833 F.2d 614 (6th Cir. 1987), 86-5836, Thompson v. Com. of Ky., Dept. of Corrections

Docket Nº:86-5836.
Citation:833 F.2d 614
Party Name:James M. THOMPSON, et al., Plaintiffs-Appellees, v. COMMONWEALTH OF KENTUCKY, DEPT. of CORRECTIONS, et al., Defendants-Appellants.
Case Date:November 19, 1987
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 614

833 F.2d 614 (6th Cir. 1987)

James M. THOMPSON, et al., Plaintiffs-Appellees,

v.

COMMONWEALTH OF KENTUCKY, DEPT. of CORRECTIONS, et al.,

Defendants-Appellants.

No. 86-5836.

United States Court of Appeals, Sixth Circuit

November 19, 1987

Argued June 15, 1987.

Rehearing and Rehearing En Banc Denied Jan. 6, 1988.

Page 615

David A. Sexton, Linda G. Cooper, Barbara W. Jones (argued), Corrections Cabinet, Office of General Counsel, Frankfort, Ky., for defendants-appellants.

Joseph S. Elder, Robert A. Lee (argued), Louisville, Ky., for plaintiffs-appellees.

Before MERRITT, MARTIN and WELLFORD, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

The sole issue presented by this case is whether a consent order and prison policy created a liberty interest in visitation privileges such that due process requires some procedure before denying visitation. The district court found that a liberty interest did exist. We agree.

It is well recognized that there are two means by which a constitutionally protected liberty interest can be found to exist. First, certain rights and interests are so inherent in our society that they may be infringed only if procedural due process has been afforded. Second, the state may build up the public's expectations of a protected interest in other areas by enactment of statutes, regulations and other state actions. In this situation, too, due process requirements must be complied with before that state can limit the individual's interest in the created liberty. Before we apply this approach, however, we summarize the relevant facts.

Plaintiffs, prisoners at the Kentucky State Reformatory and Kentucky State Penitentiary, filed a lawsuit concerning prison interests. The lawsuit led to a consent decree addressing conditions of confinement at the State Reformatory and State Penitentiary. See Kendrick v. Bland, 541 F.Supp. 21, 27-49 (W.D.Ky.1981), aff'd, 740 F.2d 432 (6th Cir.1984). Concerning visitation, the consent decree declared: "The Bureau of Corrections encourages and agrees to maintain visitation at least at the current level with minimal restrictions. ... Defendants shall continue their open visitation policy." 541 F.Supp. at 37.

The subsequently-adopted procedures concerning visitation regulations at Kentucky State Reformatory, under which plaintiffs sued defendants in this case, declared:

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

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to respect the right of inmates to have visits in the spirit of the Court decisions and the Consent Decree, while insuring the safety and security of the institution. The following are the procedures to be enforced in regard to all types of visits.

Kentucky State Reformatory Procedures Memorandum, No. KSR 16-00-01 (Sept. 30, 1985). This policy stated that "[a]n inmate is allowed three (3) separate visits ... per week." Id. p B.3. Concerning refusal of visits, the policy stated:

  1. A visitor may be denied a visit at any time if one or more of the following exists or there are reasonable grounds to believe that:

a. The visitor's presence in the institution 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, including, but not limited to:

(1) The visitor has a past record of disruptive conduct.

(2) The visitor is under the influence of alcohol or drugs.

(3) The visitor refuses to submit to search or show proper identification upon request.

(4) The visitor is directly related to the inmate's criminal behavior.

(5) The visit will be detrimental to the inmate's rehabilitation.

(6) The visitor is a former resident currently on parole who does not have the approval of his Parole Officer or the Warden.

(7) The visitor is a former resident who has left by maximum expiration of sentence and does not have the prior approval of the Warden.

(8) The visitor has previously violated institutional visiting policies.

Id. p K. The 1985 policy also stated that the Duty Officer was responsible for denying visits for the above reasons. If a staff member believed a visitor should be denied, the staff member should notify the Duty Officer, who had the final decision. Id. p K 2, 3.

In 1985, inmate Kenneth Bolitt's mother was denied visitation rights for a short time after bringing to the institution a man previously barred from the institution for smuggling contraband. Another inmate's mother and girlfriend also had their visitation privileges suspended when the inmate was convicted of receiving contraband after one of their prior visits. In both instances, the visitation privileges were suspended without a hearing. Plaintiffs filed a motion seeking a court order requiring defendants to establish procedures, including a notice and hearing, to be followed before restricting visitation.

Plaintiffs claim that the due process clause requires such procedures to protect the inmates' liberty interests. The district court agreed with plaintiffs and ordered defendants to establish at least minimal procedures. The necessary predicate to that order was the district court's finding that the inmates had a liberty interest in visitation privileges. The question on appeal is whether the claimed liberty interest exists.

Prison officials have generally been found to possess broad discretionary authority over prison administration. As the Supreme Court has recognized,

"[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities." (Footnote omitted.)

Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 126, 97 S.Ct. 2532, 2538, 53 L.Ed.2d 629 (1977) (quoting Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974)). "Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations of our penal system." Id. at 125, 97 S.Ct. at 2537. The Supreme Court has "consistently refused to recognize more than the most basic liberty interests in prisoners." Hewitt v. Helms, 459

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U.S. 460, 467, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). Thus, the Supreme Court has found no "constitutional or inherent right" to placement in any particular prison or state, Olim v. Wakinekona, 461 U.S. 238, 245, 103 S.Ct. 1741, 1745, 75 L.Ed.2d 813 (1983), Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976), placement in any particular section within a prison, Hewitt v. Helms, 459 U.S. at 468, 103 S.Ct. at 869, parole, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979), or good-time credit for satisfactory behavior, Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974).

Specifically addressing visitation privileges, we have ruled that "[p]rison inmates have no absolute constitutional right to visitation." Bellamy v. Bradley, 729 F.2d 416, 420 (6th Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 156, 83 L.Ed.2d 93 (1984). This conclusion is in keeping with the above recited Supreme Court decisions. The Court in Hewitt asserted that the issues of parole and good-time credits "involve release from institutional life altogether, which is a far more significant change in a prisoner's freedoms than that at issue here [administrative segregation], yet in Greenholtz and Wolff we held that neither [parole nor good-time credits] involved an interest independently protected by the Due Process Clause." Hewitt, 459 U.S. at 468, 103 S.Ct. at 870. That reasoning compels the same conclusion here with respect to visitation privileges. The denial of a visit from a given visitor has a far less significant impact on a prisoner's "freedoms" than parole, good-time credits, or even administrative segregation. Because these rights are not inherently protected by the due process clause, visitation privileges are not inherent constitutional rights.

Despite the absence of a claim of inherent constitutional right, a state may nevertheless create a liberty interest by enacting a statute or regulation, Hewitt, 459 U.S. at 469, 103 S.Ct. at 870, and we have further held that liberty interests can be created by prison officials' policy statements and other promulgations. Bills v. Henderson, 631 F.2d 1287, 1291 (6th Cir.1980) (citing Walker v. Hughes, 558 F.2d 1247, 1255 (6th Cir.1977). Courts have found, for example, that state statutes or prison policies have created liberty interests in not being placed in administrative or disciplinary segregation, Hewitt, 459 U.S. at 472, 103 S.Ct. at 871, Franklin v. Aycock, 795 F.2d 1253, 1260 (6th Cir.1986), Bills v. Henderson, 631 F.2d at 1294, not being transferred from a prison to a mental hospital, Vitek v. Jones, 445 U.S. 480, 489, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980), not being reclassified from minimum to medium security, Beard v. Livesay, 798 F.2d 874, 879 (6th Cir.1986), eligibility for parole, Greenholtz, 442 U.S. at 12, 99 S.Ct. at 2106, Mayes v. Trammel, 751 F.2d 175, 179 (6th Cir.1984), not being placed in solitary confinement, Wright v. Enomoto, 462 F.Supp. 397, 403 (N.D.Cal.1976), aff'd mem., 434 U.S. 1052, 98 S.Ct. 1223, 55 L.Ed.2d 756 (1978), and receiving good-time credit for satisfactory behavior, Wolff, 418 U.S. at 556-57, 94 S.Ct. at 2975.

As the Supreme Court asserted in Hewitt,

There are persuasive reasons why we should be loath to transpose all of the reasoning in the cases just cited to the situation where the statute and the regulations govern the day-to-day administration of a prison system....

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