UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41217

JO LYNN MCKNIGHT; SUSAN BANKS; STACY NAVA

Plaintiffs - Appellees,

VERSUS

GARY L JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, ET AL

Defendants,

GARY L JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division; J E ALFORD, Warden, Eastham Unit, Individually and in Official Capacity; WAYNE SCOTT; ROBERT EASTON, Assistant Warden, Texas Department of Criminal Justice, Institutional Division; JAMES D MAYFIELD, Assistant Warden, Texas Department of Criminal Justice, Institutional Division; D L STACKS

Defendants - Appellants

Appeal from the United States District Court for the Eastern District of Texas (No. 6:99-CV-18)

November 9, 2001 Before JOLLY, HIGGINBOTHAM, and PARKER, Circuit Judges.

PER CURIAM:*

Plaintiffs-Appellees are three former prison employees whose

husbands are prison inmates. By virtue of their having been

prison employees, Plaintiffs had their visitation rights

terminated, prison officials having concluded that the former

employees’ knowledge of prison procedure puts at risk prison

security. Plaintiffs filed suit under

, arguing

that prison officials violated their First Amendment right to

intimate association. They also argue that as former prison

employees they were singled out and received unequal treatment in

violation of their Fourteenth Amendment right to equal

protection. The officials in turn moved for summary judgment,

contending that they enjoy qualified immunity. The district

court denied the motion, and Defendants bring this interlocutory

appeal. We reverse.

The Supreme Court has made immediately appealable a district

court’s refusal to extend qualified immunity to state officials.

See Mitchell v. Fortsyth,

(1985). We review a

district court’s immunity determination de novo. See Cozzo v.

Tangipahoa Parish Coun.,

, 510 (5th Cir. 2001). A

state official is entitled to qualified immunity unless

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

-2- Plaintiffs can show the violation of a constitutional right and

that the right was clearly established when the violation

occurred. See Kipps v. Caillier,

(5th Cir.

1999). “A right is ‘clearly established’ if its contours are

‘sufficiently clear that a reasonable official would understand

that what he is doing violates that right.’” See Cozzo, 262 F.3d

at 511 (quoting Anderson v. Creigton,

(1987)).

We cannot conclude that Plaintiffs had a clearly-established

right to visit their inmate-husbands. As the district court

correctly noted, the Supreme Court has found that the right to

intimate association is fundamental, the Court having ruled as

much in Roberts v. United States Jaycees,

(1984). The district court also correctly noted that the Court

has not specifically held that this right protects inmates and

their spouses. Generally, that a right has not been applied to a

given situation does not mean that it is not clearly established

for purposes of a qualified immunity analysis. See Wooley v.

City of Baton Rouge,

(5th Cir. 2000). But the

application of constitutional rights takes on a different tenor

when applied to a prison setting. True, “Prison walls do not

form a barrier separating prison inmates from the protections of

the Constitution.” Turner, 482 U.S. at 84. But legitimate

penological objectives require that we not undo official actions

or regulations so long as they are reasonably related to the

-3- stated objectives. See id. at 87. Consistent with this

standard, we have upheld the constitutionality of bans on

conjugal visits between an inmate and his spouse as to each. See

McCray v. L.B. Sullivan,

(5th Cir.

1975)(upholding ban in the face of challenge by inmate); Davis v.

Carlson,

(5th Cir. 1988)(rejecting challenge

by inmate’s wife). More to the point, we have held that

“incarcerated persons . . . maintain no right to simple physical

association--with their parents or with anyone else--grounded in

the first amendment.” Thorne v. Jones,

(5th

Cir. 1985).

Nor are we convinced that Plaintiffs were singled out for

unequal treatment. Plaintiffs argue that prison officials’

prohibition on former employees’ visiting their inmate-spouses

distinguishes between prison staff who entered into a

relationship with an inmate during the course of their employment

and staff who already had such a relationship before they were

hired. Plaintiffs concede that this is not the sort of suspect

classification entitled to heightened scrutiny, but they

nonetheless insist that there is not even a rational basis for

such disparate treatment. Plaintiffs’ argument notwithstanding,

we see no evidence of an actual classification, Plaintiffs not

having shown that Defendants ever hired spouses of inmates for

prison work. But even if there were such evidence, we cannot

conclude that the justification given for the ban on visits

-4- between former employees and inmate-spouses--namely, that the

former employees’ inside knowledge of prison procedure poses a

security risk, and that prison officials want to discourage such

relationships generally--is irrational.

Taking Plaintiffs’ allegations as true, which we must do

when reviewing the denial of qualified immunity in the context of

summary judgment ruling, see Wagner v. Bay City, Texas,

(5th Cir. 2000), we conclude that Plaintiffs have not

alleged the violation of a clearly established constitutional

right. Having determined that there was no material violation,

we do not reach Plaintiffs’ retaliation claims.

REVERSED AND REMANDED.

-5-