Doe v. Sparks

Decision Date14 March 1990
Docket NumberCiv. A. No. 89-248J.
PartiesJane DOE, Plaintiff, v. Gary SPARKS, Warden of the Blair County Prison, et al., Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania

Jere Krakoff, Mary Lewin, Pittsburgh, Pa., for plaintiff.

Michael Chorazy, Hollidaysburg, Pa., for defendants.

MEMORANDUM

D. BROOKS SMITH, District Judge.

This case requires our review of the visitation policy of the Blair County Prison in light of plaintiff's challenge that the policy is unconstitutional and in violation of the Fourteenth Amendment's equal protection clause.

Plaintiff is an adult female sentenced to incarceration in the Blair County Prison. She alleges that the institution's visitation policy unconstitutionally discriminates against her because she is a lesbian and is denied any visit from the woman with whom she is romantically involved. Routine visits are permitted between heterosexual prisoners and members of the opposite sex with whom they are romantically involved.

The matter came before the court for a preliminary and final injunction hearing on December 14, 1989. Having reviewed the transcript and our notes from that proceeding, together with the post-trial submissions of counsel, we issue the following findings and conclusions:

FACTS:

1. Jane Doe is an adult female inmate of the Blair County Prison, who will be identified by a pseudonym so as not to unduly expose plaintiff's identity. Doe is a lesbian, and is and has been involved in a romantic1 relationship with another adult female who is not incarcerated and who would visit Doe at the prison if permitted.

2. Doe was sentenced by the Blair County Court of Common Pleas, and was committed to the Blair County Prison on May 25, 1989. Visitation in the prison is governed by a Prison Board-approved policy which has been effective and unaltered since the early 1970's, and which is set forth in the handbook distributed to inmates upon arrival at the prison. It provides, in relevant portion, that:

Inmates will be permitted two (2) one hour visits each week, one on either Tuesday/Wednesday and one on either Saturday/Sunday.
Visitation is limited to members of the immediate family, i.e.: mother, father, sister, brother, wife, husband, children. If inmate is not legally married, common law spouses or boy/girlfriend will be permitted to visit.

3. On May 29, 1989, Doe sent a request to Warden Gary Sparks requesting that her girlfriend be allowed to visit her. Warden Sparks refused the request, replying that such relationships could not be condoned in a prison setting.

4. The Warden's rejection of the requested visitation was in accordance with the Warden's interpretation of the Blair County Prison policy which permitted visits between unmarried heterosexual inmates and their boy/girlfriends, but which did not permit visits between homosexual inmates and their boy/girlfriends.

5. Significantly, although the parties stipulated that the Warden's rejection of the visit was due to a prison policy, the evidence presented at the hearing showed that in the past 15 years, and within the memory of any member of the prison staff or Board, no request for visitation between a known homosexual inmate and a boy/girlfriend had ever occurred. The Warden denied the request based on what he believed the visitation policy to require and on the basis of his understanding of Pennsylvania law.

6. The day following Doe's initial request, Doe sent another written request to the Warden asking for an explanation of the denial of visiting privileges. That same day, May 30, 1989, the Warden responded in writing to Doe, stating in part:

Being an administrator of a penal institution I can't condone such a relationship and permit it to be extended through visits within the prison. When you are out of jail you can do what you want, but while you are here you will act according to the laws of Pennsylvania.

7. In August, 1989, after a third written request from Doe to the Warden for visitation with her girlfriend, Sparks brought the matter to the attention of the Prison Board, which ratified the actions of the Warden. This lawsuit followed when plaintiff filed her complaint on October 30, 1989.

8. Visitation at the Blair County Prison is noncontact only, and occurs in a visiting area containing thirteen pairs of booths separated by plexiglass panes; the visitor communicates through a telephone speaker. The booths are three-sided, and are not enclosed. The sides of a booth extend back approximately eighteen inches from the glass. Visitors' names and relationships to inmates are not announced to the prison population, nor are they otherwise publicized.

Discussion

Most of the facts which are necessary to resolve this case are not in dispute between the parties. In fact, the bulk of the evidence presented at the trial—that from plaintiff's witness Donna Gority who is also a member of the Prison Board, and plaintiff's expert, John Buckley—was either irrelevant or of no aid in reaching our disposition of this case. Aside from contributing her sociological viewpoint, Gority's testimony was pointless, since it expressed neither relevant facts concerning the actions of the Prison Board nor an understanding of the legal issues involved.2 Buckley's testimony, which focused entirely on the merits of the Prison Board policy, was also unhelpful in its entirety. He did little more than to repeatedly point out that "visitation is the most important activity an inmate has in the prison", a matter which was undisputed and irrelevant to the constitutional issue, and that "in prison the strong prey on the weak", a statement which we deem to be little more than a tautology.

We begin as we must, by deciding whether we have jurisdiction of this matter. As the Supreme Court has observed:

Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the Legislative and Executive branches of Government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have ... additional reason to accord deference to the appropriate prison authorities.

Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987). (citation omitted)

This admonition to be deferential is particularly forceful in the area of prison visitation. To hold otherwise would be to appoint the federal judiciary to supervise visitation at every penal institution, a delegation for which neither competence nor constitutional authority is extant. In short, a deferential approach is required if "prison administrators ..., and not the courts, are to make the difficult judgments concerning institutional operations." Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 128, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977).3

Nevertheless, even as the Supreme Court dictated a deferential role for the federal judiciary in Turner v. Safely, it struck down a Missouri prison policy which prevented inmates from marrying without the permission of the warden as offending the First Amendment, stating as it did so:

Federal courts must take cognizance of the valid constitutional claims of prison inmates.

Id., 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64, citing Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). Cf. Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (APA insulates discretionary employment decisions of CIA Director from judicial review, except on constitutional grounds).

Because this matter presents a challenge to a nondiscretionary policy which requires Blair County prison officials to allow visitation to unmarried heterosexual inmates and their boy/girlfriends and forbids visitation to homosexual inmates and their boy/girlfriends, and not to any particular decision concerning visitation at the Blair County Prison, and because that distinction is challenged under the Equal Protection Clause of the Fourteenth Amendment, we hold that we have jurisdiction to rule on this matter. We emphasize that our power to hear this case is solely to rule on the constitutional validity of the Prison Board policy, not to decide whether plaintiff Doe should receive visitation from her girlfriend.

Defendant Sparks asserts that there is no federal constitutional protection afforded to homosexual conduct, citing Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), and that a decision to deny visitation to a homosexual inmate's boy/girlfriend can offend no federal constitutional provision. Plaintiff argues, on the other hand, that visitation at the Blair County Prison is neither conjugal nor contact, and that in any event Bowers v. Hardwick, which stated that no substantive element of the due process clause prevented a state from criminalizing homosexual sodomy, is not a precedent which allows a state or county prison to refuse visitation to homosexuals who wish to associate romantically with other homosexuals. Both parties miss the mark somewhat.

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny the equal protection of the laws to any person within its jurisdiction. Both sides would admit that the equal protection clause dictates equal administration of rights and privileges, such as visitation, between similarly situated persons. Both sides would also admit that, constitutionally speaking, plaintiff is not a member of a "suspect class" which requires strict scrutiny and a compelling governmental reason to justify any intentionally disparate treatment. But see Watkins v. United States Army, 875 F.2d 699, 716-28 (9th Cir.1989) (concurring opinion of Norris, J.) Plaintiff, however, would argue that she is, because she is a...

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