Thorne v. Jones

• Decision Date: 22 July 1985
• Docket Number: No. 84-3339,84-3339
• Citation: 765 F.2d 1270
• Parties: Peggy L. THORNE, Plaintiff-Appellee-Cross-Appellant, v. Major "A.B." JONES, et al., Defendants-Appellants-Cross Appellees. Richard Eugene THORNE, Plaintiff-Appellee, v. Major "A.B." JONES, et al., Defendants-Appellants. Richard James THORNE, Plaintiff-Appellee, v. Ross MAGGIO, et al., Defendants-Appellants. Scott Allen THORNE, Plaintiff-Appellee, v. Ross MAGGIO, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1270

765 F.2d 1270

Peggy L. THORNE, Plaintiff-Appellee-Cross-Appellant, v. Major "A.B." JONES, et al., Defendants-Appellants-Cross Appellees.

Richard Eugene THORNE, Plaintiff-Appellee, v. Major "A.B." JONES, et al., Defendants-Appellants.

Richard James THORNE, Plaintiff-Appellee, v. Ross MAGGIO, et al., Defendants-Appellants.

Scott Allen THORNE, Plaintiff-Appellee, v. Ross MAGGIO, et al., Defendants-Appellants.

No. 84-3339.

United States Court of Appeals Fifth Circuit.

July 22, 1985.

Joseph Erwin Kopsa, Asst. Atty. Gen., Baton Rouge, La., for Jones, et al.

Stephen E. Everett, Alexandria, La., for Thornes.

Appeals from the United States District Court for the Middle District of Louisiana.

Before GEE, TATE, and HIGGINBOTHAM, Circuit Judges.

GEE, Circuit Judge:

In these consolidated cases, visitors to and inmates of the Louisiana State Penitentiary at Angola challenge effected and attempted strip searches ¹ of their persons.

Facts

Peggy and Richard E. Thorne are the parents of Richard J. and Scott Thorne. The younger Thornes are inmates at Louisiana State Penitentiary (LSP), a maximum security facility for prisoners who pose severe security risks. Both brothers have been disciplined while in prison for possession of contraband drugs. LSP permits "contact" visits between inmates and approved friends and family.

Mr. and Mrs. Thorne visited their sons at LSP. Before being allowed to do so, each was required to sign a form that stated, among other things, "I hereby agree to a personal search by security personnel of the [LSP] while on prison grounds." A large sign prominently posted just outside the front gate of LSP warned, "Beware Notice If you enter the gates of Angola, you consent to a search of your person and property...."

In November 1981, an LSP inmate told Captain Whistine, an LSP shift commander, that another inmate was receiving contraband in his legal mail and that Scott Thorne was regularly receiving narcotics through the visiting room, probably from his mother. Captain Whistine reported this information to Warden Byargeon. On the Warden's instructions, Captain Whistine ordered a mail watch on the first inmate's legal mail and notified all shifts that Mrs. Thorne was to be asked to submit to a strip search before being allowed to visit Scott Thorne.

Contraband was found in the first inmate's legal mail, lending credence to the informant. When Mrs. Thorne next arrived to visit Scott Thorne, Captain Whistine told her that she would have to be strip searched before seeing him. Mrs. Thorne refused, with some heat, to be searched. Escorted back to the front gates of the prison, she departed. The Warden had her name removed from the list of approved visitors to the prison. Mrs. Thorne was thus unable to visit either of her inmate sons.

Mr. Thorne came to visit Scott Thorne the next day. He, too, was told that a strip search would be required before he could visit his son. Mr. Thorne consented to the search. No contraband was found and the visit took place.

All four Thornes, sensitive to their rights as citizens, obtained counsel and brought actions under 42 U.S.C. Sec. 1983 against the Louisiana Department of Corrections and sundry LSP officials alleging that these doings infringed upon rights secured to them by the Constitution of the United States. ² Mrs. Thorne and her inmate sons asserted violations of alleged first amendment associational rights; Mr. Thorne alleged violation of his fourth amendment right to be free from unreasonable searches. The actions were consolidated and tried to a jury, which found for all of the Thornes as against some (but not all) of the defendants, ³ awarding damages to each. ⁴ Defendants (referred to collectively as "LSP") moved for judgment notwithstanding the verdict; the trial court denied their motion. 585 F.Supp. 910. From this denial, defendants appeal. We reverse.

Rights of Association Guaranteed by the First Amendment?

Mrs. Thorne and her two inmate sons contended that LSP deprived them of rights of association guaranteed by the first amendment. The trial court agreed, holding that Mrs. Thorne had a first amendment associational right to visit her sons in prison and that her sons' right to receive her visits was guaranteed by the same amendment. If this holding be error, as LSP contends, the judgments for Mrs. Thorne and her sons cannot stand, for they neither alleged nor proved deprivation of any other constitutional right; ⁵ it is axiomatic that no recovery may be had under Sec. 1983 absent proof of deprivation of a right guaranteed by the Constitution or laws of the United States. See Oklahoma City v. Tuttle, --- U.S. ----, ----, 105 S.Ct. 2427, 2439, 85 L.Ed.2d 791 (1985) (Brennan, J., concurring).

The trial court cited no authority whatever for the proposition that Mrs. Thorne had an absolute right under the first amendment to visit her sons, and we have found little or none. ⁶ In Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977), the Supreme Court stated:

The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration.... Perhaps the most obvious of the First Amendment rights that are necessarily curtailed by confinement are those associational rights that the First Amendment protects outside of prison walls. The concept of incarceration itself entails a restriction on the freedom of inmates to associate with those outside the penal institution.

433 U.S. at 125-26, 97 S.Ct. at 2537-38. This language is itself sufficient to refute the notion that incarcerated prisoners retain any absolute rights of physical association; moreover, we have held "that for convicted prisoners '[v]isitation privileges are a matter subject to the discretion of prison officials.' " Jones v. Diamond, 636 F.2d at 1376-77, quoting McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir.), cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86 (1975). See also Block v. Rutherford, --- U.S. ----, 104 S.Ct. 3227, 3233, 82 L.Ed.2d 438 (1984) ("There are many justifications for denying contact visits entirely"); White v. Keller, 438 F.Supp. 110, 114 (D.Md.1977), aff'd, 588 F.2d 913 (4th Cir.1978).

Further, it is extremely doubtful that the rights to visitation asserted by the Thornes are the sort of associational rights protected by the First Amendment. White v. Keller, a case with strong parallels to these actions, contains a thoughtful discussion of this issue:

Freedom of association, as articulated by the Supreme Court, had its genesis in freedom of speech. NAACP v. Alabama, 357 U.S. 449, 460 [78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488] (1958). It has always meant the right to associate ideologically: "for the advancement of beliefs and ideas." Abood v. Detroit Board of Education, 431 U.S. 209 [97 S.Ct. 1782, 52 L.Ed.2d 261] (1977); McCrary v. Runyon, 427 U.S. 160 [96 S.Ct. 2586, 49 L.Ed.2d 415] (1976), aff'g, 515 F.2d 1082 (4th Cir.1975); NAACP v. Alabama, 357 U.S. at 460 . The "right is protected because it promotes and may well be essential to the '[e]ffective advocacy of both public and private points of view, particularly controversial ones' that the First Amendment is designed to foster." McCrary v. Runyon, 427 U.S. at 175 .

As this court sees it the essence of prison visitation is not the ideological association recognized by the courts as protected by the first amendment. Rather, prison visitation raises questions of the right to physical association. The right sought is to see and visit in person with another individual. There may well be a first amendment right to physical association, see Griswold v. Connecticut, 381 U.S. 479, 483 [85 S.Ct. 1678, 1681, 14 L.Ed.2d 510] (1965) (right of association includes right to attend a meeting); see also De Jonge v. Oregon, 299 U.S. 353 [57 S.Ct. 255, 81 L.Ed. 278] (1937), but if there is, it is because such association is part and parcel of the expression of ideas. For example, the first amendment expressly protects the freedom of assembly, which is patently a right to associate physically. But this freedom must be read in context; it is not simply a right to associate physically; it is a right to associate physically for the purpose of expressing ideas. See De Jonge v. Oregon, supra. And it is not a right merely to be together, [sic] it is a right to assemble; it connotes a gathering, not a visitation. While the argument could be made that it includes all physical associations, since no doubt meaningful, protected ideas might be exchanged on any such occasion, the court is doubtful that the rights of association and assembly are so broad. The history, nature and purpose of the first amendment do not warrant this conclusion. Although the amendment protects all ideas, its essence is political.

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Thus this court maintains the belief that any first amendment right to mere physical association is so attenuated from the true protections of that amendment as to not be deserving of the usual strictures placed on abridgement of first amendment rights including restriction only by the least drastic means.

438 F.Supp. at 115-16 n. 7 (citations omitted) (emphasis in original); accord, L. Tribe, American Constitutional Law Sec. 12-23 at 702 (1978) ("What the Court has recognized as implicit in the first amendment, and therefore in the liberty secured by the fourteenth, is a right to join with others to pursue goals independently protected by the first amendment--such as political advocacy, litigation ..., or religious worship.") (citations and footnotes omitted; emphasis in original).

We agree with the general thrust of Judge Blair's observations in White: such freedoms as the Thornes seek to anchor in the first amendment find their true basis elsewhere, perhaps in the ninth, perhaps simply in the character of our polity as a free society....