32 F.3d 333 (8th Cir. 1994), 94-1300, Bills v. Dahm

Docket Nº:94-1300.
Citation:32 F.3d 333
Party Name:Randall S. BILLS, Appellee, v. John J. DAHM, Warden; Harold W. Clarke, Director, Appellants.
Case Date:August 08, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 333

32 F.3d 333 (8th Cir. 1994)

Randall S. BILLS, Appellee,

v.

John J. DAHM, Warden; Harold W. Clarke, Director, Appellants.

No. 94-1300.

United States Court of Appeals, Eighth Circuit

August 8, 1994

Submitted June 16, 1994.

Page 334

Laurie Smith Camp, Lincoln, NE, argued (Don Stenberg and Laurie Smith Camp, on the brief), for appellants.

Todd E. Frazier, Omaha, NE, argued, for appellee.

Before MORRIS SHEPPARD ARNOLD, Circuit Judge, and HENLEY and JOHN R. GIBSON, Senior Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Randall Bills brought this Sec. 1983 action against officials of the Lincoln Correctional Center ("the LCC") and the Nebraska Department of Correctional Services for alleged violations of his Fourteenth Amendment right to equal protection because he was denied overnight visitation from his infant son during his term of incarceration while some female inmates of the Nebraska Center for Women were permitted such visits. The defendant corrections officials moved for summary judgment, and the district court denied the motion. This appeal followed.

I.

The Appellants' contentions can be reduced to one argument on appeal, namely, whether they are entitled to qualified immunity in this action. A prison official is entitled to qualified immunity from suit unless the official's conduct violates a clearly-established statutory or constitutional right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). A right is "clearly established" when "the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. The regulation or policy in question need not have been previously litigated and stricken as unlawful before the shield of qualified immunity may be breached. Rather, the unlawfulness

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of the action simply needs to be apparent in light of pre-existing law. Id.

The right that Mr. Bills alleges was violated was his right to equal protection of the laws, as guaranteed by the Fourteenth Amendment. He claims that while he was incarcerated at the Lincoln Correctional Center that he was denied overnight visitation with his infant son, Lathan Bills, in a manner similar to that allowed inmates at the Nebraska Center for Women. The DCS conducts a program at the NCW called Mother/Offspring Life Development (MOLD), which permits overnight visitation with pre-teen children for women who qualify for the program. Inmates may qualify on the basis of disciplinary records and the completion of parenting classes conducted by the program. No similar program was available to inmates of the LCC. It is from the denial of access to this type of program that Mr. Bills asserts his Sec. 1983 action for violation of his right to equal protection.

A.

While the general principle of the right to equal protection has been...

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