Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 85 C 319 -- Prentice H. Marshall, Judge.
Posner, Flaum, and Manion, Circuit Judges.
Elizabeth Mayo appeals from the dismissal of her suit challenging an order by an official of the Illinois prison system that bars her from visiting any Illinois state prison. The suit, brought under 42 U.S.C. § 1983, alleges that the order deprived her of liberty and property without due process of law, in violation of the Fourteenth Amendment. She sought damages and an injunction. The ground of dismissal was failure to state a claim, Fed. R. Civ. P. 12(b)(6); specifically, the district judge believed that the complaint failed to allege a deprivation of "liberty" or "property" as these terms are understood in cases interpreting the Fourteenth Amendment.
On July 19, 1984, Mrs. Mayo had visited her grandnephew, Larry McCall-Bey, who was serving time for armed robbery at the Dixon Correctional Facility. She had been accompanied by three minors, including Lorraine Davidson. Prison staff observed Davidson chatting with another inmate (not McCall-Bey) and then entering the women's bathroom without signing in at the visitors' desk, as required. Immediately afterward, the staff searched the bathroom and found a large quantity of marijuana. They concluded that Davidson had placed it there. On July 29, the prison's warden wrote Mrs. Mayo a letter reciting these facts and informing her that, "In light of the above, you are permanently restricted from visiting this facility and every other Adult Institution in the State of Illinois." On December 21, 1984, McCall-Bey was paroled. This suit was filed on January 14, 1985.
We see many cases where people invoke the Constitution to get out of prison; this is the first case we have seen where a person is invoking the Constitution to get into one. Mrs. Mayo sensibly does not argue that a person's natural liberty (on which see McKinney v. George, 726 F.2d 1183, 1189 (7th Cir. 1984)) is infringed when he or she is forbidden to enter a prison. It is imprisonment that robs a person of natural liberty--not exclusion from prison. (The distinction is basic to the tort of false imprisonment. Locking a person in his room is false imprisonment; locking him out of his room is not. See Martin v. Lincoln Park West Corp., 219 F.2d 622 (7th Cir. 1955), and other cases cited in Prosser and Keeton on the Law of Torts § 11, at p. 47 n. 6 (5th ed. 1984).) Mrs. Mayo makes four arguments for why she is nonetheless being deprived of liberty or property by being forbidden to visit Illinois state prisons. The first is that she is an ordained minister, and an Illinois statute provides that "Clergy, religious chaplain and attorney visiting privileges shall be as broad as the security of the institution or facility will allow." Ill. Rev. Stat. ch. 38, para. 1003-7-2(f). The district judge refused to consider the possible bearing of this provision because the complaint had failed to cite it or to allege that Mrs. Mayo is a minister, ordained or otherwise. For reasons we shall explain, she has no standing to complain that the state deprived her of an entitlement (if any) created by the quoted language.
Mrs. Mayo argues that her natural liberty includes a right of association with members of her family, such as grandnephew McCall-Bey, and that this right in turn comprehends the right to visit him in prison. This is not a frivolous argument. The concept of liberty in the Fourteenth Amendment has been held to embrace a right to associate with one's relatives. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (plurality opinion); Bergren v. City of Milwaukee, 811 F.2d 1139, 1144 (7th Cir. 1987); Shondel v. McDermott, 775 F.2d 859, 860-61 (7th Cir. 1985); Ellis v. Hamilton, 669 F.2d 510 (7th Cir. 1982); Trujillo v. Board of County Commissioners, 768 F.2d 1186, 1188-89 (10th Cir. 1985). (One court has even held -- we are astonished to report -- that dating is a Fourteenth Amendment liberty. See Wilson v. Taylor, 733 F.2d 1539 (11th Cir. 1984); see generally IDK, Inc. v. County of Clark, 836 F.2d 1185, 1191-93 (9th Cir. 1988).) But it is a slight argument, for reasons well discussed in a case factually similar to the present one, White v. Keller, 438 F. Supp. 110, 120 (D. Md. 1977), aff'd per curiam, 588 F.2d 913 (4th Cir. 1978). Prison necessarily disrupts the normal pattern of familial association, so lawful imprisonment can hardly be thought a deprivation of the right of relatives to associate with the imprisoned criminal. Cf. O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 788, 65 L. Ed. 2d 506, 100 S. Ct. 2467 (1980) ("members of a family who have been dependent on an errant father ... may suffer serious trauma if he is deprived of his liberty or property as a consequence of criminal proceedings, but surely they have no constitutional right to participate in his trial or sentencing procedures"). More fundamentally, the person with the primary stake in the deprivations caused by imprisonment is the prisoner himself, and he rather than his relatives is the proper party to complain about those deprivations. More fundamentally still, Mrs. Mayo has no standing to assert a constitutional right to visit her grandnephew in prison, because there is no allegation in the complaint, or anywhere else in the record, that she has been prevented from visiting McCall-Bey or any other relative imprisoned by the State of Illinois. There was no interference with her visit on July 19, 1984. There is no suggestion, by way of affidavit or otherwise, that she wanted to visit McCall-Bey after that, before his release from prison on parole in December; or that any of her other relatives are in prison or about to be put there.
In short there is no indication either that Mrs. Mayo has been injured by the order barring her from visiting Illinois prisons (and so might obtain damages) or that she would derive a benefit from rescission of the order (and so might be aided by the injunction she seeks). She is like a person who is in a room locked from the outside but does not know the room is locked and does not attempt to leave during the time it is locked. More precisely, she is like a person standing outside a locked room, neither knowing the room is locked nor desiring to enter it. Such a person incurs no harm from the fact that the door is locked.
Mrs. Mayo's next argument is also based on paragraph 1003-7-2(f) of chapter 38 of the Illinois Revised Statutes, and in particular on the statement in that paragraph that "All of the institutions and facilities of the Department shall permit every committed person to receive visitors." If this provision creates any rights (as suggested in United States ex rel. Adams v. O'Leary, 659 F. Supp. 736 (N.D. Ill. 1987), but the question must be regarded as an open one since a district judge's opinion is not an authoritative precedent, Colby v. J.C. Penney Co., 811 F.2d 1119, 1124 (7th Cir. 1987); cf. Lingle v. Norge Division of Magic Chef Inc., 823 F.2d 1031, 1044 n. 14 (7th Cir. 1987) (en banc), rev'd on other grounds, 486 U.S. 399, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988)), they are rights of prisoners. The quoted language creates, at most, a right to receive visitors, not a right to visit. Mrs. Mayo has no standing to assert such a right, unless perchance as the representative of a prisoner who wants her to visit and is somehow unable to assert his rights directly, such hindrance to first-party litigation being the normal prerequisite to allowing a third party to assert one's rights. See Singleton v. Wulff, 428 U.S. 106, 116, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (1976). But nowhere is it alleged that any prisoner desires a visit from Mrs. Mayo, let alone that such prisoner is unable to enforce without her aid whatever right he might have to receive a visit from her. The absence of an allegation that any prisoner desires a visit from Mrs. Mayo excuses us from having to consider possible exceptions to the hindrance requirement for third-party litigation. See Gometz v. Henman, 807 F.2d 113, 115 (7th Cir. 1986).
Last, Mrs. Mayo invokes Administrative Directive 05.01.106 issued by the Illinois prison system. This directive is in two sections, "Policy" and "Procedure." The "Policy" section states, so far as bears on this case, that "In order to preserve the security of the facility, visitor access shall be carefully controlled. 1. Visitors who demonstrate inappropriate behavior will be temporarily or permanently restricted from institutional visits." The reference to "inappropriate behavior" is too vague to confer an entitlement on visitors. It does not purport to constrain the exercise of discretion by the prison authorities, and thus does not create the sort of entitlement that resembles, and counts as, property. Cf. Reed v. Village of Shorewood, 704 F.2d 943, 948 (7th Cir. 1983). The "Procedure" section of the directive sets forth procedures for determining whether a visitor has behaved inappropriately and, if so, whether the visitor should be barred temporarily or permanently. Procedures alone do not create a substantive entitlement on which a suit under the due process clause may be based. See, e.g., Hewitt v. Helms, 459 U.S. 460, 471, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983); Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988) (en banc); Mathews v. Fairman, 779 F.2d 409 (7th Cir. 1985); Shango v. Jurich, 681 F.2d 1091, 1100-03 (7th Cir. 1982). However, the "Procedure" section contains, besides procedures, a long list of behaviors that warrant temporary barring and another long list of behaviors that warrant permanent barring. Mrs. Mayo argues that this specification of substantive criteria for exclusion from prison creates a property right of which she may not be deprived, consistently with the Fourteenth Amendment, without a hearing to determine whether she in fact engaged in any of the behaviors listed as grounds for permanently barring the visitor from all the state's prisons. She notes that the directive requires the prison system to conduct an annual review of permanent bar orders and notify the visitor of this annual review, and she alleges that no such notice was sent her -- though this is hardly surprising, since her complaint was filed less than six months after the permanent bar was issued.
The state makes a variety of arguments in support of the district court's conclusion that the administrative directive is not a source of liberty or property within the meaning of the Fourteenth Amendment. We need not consider these arguments. Mrs. Mayo has no standing to argue that the directive was violated. As shown by its frequent references to "inmate visits" and by other language in the directive (e.g., "letter to the visitor with a copy to the inmate"), the directive regulates not visits to prisons as such -- to see how the taxpayer's money is being spent or whether the conditions of confinement are horrendous -- but visits to individual prison inmates. There is no indication that Mrs. Mayo wants to visit any inmate of the Illinois prison system, now that McCall-Bey has been released. She has no other relatives in prison, so far as appears -- indeed, no friends or acquaintances in prison. There is no indication that the order permanently restricting her from access to Illinois state prisons has had the least effect on her. So far as one can tell, the last time she wanted to visit an inmate in an Illinois prison was on July 19, 1984 -- and she made that visit without interference. She wants to have the right to enter Illinois prisons, but there is no indication that she wants to exercise the right. She may feel offended by the order barring her from these prisons, but she does not argue that the order injures her beyond preventing visits that she has no desire to make; and indignation does not create standing. ACLU v. City of St. Charles, 794 F.2d 265, 268 (7th Cir. 1986); P.O.W.E.R. v. Thompson, 727 F.2d 167, 171 (7th Cir. 1984).
Mrs. Mayo argues that her status as an ordained minister gives her broader rights of visitation than other people. The argument is probably barred, as untimely; it is in any event irrelevant, since she does not contend that she wants to visit prison in connection with her religious vocation. She has no greater interest in challenging the order excluding her from Illinois prisons than a member of this panel would have, and that is not good enough. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 225-26, 41 L. Ed. 2d 706, 94 S. Ct. 2925 (1974); D'Amico v. Schweiker, 698 F.2d 903 (7th Cir. 1983). She does not like the order, and may have reason not to; but unless she has been or is likely to be hurt by it in the sense of having suffered approximately the kind of loss that could support a common law action, she cannot sue -- for reasons of judicial economy and prudence that are summarized in the words "case or controversy." The order she complains of may violate the Constitution but if it makes no difference in her conduct -- if it neither affected her visit on July 19, 1984, nor will affect any other visiting plans of hers -- then she lacks standing to challenge the order for purposes of obtaining either damages or an injunction. See, e.g., Golden v. Zwickler, 394 U.S. 103, 109, 22 L. Ed. 2d 113, 89 S. Ct. 956 (1969); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 572 (7th Cir. 1987); J.N.S., Inc. v. Indiana, 712 F.2d 303, 305 (7th Cir. 1983); Haase v. Sessions, 266 U.S. App. D.C. 325, 835 F.2d 902, 911 (D.C.Cir. 1987).
The district judge was right to dismiss the complaint, although he should have done it on grounds of standing, that is to say on grounds of subject-matter jurisdiction, without reaching the merits. He had no power to reach the merits if, as we believe, the case is not within the judicial power of the United States as defined by Article III.
FLAUM, Circuit Judge, concurring.
Plaintiff Elizabeth Mayo was permanently barred from visiting all Illinois adult correctional facilities following a visit she made to her grandnephew, Larry McCall-Bey, at the Dixon Correctional Facility. Ms. Mayo claims that in effectuating the permanent restriction, the Defendants deprived her of liberty without due process of law. According to the Plaintiff, Illinois statutory and regulatory provisions, as well as various constitutional provisions, give her a liberty interest in visiting Illinois correctional facilities. Since she was not given a hearing before she was barred from visiting the facilities, Ms. Mayo believes she was denied procedural due process and is therefore entitled to damages and injunctive and declaratory relief under Section 1983. The district court granted the Defendants' motion to dismiss holding that Ms. Mayo has no constitutionally protected liberty interest in visiting Illinois prisons. I would find that Ms. Mayo does have a liberty interest in prison visitation and also has standing to claim that she was deprived of that interest without due process. Nevertheless, because I would also find that Ms. Mayo has been given all of the process she was due upon restriction of her right to visit, I concur in the result reached by the majority.
On July 19, 1984, Elizabeth Mayo travelled to the Dixon Correctional Facility to visit her grandnephew Larry McCall-Bey.*fn1 Ms. Mayo was accompanied on the trip by three minor children. According to prison officials, suspicions about these visitors were aroused when one of the minor children visited the women's bathroom without first signing in at the Officer Visiting Desk. A search of the bathroom immediately following the minor's visit turned up two plastic bags filled with marijuana. Based on that incident, and without giving Ms. Mayo any opportunity to rebut the charges against her, the prison officials permanently barred Ms. Mayo from all Illinois correctional facilities. Ms. Mayo was informed of this restriction in a letter from Warden Linda Geisen dated duly 29, 1984. The letter did not inform Ms. Mayo that she had any right to have the decision reviewed by prison administration officials and, according to Ms. Mayo, no review of her permanent restriction has ever taken place.
Ms. Mayo's complaint alleges that she has been deprived of a liberty interest in prison visitation without due process of law in violation of the fourteenth amendment. Ms. Mayo claims she has a liberty interest by virtue of both a state statute, Chapter 38, Section 1003-7-2(f),*fn2 and an administrative directive promulgated by the Illinois Department of Corrections, No. 05.01.106.*fn3 However, the district court granted the prison officials' motion to dismiss holding that neither of these provisions give Ms. Mayo a liberty interest in visiting Illinois correctional facilities.
According to the district court, the statute does not create a liberty interest since, by its terms, it applies only to prisoners and not to visitors. The district court further held that the administrative directive does not create a liberty interest. That regulation was deemed to accord to prison officials the kind of wide-ranging discretion which defeats a claim that the state has created a liberty interest. Finally, the district court refused to decide whether the Plaintiff's alleged status as a minister afforded her rights under Section 1003-7-2(f) greater than those of the general populace as that status was mentioned for the first time only in the Plaintiff's reply brief to the motion to dismiss.
On appeal, the Plaintiff makes two arguments to support her claim that the district court erred in finding that she had no liberty interest in visiting Illinois correctional facilities. First, she contends that both the first and second sentences of Section 1003-7-2(f) give her a liberty interest. Second, she claims that Administrative Directive 05.01.106 creates a liberty interest in visitation by virtue of its mandatory language and specific substantive predicates for official action. In this circuit, we review these contentions bearing in mind that on an appeal from the grant of a motion to dismiss all allegations of the complaint must be taken as true. Hanrahan v. Lane, 747 F.2d 1137, 1138 (7th Cir. 1984). The dismissal of the complaint will be upheld only if "it appears that plaintiff can prove no set of facts in support of his [or her] claim which would entitle him [or her] to relief." Id. at 1139.
There are two sources of the liberty interests protected by the due process clause of the fourteenth amendment. Hewitt v. Helms, 459 U.S. 460, 466, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). The first source of those interests is the due process clause itself. In this case, the Plaintiff makes no claim that the due process clause itself protects her right to visit Illinois prisons. In any event, as the majority recognizes, such a claim would be unavailing. The right to visit a prison is not the kind of fundamental interest protected by the due process clause. Every court which has addressed the issue has held that liberty interests do not arise when a person is barred from visiting a prison. Robinson v. Palmer, 619 F. Supp. 344, 349 (D.D.C. 1985), aff'd, 268 U.S. App. D.C. 326, 841 F.2d 1151 (D.C.Cir. 1988); Fennell v. Carlson, 466 F. Supp. 56, 59 (D. Okla. 1978); White v. Keller, 438 F. Supp. 110, 114 (D. Md. 1977), aff'd, 588 F.2d 913 (4th Cir. 1978).
The other source of the liberty interests protected by the fourteenth amendment is state law. For a state statutory or regulatory enactment to create a liberty interest, the enactment must use "explicitly mandatory language in connection with requiring specific substantive predicates." Hewitt, 459 U.S. at 472; see also Board of Pardons v. Allen, 482 U.S. 369, 107 S. Ct. 2415, 2419-20, 96 L. Ed. 2d 303 (1987) (state created liberty interest in parole through use of four designated justifications for denial [the substantive predicates] and mandatory language). The substantive predicates show "'that particularized standards or criteria guide the State's decisionmakers.'" Thompson v. Kentucky, 833 F.2d 614, 619 (6th Cir. 1987) (quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467, 69 L. Ed. 2d 158, 101 S. Ct. 2460 (1981) (Brennan, J., concurring)), cert. granted 487 U.S. 1217, 108 S. Ct. 2869, 101 L. Ed. 2d 905 (1988). No liberty interest is created if the state is free to make a decision for any constitutionally permissible reason or no reason at all. Meachum v. Fano, 427 U.S. 215, 228, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976).
The Supreme Court has extended this state created liberty analysis to the day-to-day world of prison administration only with great hesitation. The Court has recognized that "the safe and efficient operation of a prison on a day-to-day basis has traditionally been entrusted to the expertise of prison officials." Hewitt, 459 U.S. at 470 (citations omitted). Nevertheless, where a state enactment provides mandatory language in connection with substantive predicates, the Court has found that the enactment creates a liberty interest which requires prison administrators to afford due process to those who can validly claim the interest. Id.
In this case, the Plaintiff claims that two Illinois enactments create a liberty interest in prison visitation. The first is Illinois Revised Statute 1983, Chapter 38, Section 1003-7-2(f) (the "statute") which states:
All of the institutions and facilities of the department shall permit every committed person to receive visitors, except in case of abuse of the visiting privilege or when the chief administrative officer determines that such visiting would be harmful or dangerous to the security, safety or morale of the institution or facility. Clergy, religious chaplain and attorney visiting privileges shall be as broad as the security of the institution or facility will allow.
Plaintiff claims that the first part of the statute, while only mentioning the rights of prisoners, necessarily also applies to visitors. According to the Plaintiff, it would be inconsistent for the state to give prisoners a liberty interest in having visitors without there being a correlative liberty interest for visitors in visiting. I disagree. The basis of any claim to a state-created liberty interest is "a justifiable expectation" that the state will not act except in response to specified events. Montanye v. Haymes, 427 U.S. 236, 243, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976); Vitek v. Jones, 445 U.S. 480, 490, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980). Once there is such an expectation or reliance interest, a liberty interest is created to ensure that the expectation is not "arbitrarily denied." Board of Regents v. Roth, 408 U.S. 564, 578, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Here, where visitor's rights are not even mentioned in the first part of the statute, no such legitimate expectation or reliance interest could have arisen.
The Plaintiff next contends that even if the first part of the statute does not apply to visitors, a visitor should be able to enforce the prisoner's right to receive visitors under a third-party rights theory. The general rule, where this sort of claim is raised, is that "one may not claim standing . . . to vindicate the constitutional rights of some third party." Barrows v. Jackson, 346 U.S. 249, 255, 97 L. Ed. 1586, 73 S. Ct. 1031 (1953). Nevertheless, where "the enjoyment of the right is inextricably bound up with the activity the litigant wishes to pursue, . . ." and "there is some genuine obstacle" to the assertion of the right by the third party, then there is standing to attempt to vindicate the third party's rights. Singleton v. Wulff, 428 U.S. 106, 114-16, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (1976).
In this case, I would not reach the question of whether the Plaintiff's rights are "inextricably bound up" with those of the prisoner since it is plain that there was no obstacle to the prisoner asserting his own right. In fact, prisoners have successfully asserted their right to visitation under this very provision. See United States ex rel. Adams v. O'Leary, 659 F. Supp. 736 (N.D. Ill. 1987) (prisoner has liberty interest under Section 1003-7-2(f) in having visitors). The Plaintiff has failed to establish that there are any significant impediments which would preclude prisoners from asserting their right to visitation.
Plaintiff has yet a third argument under the statute. She argues that the last sentence of the statute gives her, as an ordained minister, a liberty interest in visiting Illinois correctional facilities. I would not decide, however, whether the last sentence of the statute suffices to create a liberty interest in those persons to whom it applies for Plaintiff has waived this claim by failing to bring her status as a minister to the attention of the district court in a timely fashion.
Plaintiff first alleged her status as a minister in her response to the Defendants' motion to dismiss. Nowhere in her complaint did the Plaintiff mention her ministerial status. While I recognize that the original complaint was filed pro se, and therefore must be read as liberally as possible, there is no excuse for the failure to attempt to amend the complaint following the appointment of counsel.*fn4 Plaintiff's allegations based on her status as a minister are thus waived. See Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 249 n. ...