Southerland v. Thigpen

Decision Date14 March 1986
Docket NumberNo. 85-4868,85-4868
Citation784 F.2d 713
PartiesDiane SOUTHERLAND and Matthew Lee Ray, An Infant, by Diane Southerland As Next Friend, Plaintiffs-Appellants, v. Morris THIGPEN, Individually and In His Official Capacity as Director of the Mississippi Department of Corrections, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Shirley Payne, Cynthia Stewart, Jackson, Miss., for plaintiffs-appellants.

Edwin Lloyd Pittman, Atty. Gen., Robert E. Gibbs, Asst. Atty. Gen., Jackson, Miss., Leonard C. Vincent, Staff Atty., Parchmen, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WILLIAMS, GARWOOD, and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

Diane Southerland, a Mississippi prison inmate, and her infant son Matthew Lee Ray appeal the district court's denial of their requested temporary injunction to prevent the state's interference with their breast-feeding relationship. On February 3, 1986, we affirmed the district court's denial of plaintiffs' preliminary injunction motion. This opinion states the reasons for our decision.

Facts and Proceedings Below

Diane Southerland pleaded guilty to the embezzlement of $388.21 and was sentenced to five years in prison by a Mississippi state court. Southerland was pregnant when sentenced and when received by the Mississippi Department of Corrections. While in custody, she was transferred from the Mississippi Penitentiary at Parchman to the University Medical Center in Jackson, where she gave birth to Matthew Lee Ray on November 18, 1985. She began breast-feeding Matthew in the hospital. Matthew weighed nine pounds, five ounces at birth.

On November 20, 1985, the state attempted to remove Southerland from the hospital. On that day, she filed a complaint with the United States District Court for the Southern District of Mississippi seeking a temporary restraining order and a preliminary injunction. The district court granted a temporary restraining order by agreement of the parties, permitting Southerland and her baby to remain together in the hospital until a hearing could be held on November 22, 1985.

At the hearing, which by agreement of the parties was for both the restraining order and the temporary injunction, Southerland presented evidence that breast-feeding would be medically beneficial for her son because it would reduce his risk of allergies and diabetes. Matthew has a family history of allergy problems. Moreover, because his father has diabetes mellitus and his mother has gestational diabetes--both inheritable forms of the disease--Matthew is subject to a greater risk of diabetes than children of nondiabetic parents. In addition, breast-feeding generally aids infants in developing immunities from gastrointestinal and respiratory infections. Plaintiffs also presented testimony concerning the psychological benefits a child derives from breast-feeding.

Southerland has three older children, two daughters aged twenty-one and fourteen and a son aged nineteen, whom she did not breast-feed. These children have a different father from Matthew. It appears that their father does not have diabetes, and none of the children has contracted the disease. However, the two daughters have developed some allergies. There is no indication that these allergies constitute serious health problems.

The district court denied both the requested temporary restraining order and the preliminary injunction. Plaintiffs moved for an injunction pending appeal, which the district court denied. Based on the state's representation that Southerland would receive a seventy-two-hour pass to make arrangements for her child, the district court also denied plaintiffs' motion for injunction or stay during their efforts to obtain from this Court an injunction pending appeal.

Plaintiffs filed a motion for injunction pending appeal with this Court on November 25, 1985. A motions panel of this Court granted a forty-eight-hour stay, but denied the motion for injunction pending appeal on November 27, 1985. Later the same day, Mississippi Governor Allain granted Southerland a temporary suspension of her sentence from November 27, 1985 until February 1, 1986. Because oral argument of this case was scheduled for February 3, 1986, we issued a stay of the judgment of the district court to commence on February 1. On February 3, 1986, following oral argument of the appeal herein, we terminated the stay and affirmed the district court's denial of plaintiffs' motion for preliminary injunction.

Discussion

The decision to deny a preliminary injunction is within the district court's discretion. Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir.1985). To obtain a preliminary injunction, a plaintiff must establish: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat that irreparable injury will result in the absence of the injunction; (3) that the threatened harm to the plaintiff outweighs the threatened harm to the defendant; and (4) that granting the injunction will not disserve the public interest. Id.; Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir.1974). In this case, the district court concluded that plaintiffs failed to demonstrate any likelihood of success on the merits, that the potential harm to defendant outweighed that to plaintiffs, and that protection of defendant's interest best served the public interest. The court noted that Southerland had not "lost all of her protected liberty interests by reason of her incarceration," but decided that preventing the "disruption of the prison system" outweighed plaintiffs' interests. 1

The Mother's Interest

Southerland asserts a fundamental interest in her decision to breast-feed Matthew, which she claims is not outweighed by compelling interests of the state. The constitutionally protected right of privacy includes "the interest in independence in making certain kinds of decisions." Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). For example, in Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), the Supreme Court stated that "among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to ... family relationships ... and child rearing and education.' " Id. 97 S.Ct. at 2016 (quoting Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973) (citations omitted)). The Court has recognized that "freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment." Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982) (citations omitted); accord Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 1935-39, 52 L.Ed.2d 531 (1977). This privacy right has been linked to various constitutional provisions. See Roe, 93 S.Ct. at 726; Doe v. Public Health Trust, 696 F.2d 901, 909 (11th Cir.1983); Dike v. School Board, 650 F.2d 783, 786 & n. 1 (5th Cir.1981). Of course, the "constitutional protection of familial privacy is not absolute." Brantley v. Surles, 718 F.2d 1354, 1359 (5th Cir.1983).

Southerland relies primarily on Dike, in which this Court concluded that "[i]n light of the spectrum of interests that the Supreme Court has held specially protected ... the Constitution protects from excessive state interference a woman's decision respecting breastfeeding her child." 650 F.2d at 787. The Dike Court found the decision to breast-feed encompassed in the parents' constitutionally protected interest in nurturing and rearing their children, because breast-feeding "is the most elemental form of parental care." Id. at 787. In Dike, a public school teacher challenged the constitutionality of the school's refusal to permit her to breast-feed her child during her duty-free lunch period. The school would not allow her to breast-feed her child on campus because teachers were prohibited from bringing their children to work. Nor would the school allow plaintiff to leave the campus during the school day. Having found that plaintiff had a protected liberty interest in breast-feeding, the court remanded for a determination of whether the school's regulations furthered sufficiently important state interests and were closely tailored to effectuate only those interests. Id.

Dike does not dictate a finding for Southerland, primarily because Southerland is a prison inmate. "We start with the familiar proposition that 'lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights....' " Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974) (quoting Price v. Johnston, 344 U.S. 266, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948)). See also Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 2537, 53 L.Ed.2d 629 (1977). Although "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison," Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979) (citations omitted), their rights are subject to restrictions imposed by legitimate goals and policies of the penal system. Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 3198-99, 82 L.Ed.2d 393 (1984); Bell, 99 S.Ct. at 1877; Pell, 94 S.Ct. at 2804. The Supreme Court has determined that these restrictions are justified by institutional needs of prison facilities--especially internal security--and by the systemic goals of deterrence, retribution, and correction. Hudson, 104 S.Ct. at 3198. Nevertheless, prisoners must be accorded "those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration." Id. For example, a prisoner maintains many First Amendment protections, but does not have a Fourth Amendment expectation of privacy in his...

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