N.E.W. v. Kennard

Decision Date07 January 1997
Docket NumberNo. 94-C-148 W.,94-C-148 W.
Citation952 F.Supp. 714
CourtU.S. District Court — District of Utah
PartiesN.E.W. & C.M.W., et al., Plaintiffs, v. Aaron D. KENNARD, et al., Defendants.

Brian M. Barnard, Andrea J. Garland, Salt Lake City, UT, for Plaintiffs.

Patricia J. Marlowe, Salt Lake County Attorneys Office, Salt Lake City, UT, for Defendants.


BOYCE, United States Magistrate Judge.

Plaintiffs, N.E.W. AND C.M.W., et al., filed this action against Salt Lake County Sheriff Aaron D. Kennard and Salt Lake County under 42 U.S.C. § 1983 alleging that the policy of the Salt Lake County Metro Jail prohibiting persons younger than eight years old from visitation with inmates was unconstitutional and denied plaintiffs due process and equal protection of the law. Plaintiff Clifford Perry was, at the time the suit was filed, an inmate, pretrial detainee, at the Metro Jail. C.M.W. is under 8 years of age and is the natural child of Perry and plaintiff's next friend S.M.W. N.E.W. is a minor child less than 8 years of age. She was born January 10, 1994 and is the minor child of Perry and S.M.W. N.E.W. was born while Perry was incarcerated. Perry, because of the metro jail visitation policy, was denied visitation of the children. The policy is metro jail policy and procedures 7705.04. The policy allowed visitation by children under eight years old by approval of the "Jail Command." Jail visits are non-contact. Plaintiffs sought injunctive relief and compensatory and exemplary damages.

On February 4, 1994, the parties stipulated Perry could have visitation with his children and a motion for a temporary restraining order was then deemed moot (File Entry # 11). Defendants filed an answer and challenged plaintiff's standing, contending the policy was not being applied to them.

On August 24, 1994 the N.E.W. case # 94-C-148 W was consolidated with # 94-C-563 S in which W.R. and V.R. were plaintiffs. # 94-C-148 W is the case assignment. The defendants made a motion to dismiss the actions. The court dismissed damage actions against the defendants Kennard and Glad.1 The court dismissed injunctive and declaratory claims of the minor children based on due process allegations. The court retained the damage claims against Salt Lake County on the basis of contentions of natural due process and equal protection violations.

Thereafter, plaintiffs made a motion for summary judgment (File Entry # 57). Plaintiffs asked for $1.00 damages each against Salt Lake County. The issue of injunctive and declaratory relief had been dismissed. Plaintiffs submitted a memorandum in support of their motion for summary judgment (File Entry # 58). The defendant, Salt Lake County, made a motion for summary judgment and submitted a memorandum (File Entry # 60). Salt Lake County, also made a motion to strike, from summary judgment consideration, a newspaper article which was submitted with plaintiff's motion for summary judgment. The newspaper article is hearsay not otherwise reliable or admissible and is stricken. It will not be considered on the motion for summary judgment. Salt Lake County also filed a memorandum in opposition to plaintiffs' motion for summary judgment (File Entry # 61) and plaintiff filed a memorandum in opposition to Salt Lake County's motion for summary judgment (File Entry # 67).

The case has been referred to the magistrate judge under 28 U.S.C. § 636(c); F.R.C.P. 73 on consent of the parties for full disposition by the magistrate judge.

Factual Matter Related to Plaintiffs' Motion For Summary Judgment

The plaintiffs submitted a statement of undisputed facts with their memorandum in support of summary judgment. D. Utah Rule 202(b)(4). Plaintiffs state that plaintiff Perry was incarcerated in the Salt Lake County Metro Jail in September, 1993 and remained in the jail until he was sentenced in March 1994. Perry had lived with S.M.W. and helped to raise C.M.W. Perry and S.M.W. produced N.E.W. as their biological offspring, born on January 10, 1994.

In October 1993, S.M.W. and C.M.W. went to the jail to visit Perry. The on duty officer asked S.M.W. to leave, citing jail policy preventing young children from visiting jail inmates. S.M.W. believed that there was no procedure whereby the child could visit Perry and C.M.W. was not brought to the jail again. S.M.W. only sought a non-contact visit.

In September, 1993, C.B. brought W.R. to visit her father, Rudy Remora, a pretrial detainee. The jail officer on duty refused the visit citing that children under eight could not visit inmates. The officer did not disclose alternative means by which visitation could occur. The officer was apparently an operational level staff officer.

After S.M.W. was turned away, Perry filed two grievances with the jail (Exhibit E & F). He sought to have C.M.W. be allowed to visit Perry. The request was denied by staff personnel. On January 18, 1994, eight days after N.E.W.'s birth, Perry filed a grievance asking that N.E.W. be allowed a special visit, which was denied. Jail Policy Rule 7705.04, in effect at the time provided:

No visitors under age eight are permitted in the visiting or waiting areas at any time.... (b) [E]xceptions must be approved by the Jail Command.

Rule 7705.05 on special visits provides two other exceptions to the visitation rule, but these exceptions were not applicable to the plaintiff's situation. A set of jail rules issued to inmates states that visitation by children under eight is not allowed. Signs also advised visitors that children zero to seven could not visit. Apparently, no reference was made to the exception with permission of the jail command.

Perry filed this lawsuit on February 4, 1994. During a hearing for a temporary injunction on February 15, 1994 the defendants agreed to allow Perry two thirty minute visits a week with his children. On April 6, 1994 the Metro Jail issued a memorandum advising that special visits between prisoners and their children would be allowed and in June 1994, Rule 7705.04 was modified to make clear that visits between inmates and their children could occur. The policy now in Rule 8120.03(2) stated "children under age 8 may visit as a special visit. Contact Jail Administration for arrangements." Under the new policy visiting with children was allowed during morning hours, at times not open to regular visitation. Signs were posted indicating visiting of children was allowed. No problems have been experienced, except increased workload for staff. The demands were not prohibitive and no administrative problems have been encountered. Prior to the clarification of the policy, special visits were requested three or four times, two were granted and one involving a federal prisoner was refused.

The defendants submitted a memorandum in opposition to summary judgment (File Entry # 66). The defendants challenged some of the essential facts. However, defendants contend since February or March, 1992 special visits have been allowed and offered facts in two instances. Inmates could obtain special visits from jail staff or become informed on reading the rules. If a visiting facility was available at the time of the request, visitation would be allowed. The memorandum of April 6, 1994 saying that the Jail Administration would approve special visits between inmates and children was made after this suit was filed did not change jail policy, but was intended to clarify the existing policy. The same is asserted for the June, 1994 rule. The defendants contest the claim that change in jail policy was in any way the result of plaintiffs' suit.

Defendants say they have no knowledge involving the relationship between S.M.W., N.E.W., Perry and C.M.W. However, lack of ability to dispute the matter at summary judgment means the issue is uncontested because there is no material issue in dispute. Rule 56, F.R.C.P. Cpl. Mattingley and Lt. Merrick denied Perry's request for special visits. Neither person is a defendant in the suit nor a County policy maker. There is no evidence Sheriff Kennard or Captain Glad denied Perry's visitation request. Defendants also contest the number of special visits that may have been denied from March, 1992 to 1994. Captain Glad has no knowledge of the number, only that one involving a federal prisoner was denied a special visit with children.

Factual Matter On Defendants' Motion for Summary Judgement

The defendants have made a separate motion for summary judgment and submitted a supporting memorandum (File Entry # 60).

The defendants admit N.E.W. and C.M.W. are under eight years of age and N.E.W. is the child of Perry and S.M.W. C.M.W. is the child of S.M.W., Perry's fiance. W.R. and V.R. are under eight years of age and the children of Rudy Romero, a former inmate at the Metro Jail. Metro Jail has a policy that persons under eight are prohibited from visitation, except special arrangements for visits may be made. The policy would prevent N.E.W., C.M.W., W.R. and V.R. from visitation of their fathers while they were at the jail during regular visitation but they could ask the jail command for special visits. The policy is based on security, safety, and administrative concerns and not because of the welfare of the children. This was because of the facility design, difficulty of taking little children into the visiting area, the disturbance caused by young children, litter, such as diapers and disrupting of other visitors (P.9 Deposition Capt. C. David Glad). Noise and restlessness of the children was seen as a problem (Id.).

Perry was a jail inmate from September 21, 1993 to May 25, 1994. Romero was an inmate from January 23, 1994 to August 2, 1994.

Plaintiff's memorandum in opposition (File Entry # 67) was also a reply to the opposition memorandum of the defendants to plaintiffs' motion for summary judgment. The plaintiffs' statement in opposition states many of the facts noted above as part of the plaintiff's motion for summary judgment and presents the...

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3 cases
  • U.S. v. Flores, 02-CR-289 TC.
    • United States
    • U.S. District Court — District of Utah
    • August 1, 2002
    ...liberty is necessarily abridged'." See also, Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002); see also N.E.W. & C.M.W. v. Kennard, 952 F.Supp. 714, 719 (D.Utah 1997); Thorne v. Jones, 765 F.2d 1270, 1274 (5th Cir.1985) (holding incarcerated individuals maintain no right to physical ass......
  • White v. Pazin
    • United States
    • U.S. District Court — Eastern District of California
    • October 19, 2016
    ...eight years of age, and that the ban on such visitations was rationally related to safety and security concerns. N.E.W. v. Kennard, 952 F. Supp. 714, 719 (D. Utah 1997). The court further found there was no denial of equal protection rights based on the ban, because it was not shown to be a......
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    • United States
    • Utah Supreme Court
    • July 14, 1998
    ...F.3d 1323, 1329 (10th Cir.1994) (failure of plaintiff to obtain success in litigation precluded attorney fee award); N.E.W. v. Kennard, 952 F.Supp. 714, 721 (D.Utah 1997) (plaintiffs are not entitled to attorney fees where neither the Constitution nor Federal law provided them 1 These servi......

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