490 U.S. 454 (1989), 87-1815, Kentucky Department of Corrections v. Thompson

Docket Nº:No. 87-1815
Citation:490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506, 57 U.S.L.W. 4531
Party Name:Kentucky Department of Corrections v. Thompson
Case Date:May 15, 1989
Court:United States Supreme Court

Page 454

490 U.S. 454 (1989)

109 S.Ct. 1904, 104 L.Ed.2d 506, 57 U.S.L.W. 4531

Kentucky Department of Corrections



No. 87-1815

United States Supreme Court

May 15, 1989

Argued January 18, 1989




Following the District Court's issuance of a consent decree settling a class action brought by Kentucky penal inmates under 42 U.S.C. § 1983, the Commonwealth promulgated "Corrections Policies and Procedures," which, inter alia, contain a nonexhaustive list of prison visitors who "may be excluded," including those who "would constitute a clear and probable danger to the institution's security or interfere with [its] orderly operation." The Kentucky State Reformatory at La Grange subsequently issued its own "Procedures Memorandum," which, in addition to including language virtually identical to that of the state regulations, sets forth procedures under which a visitor "may" be refused admittance and have his or her visitation privileges suspended by reformatory officials. After the reformatory refused to admit several visitors and denied them future visits without providing them a hearing, the representatives of an inmate class filed a motion with the District Court, claiming, among other things, that the suspensions violated the Due Process Clause of the Fourteenth Amendment. The court agreed, and directed that minimal due process procedures be developed. The Court of Appeals affirmed and remanded, concluding, inter alia, that the language of the relevant prison policies created a liberty interest protected by the Due Process Clause.

Held: The Kentucky regulations do not give state inmates a liberty interest in receiving visitors that is entitled to the protections of the Due Process Clause. Pp. 459-465.

(a) In order to create a protected liberty interest in the prison context, state regulations must use "explicitly mandatory language," in connection with the establishment of "specific substantive predicates" to limit official discretion, and thereby require that a particular outcome be reached upon a finding that the relevant criteria have been met. Hewitt v. Helms, 459 U.S. 460, 472. Pp. 459-463.

[109 S.Ct. 1906] (b) Although the regulations at issue do provide certain "substantive predicates" to guide prison decisionmakers in determining whether to allow visitation, the regulations lack the requisite relevant mandatory language, since visitors "may," but need not, be excluded whether they. fall within or without one of the listed categories of excludable visitors.

Page 455

Thus, the regulations are not worded in such a way that an inmate could reasonably form an objective expectation that a visit would necessarily be allowed absent the occurrence of one of the listed conditions or reasonably expect to enforce the regulations against prison officials should that visit not be allowed. Pp. 463-465.

833 F.2d 614, reversed.

BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 465. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined,, post, p. 465.

BLACKMUN, J., lead opinion

JUSTICE BLACKMUN delivered the opinion of the Court.

In this case, we consider whether Kentucky prison regulations give state inmates, for purposes of the Fourteenth Amendment, a liberty interest in receiving certain visitors.

Page 456


In September, 1976, Kentucky inmates brought a federal class action under 42 U.S.C. § 1983 challenging conditions of confinement in the Kentucky State Penitentiary at Eddyville. Other cases, one of them relating to the Kentucky State Reformatory at La Grange, were consolidated with the one concerning the penitentiary. The litigation was settled by a consent decree dated 28 May, 1980, and supplemented 22 July, 1980, containing provisions governing a broad range of prison conditions. App. 2-44, 45-55. See Kendrick v. Bland, 541 F.Supp. 21, 27-50 (WD Ky.1981); see also Kendrick v. Bland, 740 F.2d 432 (CA6 1984). Of sole relevance here, the consent decree provides:

The Bureau of Corrections encourages and agrees to maintain visitation at least at the current level, with minimal restrictions," and to "continue [its] open visiting policy.

See 541 F.Supp. at 37.

The Commonwealth in 1981 issued "Corrections Policies and Procedures" governing general prison visitation, including a nonexhaustive list of visitors who may be excluded.1 Four years later, the reformatory issued its own more detailed

Page 457

"Procedures Memorandum" on the subject of "Visiting Regulations." The memorandum begins with a Statement of Policy and Purpose:

Although administrative staff reserves the right to allow or disallow visits, it is the policy of the Kentucky State Reformatory to respect the right of inmates to have visits in the spirit of the Court decisions [109 S.Ct. 1907] and the Consent Decree, while insuring the safety and security of the institution.

App. 106. The memorandum then goes on to state that a visitor may be denied entry if his or her presence would constitute a "clear and probable danger to the safety and security of the institution or would interfere with the orderly operation of the institution." ¶ K(1)(a), App. 133. A nonexhaustive list of nine specific reasons for excluding visitors is set forth.2 The memorandum also states that the

Page 458

decision whether to exclude a visitor rests with the duty officer, who is to be consulted by any staff member who "feels a visitor should not be allowed admittance." ¶ K(3), App. 134.

This particular litigation was prompted in large part by two incidents when applicants were denied the opportunity to visit an inmate at the reformatory. The mother of one inmate was denied visitation for six months because she brought to the reformatory a person who had been barred for smuggling contraband. Another inmate's mother and woman friend were denied visitation for a limited time when the inmate was found with contraband after a visit by the two women. In both instances, the visitation privileges were suspended without a hearing. The inmates were not prevented from receiving other visitors.

The representatives of the Kendrick inmate class filed a motion with the United States District Court for the Western District of Kentucky (the court which had issued the consent decree), claiming that the suspension of visitation privileges without a hearing in these two instances violated the decree and the Due Process Clause of the Fourteenth Amendment.

Page 459

By a memorandum dated June 26, 1986, the District Court found that the prison policies did not violate the decree, App. 147, but concluded that the language of the decree was "mandatory in character," id. at 148, and that, under the standards articulated by this Court in Hewitt v. Helms, 459 U.S. 460 (1983), respondents "possess a liberty interest in open visitation." The District Court directed petitioners to develop "minimal due process [109 S.Ct. 1908] procedures," including "an informal, nonadversary review in which a prisoner receives notice of and reasons for" any decision to exclude a visitor, as well as an opportunity to respond. App. 148. A formal order was issued accordingly. Id. at 149.

The United States Court of Appeals for the Sixth Circuit affirmed and remanded the case. 833 F.2d 614 (1987). Relying not only on the consent decree but also on the regulations and stated policies, the court held that the relevant language was sufficiently mandatory to create a liberty interest. The Court of Appeals found that the relevant prison policies "placed `substantive limitations on official discretion.'" Id. at 618-619, quoting Olim v. Wakinekona, 461 U.S. 238, 249 (1983). The court also found that the language of the consent decree, that "[d]efendants shall continue their open visiting policy" (emphasis supplied by Court of Appeals), see Kendrick v. Bland, 541 F.Supp. at 37, coupled with a provision from the policy statement that "[a]n inmate is allowed three (3) separate visits . . . per week" (emphasis added by Court of Appeals), Reformatory Procedures ¶ B(3), App. 108, satisfied the requirement of "mandatory language" articulated by our prior cases. See 833 F.2d at 618.

Because this case appeared to raise important issues relevant to general prison administration, we granted certiorari. 487 U.S. 1217 (1988).


The Fourteenth Amendment reads in part: "nor shall any State deprive any person of life, liberty, or property, without

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due process of law," and protects "the individual against arbitrary action of government," Wolff v. McDonnell, 418 U.S. 539, 558 (1974). We examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State, Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972); the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient, Hewitt v. Helms, 459 U.S. at 472. The types of interests that constitute "liberty" and "property" for Fourteenth Amendment purposes are not unlimited; the interest must rise to more than "an abstract need or desire," Board of Regents of State Colleges v. Roth, 408 U.S. at 577, and must be based on more than "a unilateral hope," Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465 (1981). Rather, an individual claiming a protected interest must have a legitimate claim of entitlement to it. Protected liberty interests "may arise from two sources -- the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S. at...

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