Harmon v. Auger

• Decision Date: 18 July 1985
• Docket Number: No. 84-1784-NI,84-1784-NI
• Citation: 768 F.2d 270
• Parties: Herman HARMON, et al., Appellants, v. Calvin D. AUGER, Warden, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 270

768 F.2d 270

Herman HARMON, et al., Appellants, v.Calvin D. AUGER, Warden, et al., Appellees.

No. 84-1784-NI.

United States Court of Appeals Eighth Circuit.

Submitted June 10, 1985.

Decided July 18, 1985.

Philip Mears, Iowa City, Iowa, for appellants.

John M. Parmeter, Asst. Atty. Gen., Des Moines, Iowa, for appellees.

Before LAY, Chief Judge, PHILLIPS^*, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

PHILLIPS, Senior Circuit Judge.

This action under 42 U.S.C. Sec. 1983 was filed by two inmates of the Iowa Men's Reformatory at Anamosa, and two of their visitors, challenging two Reformatory policies.The first policy under attack is the suspension of contact visitation privileges of prisoners who, in disciplinary proceedings are found guilty of the possession of drugs.The Reformatory established a no-contact visitation area with a screen between the inmate and his visitor.The second policy relates to the use of the results of a urine drug detection system in finding inmates guilty of a disciplinary violation for possession of drugs.

The case is before this court upon appeal from the final judgment entered by U.S. Magistrate James Hodges, Jr., sitting under authority of 28 U.S.C. Sec. 636(c)(3).The jurisdiction of the Magistrate was based on 28 U.S.C. Secs. 1331and1343.This court has jurisdiction of the appeal pursuant to 28 U.S.C. Sec. 1291.

The Magistrate held that the imposition of no-contact visitation upon the plaintiff inmates who have been found guilty of possessing a controlled substance does not violate due process; and that the plaintiff inmates do not have a constitutionally protected liberty interest which is inherent in the Constitution of the United States or pursuant to Iowa statutes or administrative regulations.¹

I

The decision of this court in Hunter v. Auger, 672 F.2d 668(8th Cir.1982) barred indiscriminate strip searches of visitors of Reformatory inmates.A practice then was adopted that when an inmate is found guilty of violating disciplinary rule 20(possession of drugs), he is placed on a no-contact status with respect to all his visitors, with the right to automatic review of that status in ninety days.The Adjustment Committee has no discretion to determine whether the no-contact restriction is to be applied.It must be enforced in all cases of possession of drugs.If no drug problems occur within a ninety-day period, contact visits generally are restored.

The comprehensive findings of fact of the Magistrate included the following:

The purpose of this policy is to control the introduction of contraband drugs into IMR.The no-contact status, when imposed, applies to all of a violator's visitors, regardless of their role, or lack thereof, in the rule 20 possession violation.The underlying rationale is that the rule 20 violators have the propensity or disposition to pressure their visitors to smuggle contraband into them, regardless of whether the visitors have done so in the past ...

The introduction of contraband drugs into IMR is a problem pertaining to the order and security of the institution.Visitors are the largest source of introducing contraband drugs into the reformatory.In 1982 IMR had an average of 1,025 residents, and approximately 2,300 residents passed through in all.Each resident had approximately 5-6 visitors.It would be impracticable for IMR authorities to check each visitor's background for drug abuse, because the reformatory lacks adequate manpower to do so.Also, a background check may be ineffectual to some extent where visitors abuse drugs but have no record of drug abuse.The implementation of the policy (hereinafter "no-contact policy") has led to a reduction in drug abuse at IMR.

In addressing a due process challenge, a court must determine whether a prisoner has a liberty interest protected by the fourteenth amendment.Vruno v. Schwarzwalder, 600 F.2d 124, 128-29(8th Cir.1979).A liberty interest may be inherent in the Constitution or created by State law.Prison inmates retain only those rights consistent with legitimate penal objectives.Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 2537, 53 L.Ed.2d 629(1977).

In Block v. Rutherford, --- U.S. ----, 104 S.Ct. 3227, 82 L.Ed.2d 438(1984), the Supreme Court ruled that an inmate has no constitutional right to contact visitation.The Court held that if a restriction is not punitive but merely incidental to, and reasonably related to, a legitimate government objective, and not excessive to its purpose, there is no constitutional violation.Appellees emphasize that the restrictions relate to the legitimate interest in preventing unauthorized use of drugs in prisons.Visitors of inmates are viewed as the chief source of contraband and the prison officials believe inmates found to use marijuana are more likely to persuade their visitors to bring it to them.We agree with the Magistrate that the procedures do not run afoul of any liberty interests under the guidelines of Block.

II

In Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675(1983), the Supreme Court held that State laws or regulations expressed in mandatory language may create a liberty interest subject to due process protections.See alsoGreenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668(1979).Plaintiffs argue that State rules establish a liberty interest in contact visitation arising from limits placed on the warden's discretion to deny such visits.

In regard to visitation, the Iowa Code provides that certain public officials and religious officials shall be granted admission to State institutions; however, "No other person shall be granted admission except by permission of the warden."Iowa Code Sec. 246.46.Further, the Iowa Administrative Code provides:

Individuals may have visiting privileges modified or terminated when: (a) the inmate or visitor engage in behavior that may in any way be disruptive to the order and control of the institution; (b) the visitor or inmate fails to follow the established rules and procedure of the institution; (c) the visitor and the inmate directly exchange any object or article.This does not apply to purchases from the canteen which are consumed during the visit; (d) the effect of alcohol or narcotic drugs is detected before, during or after the visit; (e) the visit or continued visiting is detrimental to the health of the inmate or visitor; (f) the visitor does not manage children to prevent them from interfering with or disrupting other visits.

I.A.C. Sec. 770-16.3(5).Additionally, Iowa Administrative Code Sec. 16.3(6) provides:

Visits with no physical contact may be granted when visits are beneficial for the inmate, visitor and the institution and the order or security of the institution may be threatened.

I.A.C. Sec. 770-16.3(6).

Appellants argue these rules require some nexus between the visit and misconduct on the part of the visitor or inmate.Appellees stress that sections 246.46and16.3 make no reference to contact visits.Noting that Sec. 246.46 makes visits discretionary with the warden, appellees argue that Sec. 16.3(6), while referring to contact visits, does not contain any mandatory language that indicates prisoners are entitled to contact visitation.They cite Jones v. Mabry, 723 F.2d 590(8th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2683, 81 L.Ed.2d 878(1984) in support of their position that these provisions create no substantive limitation on the discretion of prison officials in granting no-contact visitation.

Appellants also cite language from general orders issued within the Reformatory.General Order Number 6, first issued February 19, 1979, provides:

The use of the no contact visiting facilities is for the purpose of maintaining security of the institution primarily through the control of contraband.It will not be seen or used as a means of punishment per se.

The use of the no contact facilities will be limited to the following instances:

(1) Reinstated visitors who refuse personal searches.(See General Order--Institutional # 32)

(2) Residents who have been found in possession of drugs in the institution will have their visits screened and no contact visits will be arranged for visitors who are suspects.

(3) Visitors who are designated to be personally searched and staff is not on duty to perform the search.(This will avoid calling staff into the institution when off duty.)

(4) Any resident who is designated by the Adjustment committee who represents a behavioral/control and/or security problem.

Appellants also cite language from the employee manual, in effect before March 1982, providing that visiting privileges may be modified for disruptive conduct or intoxication before or during a visit.They maintain that prior to March 1982 administrative rules required a connection between misconduct and the visit itself or a particular suspicion regarding a prisoner in order to modify visitation privileges.

On March 4, 1983, a new General Order 6 was issued to reflect a new policy on no-contact visits.It provided that any time an inmate is found in possession of contraband, "his visits will be reviewed and no-contact visits will be instituted in those instances where control is deemed appropriate."The order also provided for no-contact visits when the inmate presents a security problem or is in disciplinary detention.Shortly afterward, the employee manual was amended to mirror the language of I.A.C. Sec. 770-16.3(5).Appellants argue that while the formal administrative rule has not been changed since it was adopted in 1981, the interpretations of this rule have changed dramatically.The new interpretation, first reflected in institutional practice and later in General Order # 6, authorizes no-contact visits even in the absence of visitor misconduct.

Appellants were placed on no-contact status in December...