an Illinois statute in concluding that Flournoy has a protected liberty interest in visitation.
2. Existence of a Constitutional Right To Visitation
It is axiomatic that for a plaintiff to succeed on a § 1983 claim he must show that the defendant deprived him of some right protected by the Constitution or federal law. Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). Flournoy maintains that the denial of visitation violated his due process rights secured under the Fourteenth Amendment. Recognizing that the Supreme Court has held that the due process clause does not directly grant inmates the right to unfettered visitation, see Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989), Flournoy has relied on two other theories to support his claim that he has a constitutional right to visitation: (1) that the denial of visitation was a form of punishment which violated his due process right as a pretrial detainee to be free from punishment,
and (2) that Illinois law has created a liberty interest in visitation. We examine each theory in turn.
a. Was Denial of Visitation Punishment
To establish a claim of unconstitutional punishment a pretrial detainee must establish either a punitive motive on behalf of the prison officials or, absent such evidence, that the prison procedure is not "reasonably related to legitimate governmental objectives." Block v. Rutherford, 468 U.S. 576, 585-86, 82 L. Ed. 2d 438, 104 S. Ct. 3227 (1984). Flournoy has not alleged any facts indicating that the prison officials had any punitive intent in denying him visitation. Thus, to prevail, Flournoy must show that the jail's justifications for denying him visitation are not reasonably related to a legitimate governmental objective.
We find that Flournoy cannot make this threshold showing. The policies and practices that Flournoy complains of reasonably relate to the need to maintain internal security at the jail -- unquestionably a legitimate governmental objective. A jail does not "punish" a pretrial detainee by refusing to admit visitors in an already overcrowded visiting room or by requiring visitors to produce proper identification. These practices are a logical and sensible way to maintain security during visiting hours. In addition, it is perfectly sensible that the prison not admit visitors when there is insufficient visiting time remaining to justify the burden of producing the detainee, nor is it unreasonable for the jail to require visitors to know what tier the detainee is being housed on, considering the hundreds of detainees housed at the jail. Therefore, even if we accept Flournoy's allegations as true, he has still failed to allege any facts indicating that the jail's decision not to admit his visitors was a form of punishment.
b. Visitation Under Illinois Law
The Supreme Court has held that "state law may create enforceable liberty interests in the prison setting," Kentucky Dept. of Corrections, 490 U.S. at 461. For a constitutional right to be created in this way the prisoner must point to state statutes or regulations that "contain 'explicitly mandatory language,' i.e., a specific directive to the decisionmaker that if the regulations' substantive predicates are present, a particular outcome must follow." Id. at 461 (quoting Hewitt v. Helms, 459 U.S. 460, 471-72, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983)).
In our earlier order we concluded that 730 ILCS 5/3-7-2(f) contained sufficiently mandatory language to create a protected liberty interest to visitation. Fairman argues that 730 ILCS 5/3-7-2(f) does not grant Flournoy a protected interest in visitation because that statute is not applicable to him. The statute in question states in part that
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.
A different statute that we failed to consider in our earlier order, 730 ILCS 5/3-1-2, defines the term "Department" to be "the Department of Corrections of this State." Flournoy is a pretrial detainee being housed by the Cook County Department of Corrections, not the Illinois Department of Corrections. We agree with Fairman that 730 ILCS 5/3-7-2(f) is not applicable to Flournoy. Therefore, our earlier order relying on that statute was erroneous.
That of course is not the end of inquiry. We must also examine the statute or regulation that governs the practice of visitation at the Cook County Jail. Fairman has directed us to Title 20, Chapter I sec. 701.200 of the Illinois Administrative Code, which contains the Illinois County Jail Standards. Subsection (b) of that regulation provides the minimum standards that govern visitation. The five minimum standards provided in the regulation are:
A) Regulations shall provide a schedule, identifying no fewer than two visiting days each week, one of which must be during the weekend.