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FLOURNOY v. FAIRMAN

March 6, 1995

JOHNNIE FLOURNOY, Plaintiff,
v.
J. W. FAIRMAN, et al., Defendants.



The opinion of the court was delivered by: MORAN

 Plaintiff Johnnie Flournoy (Flournoy) brings this action under 42 U.S.C. § 1983 against defendants J.W. Fairman, Executive Director of the Cook County Department of Corrections (Fairman) and Farris Mercherson (Mercherson), a social worker at the Cook County Jail. Flournoy, a pretrial detainee at the Cook County Jail, alleges that he has been denied visitation in violation of the due process clause of the Fourteenth Amendment, and that defendants have failed to follow the prison grievance procedure, also in violation of the Fourteenth Amendment. In our memorandum and order of November 30, 1994, we granted Fairman's motion to dismiss in part and denied it in part, finding that Illinois law created a protected liberty interest in visitation, that Fairman is protected from individual liability by qualified immunity, and that Fairman is potentially liable in his official capacity. Before us now is Fairman's motion under Rule 60(b) to reconsider our earlier order, and Mercherson's motion to dismiss under Rule 12(b)(6). For the reasons that follow, both Fairman's motion and Mercherson's motion are granted.

 BACKGROUND

 Since this is still a motion to dismiss we must accept the well-pleaded allegations of Flournoy's complaint. Land v. Chicago Truck Drivers, 25 F.3d 509, 511 (7th Cir. 1994). Flournoy claims that on six separate occasions friends and family members were denied the right to visit him. His complaint sets forth the jail's explanation for each denial of visitation, which generally fall into four categories: (1) the visitors arrived with too little time left in the visiting hours to allow for visitation, (2) the visiting room was too crowded, (3) the visitor's failure to produce adequate identification, and (4) the visitors did not know on what tier Flournoy was being housed. The complaint also alleges that Mercherson, who was assigned to pick up inmate grievances, failed to pass those grievances along to the proper authorities. Flournoy seeks compensatory and punitive damages, as well as injunctive relief. Fairman argued originally, and maintains in this motion, that even if we accept Flournoy's allegations as true there has been no violation of the Constitution. Mercherson argues that Flournoy has not alleged the deprivation of a constitutional right, that he has failed to allege an injury, and that his prayer for equitable relief is barred by the Seventh Circuit's decision in Martin v. Davies, 917 F.2d 336, 339 (7th Cir. 1990), cert. denied, 501 U.S. 1208, 115 L. Ed. 2d 978, 111 S. Ct. 2805 (1991).

 DISCUSSION

 A. Defendant Fairman

 1. Standard under Rule 60(b)

 Although Rule 60(b) affords relief in only rare circumstances, Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 400 (7th Cir. 1986), it does allow a court to correct earlier mistakes of law or fact. Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987), modified on other grounds, 835 F.2d 710. Fairman argues that we misconstrued 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, *fn1" 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 ...


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