White v. Keller

• Decision Date: 29 August 1977
• Docket Number: Civ. No. B-75-1879.
• Citation: 438 F. Supp. 110
• Parties: Wesley WHITE, Mazola White, William Price, Wilhelemena Price, George J. Gruber, Jr., Beatrice F. Gruber, Clarence White, Wendell A. Hall, Thomas L. Gruber v. Gerald A. KELLER, Superintendent, Maryland Correctional Institution.
• Court: U.S. District Court — District of Maryland

438 F. Supp. 110

Wesley WHITE, Mazola White, William Price, Wilhelemena Price, George J. Gruber, Jr., Beatrice F. Gruber, Clarence White, Wendell A. Hall, Thomas L. Gruber v. Gerald A. KELLER, Superintendent, Maryland Correctional Institution.

Civ. No. B-75-1879.

United States District Court, D. Maryland.

August 29, 1977.

COPYRIGHT MATERIAL OMITTED

Charles F. Morgan, Baltimore, Md., for plaintiffs.

Henry J. Frankel, Asst. Atty. Gen., Baltimore Md., for defendant.

MEMORANDUM AND ORDER

BLAIR, District Judge.

This is an action by three prisoners (Clarence White, Wendell A. Hall and Thomas L. Gruber) and their parents against the Superintendent of the Maryland Correctional Institution. Predicated on 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343(3-4), 2201-02, the complaint alleges that defendant has unlawfully restricted plaintiffs' visiting rights.

In November 1975, the prisoner plaintiffs each received visits after which they were discovered to be in possession of contraband. Clarence White, after a visit by his two sisters, Addie White and Roseanna Miles, was found with $5.00 and was sentenced by the Inmate Adjustment Team to ninety days in segregation and additionally was denied visitation privileges for the same period. Wendell Hall, after being visited by a friend, Lenetta White, was discovered to be in possession of marijuana; the Adjustment Team sentenced him to six months in segregation and denied his visitation privileges for ninety days. Thomas Gruber was visited by his wife and daughter, after which he was found in possession of marijuana, given six months in segregation by the Adjustment Team, and denied visitation privileges for ninety days. In each of these instances, defendant Keller allegedly reviewed the decision of the Adjustment Team pursuant to regulations of the Maryland Division of Correction and approved the conviction and punishment.

The case was brought as a class action by two groups of named plaintiffs: the affected prisoners and their parents. The prisoners sue on behalf of all inmates at the institution and the parents sue on behalf of all approved visitors for those inmates. The requirements of F.R.Civ.P. Rule 23 appearing to the court to have been met, two classes were conditionally certified:

1) the class of all inmates presently confined at the Maryland Correctional Institution (hereinafter "the inmate class"), and

2) the class of all persons on the approved visiting lists of persons in the first class (hereinafter "the visitor class").

Both classes seek declaratory and injunctive relief and the named parties seek damages as well.

All named plaintiffs in the visitor class were permitted to resume their visits before the class was conditionally certified. The claims for injunctive relief of the named plaintiffs in the visitor class are and have been moot since the restoration of their visiting privileges. But because the class has already been certified, declaratory relief is sought, and the challenged action is likely to repeat itself at any time, a sufficient controversy exists to satisfy Article III and the court will not de-certify the visitor class, see Franks v. Bowman Transportation Co., 424 U.S. 747, 752-757, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); see also Kremens v. Bartley, 431 U.S. 119, 127-136, 97 S.Ct. 1709, 1714-18, 52 L.Ed.2d 184 (1977), and will address the issues raised by its prayer for declaratory relief.¹

No material facts are in dispute. Plaintiffs have moved for summary judgment on all issues except damages; defendants have filed a similar cross motion. A hearing on the motions was held on May 6, 1977.

The complaint alleges two causes of action. The first claim asserts that defendant's restriction of visiting rights violates both plaintiff classes' constitutional rights to freedom of association, expression, and privacy since no "legitimate, compelling, reasonable, or identifiable State interest" is served by the visiting restrictions. Secondly, the visitor plaintiffs contend that they were deprived of adequate, written notice prior to the termination of the visiting privileges and of a full and fair hearing to contest imposition of the sanctions. The former claim is premised on the First, Fifth, Ninth and Fourteenth Amendments, the latter on the First and Fourteenth.

I. The Restriction of Visitation²

Plaintiffs do not argue, as indeed they cannot in this court's view, that visitation rights may never be restricted. What they do argue is that visiting rights are constitutionally protected and may be restricted only to serve a legitimate and compelling state interest. Moreover, they argue, these rights may be limited only in the manner which least restricts their exercise.³

The court has conducted an exhaustive search of the reported decisions on prison visitation. The cases, not surprisingly, divide into two categories: (1) attacks on the validity of visiting restrictions generally and (2) attacks on visiting restrictions as applied in individual cases. Although the instant action falls into the latter category, both sets of cases are relevant because the present one goes further than most of the cases in the latter category. The bulk of those cases faced only the issue of whether visiting rights could be restricted in individual cases; they did not confront the issue of the limitations on such restrictions. The instant case does present this latter issue and hence those cases which have treated the issue of the general right to visitation are relevant.

Although the analysis in both categories of cases has varied tremendously, both in approach and in amount, and although the results in the two groups have been less than uniform, the results have been unanimous in one respect: there is no absolute right to prison visitation. E. g., McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir. 1975); Thomas v. Brierly, 481 F.2d 660, 661 (3d Cir. 1973); Walker v. Pate, 356 F.2d 502 (7th Cir.), cert. denied, 384 U.S. 966, 86 S.Ct. 1598, 16 L.Ed.2d 678 (1966); Hamilton v. Saxbe, 428 F.Supp. 1101, 1112 (N.D.Ga. 1976); Feazell v. Augusta County Jail, 401 F.Supp. 405, 407 (W.D.Va.1975).

The question then becomes: is there any right to visitation, and if so, does the existence of that right limit the discretion of prison officials in restricting visitation. Here the cases are in disarray. The weight of authority is that there is no affirmative constitutional right to visitation,⁴Underwood v. Loving, 391 F.Supp. 1214, 1215 (W.D.Va.1975); that is, constitutional challenges asserting a right to visitation fail even to state a claim.⁵McCray v. Sullivan, supra; Walker v. Pate, supra; Thompson v. Warden, No. H-77-808 (D.Md.1977); Feazell v. Augusta County Jail, supra; Henry v. Delaware, 368 F.Supp. 286, 288 (D.Del. 1973). There are two peculiarities to be noted. One is that the cases holding that there is a constitutional right to some visitation are the more reasoned cases. Those holding there is no such right tend to just do so. Compare, e. g., Hamilton v. Saxbe, 428 F.Supp. 1101 (N.D.Ga.1976) and Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976) with McCray v. Sullivan, supra, and Henry v. Delaware, supra. However, what few courts of appeals decisions there are fall into the latter category. E. g., McCray v. Sullivan, supra; Walker v. Pate, supra. Research has uncovered no Fourth Circuit or Supreme Court decision precisely on the point and this court, in looking elsewhere for guidance, has thus found conflicting paths: the more reasoned decisions go one way and the more compelling authority goes the other.

It is the opinion of this court that reasoning leads in the same direction as authority and that neither the named plaintiffs nor the class members have been denied any constitutional right. Although the named plaintiff visitors are the parents of the named inmates, they do not sue as parents qua parents but as parents qua visitors. Hence the question presented is that of the constitutional right to visitation generally and not that of the right to visits from family in particular. Although the court believes that the distinction between family and general visitation is not constitutionally significant, in the prison context it should be noted that the Supreme Court has recently drawn distinctions with respect to rights of association generally and rights of familial association. Compare Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) with Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974).

This court concludes that there is no constitutional right to prison visitation, either for prisoners or visitors. Plaintiffs do not argue a substantive due process right to visitation, and the court notes in passing that such an argument probably could not be sustained. Cf. Moore v. City of East Cleveland, supra, at 431 U.S. 498-512, 97 S.Ct. at 1937 (substantive due process limited by "respect for the teachings of history and, solid recognition of the basic values that underlie our society"). Rather, they seek to base the right to visitation on the firmer constitutional footings of freedom of association and right to privacy.⁶ But in the opinion of this court, neither of these rights will sustain the correlative right asserted against the restrictions here challenged.

It is clear that free members of society have rights of physical association, whether grounded in the first amendment —a source about which this court has serious analytical reservations — or in the concept of liberty — a more satisfying source analytically.⁷ It is equally clear that whatever the source and whatever the extent of the right to associate physically in free society, that right may be curtailed upon conviction for violation of the criminal laws. Jones v. North Carolina Prisoners' Labor Union, Inc., ___ U.S. ___, ___ - ___, 97 S.Ct. XXXX-XXXX-XX, 53 L.Ed.2d 629 (1977). To the extent that the right to physical association is grounded in...