352 F.3d 1030 (6th Cir. 2003), 01-1383, Akers v. McGinnis

Docket Nº:01-1383
Citation:352 F.3d 1030
Party Name:Akers v. McGinnis
Case Date:December 01, 2003
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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352 F.3d 1030 (6th Cir. 2003)

Dawn AKERS; Kim Laranger, United Automobile, Aerospace, and Agricultural Implement Workers of America, Local 6000; Akua Mitchell-Davis, Plaintiffs-Appellants,


Kenneth McGINNIS; Robert Steinman; Marsha Foresman; Patricia Caruso; John Marshall; Edward Haggerty; George Marra; William Overton; Ruth Bare; Frank Eisenhauer; Joseph Jereckos; John Makowski; Terry Pitcher; Kirk McVittie; Gwen Rodgers, in their Personal and Official Capacities, Jointly and Severally, Defendants-Appellees.

No. 01-1383.

United States Court of Appeals, Sixth Circuit

December 1, 2003

Argued: Oct. 15, 2002.

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Miranda K.S. Massie (argued and briefed), Scheff & Washington, Detroit, MI, for Appellants.

John L. Thurber (argued and briefed), Office of the Attorney General, Corrections Division, Lansing, MI, for Appellees.

Michael J. Steinberg (briefed), American Civil Liberties Union Fund of Michigan, Detroit, MI, for Amicus Curiae.

Before BOGGS, Chief Judge; and SUHRHEINRICH and CLAY, Circuit Judges.

BOGGS, C. J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. CLAY, J. (pp. 1044-1056), delivered a separate opinion concurring in part and dissenting in part.


BOGGS, Chief Judge.

Plaintiffs, Dawn Akers and Kim Loranger, a current and a former employee of the Michigan Department of Corrections ("MDOC"), and their union, the United Automobile, Aerospace, and Agricultural Implement Workers of America, Local 6000 ("UAW"), appeal the district court's summary judgment for the defendants, Kenneth McGinnis, the director of the MDOC, and numerous other listed MDOC administrators. The plaintiffs had sued on the grounds that an MDOC rule ("Rule") that barred all MDOC employees from any non-work-related contact with prisoners, parolees, probationers ("offenders"), their relatives and visitors, violated their "clearly established rights to privacy, association, and due process guaranteed by the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendment to the United States Constitution." Specifically, the plaintiffs sought reinstatement after discharge for violating the Rule, expungement from the plaintiffs' disciplinary records of any reference to a violation of the Rule, and compensatory and punitive damages. On cross-motions for summary judgment, the district court held that the Rule was constitutional and that the defendants enjoyed qualified immunity. Plaintiffs now appeal the holdings that the Rule was not contrary to the freedom of association guaranteed by the First and Fourteenth Amendments and that the defendants enjoyed qualified immunity. We affirm.


At all times relevant to this litigation, the MDOC has had a Rule barring employees

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from "Improper Relationships with Prisoners, Parolees or Probationers, Visitors or Families." This Rule, originally known as Rule 12, strictly prohibited "improper or overly familiar conduct with [offenders] or their family members or visitors." Violations of the Rule "subject[ed] an employee to disciplinary action up to and including dismissal[ ]." A non-exhaustive list of improper actions included "exchange of letters, money or items, ... cohabitation [except in case of a pre-existing marriage], being at the home of [an offender] for reasons other than an official visit without reporting the visit, ... giving [offender] [employee's] home telephone number, [and] sexual contact of any nature." (emphasis in original). Furthermore, the Rule required reporting of "[a]ny contact made with [an offender], or their family member(s), outside the regular performance of an employee's job." In June 1996, Rule 12 was repromulgated as Rule 24. In September 1999, during the course of this litigation, Rule 24 was replaced by a substantially identical Rule 46. Finally, in April 2000, Rule 46 was revised to clarify the definitions of family member and visitor and recognize the power of the MDOC to grant individual employees limited exemptions to the Rule. To receive such an exemption allowing contact with offenders' visitors or family members, but not offenders themselves, an employee would have to submit a misleadingly titled "Offender Contact Exception Request" form and await approval from the Director of the MDOC or a designee. From the creation of the exception procedure to July 23, 2001, 226 such exceptions had been sought and of these 223 had been granted.

Plaintiff Loranger, then a Wayne County probation officer, was contacted by a man she had dated before becoming an MDOC employee and who was then serving a life sentence without parole in a prison outside her jurisdiction. She exchanged several letters with him. When Loranger realized that she was in violation of the Rule, she approached her supervisor about the matter. Four months later, she was terminated for her Rule violation. Plaintiff Akers, while a bookkeeper at a correctional facility in Chippewa County, had befriended a prisoner clerk. Shortly after the prisoner's release, Akers gave him a ride in her car to a job interview. For this violation of the Rule, she also was terminated by the MDOC. Both women had previously been positively evaluated by their supervisors and in neither case is there an allegation that their specific conduct had adversely affected the MDOC's function. Plaintiff UAW represents about two thousand clerical and professional employees of the MDOC, among them Loranger and Akers. UAW does not represent any prison guards.

In March 1997, the plaintiffs filed a complaint in the United States District Court for the Western District of Michigan and the case was assigned to a magistrate judge. During the following months, labor arbitrators set aside the discharges of both Loranger and Akers and instead imposed relatively brief suspensions on both women. As the plaintiffs had also sought the purging of their disciplinary record of any reference to the Rule violation as well as monetary damages, their reinstatement did not moot the action. After her reinstatement and during the pendency of the case, Loranger repeatedly sought permission to have contact with Rebecca Contreras, a long-standing friend whose son had been placed on probation, and was repeatedly denied. When Loranger became pregnant and wished Contreras to be her child's godmother, she sought and was granted a preliminary injunction ordering the MDOC to allow Loranger to invite Contreras to her child's baptism. Loranger also continued to request permission to have contact with Stacey Artley, a young woman to whom Loranger was a "Big

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Sister" and who then was on probation. Akers, during the pendency of this action, transferred to a position with the Michigan Department of Natural Resources, mooting her claims for prospective relief. On cross-motions for summary judgement, the magistrate judge issued a report and recommendation, which proposed finding the original Rule to be unconstitutional under the First and Fourteenth Amendments, expunging Akers's and Loranger's disciplinary record, and declaring moot the challenge to the current version of the Rule. However, the district court rejected the report and recommendation and found that there was a live controversy regarding both the current and the old version of the Rule, but also that all versions of the Rule were constitutional, and therefore granted summary judgement to MDOC and qualified immunity to the individual named defendants. Here the plaintiffs appeal this grant of summary judgment and qualified immunity.


The MDOC contends that any challenges to the previous versions of the Rule were mooted when it adopted its current version. However, a "defendant's voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case." Jones v. City of Lakeland, 224 F.3d 518, 529 (6th Cir. 2000) (en banc) (quoting Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). "A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Jones, 224 F.3d at 529 (quoting United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)). "The 'heavy burden of persua[ding]' the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." Jones, 224 F.3d at 529 (quoting Laidlaw, 528 U.S. at 170, 120 S.Ct. 693). In the present case, as the promulgation of work rules appears to be solely within the discretion of the MDOC, there is no guarantee that MDOC will not change back to its older, stricter Rule as soon as this action terminates. Moreover, as the plaintiffs could be entitled to money damages and the purging of their disciplinary records if the old version of the Rule were found to be unconstitutional even if the current version was constitutional, the issue is not moot and it is incumbent on this court to examine all versions of the Rule. We begin by analyzing the original version of the Rule without the exception procedure.

The plaintiff's claims of constitutional violation are based upon two analytically distinct forms of freedom of association: freedom of intimate association, protected under the Substantive Due Process component of the Fourteenth Amendment, and freedom of expressive association, protected under the Freedom of Speech Clause of the First Amendment. See Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). With respect to intimate association, "the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom...

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