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February 10, 2004.

MICHAEL MEJIA, #K-83133, Plaintiff
CARMIN RUFFIN, et al., Defendants

The opinion of the court was delivered by: SUZANNE CONLON, District Judge


Michael Mejia, a state prisoner, sues Carmin Ruffin, Kenneth Briley, Stephen D. Mote, Alex D. Jones, Robert L. Radmacher, Donald J. Snyder, Jr., and Roger E, Walker (collectively, "defendants") for violations of 42 U.S.C. § 1983. Specifically, Mejia claims his right to receive visitors has been restricted without due process in violation of the Fifth, Eighth and Fourteenth Amendments. Defendants move to dismiss this action for failure to state a claim pursuant to Fed, R, Civ. P. 12(b)(6).


  For purposes of a motion to dismiss, the court accepts all well-pleaded allegations of the complaint as true and draws all reasonable inferences in Mejia's favor. See Thompson v, Illinois Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002), Mejia is an inmate within the Illinois Department of Corrections ("IDOC"). He is currently incarcerated at Stateville Correctional Center, On March 14, 2001, Julia Corral, Francisco Ruiz, Rafael Carrasco and Gabriella Vargas drove to Stateville in Carrasco's car. They intended to visit Mejia. Vargas is Mejia's fiancée; Corral, Ruiz and Carrasco are Mejia's long-time friends. When the foursome arrived at Stateville, officers Page 2 intercepted the car before it entered prison grounds and conducted a random search. With the assistance of a trained canine unit, officers discovered the remnants of a partially smoked marijuana cigar in the rear passenger door ashtray. Carrasco conceded that the marijuana was his, and the other passengers swore that they had no knowledge of the contraband. The officers prohibited the vehicle from entering Stateville grounds. Inside the prison, officers subjected Mejia to a "shakedown" — an immediate search for drugs, Compl, at ¶ 19, A few days later, on March 19th, Mejia received written notification that Corral, Ruiz, Carrasco and Vargas had been placed on "permanent restriction," and would not be allowed to visit Mejia again until the restriction was lifted. Compl. at ¶ 21.

  Mejia immediately filed a grievance with the Stateville grievance officer, Carmin Ruffin. Ruffin informed Mejia that the visitation restrictions must be upheld due to the seriousness of the violation. Mejia took the next step and appealed to Warden Briley. According to Mejia, Warden Briley failed to respond to numerous letters requesting a hearing to demonstrate that his friends had no intention of bringing marijuana into the prison. Assistant Warden Mote finally responded, stating that Mejia's grievance would be denied without hearing, but that Mejia could request review of the decision in six months. Since that denial, Mejia has diligently appealed the visitation restrictions placed on his friends. He filed an appeal with IDOC, which included an affidavit by Carrasco swearing that he owned the marijuana found in the vehicle. The IDOC denied his appeal because of the seriousness of the drug charges. Defendants Radmacher, Snyder and Walker work at the IDOC. Mejia's most recent request for relief was denied without hearing by Alex Jones, an Assistant Warden, on June 24, 2003. According to Mejia, the visitation restrictions and resulting loss of Page 3 contact with friends and family have negatively impacted his relationship with Vargas as well as his mental and physical well-being.


  The complaint will be dismissed only if it appears beyond a doubt that Mejia can prove no set of facts in support of his claim entitling him to relief. Conley v, Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957); Hernandez v. City of Goshen, 324 F.3d 535, 537 (7th Cir. 2003).

 I. Sovereign Immunity.

  Defendants contend the essence of Mejia's claim is that state officials failed to follow state laws or regulations. According to defendants, although the named parties in Mejia's suit are state officials, the real party in interest is the state and the suit is barred by sovereign immunity. See Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 105-6, 104 S.Ct. 900, 910-11 (1984) (although official, not the state, is the named party in the suit, when relief in fact operates on the state, the stale is the true party in interest and sovereign immunity applies). Although defendants' explanation of the law is correct, their characterization of Mejia's claims is misguided. Mejia's claims are not based on a violation of slate law or regulations, per se. Mejia contends defendants' arbitrary application of the state visitation regulations violates his right to due process of law-a federal constitutional claim. Thus, Mejia is effectively suing defendants in their individual capacities. State sovereign immunity does not bar the suit. Id at 102-3, citing Ex parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908). Page 4

 II. Qualified Immunity

  Qualified immunity shields officials from civil liability for damages unless the plaintiff demonstrates that the officials' exercise of discretion violated clearly established law. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct 2727 (1982); Maltby v. Winston, 36 F.3d 548, 554-55 (7th Cir. 1995). Qualified immunity does not preclude Mejia's request for injunctive relief. Cannon v. Shomig, No. 99 C 3537, 1999 WL 571052, at *3-4 (N.D. Ill. July 30, 1999). Defendants contend their decisions to restrict Mejia's visitation access are entitled to immunity because state statutes and regulations, as well as federal constitutional precedent, confers discretionary authority upon them to regulate Mejia's right to receive visitors. See 730 ILCS 5/3-7-2 (state statute granting prison officials discretion to restrict visitation rights for the well-being of the prison); 20 Ill. Adm. Code 501.220(a) (authorizing search of visitors); 20 Ill. Adm. Code 525.60 (regulating discretion to restrict visitation); Overton v. Bazzetta, ___ U.S. ___ 124 S.Ct. 2162, 2168-70 (2003). Mejia argues that defendants are not protected by qualified immunity because they exercised their discretion arbitrarily; the due process clause clearly forbids officials from using their official discretion to arbitrarily deprive individuals of their rights. See, e.g., Richardson v. McKnight, 521 U.S. 399, 403, 117 S.Ct. 2100 (1997). Because qualified immunity effectively frees officials from the stresses of litigation, courts are required to determine the issue as soon as possible. Maltby, 36 F.3d at 554-55. Although a legal question, the application of qualified immunity depends on the particular facts of each case. Id. At this stage of the litigation, defendants fail to show they are entitled to qualified immunity as a matter of law. Page 5

 III. Due Process Claim

  Mejia asserts the defendants arbitrarily restricted his visitation rights in violation of the due process clause of the Fourteenth Amendment. Mejia concedes that the Fifth Amendment is inapplicable to his claims against state officials, Willan v. Columbia County, 280 F.3d 1160 (7th Cir. 2002). The due process clause of the Fourteenth Amendment does not require unrestricted visitation. If Mejia merely alleged that the state lacked authority to restrict his right to visitation and nothing more, the complaint should be dismissed. Prison officials enjoy broad discretion in controlling visitor access to prisoners. Denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence, Overton, ___ U.S. ___, 117 S.Ct. at 2168-71; Kentucky Dep't of Conection v. Thompson, 490 U.S. 454, 462-65, 109 S.Ct. 1904(1989); 730 ILCS 5/3-7-2 (may restrict visitation rights for the well-being of the prison). However, Mejia's claim arguably falls outside these decisions because he challenges the constitutionality of arbitrary application of state visitation regulations, not the validity of the regulations. Put another way, Mejia claims defendants' arbitrary imposition of visitation restrictions deprived him of procedural due process.

  Mejia's claim rests on a premise that a prisoner has a liberty interest in visitation. The Seventh Circuit has not expressly determined whether a prisoner has a liberty interest that encompasses a limited right to make or receive prison visits involving family members, but the Court has noted that a liberty interest is "conceivable." Arsberry v. Illinois, 244 F.3d 558, 565 (7th Cir. 2001), citing Mayo v. Lane, 867 F.2d 374, 375-76 (7th Cir. 1989); Overton, ___ U.S. ___, 117 S.Ct. at 2170 (suggesting visitation restrictions applied in arbitrary manner may be unconstitutional); Townsend v. Snyder, No. 01 C 9925, 2002 WL 31415711, at *2-3 (N.D. Ill. Oct. 23, 2002) Page 6 (correctional officers cannot arbitrarily or discriminatorily impose restrictions on visitation privileges). Thus, it is possible that Mejia may establish a due process claim based on arbitrary restrictions on his visitation rights if he shows that defendant's application of visitation limitations involve atypical and significant hardship in relation to ordinary prison life. Cannon, 1999 WL 571052 at *3-4; Sandin v. Conner, 515 U.S. 472, 484-86, 115 S.Ct. 2293 (1995). The merits of Mejia's claim is questionable. At least one of his visitors violated prison ...

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