to visit Morgan. Morgan has been informed by O'Leary that
O'Leary's reason for issuing the "stop order" was that Morgan's
wife and brother were "in possession of cannabis, or cannabis was
found in [a] vehicle driven by plaintiff's wife" during a visit
to the prison on August 17, 1982. Complaint, ¶ s 3 and 7. O'Leary
further informed Morgan that the "stop order" was issued on the
belief that Morgan's wife was the owner and driver of the
automobile in which the cannabis was allegedly found.
Morgan, however, informed O'Leary that the automobile was not
owned by his wife and, in fact, she had "no idea" that the
vehicle contained "any forms of drugs or cannabis." Id. ¶ s 8,
19. Furthermore, Morgan alleges that neither his wife nor brother
"carried such particle of drugs on their person, nor did either
of them attempt to [e]nter the prison with described particles of
drugs or cannabis." Id. ¶ 11. Thus, Morgan alleges that no
violation of prison rules or Illinois law occurred as a result of
his family's visit on August 17, 1982. Finally, Morgan's request
that the "stop order" be rescinded was denied by O'Leary on
September 2, 1982. Complaint, Exhibit (D)-4.
Morgan charges that defendants' "stop order" decision was
arbitrary and capricious, discriminatory and not based on any
legitimate state interest. Morgan seeks from this Court
declaratory, injunctive and compensatory relief in the amount of
Defendants argue that Morgan's complaint fails to state a claim
upon which relief can be granted. In support of their argument,
defendants submit various exhibits to their motion which purport
to suggest that: (1) Morgan never filed a grievance relating to
the "stop order" with prison officials, and (2) the "stop order"
was later rescinded by prison officials upon Morgan's request. In
addition, defendants attach prison's visitation regulations in
support of their contention that O'Leary's decision to issue the
"stop order" was justified.
Although defendants' factual contentions may present a valid
defense at trial (or possibly in a motion for summary judgment),
it is axiomatic that such factual questions cannot be resolved on
a motion to dismiss under Rule 12(b). In considering a Rule 12(b)
motion to dismiss, a complaint should not be dismissed unless it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim. Cruz v. Beto, 405 U.S. 319, 322, 92
S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972). The Court must accept as
true all material facts well pleaded in the complaint, and must
make all reasonable inferences in the light most favorable to the
plaintiff. City of Milwaukee v. Saxbe, 546 F.2d 693, 704 (7th
Although prisoners do not enjoy an absolute constitutional
right to unrestricted visitation (Lynott v. Henderson,
610 F.2d 340, 342 (5th Cir. 1980), restrictions on an inmate's visitation
privileges cannot be imposed arbitrarily or discriminatorily. See
Thomas v. Brierley, 481 F.2d 660 (3d Cir. 1973). The facts
alleged in Morgan's complaint are distinguishable from Gooden v.
O'Leary, No. 82 C 2386 (N.D.Ill. Dec. 1, 1982). In Gooden, the
inmate admitted that he violated prison rules by passing letters
to his wife during a visit. Id. at 3. Furthermore, Gooden was
afforded an adequate administrative remedy to persuade the
assistant warden to rescind the "stop order." Finally, Gooden
apparently conceded that no question of material fact existed in
his case due to his pending motion for summary judgment before
the court. Id. at 4. In this case, however, Morgan has alleged
facts which, if proven at trial, would entitle him to relief.
Morgan alleges that he has been denied visiting privileges
because of defendants' mistaken belief that Morgan's wife
violated legitimate prison rules. Morgan, therefore, has alleged
sufficient facts to withstand a motion to dismiss under
Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1)
and (6) is denied.
Accordingly, defendants are ordered to answer or otherwise
respond to the plaintiff's complaint by April 26, 1984.
Furthermore, the legal and factual issues raised by the complaint
appear sufficiently complex to warrant the appointment of counsel
for the plaintiff pursuant to 28 U.S.C. § 1915(d). See Maclin v.
Freake, 650 F.2d 885 (7th Cir. 1981).
IT IS SO ORDERED.
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