Gavin v. McGinnis

• Decision Date: 24 October 1994
• Docket Number: No. 91 C 2754.,91 C 2754.
• Parties: Eddie GAVIN, Plaintiff, v. Kenneth McGINNIS, as Director of the Illinois Department of Corrections, and James Schomig, as Assistant Warden of Stateville Correctional Center, Defendants.
• Court: U.S. District Court — Northern District of Illinois

866 F. Supp. 1107

Eddie GAVIN, Plaintiff, v. Kenneth McGINNIS, as Director of the Illinois Department of Corrections, and James Schomig, as Assistant Warden of Stateville Correctional Center, Defendants.

No. 91 C 2754.

United States District Court, N.D. Illinois, Eastern Division.

October 24, 1994.

James I. Marcus, Williams & Marcus, Ltd., Chicago, IL, for plaintiff and Eddie Gavin, plaintiff, pro se.

David S. Rodriguez and Steven Todd Schmall, Illinois Atty. General's Office, Chicago, IL, for defendants.

OPINION AND ORDER

NORGLE, District Judge:

Before the court is the sua sponte reconsideration of the court's order of April 3, 1992, See, Gavin v. McGinnis, 788 F.Supp. 1012 (N.D.Ill.1992). For the following reasons, the court vacates its April 1992 order in part and grants the motion of defendant James Schomig to dismiss the complaint.

BACKGROUND

At the time plaintiff Eddie Gavin ("Gavin") experienced the alleged injury, he was serving time for committing a felony at the Stateville Correctional Center in Joliet, Illinois ("Stateville"). Gavin has since been released from Stateville. Gavin filed this lawsuit pro se based on 42 U.S.C. § 1983, alleging that defendants deprived him of his civil rights generally. Gavin named as defendants James Schomig ("Schomig"), the Assistant Warden at Stateville, Schomig's Officers generally, and Kenneth McGinnis ("McGinnis"), the former director of the Illinois Department of Corrections. In a minute order dated June 19, 1992, the court dismissed the officers and McGinnis from the lawsuit because Gavin failed to effectuate proper service. Schomig is the only remaining defendant. In January 1992, Schomig filed a motion to dismiss the complaint. The court denied his motion in an opinion dated April 3, 1992; however, the court declined to decide whether a particular liberty interest existed since the matter was at an early stage of the litigation.

Gavin alleges in his complaint that on six different occasions, over a six month period, certain members of his family were denied access to Stateville for visitation.¹ Gavin explains he received a letter from Stateville prison officials reporting that they denied his sister access to visitation on November 25, 1990, because she was intoxicated. The prison officials placed his sister, Rose, on a six month visitation restriction list. Gavin describes that there may have been some confusion over the names of his sisters Rosella and Rose, and his mother Rosalie, and, hence, misidentification of his relatives. He contends that Rosella was the one who visited on November 25, 1990, not Rose. Furthermore, Gavin denies that his sister Rosella was intoxicated at that time.

DISCUSSION

In the court's opinion of April 3, 1992, the court denied, with qualification, Schomig's motion to dismiss. The court wrote:

While prisoners do not possess a substantive liberty interest in visitation arising under the Constitution, section 3-7-2(f) of Illinois' Unified Code of Corrections (Ill. Rev.Stat. ch. 38, ¶ 1003-7-2(f)) at least arguably supplies a prisoner a sufficient liberty interest to state a claim under section 1983.... However, it is by no means clear that prisoners have a protectible liberty interest in visitation.

Gavin v. McGinnis, 788 F.Supp. 1012, 1013 (N.D.Ill.1992) (citations omitted). Furthermore, the court wrote that it "expressly declines to decide, at this early stage in the litigation, whether a prisoner has a ... liberty interest in visitation." Id. Since "District courts ... have a responsibility to keep their court calendars as current as possible," North Cent. Ill. Laborers' Dist. Council v. S.J. Groves & Sons Co., 842 F.2d 164, 167 (7th Cir.1988), the court finds that this is an appropriate juncture at which to revisit the issue. The court now addresses whether the denial of visitation privileges is cognizable in Gavin's § 1983 cause of action.

A. CONSTITUTIONAL VIOLATION

Again, the underlying motion is one for dismissal of Gavin's 42 U.S.C. § 1983 claim. "All the complaint need do to with-stand a motion to dismiss for failure to state a claim is `outline or adumbrate' a violation of the statute or constitutional provision upon which plaintiff relies, and connect the violation to the named defendants." Brownlee v. Conine, 957 F.2d 353, 354 (7th Cir.1992) (citations omitted). To state a viable claim under § 1983, a plaintiff must allege sufficient facts to demonstrate that he was "deprived of an interest secured by the Constitution or laws of the United States, and the deprivation was visited upon him by a person or persons acting under color of state law." Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1249 (7th Cir.1994) (citing Gomez v. Toledo, 446 U.S. 635, 638-40, 100 S.Ct. 1920, 1923-24, 64 L.Ed.2d 572 (1980)). However, "in evaluating constitutional claims of prisoners, we must balance the need to protect prisoners' procedural rights against the need for prison safety and security." Pardo v. Hosier, 946 F.2d 1278, 1280 (7th Cir.1991); see also Woods v. O'Leary, 890 F.2d 883 (7th Cir.1989) (holding that regulations may impinge constitutional rights if the regulation is reasonably related to legitimate penological interests).

In 1972, the United States Supreme Court opined the following of liberty interests:

"Liberty" and "property" are broad and majestic terms. They are among the "great constitutional concepts ... purposely left to gather meaning from experience. ... They relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged."

Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972) (quoting National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 626, 69 S.Ct. 1173, 1195-96, 93 L.Ed. 1556 (1949) (Frankfurter, J., dissenting)). "Liberty interests may arise from the due process clause itself or from state law." Pardo, 946 F.2d at 1281. A liberty interest is not created in prison visitation through the United States Constitution. Evans v. Johnson, 808 F.2d 1427, 1428 (11th Cir.1987). The privilege of receiving visitors is a protected liberty interest only if state law recognizes visitation as such. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 461-62, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989).

The issue before the court is whether an Illinois statute created a federal liberty interest in visitation rights such that any deprivation thereof would amount to a constitutional violation, thereby allowing the deprivation of visitation to serve as foundation for a § 1983 action. See, e.g., Benford v. Wright, 782 F.Supp. 1263, 1265 (N.D.Ill.1991) (recognizing that "Illinois prison regulations for minor disciplinary infractions create a liberty interest under the due process clause of the Fourteenth Amendment"). Only after a showing of a cognizable liberty interest does the court reach the issue of whether plaintiff was afforded due process. Maust v. Headley, 959 F.2d 644, 647 (7th Cir.1992).²

In determining the state's position on visitation, the court considers whether the regulations at issue create a substantive right or whether they merely establish procedures for prison officials to follow. Villanova v. Abrams, 972 F.2d 792, 798 (7th Cir. 1992). To create a liberty interest, a state regulation must do more than establish procedures; it must substantively limit an official's discretion. Thompson, 490 U.S. at 461-62, 109 S.Ct. at 1909; Pardo, 946 F.2d at 1281; Williams v. Faulkner, 837 F.2d 304, 309 (7th Cir.1988) (holding that there is no liberty interest in being transferred "absent some statutory or regulatory provision that clearly limits prison officials in the exercise of their discretion"). The Thompson court wrote that a state may limit discretion in a number of ways:

Neither the drafting of regulations nor their interpretation can be reduced to an exact science. Our past decisions suggest, however, that the most common manner in which a State creates a liberty interest is by establishing "substantive predicates" to govern official decision-making, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.

Thompson, 490 U.S. at 462, 109 S.Ct. at 1909 (citations omitted). If, however, "the ultimate resolution is left to the discretion of the prison officials, then no protectible liberty interest is created." Pardo, 946 F.2d at 1284. Moreover, Thompson "required that the state law include `"explicitly mandatory language," i.e., specific directives to the decision-maker that if the regulations' substantive predicates are present, a particular outcome must follow, in order to create a liberty interest.'" Id. at 1281 (quoting Thompson, 490 U.S. at 463, 109 S.Ct. at 1910). "When a state chooses to establish procedural guidelines it does not create an independent substantive right." Id. at 1282. In Williams, for instance, the Seventh Circuit Court of Appeals cited a number of cases which held that there is no liberty interest in the following areas: no liberty interest in a particular wing of a prison; no liberty interest in remaining in the prison's general population; no liberty interest in remaining in a certain state institution; and no liberty interest in remaining in the state prison system rather than the federal system. Williams, 837 F.2d at 309. "Only statutes or rules attaching consequences to particular circumstances give prisoners liberty or property interests."

Wallace v. Robinson, 940 F.2d 243, 246 (7th Cir.1991).

The Sixth Circuit Court of Appeals found that a liberty interest was created by a Tennessee regulation. Long v. Norris, 929 F.2d 1111, 1117 (6th Cir.1991). The Long court found that the regulation contained mandatory language sufficient to give rise to a liberty interest citing to the word "shall" as the regulation used it. Also, the Ninth Circuit Court of...