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GAVIN v. MCGINNIS

October 24, 1994

EDDIE GAVIN, Plaintiff,
v.
KENNETH McGINNIS, as Director of the Illinois Department of Corrections, and JAMES SCHOMIG, as Assistant Warden of Stateville Correctional Center, Defendants.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the sua sponte reconsideration of the court's order of April 3, 1992. For the following reasons, the court vacates its April 1992 order in part and grants the motion of defendant James Schomig to dismiss the complaint.

 BACKGROUND

 At the time plaintiff Eddie Gavin ("Gavin") experienced the alleged injury, he was serving time for committing a felony at the Stateville Correctional Center in Joliet, Illinois ("Stateville"). Gavin has since been released from Stateville. Gavin filed this lawsuit pro se based on 42 U.S.C. § 1983, alleging that defendants deprived him of his civil rights generally. Gavin named as defendants James Schomig ("Schomig"), the Assistant Warden at Stateville, Schomig's Officers generally, and Kenneth McGinnis ("McGinnis"), the former director of the Illinois Department of Corrections. In a minute order dated June 19, 1992, the court dismissed the officers and McGinnis from the lawsuit because Gavin failed to effectuate proper service. Schomig is the only remaining defendant. In January 1992, Schomig filed a motion to dismiss the complaint. The court denied his motion in an opinion dated April 3, 1992; however, the court declined to decide whether a particular liberty interest existed since the matter was at an early stage of the litigation.

 Gavin alleges in his complaint that on six different occasions, over a six month period, certain members of his family were denied access to Stateville for visitation. *fn1" Gavin explains he received a letter from Stateville prison officials reporting that they denied his sister access to visitation on November 25, 1990, because she was intoxicated. The prison officials placed his sister, Rose, on a six month visitation restriction list. Gavin describes that there may have been some confusion over the names of his sisters Rosella and Rose, and his mother Rosalie, and, hence, misidentification of his relatives. He contends that Rosella was the one who visited on November 25, 1990, not Rose. Furthermore, Gavin denies that his sister Rosella was intoxicated at that time.

 DISCUSSION

 In the court's opinion of April 3, 1992, the court denied, with qualification, Schomig's motion to dismiss. The court wrote:

 
While prisoners do not possess a substantive liberty interest in visitation arising under the Constitution, section 3-7-2(f) of Illinois' Unified Code of Corrections (Ill. Rev. Stat. ch. 38, P 1003-7-2(f)) at least arguably supplies a prisoner a sufficient liberty interest to state a claim under section 1983. . . . However, it is by no means clear that prisoners have a protectible liberty interest in visitation.

 Gavin v. McGinnis et al., 788 F. Supp. 1012, 1013 (N.D. Ill. 1992) (citations omitted). Furthermore, the court wrote that it "expressly declines to decide, at this early stage in the litigation, whether a prisoner has a . . . liberty interest in visitation." Id. Since "District courts . . . have a responsibility to keep their court calendars as current as possible," North Cent. Ill. Laborers' Dist. Counsel v. S.J. Groves & Sons Co., 842 F.2d 164, 167 (7th Cir. 1988), the court finds that this is an appropriate juncture at which to revisit the issue. The court now addresses whether the denial of visitation privileges is cognizable in Gavin's § 1983 cause of action.

 A. CONSTITUTIONAL VIOLATION

 Again, the underlying motion is one for dismissal of Gavin's 42 U.S.C. § 1983 claim. "All the complaint need do to withstand a motion to dismiss for failure to state a claim is 'outline or adumbrate' a violation of the statute or constitutional provision upon which plaintiff relies, and connect the violation to the named defendants." Brownlee v. Conine, 957 F.2d 353, 354 (7th Cir. 1992) (citations omitted). To state a viable claim under § 1983, a plaintiff must allege sufficient facts to demonstrate that he was "deprived of an interest secured by the Constitution or laws of the United States, and the deprivation was visited upon him by a person or persons acting under color of state law." Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1249 (7th Cir. 1994) (citing Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920, 1923-24, 64 L. Ed. 2d 572 (1980)). However, "in evaluating constitutional claims of prisoners, we must balance the need to protect prisoners' procedural rights against the need for prison safety and security." Pardo v. Hosier, 946 F.2d 1278, 1280 (7th Cir. 1991); see also Woods v. O'Leary, 890 F.2d 883 (7th Cir. 1989) (holding that regulations may impinge constitutional rights if the regulation is reasonably related to legitimate penological interests).

 In 1972, the United States Supreme Court opined the following of liberty interests:

 
"Liberty" and "property" are broad and majestic terms. They are among the "great [constitutional] concepts . . . purposely left to gather meaning from experience. . . . They relate to the whole domain of social and economic fact, and the statesmen who founded this ...

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