Casey v. Lewis, CIV 90-0054-PHX-CAM.

• Decision Date: 06 September 1991
• Docket Number: No. CIV 90-0054-PHX-CAM.,CIV 90-0054-PHX-CAM.
• Citation: 773 F. Supp. 1365
• Court: U.S. District Court — District of Arizona
• Parties: Fletcher CASEY, Jr., et al., on behalf of themselves & all others similarly situated, Plaintiffs, v. Samuel A. LEWIS, Director, Arizona Department of Corrections, et al., Defendants.

773 F. Supp. 1365

Fletcher CASEY, Jr., et al., on behalf of themselves & all others similarly situated, Plaintiffs, v. Samuel A. LEWIS, Director, Arizona Department of Corrections, et al., Defendants.

No. CIV 90-0054-PHX-CAM.

United States District Court, D. Arizona.

September 6, 1991.

Adjoa A. Aiyetoro, Stuart H. Adams, Jr., David C. Fathi, ACLU Nat. Prison Project, Washington, D.C., Alice L. Bendheim, Phoenix, Ariz., for plaintiff class.

Edward G. Hochuli, Kathleen L. Wieneke, Daniel P. Struck, Jones, Skelton & Hochuli, Phoenix, Ariz., for defendants.

AMENDED MEMORANDUM AND ORDER

MUECKE, District Judge.

Having considered all the pleadings filed with respect to plaintiffs' motion for partial summary judgment and the oral argument presented to the Court on August 23, 1991, the Court concludes as follows:

INTRODUCTION

This case was filed on January 12, 1990. On June 26, 1990, this Court certified a class composed of all adult persons who are now or who in the future will be in the custody of or under the supervision of the Arizona Department of Corrections ("ADOC"). The class also consists of a subclass of all prisoners who are handicapped and within the custody of the ADOC. Named plaintiffs are seeking declaratory and injunctive relief on behalf of the class, inclusive of the subclass.

Plaintiffs have filed a motion for partial summary judgment on the issues of contact attorney visitation and denial of prison jobs in violation of Section 504 of the Rehabilitation Act. Plaintiffs specifically request that the Court issue an Order prohibiting a blanket prohibition against contact attorney visits and that defendants' policy of denying food service jobs to prisoners who test HIV positive be invalidated.

DISCUSSION

I. Standard of Review

A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Federal Rules of Civil Procedure, Rule 56(c). The party seeking summary judgment bears the initial responsibility of showing the absence of a genuine issue for trial. Celotex Corporation v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The moving party must provide to the court a statement of specific uncontroverted facts, separate from its motion for summary judgment, on which it bases its motion. District of Arizona, Local Rule 11(l)(1). The moving party need not present affidavits or other materials negating the opponent's claims, but need only inform the court of the basis of its motion and indicate those portions of the pleadings and any other evidentiary matter listed in Rule 56(c) that support its contention that no genuine issue of fact exists. Celotex, 477 U.S. at 323-324, 106 S.Ct. at 2553. The moving party must cite specifically the portion of the record where the court can find the particular facts supporting its motion. District of Arizona, Local Rule 11(l)(1).

To defeat the motion, the party opposing summary judgment must establish that a genuine issue of fact exists with respect to any element for which it bears the burden of proof at trial. British Motor Car Distributors, Ltd. v. San Francisco Automotive Industries Welfare Fund, 882 F.2d 371, 374 (9th Cir.1989). The opposing party may not merely rely on the assertions and allegations of the pleadings, but instead must set forth specific facts showing a genuine issue for trial. Federal Rules of Civil Procedure, Rule 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Like the moving party, the party opposing the motion must direct the court's attention to where those facts appear in the pleadings, affidavits, and other evidentiary matter used to support the opposition; merely citing the record without designating where the fact is stated is not sufficiently specific. Celotex, 477 U.S. at 324, 106 S.Ct. at 2548; see Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir.1988). If the opposing party does not respond in the manner specified in Rule 56(e), summary judgment will be granted. Federal Rules of Civil Procedure, Rule 56(e).

II. Contact Attorney Visits

On May 9, 1991, this Court preliminarily enjoined defendants from implementation of a policy that denied contact attorney visits between prisoners and their attorneys in Cellblock 6 ("CB6") of the Arizona State Prison in Florence. Plaintiffs' motion seeks to have this ruling applied to all the facilities that prohibit contact visits between prisoners and attorneys. These facilities include the Special Management Unit ("SMU"), CB6, the Alhambra Reception Center ("Alhambra"), and all facilities where prisoners are kept in lockdown status. Where it is necessary, the Court will deal with each unit individually.

An inmate is entitled to meaningful access to the courts under the fourteenth amendment. See Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977). A prisoner's right to access to the courts encompasses a right to contact attorney visits. Ching v. Lewis, 895 F.2d 608, 610 (9th Cir.1990).

Any infringement by prison administrators upon a prisoner's meaningful access to the courts must be 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). Turner identifies four factors in evaluating the reasonableness of a prison regulation: 1) There must be a valid, rational connection between the regulation and the legitimate governmental interest put forward to justify it; 2) Whether there are alternative means for the inmate to exercise his or her constitutional right; 3) What impact the exercise of the constitutional right will have on the guards and other inmates and on the allocation of prison resources generally; and 4) the absence of ready alternatives is evidence of the reasonableness of a prison regulation. 482 U.S. at 90, 107 S.Ct. at 2262.

A. Whether there is a Rational Connection between the Prison Regulation and the Legitimate Governmental Interest put Forward to Justify it.

"A regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational." Id. at 89, 107 S.Ct. at 2262. In Walker v. Sumner, 917 F.2d 382 (9th Cir. 1990), the Ninth Circuit concluded that prison officials must provide evidence of the purpose of a regulation and how it furthers a legitimate penological interest. See id. at 388.

Defendants provided no proof of the regulation's purpose or how it furthers a legitimate penological objective. They offered no evidence that contact attorney visits resulted in escapes or assaults in any of the facilities.

In addition, as the Court noted with respect to CB6,

the fact that defendants allow some CB6 prisoners to have contact visits with their families¹ undermines any conclusion that there is a rational connection between the regulations and any legitimate penological interest of preventing escapes and assaults. Defendants offered no evidence that attorneys, as officers of the Court, are more likely than family members to assist in escapes or be assaulted. Indeed, the only evidence of an escape presented by defendants was perpetrated with the assistance of family members.

Court's Order of May 9, 1991, at 5.

Similarly, with respect to SMU, the Court believes that there is no rational connection between the non-contact policy and a legitimate governmental interest. SMU is a high security lockdown unit that houses the most highly disruptive and violent inmates within the Department of Corrections. All visitation at SMU, including attorney visitation, is non-contact. Although the type of inmates housed at SMU and the fact that no contact visitation is allowed is persuasive, that still does not appear to be sufficient to implement a blanket denial of contact attorney visitation. The inmates housed in SMU, as plaintiffs' counsel noted in oral argument, are the same inmates that were housed in CB6 before the opening of SMU. With respect to CB6, there have been no escapes, assaults, or incidents whereby dangerous contraband entered the institution as a result of a contact attorney-client visit. Court's Order of May 9, 1991, at 2. Defendants did not provide any evidence to show that SMU inmates, as a group, posed a security risk such that the entire unit should be denied contact visits with their attorneys.² As this Court previously concluded, blanket denial of contact attorney visitation is constitutionally impermissible. See Court's Order of May 9, 1991, at 6.

Finally, defendants' assertion that inmates at Alhambra, who have not yet been classified and therefore must be considered a Level 5 (the highest risk), and not entitled to contact visits, must fail. A prisoner's classification (or non-classification as the matter may be) or housing assignment is not sufficient to deny the prisoner his or her fundamental right to contact attorney visits.

In short, the record in this case precludes the Court from determining whether defendants asserted justification — prevention of escapes and assaults — was the actual reason for implementing the non-contact visitation policy. Moreover, defendants have not established that there is a rational connection between the prison regulation and any legitimate governmental interest. They provided no evidence of the regulation's purpose or how it furthers a legitimate penological objective. They did not cite a single incident in which escapes and/or assaults occurred as a result of contact visitation between attorneys and prisoners. Plaintiffs' Statement of Facts ("SOF"), at para. 9³; Cf. Jackson v. Elrod, 671 F.Supp. 1508 (N.D.Ill.1987) (court rejected affidavit because...