On Appeal from the United States District Court for the Northern District of Indiana, No. S 82-456 -- Allen Sharp, Chief Judge.
Flaum, Easterbrook, and Manion, Circuit Judges.
Charles Lockert sued various Indiana Department of Corrections officials alleging that they unconstitutionally denied his requests to marry. The district court found for the defendants and Lockert appeals. Because Lockert has waived the only argument he raises on appeal for reversing the district court, we affirm.
Lockert, convicted in Indiana of felony murder, has been serving a life sentence at the Indiana State Prison in Michigan City since February, 1975. While working at the prison infirmary in 1979, Lockert met Patricia Samplawski, a nurse at the infirmary. Lockert and Samplawski became friends and began to correspond by mail; their friendship soon blossomed into a romance.
In July, 1979, prison authorities accused Lockert and Samplawski of "trafficking." "Trafficking" is a crime in Indiana that involves delivering an article to a prisoner or carrying an article from a prisoner outside the prison without the prison administration's permission. See Ind. Code Ann. § 35-44-3-9 best 1986). While the term "trafficking" conjures up images of drugs and weapons, the articles Lockert and Samplawski passed were more mundane: Samplawski passed letters and eight-track tapes to Lockert, and Lockert passed a legal brief and an eight-track tape to Samplawski. Although the State filed no criminal charges against Lockert or Samplawski, prison authorities fired Samplawski and placed Lockert in disciplinary segregation for six months because of the "trafficking" incidents.
After Lockert was released from disciplinary segregation, he and Samplawski resumed writing to each other. Lockert and Samplawski also requested that Samplawski be allowed to visit Lockert. Initially, prison authorities denied that request. However, in October, 1980, prison authorities granted Samplawski and her three sons permission to visit Lockert.
Over the next nine months, Samplawski visited Lockert every two weeks. Lockert's and Samplawski's thoughts eventually turned to marriage and after discussing the ramifications, they decided to marry despite Lockert's life sentence. In May, 1981, they submitted a formal marriage request. Robert Bronnenberg, the prison's assistant superintendent, approved the request. However, Jack Duckworth, the prison superintendent, rescinded the permission and also removed Samplawski and her sons from the list of Lockert's approved visitors. Despite the fact that Samplawski had been visiting Lockert without incident for nine months, Duckworth concluded that allowing Samplawski to visit and marry Lockert would jeopardize prison security; it had been Duckworth's experience that those who had trafficked before were likely to traffic again. After discussing the matter with Duckworth, Cloid Shuler, the Department of Corrections' deputy commissioner, concurred in Duckworth's decision to deny the marriage request and any further visitation between Samplawski and Lockert.
Lockert and Samplawski persisted in their efforts to marry. Those efforts eventually paid off; Lockert and Samplawski were married in August, 1985, with Duckworth's blessing. In the meantime, as part of his efforts to secure Duckworth's blessing, Lockert had sued Shuler, Duckworth, Bronnenberg, and Gordon Faulkner,*fn1 the commissioner of the Indiana Department of Corrections, in September, 1982.*fn2 Lockert filed his original complaint pro se.
In September, 1983, the defendants filed a motion for summary judgment. In that motion, defendants asserted that they had denied Lockert's request on a constitutionally permissible ground: their concern for prison security. The district court denied the defendants' summary judgment motion. Lockert v. Faulkner, 574 F. Supp. 606 (N.D. Ind. 1983). The court held that the defendants could legally prevent Lockert's marriage only if they had no less restrictive alternatives available to address their security concerns. The court further held that whether a less restrictive alternative existed presented a material question of fact. Id. at 609. Nothing in the court's opinion indicates that in denying their summary judgment motion the court had found the defendants liable.
After the district court denied the defendants' summary judgment motion, Lockert obtained counsel. Lockert then filed an amended complaint that clarified the relief he sought. In their answer to the amended complaint, the defendants raised a qualified immunity defense for the first time.
The district court referred Lockert's case to a magistrate pursuant to 28 U.S.C. § 636(b)(1)(B). Alter a bench trial, the magistrate, in a thorough and well-reasoned memorandum opinion, recommended that the district court enter judgment for the defendants. The magistrate reasoned that a prisoner's constitutional right to marry was not clearly established when the defendants denied Lockert's requests to marry Samplawski.*fn3 Therefore, the defendants were immune from damages under Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982).*fn4
Lockert filed objections in the district court to the magistrate's report. After reviewing the magistrate's report and Lockert's objections, the district court adopted the magistrate's analysis and entered judgment for the defendants. Lockert, now represented by different counsel, appeals.
Lockert bases his appellate argument on the Indiana Department of Corrections' "Inmate Marriage Policy." Paragraph A of that policy provides, in part, that "[t]he institution head must grant the inmate's request [to marry] unless it can be demonstrated that the state has a compelling interest in preventing the marriage." Lockert argues that because of its "must, unless" language, the "Inmate Marriage Policy" created an enforceable liberty interest. According to Lockert, the defendants did not have a compelling interest in preventing his marriage to Samplawski; thus, the defendants violated the "Inmate Marriage Policy." Therefore, Lockert's argument goes, ...