Shaddy v. Gunter, CV87-L-323.

• Decision Date: 08 August 1988
• Docket Number: No. CV87-L-323.,CV87-L-323.
• Citation: 690 F. Supp. 860
• Parties: Philip SHADDY, Plaintiff, v. Frank O. GUNTER, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

690 F. Supp. 860

Philip SHADDY, Plaintiff, v. Frank O. GUNTER, et al., Defendants.

No. CV87-L-323.

United States District Court, D. Nebraska.

August 8, 1988.

Robert F. Bartle, Lincoln, Neb., for plaintiff.

Mark D. Starr, Asst. Atty. Gen., Lincoln, Neb., for defendants.

MEMORANDUM OF DECISION

URBOM, District Judge.

Philip Shaddy, an inmate at the Nebraska State Penitentiary ("NSP"), has filed an action under 42 U.S.C. § 1983, challenging an operational memorandum ("OM") that outlines the institution's visitation policy as unconstitutionally vague. Operational memoranda are rules tailored to the unique needs of individual facilities within the Department of Correctional Services and derived from administrative regulations promulgated by the director of that department ("DCS"). In pertinent part, the NSP's visitation OM states that "an embrace and a kiss at the beginning and end of each visit are allowed. Kissing, caressing and fondling during visits are strictly forbidden." OM 205.1.102, IV(E)5, Exhibit 8.

Shaddy's pro se complaint refers to only one misconduct report, dated April 2, 1987. The report, which was completed by correctional officer John Anderson, states that Shaddy had put his hands on his wife's buttocks and squeezed her while he kissed her. The disciplinary committee, composed of defendants A.W. Knight, Mario Peart and Richard Mulder, conducted a hearing on April 24, 1987, to investigate the report and concluded that Shaddy had violated the OM and imposed upon him a 30-day restriction on visitations with his wife. Exhibit 2.

Shaddy appealed the disciplinary committee's determination and the appeals board upheld the actions of the disciplinary committee. Exhibit 4. The appeals board found that substantial evidence existed to support a finding that Shaddy had violated the O.M. and that due process was afforded to Shaddy at the hearing. Exhibit 5. The defendants Laurie Smith Camp, Gene Hruza and Bruce Kramer were the members of the appeal board.

At trial Shaddy provided evidence that he also was reported for misconduct during a visit with his wife on April 22, 1987, for which his visitation privileges were restricted for an additional 30 days. The subsequent misconduct report indicated that Shaddy had squeezed and patted his wife on the buttocks as she was leaving the visitation room. Exhibit 13. A misconduct report on another inmate, Rick Roewert, was received into evidence. Exhibit 10. The report on Roewert indicates that Roewert and a female visitor, which Roewert testified was his wife, were touching, hugging and that he was rubbing her leg throughout their visit, all in violation of the OM. Following a disciplinary hearing, punishment was imposed upon Roewert for violating the visitation OM.

Admittedly, there is some discrepancy about whether Shaddy was squeezing his wife's buttocks during their April 2nd visit. Shaddy and his wife, Kathy, testified that he did not squeeze her buttocks, but rather that he rested his fingers on the top portion of Kathy's buttocks. However, this issue is not material to the issue raised in this lawsuit. The job of the disciplinary committee is to make factual findings regarding misconduct reports and to determine whether restrictions on privileges are warranted if a violation is found. My job is to decide whether the OM is void for vagueness.

It is not clear from Shaddy's complaint whether his challenge to the OM is facial or otherwise. However, the indication at trial was that the plaintiff believes the OM to be facially invalid. Thus, I turn to the statement made by the Supreme Court Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc. 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982), and recently reiterated in City of Houston v. Hill, ___ U.S. ___, ___, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398 (1987):

In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.

Id. Although the magistrate has previously determined that Shaddy had a limited liberty interest in visitation with his wife, filing 3, page 2, I do not conclude that the OM at issue here reaches a "substantial amount of constitutionally protected conduct."

The void for vagueness doctrine was well explained in Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972), wherein the Court stated:

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.

Id.

The Eighth Circuit has stated that "a law is void for vagueness if it lacks `ascertainable standards of guilt', such that `men of common intelligence must necessarily guess at its meaning and differ as to its application.' Vague laws offend due process because they violate the two essential values of fair warning and nondiscriminatory enforcement." Garner v. White, 726 F.2d 1274, 1277 (8th Cir.1984) (quoting the United States Supreme Court). I note at the outset the obvious distinction between Shaddy's challenge, which is to a prison rule, and the Grayned and Garner plaintiffs' challenges, which were to statutes.

While it is true that parts of the OM could have been more artfully drafted, I find that my conclusion need not necessarily be that the OM is unconstitutionally vague. The general principles of Grayned are tempered by cases such as Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974) and White Eagle v. Storie, 456 F.Supp. 302, 307 (D.Neb.1978). The plaintiff in Parker was an officer in the armed services who was convicted of conduct "unbecoming an officer and a gentleman" in violation of the Uniform Code of Military Justice, and who challenged that portion of the Code as unconstitutionally vague. The Court stated that "because of the factors differentiating military society from civilian society, we hold that the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs." Id. The Court continued, quoting United States v. National Dairy Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-98, 9 L.Ed.2d 561 (1963):

The strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language.

Id. 417 U.S. at 757, 94 S.Ct. at 2562. Even more to the point is the White Eagle court's determination that the vagueness doctrine should not be as stringently applied in correctional facility settings. The court stated:

The Court is reluctant to enmesh itself in the day-to-day operations of a penal institution, especially in matters relating to discipline and internal administration. Instead, the Court is convinced this issue is sufficiently disposed of by the language of Circuit Judge Van Dusen ...:

Due process undoubtedly requires certain minimal standards of specificity in prison regulations, but we reject the view that the degree of specificity required of such regulations is as strict in every instance as that required of ordinary criminal sanctions. This results from the fundamental difference between normal society and prison society. The maintenance of strict security and discipline, with its unfortunate but unavoidable circumscription of an inmates's freedom to act, is essential to safe and efficient prison administration.

White Eagle, 456 F.Supp. at 309, quoting Meyers v. Alldredge, 492 F.2d 296, 310 (3rd Cir.1974) (citations omitted).

Guided by the holdings of Parker and White Eagle, I find that the OM that outlines the NSP's visitation policies is not impermissibly vague. The OM includes the follow provisions: 1) "it is the responsibility of the visitor and the inmate to conduct themselves in a manner that will not bring discredit upon them or be disruptive to other visits in the area"; 2) "visitors and inmates must accept responsibility to behave in a mature, responsible manner, respectful of the rights of other offenders and their visitors"; 3) "visitors and inmates may hold hands so long as the hands are in full view and the hand holding is not improper or indecorous;" 4) "visitors and inmates may not sit with arm or arms around each other;" and 5) "visitors and inmates may sit with an arm on the back of the opposite chair." Exhibit 8 (emphasis original).

Taken in context of the entire rule, I find that the OM provides sufficient guidance to Shaddy and other inmates to put them on notice that, with the exception of a kiss and an embrace at the beginning and end of each visit, physical contact in a manner more intimate than hand-holding during visitation is prohibited under the rule. Squeezing a visitor's buttocks does not constitute a kiss or an embracing or a hand-holding.

Shaddy attempted to show at trial that the OM had been arbitrarily enforced. Shaddy and Roewert testified that whether certain conduct during visitations was in violation of the OM depended upon which correctional officer was on duty. They testified that some correctional...