

In 1995, Michigan's Department of Corrections issued new regulations limiting who can visit prisoners. The regulations challenged by plaintiffs (1) banned visits from prisoners' minor brothers, sisters, nieces and nephews; (2) banned all visits by prisoners' children when parental rights had been terminated; (3) banned all visits by former prisoners who are not immediate family; (4) required that visiting children be accompanied by a parent or legal guardian, and (5) permanently banned visitors, apart from attorneys and clergy, for prisoners who twice violated the department's drug abuse policies.

The new regulations were a response to growth in Michigan's prison population in the early 1990s and the resulting increase in the number of visitors. Department officials believed the increase in visitors made supervising visits more difficult and smuggling of drugs and weapons more difficult to stop. Officials also decided that the increased number of visiting children was a problem because it was difficult for prison guards to supervise children and because the prison environment was bad for the children. We note that there are two kinds of visits, contact and non-contact. Contact visits allow physical contact between a prisoner and visitors, and occur in meeting rooms supervised by prison guards. Non-contact visits occur when a prisoner and visitors sit in separate rooms, but can see one another through a clear window and speak on a telephone. J.A. at 2506-51.

In 1995, plaintiffs challenged the new regulations, asserting they violated plaintiffs' First, Eighth, and Fourteenth Amendment rights. The department defended the constitutionality of the regulations, arguing they were only applied to contact visits, to which prisoners have no absolute right. The district court found plaintiffs' challenge to the permanent ban on visitors for substance abuse violations was not ripe, but upheld the other regulations as they applied to contact visits. See Bazzetta v. McGinnis, 902 F.Supp. 765 (E.D.Mich.1990). We affirmed its decision, holding that "there is no inherent, absolute right to contact visits with prisoners," Bazzetta v. McGinnis, 124 F.3d 774, 779 (6th Cir.1997) (emphasis added), but we did not address whether prisoners have a right to non-contact visits. See Bazzetta v. McGinnis, 133 F.3d 382, 383 (6th Cir. 1998). Subsequently it turned out that the department seriously misled us and was applying the regulations to all visits, contact and non-contact. Plaintiffs again brought suit challenging the regulations, this time as applied to non-contact visits. All of the regulations in question apply to non-contact visitors who communicate with prisoners by phone and view them through glass walls.

After a bench trial, the district court found for the plaintiffs. See Bazzetta v. McGinnis, 148 F.Supp.2d 813 (E.D.Mich. 2001). It held that the regulations limiting visits infringed on prisoners' First Amendment right of intimate association and were not reasonably related to a valid penological objective, and that the permanent ban on visitors for two violations of the drug abuse policy infringed on prisoners' First Amendment right of intimate association, was not reasonably related to a valid penological objective, was cruel and unusual punishment in violation of the Eighth Amendment, and was imposed in a manner violating prisoners' Fourteenth Amendment due process rights. Defendants timely appealed.

Analysis

A. Prisoners' rights and legitimate restrictions

"Prison walls do not form a barrier separating prison inmates from the protections of the Constitution." Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). "A prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the correctional system." Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); accord Shaw v. Murphy, 532 U.S. 223, 228, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001) ("incarceration does not divest prisoners of all constitutional protections").

The First Amendment guarantees individuals the right to freedom of association, and prisoners retain their First Amendment rights to the extent that the rights do not conflict with their status as prisoners and the legitimate demands of the prison system. See Pell, 417 U.S. at 822, 94 S.Ct. 2800. Until now, this Court has not addressed whether prisoners retain the right to freedom of association. See Long v. Norris, 929 F.2d 1111, 1118 (6th Cir.1991) ("In the Sixth Circuit we have not decided the degree to which prison inmates retain their freedom of association"). This question is squarely before us now. For plaintiffs to make out their claim under § 1983, they must retain some right to freedom of association, contrary to defendants' assertion that there are no such rights.

We hold that prisoners do retain a limited right to freedom of association — specifically non-contact visits with intimate associates — even while incarcerated. This follows clearly from Pell, where the Supreme Court held that a prisoner retains a First Amendment right unless it is incompatible with incarceration. See 417 U.S. at 822, 94 S.Ct. 2800. Imprisonment does sharply limit inmates' right of association. For instance, prisoners who pose a security risk have no right to remain in the general prison population, see Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (holding temporary, nonpunitive transfer to administrative segregation does not violate a prisoner's constitutional rights), and prisoners have no constitutional right to contact visits, see Bazzetta, 133 F.3d at 383 (holding prisoners have no constitutional right to contact visits); accord Thorne v. Jones, 765 F.2d 1270, 1274 (5th Cir.1985) (holding incarcerated individuals maintain no right to physical association). But the right of association is not wholly extinguished by imprisonment.

In support of its claim that inmates retain no right of association, the department cites Supreme Court cases which hold that prisoners do not have a right to unfettered or contact visits. See, e.g. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (inmates have no right to "unfettered visitation"); Jones v. North Carolina Prisoners' Labor Union Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (upholding ban on inmate union organizing and group meetings); Pell, 417 U.S. at 826, 94 S.Ct. 2800 (upholding ban on visits by journalists). None of these cases, however, say that prisoners have no right to visitation, and several caution that they should not be read to reach such a conclusion. In Thompson, the Court warned that "[n]othing in the court's opinion forecloses a claim that a prison regulation permanently forbidding all visits to some or all prisoners implicates the protections of the due process clause in a way that the precise and individualized restrictions" at issue there do not. 490 U.S. at 465, 109 S.Ct. 1904 (Kennedy, J. concurring). In Pell, the Court upheld a ban on visits from journalists, but noted that the regulation was permissible in part because prisoners retained "an unrestricted opportunity to communicate with the press or any other member of the public through their families, friends, clergy, or attorneys who are permitted to visit them at the prison." 417 U.S. at 825, 94 S.Ct. 2800. Far from holding that prisoners had no right to visits, the Pell Court analyzed the new restrictions before upholding them, and stated that it would not defer to prison officials when there was "substantial evidence in the record to indicate that the officials [had] exaggerated their response" to a problem. Id. at 827, 94 S.Ct. 2800. Close analysis is especially appropriate when, as is the case here, the challenged restrictions interfere with family relationships, including the parent-child bond, specially protected by the Constitution. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) ("Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance to our society, rights sheltered against the State's unwarranted usurpation, disregard,...