Bazzetta v. McGinnis

• Decision Date: 13 September 2005
• Docket Number: No. 04-1823.,04-1823.
• Citation: 423 F.3d 557
• Parties: Michelle BAZZETTA, et al., Plaintiffs-Appellees, v. Kenneth McGINNIS, Director of Michigan Department of Corrections; Michigan Department of Corrections, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 557

423 F.3d 557

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, Sixth Circuit.

Argued: June 8, 2005.

Decided and Filed: September 13, 2005.

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.

Before: CLAY and SUTTON, Circuit Judges; OBERDORFER, District Judge.^*

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, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003). The Court did not grant certiorari with respect to the plaintiffs' Fourteenth Amendment procedural due process claim, nor otherwise address it directly. On remand, the district court declined to dissolve its injunctive order of compliance, ruling that its procedural due process holding was not disturbed by the Supreme Court's decision.

MDOC appeals the district court's refusal to dissolve the injunction, arguing that although the Supreme Court did not grant certiorari on this court's procedural due process holding, it implicitly foreclosed any facial procedural due process challenges to the substance abuse regulation. Thus, at issue is whether the district court abused its discretion in failing to dissolve its injunctive order in light of Overton. For the reasons stated below, we hold that the district court abused its discretion because its procedural due process ruling is inconsistent with Overton. Accordingly, we REVERSE the district court's opinion and order denying MDOC's motion for summary judgment and granting the plaintiffs' motion to enforce compliance. Our reversal is without prejudice to any claim by an individual prisoner that the regulation, as applied to that prisoner, imposes an "atypical and significant hardship," thus implicating a protected liberty interest.

I. BACKGROUND

In 1995, MDOC issued regulations limiting the visitation rights of prisoners, in part to control the widespread use of drugs and alcohol. Overton, 539 U.S. at 129-130, 123 S.Ct. 2162. Among other limitations, the regulations authorize the Director of the MDOC to restrict permanently all visits for a prisoner who is found guilty administratively of "[t]wo or more violations of the major misconduct charge of substance abuse," e.g. possession of narcotics, alcohol, unauthorized prescription drugs, or drug paraphernalia, or for failure to submit to a drug test. Bazzetta v. McGinnis, 286 F.3d 311, 321 & n. 2 (6th Cir.2002) (internal quotations omitted). According to the substance abuse regulation, prisoners whose visits have been permanently restricted nevertheless receive visits from "attorneys or [their] representative[s], [or] qualified clergy and staff from the Office of the Legislative Corrections Ombudsman. . . ." Bazzetta v. McGinnis, 148 F.Supp.2d 813, 833 (E.D.Mich.2001). Inmates may also request that the visitation ban be lifted after six months or two years, depending on the underlying infractions. Id. Reinstatement of visitation privileges is within the warden's discretion. Id.

In August 1995, the plaintiffs, a class of prisoners incarcerated by MDOC, and their prospective visitors, challenged the substance abuse regulation on its face.¹ Id. at 815. They asserted that the permanent ban on visitors for two violations of the drug abuse policy: (1) infringed the prisoners' First Amendment right of intimate association and was not reasonably related to a valid penological objective; (2) constituted cruel and unusual punishment prohibited by the Eighth Amendment; and (3) violated the prisoners' Fourteenth Amendment procedural due process rights. Id. at 845-58. The case proceeded to a bench trial and, on April 19, 2001, the district court held that the regulations violated the prisoners' rights under the First, Eighth and Fourteenth Amendments. Id.

In addressing the plaintiffs' procedural due process claim, the court first asked whether Michigan prisoners have a liberty interest in visitation that had been infringed by the substance abuse regulation. Id. 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. Id. The court addressed only whether the prisoners derive a liberty interest from the state-issued substance abuse regulation. Id. Accordingly, it analyzed the regulations under the formulation established by the Supreme Court in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)—that a liberty interest arises where the state's regulations impose "freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless impose[][an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484, 115 S.Ct. 2293.

In determining that the substance abuse regulation imposes an "atypical and significant hardship," the court considered (1) the effect of the restraint on the length of prison confinement; (2) the extent to which the prisoners' confinement is altered from routine prison conditions; and (3) the duration of the restraint. Bazzetta, 148 F.Supp.2d at 857 (citing Jones v. Baker, 155 F.3d 810, 814 (6th Cir.1998) (Gilman, J., concurring)). It acknowledged that the regulations do not affect the length of confinement but found that they create "an unusually harsh and punitive environment for the prisoners restricted." Id. at 858. Further, it found significant that the restriction on visitation is permanent—"[a]lthough 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.'" Id. at 857 (citing Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). It found many procedural problems with the implementation of the permanent visitation ban — notably that: (1) there are no written criteria to guide the Director of the MDOC's decision whether to impose the ban, resulting in inconsistent enforcement, id. at 836-37; (2) prisoners are not entitled to a hearing on the imposition of the permanent ban or an opportunity to challenge the ban based on unusual or extenuating circumstances, id. at 838, n. 39; and (3) there are no ascertainable criteria for the restoration of visiting privileges, without any apparent uniform standard being applied, id. at 839. The court thus determined that "[t]he inconsistency and uncertainty of enforcement, the absence of any criteria for reinstatement, and the failure to provide any opportunity to be heard are all procedural deprivations of constitutional dimension." Id. at 858.

On April 16, 2002, a panel of this court affirmed the district court judgment for the plaintiffs. Bazzetta v. McGinnis, 286 F.3d 311, 324 (6th Cir.2002). The district court subsequently issued an order of compliance on May 16, 2002, directing MDOC to comply with the terms of the court's judgment and enjoining the Department from enforcing the regulations "or any rule, policy, or procedure which bans, restricts, prevents or limits visitation based on prior or future misconducts for controlled substance violations." JA 75. In response to the district court's order, MDOC lifted the regulations on visitation privileges on all inmates subject to the permanent ban. JA 189.

MDOC filed and the Supreme Court granted a petition for certiorari. The Court limited its review, however, to "whether the regulations violate the substantive due process mandate of the Fourteenth Amendment, or the First or Eighth Amendments . . ." Overton, 539 U.S. at 128, 123 S.Ct. 2162. 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. Id. at 131-36, 123 S.Ct. 2162. In so holding, the Court stated that it was not implying that "any right to intimate association is altogether terminated by incarceration" but it noted that "[w]e must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining...