Kenyon v. Cheshire County CV-92-369-M 03/31/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John Raymond Kenyon, Plaintiff,

v. Civil No. 92-369-M

Cheshire County House of Corrections, Cheshire County Jail Administrator, Cheshire County Jail Superintendent, Cheshire County Board of Commissioners, and Cheshire County Jail Assistant Superintendent, Defendants.

O R D E R

Plaintiff, John Raymond Kenyon, brings this action under

asserting that while a pre-trial detainee at the

Cheshire County House of Corrections he was unlawfully denied

substantive and procedural due process of law and egual

protection under the law. The court necessarily reads

plaintiff's complaint and other pleadings with an extra degree of

solicitude in light of his pro se status. Estelle v. Gamble,

(1976). For the reasons set forth below,

defendants' Motion for Summary Judgment (document no. 2 6) is

granted, and plaintiff's Motion for Summary Judgment (document

no. 27) is denied. I. Background

On April 25, 1992, plaintiff was incarcerated as a pre-trial

detainee in the Cheshire County House of Corrections ("Cheshire

County"). Cheshire County's visitation policy during that time

prohibited visits by former inmates or detainees unless a prior

written request was first submitted and approved by the

Department of Corrections Supervisor or Superintendent. See

Cheshire County Department of Corrections Visitation Rules at F-

38 .

On September 2, 1992, plaintiff submitted such a written

request, asking that he be allowed "standard visitation" on

Saturdays with his then fiancee, Charlene Kovacs ("Kovacs").

Kovacs had been a Cheshire County inmate; she served a state

sentence on weekends between May 1991 and June 1992. In February

of 1993, four months after plaintiff submitted his visitation

request, the Acting Corrections Superintendent denied it.

Denial was based on several ostensible security concerns

giving rise to the policy itself. Defendant's Summary Judgment

Motion at p. 2. The policy was essentially based on the

following security concerns: 1) former inmates/detainees have a

2 working knowledge of the House of Corrections' schedule,

procedures, and layout of the physical plant, which, taken

together, might be used to facilitate an escape by current

inmates or detainees; 2) former inmates or detainees might use

the visitation privilege to seek retribution against correctional

officers. County property or currently incarcerated inmates with

whom they had come into contact during their previous

confinement; and 3) recently released inmates might seek to

intimidate, or might be exposed to intimidation by current

inmates, and they might be more likely to attempt to introduce

contraband into the facility or provide inmates with implements

necessary for an escape. Id. at p. 3.

Plaintiff's complaint is based on the general claim that he

was unlawfully punished when denied visitation with his fiancee,

because his fiancee did not pose a threat to institutional

security, and because other pre-trial detainees were allowed

visits from former inmates. Plaintiff's Memorandum of Law in

Support of Motion for Summary Judgment at p. 3.

Defendants have been sued in both their individual and

official capacities. They have moved for summary judgment.

3 arguing that plaintiff has failed to describe any violation of

the Constitution, and, alternatively, that each defendant is

entitled to summary judgment in their individual capacities based

on gualified immunity. Defendants also argue that Cheshire

County is entitled to summary judgment in that it is not subject

to suit under

. Plaintiff objects to the motion

for summary judgment and has filed his own cross-motion for

summary judgment.

II. STANDARD OF REVIEW

Summary judgment is proper "if pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(c). A material

fact "is one 'that might affect the outcome of the suit under the

governing law.1" United States v. One Parcel of Real Property,

(1st Cir. 1992) (guoting Anderson v. Liberty

Lobby, Inc.,

(1986). The moving party has the

burden of demonstrating the absence of a genuine issue of

material fact for trial. Anderson,

. The party

opposing the motion must set forth specific facts showing that

4 there remains a genuine issue for trial, demonstrating "some

factual disagreement sufficient to deflect brevis disposition."

Mesnick v. General Electric Co.,

(1st Cir.

1991), cert, denied,

(1992). This burden is

discharged only if the cited disagreement relates to a genuine

issue of material fact. Wynne v. Tufts University School of

Medicine,

(1st Cir. 1992).

III. Plaintiff's § 1983 Claim

A. Legal Standard

In order to prevail on an action under § 1983 plaintiff must

show "the existence of a federal constitutional or statutory

right, and some deprivation of that right as a result of

defendants' actions under color of state law." Watterson. v.

Page,

( 1st Cir. 1993) (citing Willhauk v. Halpin,

(1st Cir. 1991)). The defendants concede that

they acted under color of state law, so the only remaining

guestion is whether plaintiff was deprived of a constitutional

right when his visitation reguest was denied.

B. Cheshire County House of Corrections

5 A department of municipal government is not a separate

entity from the municipality itself for the purposes of § 1983.

Stump v. Gates,

(D. Colo. 1991), aff'd

(10th Cir. 1993) (county coroner's office not

independent legal entity for purpose of § 1983 claim); Curran v.

Boston,

(D. Mass. 1991); Reese v. Chicago

Police Dep't,

(N.D. 111. 1984) (County

Attorney's Office is not separate suable entity). Plaintiff has

named the House of Corrections, a municipal department, as a

defendant. However, any recovery would be obtained from Cheshire

County, not the House of Corrections, thus, the county and not

the correctional facility is the proper defendant. Summary

Judgment is granted as to Cheshire County House of Corrections,

but the court will construe plaintiff's complaint as having

properly named Cheshire County as a defendant.

A municipality may be held liable as a "person" under

§ 1983. Monell v. Department of Social Servs.,

(1978). Liability, however, may not be founded solely on a

theory of respondeat superior.

. Plaintiff must show

that an official policy or custom caused a Cheshire County

employee to violate plaintiff's constitutional rights.

"The

6 [county] cannot be held liable under § 1983 unless [plaintiff]

prove[s] the existence of an unconstitutional municipal policy."

St. Louis v. Praprotnik, 485 U.S.112, 128 (1988).

Plaintiff has failed to allege the existence of an

unconstitutional municipal practice, custom or policy. Plaintiff

correctly describes the County's Visitation Policy as one that

allows former inmates or detainees to visit, upon approval by the

Department of Corrections Supervisor or Superintendent of a

written request for such a visit.1 Plaintiff has failed to

sufficiently describe how that policy caused or might have

operated to cause a Cheshire County employee to violate his

constitutional rights. Monell,

. Absent

allegations that the County's visitation policy is facially

unconstitutional or that application of the policy caused a

violation of plaintiff's constitutional rights, summary judgment

must be granted in favor of Cheshire County.

1 The "Cheshire County Department of Corrections Visiting Rules," hold in pertinent part that: "No former inmate/detainee of the Cheshire County House of Corrections shall be allowed to visit without prior written request and approval from the Department of Corrections Supervisor or Superintendent."

7 C. K. Cann, J. Lane, C. Baird, D. Thompson, D. Adams, E. Smith, and P. McManus as Defendants.2

Plaintiff alleges that the County's refusal to grant his

reguest for visitation by his fiancee, a former inmate, violated

his constitutional rights. Given plaintiff's pretrial status at

the time of the alleged violation, his claim is properly

considered under the Fourteenth rather than under the Eighth

Amendment. See Revere v. Massachusetts Gen. Hosp., 4

(1983) (citing Ingraham v. Wright,

(1977) ([T]he State does not acguire the power to punish with

which the Eighth Amendment is concerned until after it has

secured a formal adjudication of guilt in accordance with due

process of law.")); see also Bell v. Wolfish,

(1979) .

Although neither the Supreme Court nor the Court of Appeals

for this Circuit has yet articulated a "constitutional standard

of treatment for pre-trial detainees," Georgia-Pacific v. Great

Northern Nekoosa,

(D.Me. 1990) (citing Revere v.

Massachusetts General Hospital,

), it is well

settled that their constitutional rights are violated when the

2 Pursuant to Fed. R. Civ. P. 25(a) (1) the court dismisses this action as it pertains to Carl Baird. conditions of confinement are punitive. Bell v. Wolfish,

(1979); Lyons v. Powell,

(1st Cir.

1988). While the government may not constitutionally punish a

pretrial detainee, it still may properly impose conditions and

restrictions necessary to detain the person and maintain jail

security. Id. at 540.

Determining whether a particular restriction amounts to

unconstitutional punishment of a pretrial detainee turns on

whether it is reasonably related to a legitimate governmental

purpose. Id.

Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to 'punishment.' Conversely, if a restriction or condition is not reasonably related to a legitimate goal - if it is arbitrary or purposeless - a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.

Wolfish,

. Restraints that are reasonably related

to the maintenance of jail security "do not, without more,

constitute unconstitutional punishment."

. However,

even if the limitation on a pretrial detainee's freedom is rationally related to a legitimate non-punitive governmental

purpose, it amounts to punishment in any event if it "appear [s]

excessive in relation to that purpose." Young v. Keohane, 809

F.Supp 1185, 1192 (M.D. Pa. 1992) (emphasis added) (guoting

Wolfish,

).

Defendants' argue that the visitation policy, as applied to

the plaintiff, did not amount to unconstitutional punishment.

Defendants' Motion for Summary Judgment at p. 12. Defendants

persuasively articulate three basic concerns addressed by the

policy reguiring a written reguest and administrative approval

before a former inmate will be allowed on the prison grounds to

visit a current inmate.

First, defendants argue that the

policy helps prevent escape attempts, which might be facilitated

by former inmates familiar with existing prison regulations,

schedules, and layout. Secondly, the County argues that the

policy reduces the risk that former inmates might seek to exact

retribution on current guards or inmates. Finally, defendants

argue that the policy guards against the legitimate risk that

former inmates might smuggle contraband into the facility. To be

sure, application of the policy to individual reguests reguires

10 the exercise of judgment and discretion on the part of jail

officials.

Courts should give great deference to the professional

expertise of corrections officials in assessing whether a

specific restriction is reasonably related to security interests,

and whether a particular waiver should or should not be granted.

In the "absence of substantial evidence in the record to indicate

that the officials have exaggerated their response to these

considerations, the Court should defer to their expert judgment

in such matters." Block v. Rutherford,

(1984); see also Wolfish,

(citing Jones v. North

Carolina Prisoners' Labor Union,

(1977)

("Prison administrators therefore should be accorded wide-ranging

deference in the adoption and execution of policies and practices

that in their judgment are needed to preserve internal order or

discipline and to maintain institutional security."))

While the pleadings cast some doubt upon the "correctness"

of the discretionary decision to deny plaintiff's reguest under

the facts alleged, and while the court may well have decided the

issue differently in the first instance, the decision does not

11 appear to have been either irrational or inconsistent with the

stated and legitimate security interests the policy seeks to

address. For example, given the rationale behind defendants'

visitation policy, one might reasonably guestion the gravity of

the threat posed by the reguested visit at least as to the risk

of violence and retribution (plaintiff's fiancee presumably had

little or no prior contact with male inmates and probably was not

familiar with the layout and physical plant of the male housing

areas), but the risk of smuggling3 is always a real one. The

"feel" of the situation in determining whether to grant an

exception to policy is and should remain a matter committed to

the broad discretion of professional prison authorities.

1. Qualified Immunity

In any event, in this case defendants are entitled to

gualified immunity. Qualified immunity protects defendants

"insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known." Febus-Rodriguez v. Betancourt-Lebron,

(1st Cir. 1994). "On a motion for summary judgment, 'the

3 Even in "non-contact" visit situations, smuggling of contraband to persons within the institution, other than the person visited, poses a legitimate security risk.

12 relevant question is whether a reasonable official could have

believed his actions were lawful in light of clearly established

law and the information the official possessed at the time of his

allegedly unlawful conduct.'"

at 91 (quoting McBride v.

Tavlor,

(1st Cir. 1991)); see Anderson v.

Creighton,

(1987). The general rule of

qualified immunity is that "governmental officials performing

discretionary functions generally are shielded from liability for

civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known." Harlow v. Fitzgerald,

(1982) demonstrating that one is entitled to the

protections afforded by qualified immunity is not particularly

burdensome. Ricci v. Urso,

(1st Cir. 1992) .

In this case defendants directly involved in denying the

particular requested visitation would not be immune (assuming a

constitutional right to this particular visit, and recognizing in

any event a pretrial detainee's constitutional right not to be

"punished") if on an objective basis no reasonably competent

official would have concluded that the request should be denied.

Defendants carry their burden on that issue. Nothing in the

13 pleadings suggests that a reasonably competent official would

have concluded that exercising discretion to deny plaintiff

visitation under a policy designed to minimize return to the

institution of former inmates for security reasons would violate

his clearly established constitutional rights or that such a

decision would constitute unlawful punishment of a pretrial

detainee.

While one might guestion the correctness of the decision or

even the substantive relevance of the risk factors giving rise to

the policy to the specific facts of plaintiff's case, still, the

policy does bear a rational relationship to legitimate state

interests and the discretionary decision to deny visitation was

facially consistent with the policy and its underlying legitimate

purposes.

IV. CONCLUSION

Because, at a minimum, under these facts the defendants

would be entitled to gualified immunity, and no genuine issue of

fact for trial exists, defendants are entitled to judgment as a

matter of law, their motion is granted. The clerk is instructed

to enter judgment in favor of all defendants.

14 SO ORDERED.

Steven J. McAuliffe United States District Judqe

March 31, 1995

cc: David S. Park, Esq. Wayne C. Beyer, Esq John Raymond Kenyon

15