Bazzetta v. McGinnis

• Decision Date: 06 October 1995
• Docket Number: No. 95-73540.,95-73540.
• Citation: 902 F. Supp. 765
• Parties: Michelle BAZZETTA, Stacy Barker, Toni Bunton, Debra King, Shante Allen, Adrienne Bronaugh, Alesia Butler, Tamara Prude, Susan Fair, Valerie Bunton and Arturo Bunton, through his Next Friend Valerie Bunton, on behalf of themselves and all others similarly situated, Plaintiffs, v. Kenneth McGINNIS, Director of Michigan Department of Corrections; Michigan Department of Corrections, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

902 F. Supp. 765

Michelle BAZZETTA, Stacy Barker, Toni Bunton, Debra King, Shante Allen, Adrienne Bronaugh, Alesia Butler, Tamara Prude, Susan Fair, Valerie Bunton and Arturo Bunton, through his Next Friend Valerie Bunton, on behalf of themselves and all others similarly situated, Plaintiffs, v. Kenneth McGINNIS, Director of Michigan Department of Corrections; Michigan Department of Corrections, Defendants.

No. 95-73540.

United States District Court, E.D. Michigan, Southern Division.

October 6, 1995.

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Michael J. Barnhart, Detroit, MI, for plaintiffs.

George N. Stevenson, Lansing, MI, for defendants.

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

EDMUNDS, District Judge.

This matter comes before the court on Plaintiffs' motion for preliminary injunction to prevent enforcement of certain Michigan prison regulations restricting prisoner's visitation rights. For the following reasons, Plaintiffs motion for preliminary injunction is denied.

I. Facts

Plaintiffs are a group of women prisoners and their prospective visitors protesting new Michigan Correctional Rules regarding visitation. The new rules in question are:

1. Prisoners may only receive visitors under the age of 18 who are their children, step-children or grandchildren (thus prisoners may not see minor siblings, cousins, nieces, nephews, etc.) (Rule 791.6609(2)(b));

2. Prisoners may not visit with their natural children if their parental rights have been terminated for any reason (Rule 791.6609(6)(a));

3. Prisoners may only have 10 visitors who are not "immediate family" (immediate family does not include nieces, nephews, aunts, uncles, cousins, in-laws) (Rule 791.6609(2));

4. No minor children may visit unless accompanied by an adult legal guardian with proof of legal guardianship or an immediate family member (Rule 791.6609(5));

5. Members of the public may be on only one prisoner's visitation list (not including immediate family members), thus activists cannot visit more than one prisoner (Rule 791.6609(2)(a));

6. Prisoners may be denied all visitors (except from clergymen or an attorney) upon two major misconducts involving substance abuse (Rule 791.6609(11)(d));

7. All former prisoners are excluded from visiting current prisoners who are not "immediate family."

Plaintiffs contend that the above rules violate their First, Eighth and Fourteenth Amendment Constitutional rights, and brought suit in Michigan State Court pursuant to 42 U.S.C. § 1983. The rules were scheduled to go into effect on October 2, 1995, so Plaintiffs brought a motion for a temporary restraining order and preliminary injunction to enjoin enforcement of the new rules. The Defendants removed the action to this court under the authority of 28 U.S.C. §§ 1441(a) and 1446. The court entered a temporary restraining order enjoining enforcement of the rules until a preliminary injunction hearing could be held.

II. Standard for Preliminary Injunction

The availability of injunctive relief is a procedural question that is governed by federal law. Southern Milk Sales, Inc. v. Martin, 924 F.2d 98 (6th Cir.1991). The Sixth Circuit has held that a court must consider four factors in deciding whether to issue a preliminary injunction:

1. whether the movant has shown a strong or substantial likelihood of success on the merits;

2. whether the movant has demonstrated irreparable injury 3. whether the issuance of a preliminary injunction would cause substantial harm to others; and

4. whether the public interest is served by the issuance of an injunction.

Parker v. U.S. Dept. of Agric., 879 F.2d 1362, 1367 (6th Cir.1989). The foregoing factors should balanced. In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985). Where the three factors other than the likelihood of success all strongly favor issuing the injunction, a district court is within its discretion in issuing a preliminary injunction if the merits present a sufficiently serious question to justify a further investigation. Id. at 1230. Alternatively, the court may also issue a preliminary injunction if the movant "at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if an injunction is issued." Frisch's Restaurant, Inc. v. Shoney's Inc., 759 F.2d 1261, 1270 (6th Cir.1985) (citations omitted).

III. Analysis

A. Likelihood of Success on the Merits

To prevail in a civil rights action under 42 U.S.C. § 1983, a plaintiff must plead and prove that the defendants, acting under color of state law, deprived the plaintiff of a right secured by the Constitution and laws of the United States. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Section 1983 alone creates no substantive rights; rather, it is a vehicle by which a plaintiff may seek redress for deprivations of rights established in the Constitution or federal laws. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2695 n. 3, 61 L.Ed.2d 433 (1979). The statute applies only if there is a deprivation of a federal right. See e.g., Paul v. Davis, 424 U.S. 693, 699-701, 96 S.Ct. 1155, 1159-1160, 47 L.Ed.2d 405 (1976); Baker, 443 U.S. at 146-47, 99 S.Ct. at 2695-96. Thus, "the first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of a right `secured by the Constitution and laws'" of the United States. Baker, 443 U.S. at 140, 99 S.Ct. at 2692.

The Plaintiff prisoners claim that the new prisoner visitation rules will deprive them of rights under the First, Eighth and Fourteenth Amendments to the United States Constitution. Prison regulations that implicate a prisoner's constitutional rights will be upheld when "it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). The non-prisoner Plaintiffs claim that the new rules will deprive them of rights under the First and Fourteenth Amendments. Prison regulations must respect the constitutional rights of non-prisoners and are subject to that level of scrutiny determined by the Supreme Court for the particular constitutional violations in question. Cf. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) (Court applied strict scrutiny analysis to infringement of non-inmate's First Amendment rights).

1. Are the Constitutional Rights of the Plaintiff Prisoners Implicated by the New Regulations?

a. Rules restricting visitation of minor children and the overall number of visitors.

Plaintiffs first claim that the regulations restricting visitation of minor children and the overall number of visitors a prisoner may see to ten, violate their constitutional right of freedom of association. Convicted prisoners, however, have no absolute, unfettered constitutional right to unrestricted visitation with any person, regardless of whether that person is a family member or not. 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); Lynott v. Henderson, 610 F.2d 340 (5th Cir.1980). Rather, visitation privileges are subject to the discretion of prison officials. McCray v. Sullivan, 509 F.2d 1332 (5th Cir.), cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86 (1975). In Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977), the Supreme Court stated,

The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration.... Perhaps the most obvious of the First Amendment rights that are necessarily curtailed by confinement are those associational rights that the First Amendment protects outside of prison walls. The concept of incarceration itself entails a restriction on the freedom of inmates to associate with those outside the penal institution.

433 U.S. at 125-25, 97 S.Ct. at 2537-38. The Sixth Circuit has yet to opine whether prisoners have a First Amendment freedom of association right to visitation. Long v. Norris, 929 F.2d 1111 (6th Cir.), cert. denied, 502 U.S. 863, 112 S.Ct. 187, 116 L.Ed.2d 148 (1991) ("We have not decided the degree to which prison inmates retain their freedom of association.... Given the sparse authority on this issue, we hold that any such right, if it exists, is not clearly established." Id. at 1118). Other Circuit courts have held that no First Amendment right to visitation exists. White v. Keller, 438 F.Supp. 110, 115 (D.Md.1977), aff'd per curiam, 588 F.2d 913 (4th Cir.1978) (finding that prisoner visitation occurs for social rather than ideological purposes and further that "visitation does not seem to be a right, but merely one means of effecting a wholly distinct right." Id. at 117); Thorne v. Jones, 765 F.2d 1270, 1274 (5th Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1198, 89 L.Ed.2d 313 (1986) (finding no First Amendment right of freedom of association for prisoners to have physical association). Courts have further held that constitutional challenges asserting a right to visitation fail even to state a claim. McCray, 509 F.2d at 1334. Moreover, courts in this district have previously held that prisoner's constitutional rights are not implicated by the restriction of visitation. O'Bryan v. County of Saginaw, Mich. (O'Bryan III), 529 F.Supp. 206, 211 (E.D.Mich.1981); Mawby v. Ambroyer, 568 F.Supp. 245, 249 (E.D.Mich. 1983).

This court is aware that other courts have come to a different conclusion. See e.g., Laaman v. Helgemoe, 437 F.Supp. 269, 320 (1977) (and cases cited therein); Nicholson v. Choctaw County, 498 F.Supp. 295, 310 (S.D.Ala.1980). Yet the stronger reasoning and weight of authority lead this court to find that no First Amendment...