Elizabeth B. Mayo v. Michael P. Lane

erroneous Accordingly, hold that the we eighth and four-

instructions violated and, on this basis

teenth amendments

alone, stand. sentence cannot Kubat’s

IV. opinion, in this

For the reasons stated AF- of the district court judgment

FIRMED. MAYO, Plaintiff-Appellant,

Elizabeth B. LANE, al., et

Michael P.

Defendants-Appellees.

No. 85-3217. Appeals,

United States Court Circuit.

Seventh

Argued Sept.

Decided Jan. Shulman, Chicago

Barbara S. Univ. Clinic, Ill., Legal Chicago, plaintiff-ap- for pellant. Gen., Div., Rappaport, Atty.

Bret A. Civ. Chicago, Ill., defendants-appellees. POSNER, FLAUM, Before MANION, Judges. Circuit POSNER, Judge. Circuit Mayo appeals Elizabeth dismis- challenging sal of her suit an order prison system official of the.Illinois visiting any bars her from Illinois state form, disregarded disregarded the two incorrect instruc- the two incorrect instructions and tions, equally likely jurors it is relied on the one correct verdict form.

375 11, (5th 1984).) suit, p. 42 n. 6 brought under U.S.C. 47 ed. Mrs. prison. The § Mayo arguments why makes four 1983, deprived order her she alleges that the § being deprived liberty is nonetheless of or property without due of and property by being forbidden to visit Illinois law, in violation of the Fourteenth of prisons. The first state is that she is an sought damages and an Amendment. She minister, and an ordained Illinois statute ground of dismissal was injunction. provides “Clergy, religious chaplain claim, to state a Fed.R.Civ.P. failure attorney visiting privileges and shall be as 12(b)(6); judge the district be- specifically, security broad as the of the institution or complaint allege failed to lieved that the facility 38, will allow.” Ill.Rev.Stat. ch. “liberty” “property” as deprivation of 111003-7-2(f). judge The district refused understood in cases inter- these terms are possible bearing to consider the of this Amendment. preting the Fourteenth provision complaint because the had failed July Mrs. had visited On allege to cite it or to that Mrs. is a grandnephew, Larry McCall-Bey, who minister, ordained or For rea- otherwise. serving robbery time for armed at the explain, sons we shall she has no Facility. had Dixon Correctional She complain deprived that the state her of minors, including accompanied by three (if any) quot- an entitlement created Lorraine Davidson. Prison staff observed language. ed (not chatting with another inmate Davidson Mayo argues Mrs. that her natu entering the McCall-Bey) and then wom- right ral includes a of association signing in at the en’s bathroom without grand family, with members of her such as desk, required. Immediately visitors’ as nephew McCall-Bey, right this afterward, searched the bathroom the staff comprehends right turn to visit him in large marijuana. quantity and found a of prison. argument. This is not a frivolous They placed concluded that Davidson had it concept of in the Fourteenth 29, prison’s July there. On warden Amendment has been held to embrace a reciting wrote Mrs. a letter these See, right to associate with one’s relatives. informing light “In facts and Cleveland, e.g., City Moore v. East 431 above, you permanently restricted 1932, 97 S.Ct. 52 L.Ed.2d 531 facility visiting every other (1977) (plurality opinion); Bergren City v. Adult Institution the State of Illinois.” Milwaukee, (7th 811 F.2d 1144 of Cir.1987); 21, 1984, McCall-Bey On December McDermott, v. 775 F.2d Shondel paroled. January This was filed on suit Cir.1985); 860-61 Ellis v. Hamil ton, (7th Cir.1982); Trujillo F.2d v. many people We see cases where Commissioners, County Board get pris invoke the Constitution to out of (10th Cir.1985). (One F.2d 1188-89 on; this is the first case we have seen court has even held—we are astonished to person invoking where a the Constitution report dating is a Fourteenth Amend —that liberty. get Mayo sensibly into one. Mrs. Taylor, ment v. Wilson argue person’s that a natural (11th Cir.1984); generally F.2d 1539 see (on McKinney George, which see v. 726 IDK, Clark, County Inc. v. (7th Cir.1984)) infringed F.2d (9th Cir.1988).) But it is a 1191-93 he or she is to enter a when forbidden argument, slight for reasons well discussed prison. imprisonment per It is that robs a factually present in a case similar to the son of natural exclusion from Keller, one, F.Supp. White —not (The prison. distinction is basic to the tort (D.Md.1977), curiam, per aff’d 588 F.2d 913 imprisonment. Locking (4th Cir.1978). of false necessarily disrupts Prison imprisonment; locking association, in his room is false pattern of familial normal him out of his room is not. imprisonment hardly See Martin v. can so lawful Corp., thought deprivation Lincoln Park 219 F.2d 622 of rela West (7th Cir.1955), imprisoned and other cases cited in crimi tives to associate with the Prosser and Keeton on Torts Nurs- the Law of nal. Cf. O’Bannon v. Town Court gested in ex rel. States Adams Center, United

ing (N.D.Ill.1987), (1980) F.Supp. O’Leary, 2476-77, regarded as an question must be but the family been de- (“members who have judge’s opinion is open one a district since may suffer father ... an errant pendent on precedent, Colby v. not an authoritative deprived of his if he is trauma serious (7th Co., F.2d 1124 811 Penney J.C. consequence as a of property liberty or Cir.1987); Norge Division Lingle v. cf. surely they have but proceedings, criminal Inc., 14 823 F.2d 1044 n. Magic Chef, right participate to in his no constitutional banc), (7th Cir.1987) (en on other rev’d More sentencing procedures”). trial or U.S. -, grounds, — 108 S.Ct. primary fundamentally, person with (1988)), L.Ed.2d they are pris by impris- caused deprivations in the stake creates, quoted language oners. The himself, he rath- prisoner onment is most, visitors, right right not a to receive proper party to is the relatives er than his no to to visit. has Mrs. deprivations. More those complain about right, perchance assert such a unless as still, no Mrs. has fundamentally representative prisoner of a who wants right to a constitutional standing to assert to his to visit and is somehow unable assert prison, because grandnephew visit her first-par rights directly, hindrance to such complaint, or in the allegation is no there ty litigation being prerequisite the normal record, that she has in the else anywhere allowing party to assert one’s to a third visiting McCall-Bey prevented from Wulff, 428 rights. Singleton v. U.S. by the imprisoned relative any or other 2868, 2875, 106, 116, 96 no interfer- There was of Illinois. State alleged it But nowhere is July 1984. There on visit ence from any prisoner desires a visit Mrs. or by way of affidavit suggestion, is no prisoner is Mayo, let alone that such unable otherwise, to visit McCall- she wanted right to enforce her aid whatever without from his release Bey before after from her. might he to receive a visit have December; prison parole on allegation any pris of an absence or about relatives of her other oner a visit from Mrs. excus desires put there. be possible ex having to consider es us from either that is no indication there In short requirement for ceptions to the hindrance by the injured order Mayo has been Mrs. third-party litigation. See Gometz v. Hen visiting prisons Illinois her from barring (7th Cir.1986). man, 807 F.2d damages) (and or that she might so obtain Last, Mayo invokes Administrative Mrs. from rescission of a benefit would derive issued the Illinois Directive 05.01.106 (and might by the so be order aided is in two prison system. This directive seeks). person She like injunction she sections, “Policy” and “Procedure.” locked the outside is in a room who states, on “Policy” so far as bears section the room is locked and does not know but preserve the that “In order to this during the time it attempt to leave security facility, of the visitor access shall is like a precisely, More she is locked. controlled. 1. Visitors who carefully be room, nei- standing outside a locked person be inappropriate behavior will demonstrate knowing room is nor desir- locked ther permanently restricted from temporarily or incurs no ing to enter it. Such to “in- visits.” The reference institutional that the is locked. from the fact door harm vague is too appropriate behavior” con- Mayo’s argument next is also Mrs. on visitors. It does not fer an entitlement 1003-7-2(f) chapter paragraph on exercise of discre- purport based constrain Statutes, authorities, and in the Illinois Revised and thus 38 of tion para particular on the statement in that the sort of entitlement that does not create as, resembles, property. Cf. “All of the and facil and counts graph that institutions Shorewood, 704 every Village F.2d Department permit Reed v. ities Cir.1983). (7th If The “Procedure” person to receive committed visitors.” proce- sets forth (as sug- provision any rights section creates She has no other relatives been released. determining a visitor whether dures and, so, appears indeed, if whether far as prison, inappropriately so behaved — temporarily or acquaintances prison. barred There should be friends or the visitor not cre Procedures alone do permanently order permanently. is no indication on which a entitlement restricting ate substantive state her from access process clause the due suit under least prisons has had the effect on her. So Helms, See, e.g., Hewitt v. based. tell, time far as one can the last she wanted L.Ed.2d in an Illinois to visit an inmate Racine, (1983); City 847 F.2d Archie v. July on 1984—and she made that visit Cir.1988) (en banc); (7th Math interference. She wants to have Fairman, Cir. 779 F.2d ews prisons, there to enter Illinois but Jurich, 1985); Shango v. is no indication that she wants to exercise However, Cir.1982). (7th the “Pro 1100-03 by the right. may the She feel offended contains, proce besides cedure” section barring prisons, order her from these but dures, warrant long list of behaviors that argue injures does that the order she not long list of barring and another temporary beyond preventing visits that her she barring. permanent that warrant behaviors make; indignation and no desire to of specification Mayo argues that Mrs. standing. City not create v. St. ACLU of pris from criteria for exclusion substantive Charles, (7th Cir.1986); 794 F.2d she property right of which on creates Thompson, v. P.O.W.E.R. F.2d consistently with the deprived, may not be (7th Cir.1984). Amendment, hearing Fourteenth argues her status as an Mayo Mrs. that engaged she fact to determine whether gives her ordained minister broader grounds listed any of the behaviors as people. argu of visitation than other barring the visitor permanently barred, untimely; probably as it is ment is that the prisons. She Visiting signing in at the Officer first concurring. FLAUM, Judge, Circuit A of the bathroom immedi- Desk. search permanent- Mayo was Plaintiff Elizabeth up following the visit turned ately minor’s visiting Illinois adult from all ly barred bags marijuana. filled with plastic two following a visit she facilities correctional incident, giving and without Based on that Larry McCall- grandnephew, her made to Mayo any opportunity to rebut Ms. Facility. Dixon Bey, at Correctional her, prison officials charges against effectuating the that in Mayo claims Ms. Illi- Mayo from all permanently barred Ms. restriction, de- the Defendants permanent Mayo Ms. was nois correctional facilities. liberty process due her of prived without in a letter from informed of this restriction Plaintiff, Illinois According to law. July dated 1984. Warden Linda Geisen provisions, as statutory regulatory and Mayo that The letter did not inform Ms. provisions, as various constitutional well any right to have the decision she had visiting Illinois liberty give her a interest officials by prison reviewed administration she was not facilities. Since correctional and, Mayo, according to no review Ms. hearing before she was barred given a restriction has ever taken her facilities, Mayo Ms. be- visiting the from place. pro- due procedural lieves she was denied alleges that she damages Mayo’s complaint entitled to Ms. cess and is therefore deprived liberty a interest declaratory under has been injunctive and relief and process of prison visitation due law granted court 1983. district Section amendment. holding in violation of fourteenth Defendants’ to dismiss motion liberty has a interest constitutionally pro- Ms. claims she Mayo has that Ms. statute, Chapter of both a liberty visiting Illinois virtue state interest tected 1003-7-2(f),2 38, paragraph and an adminis- Mayo does prisons. I would that Ms. find promulgated by the Illinois trative directive liberty prison have a interest visiting privilege McCall-Bey or when the Larry Correc- abuse of at the Dixon robbery. Facility serving for armed tional time officer determines chief administrative custody from on December visiting dangerous He was released harmful or such would be allegation currently is no that Ms. There security, safety of the institu- or morale any incarcerated in Illi- other relatives Clergy, religious chaplain facility. tion or nois correctional facilities. privileges attorney visiting shall be as security the institution or as the broad statute states that: facility will allow. and facilities All of the institutions 1003-7-2(f). Ill.Rev.Stat. ch. ¶38 permit every Department shall committed visitors, except person in case of to receive L.Ed.2d 675 The first Corrections, 05.01.106.3 No. Department granted process However, district court source of those interests is the due holding motion to dismiss officials’ itself. In this the Plaintiff clause give Ms. provisions neither of these makes no claim that the due clause visiting liberty a interest protects right pris to visit Illinois itself facilities. correctional event, majority recog ons. as the nizes, unavailing. such a claim would be court, the stat- the district According to is not the kind of to visit since, interest not create ute does protected by fundamental the due terms, prisoners applies it by its Every process clause. court which has ad court fur- The district not to visitors. the issue has held that in dressed held that the administrative ther That interest. not create a terests do not arise when accord to Robinson regulation visiting prison. deemed to barred wide-ranging discretion Palmer, (D.D.C.1985), kind of F.Supp. officials the the state has a claim that Fen (D.C.Cir.1988); which defeats aff'd, 841 F.2d 1151 Finally, the dis- liberty interest. Carlson, created a (D.Okla. nell v. F.Supp. to decide whether trict court refused Keller, 1978); F.Supp. White af- alleged status as a minister Plaintiffs aff'd, (D.Md.1977), 588 F.2d 913 paragraph 1003-7- under forded Cir.1978). 2(f) general popu- greater than those of the The other source of the interests for the status was mentioned lace as that protected by the fourteenth amendment reply only in the Plaintiff’s brief first time regula statutory For a state state law. the motion to dismiss. interest, tory to create a enactment argu the Plaintiff makes two appeal, On “explicitly must manda the enactment use her claim that the district support ments to language requiring in tory connection with finding had no erred in that she liber court Hewitt, predicates.” specific substantive visiting in Illinois correctional ty interest 472, 871; see also 459 at 103 S.Ct. at U.S. First, both the she contends that facilities. Allen, 369, v. Board Pardons 482 U.S. paragraph and second sentences first 2415, 2419-20, L.Ed.2d 303 107 96 S.Ct. 1003-7-2(f) give liberty interest. Sec her a pa (1987) (state liberty interest in created Di ond, she claims that designated justifi through use of four role interest 05.01.106 creates rective predi substantive cations for denial [the mandatory of its virtue language). The mandatory sub cates] predi specific language and substantive “ particular predicates stantive show ‘that circuit, In this we for official action. cates guide the State’s ized standards or criteria bearing in mind these contentions review ” Thompson Ken v. decisionmakers.’ grant of a appeal from the that on an (6th Cir.1987) tucky, allegations all of the motion to dismiss Board Pardons Connecticut (quoting as true. Hanra complaint must be taken Dumschat, 458, 467, 452 U.S. S.Ct. Lane, F.2d Cir. han v. (Brennan, (1981) 2460, 2466, 69 L.Ed.2d 158 1984). complaint of the will The dismissal — granted J., concurring)), cert. U.S. appears plaintiff upheld only if “it -, 2869, 101 L.Ed.2d 905 108 S.Ct. support facts in of his prove can no set of (1988). created if the No interest is him claim which would entitle [or [or her] to make a decision state is free Id. at to relief.” her] reason or no constitutionally permissible Fano, 427 U.S. reason at all. Meachum II. 2532, 2540, 215, 228, 96 S.Ct. in- There are two sources of (1976). the due clause protected terests extended this Supreme Court has Hewitt v. of the fourteenth amendment. day-to- Helms, liberty analysis to state created S.Ct. 459 U.S. directive. appendix for the text of the administrative expectation “arbitrarily not denied.” is administration day world of Roth, Regents v. 408 U.S. rec- Board The Court has hesitation. great with 2701, 2709, 33 L.Ed.2d 548 92 S.Ct. opera- and efficient “the safe ognized that (1972). Here, rights visitor’s are not where day-to-day basis prison on tion aof part first of the even mentioned exper- entrusted traditionally been to statute, expectation or legitimate such no Hewitt, 459 U.S. prison officials.” tise arisen. reliance interest could have (citations omitted). at 870 Nevertheless, pro- a state enactment where if next contends that even Plaintiff language connection mandatory vides apply part the first of the statute does Court has predicates, the substantive visitors, en- a visitor should be able to enactment creates found right prisoner’s force the to receive visitors requires administra- which interest third-party rights theory. The under a can process to those who afford due tors to rule, is general where this sort of claim interest. Id. validly claim the raised, standing is that “one not claim rights

... to vindicate the constitutional A. Jackson, party.” Barrows v. some third 1031, 1034, 97 73 S.Ct. case, Plaintiff claims that two Nevertheless, (1953). L.Ed. where create a enactments Illinois inextricably enjoyment “the of the is The first visitation. up activity litigant bound with the para- Chapter Revised Statute and “there is some pursue, wishes ...” (the “statute”) 103-7-2(f) which graph genuine to the assertion of obstacle” states: party, right by third then there and facilities of the All of the institutions attempt to the third vindicate committed department permit every party’s Singleton v. rights. Wulff visitors, except case person to receive 2874-75, 106, 114-16, visiting privilege or when of the of abuse L.Ed.2d 826 deter- officer the chief administrative ques In this I would not reach visiting be harm- mines that such would security, safety the Plaintiff’s dangerous tion of whether ful or up” facility. “inextricably or bound with those morale of the institution attorney prisoner plain it is that there Clergy, religious chaplain and since prisoner asserting to the own visiting privileges shall be broad as obstacle his as fact, facility right. prisoners successfully security the institution or have the asserted their to visitation under allow. will very provision. United ex rel. See States part the that the first claims Plaintiff (N.D. F.Supp. O’Leary, Adams v. statute, mentioning rights the while Ill.1987)(prisoner liberty has under interest prisoners, necessarily applies also to visi- 1003-7-2(f) visitors). paragraph having in Plaintiff, it would According tors. to the that The Plaintiff has failed to establish give prison- to for the state be inconsistent any significant impediments there are having liberty interest visitors ers a preclude prisoners as which would being liberty there a correlative serting right to visitation. their visiting. disagree. I interest for visitors yet argument a under to a state-created Plaintiff has third The claim basis argues sen- expecta- the statute. She that the last justifiable is “a her, gives in tence of statute as an or- except not the tion” that the state will act minister, liberty interest visit- Montanye v. dained a response specified to events. 243, 2543, I 236, ing Illinois correctional facilities. would Haymes, decide, however, the sen- (1976); v. not whether last 49 L.Ed.2d 466 Vitek to a tence of the statute suffices create Jones, S.Ct. persons interest in those to whom it Once there 63 L.Ed.2d 552 interest, applies this claim a for Plaintiff waived expectation such or reliance bring a by failing her status as minister is created to liberty interest ensure behavior,” conjunction read in priate in a when court of the district attention to the resulting in of actions either lists timely fashion. temporary restriction from as a alleged her status first Plaintiff facilities, as the correctional serves Defendants’ response to the minister in her constraining predicate the dis substantive in her com- Nowhere motion to dismiss. The dis cretion of state decisionmakers. ministe- mention her the Plaintiff plaint did by held that the lists relied on trict court recognize I status. While rial phrases the Plaintiff contain certain which se, pro and complaint was filed original “sufficiently ambiguous grant so as to are pos- liberally as as must read therefore controlling defendants discretion in broad sible, for the failure is no excuse there Lane, slip. op. at visitor access.” following complaint attempt to amend (N.D.Ill.1985). example, For the district of counsel.4 Plaintiffs al- appointment “disruptive thought phrase con court on her status as a minister legations based placed no major duct of a nature” substan Rothwell Cotton Co. thus waived. decisionmaking. tive limits on official Co., n. 1 & v. Rosenthal court’s con- disagree with the district Cir.1987) for first (argument raised “disruptive phrase conduct clusion that summary motion for opposition time place major of a nature” does not substan- preserved ignored not judgment and then decisionmaking official discre- tive limits on appeal). out, points Plaintiff the Su- tion. As the Helms, in Hewitt v. Court, preme held that B. distur- phrase “the threat of a serious inter also claims that Plaintiff specific sufficed as a substantive bance” visiting correctional facilities predicate. est 459 U.S. at meaningful Directive 05.- perceive distinc- is created 871. I can (the “AD”) by the Illi promulgated phrases “the threat 01.106 tion between “disruptive con- serious disturbance” and Department of Corrections.5 nois phrases major nature.” Both phrase “inappro duct of a Plaintiff contends January did create a inter- pro complaint ministrative directive se on 4. Plaintiff filed Thus, prisoner. Casey it is clear that at least est in a Michael P. On March directives do create some administrative appointed for the Plaintiff. as counsel was Second, regulation at issue here interests. not filed to dismiss was Defendant’s motion pursuant paragraph adopted 1003-7-1 of The three and a half June until Revised Statutes. That statute the Illinois appointment coun- period month between Department quires of Corrections ample provided and the motion to dismiss sel regulations promulgate to effectuate rules the Plaintiff could have amended time in which Illinois law related statutes. various complaint. pur- "[h]aving rules once established holds that statutory authority, an administrative suant to argument the Defendant claimed 5. At oral agency these rules is bound nothing more this administrative v. State Police Merit violate them.” Hetzer Department policy the of Corrections than a 23, 25, 1045, Board, Ill.App.3d 8 Ill.Dec. 365 49 261, for a of law. In order thus lacked the force Thus, added). (1977) (emphasis N.E.2d interest, regu that regulation to create a pursuant to since AD 05.01.106 was established Miller v. the force of law. lation must have authority, Department statutory of Correc- the 1986) (state Henman, (7th regu Cir. 804 F.2d 421 law, bound, the under Illinois to follow is tions "binding force” in order must have lations recently Finally, the AD has directive. Thus, interests). pre order to in create vail, recodified,” Supple- Defendant’s “revised and must, prove plaintiff point, at some a 2, Administra- 6 n. in the Illinois mental Brief at regulation it claims creates the the which Chapter If the Section 525.60. Code at tive binding force on state actors. interest has promul- regulation, apparently was which new this claim since nei- is difficult to evaluate It gated through procedures of the Illinois the the Defendant briefed the the Plaintiff nor ther and thus has Procedure Act force, appears it was not raised before nothing issue and it a recodifi- binding more than is Moreover, original provision, it is not clear that it would district court. then of the cation given original the ultimate have had need to reach this issue must also bind- we seem that the Nevertheless, sum, although not reach disposition ing a few we need of the case. force. In First, Hewitt, issue, at issue in the administrative are in order. in comments binding probably force. Pennsylvania did have ad- this case Supreme Court found that a subjective problem argument is that to make with this officials require prison predicates activity placement of the of the substantive the nature judgments as to place long regulation in place unimportant. or will take So as the that has taken criteria, subjective specific grounds upon a The use sets out which the future. incompatible act, the ex- however, regardless of the not state official can “is regula- interest.” Board in placement language istence of Allen, tion, 482 U.S. S.Ct. predicate requirement Pardons v. substantive (1987); also regulation In this has been met. Inmates, Penal v. Nebraska inap- demonstrate Greenholtz states that “visitors who S.Ct. 442 U.S. propriate behavior” will be restricted from visits, L.Ed.2d goes and then on to list institutional in detail those activities considered to be argue that the AD does The Defendants in inappropriate behavior. Taken combina- limits on the discretion of place real tion, language shows that the state has only the AD states because prison officials predicates specific created substantive for “could” result in activities that the listed official action. visiting restric- temporary Thus, the Defendants claim tions. emphasizes just that more than Hewitt open and leave non-exclusive lists are predicates necessary substantive be- restricting for possibility of fore a state created be very no reason at all. That is a reason or repeated found. There must also be “the appro- A more reading of the AD. strained explicitly mandatory language.” use of offi- priate reading would be at 872. Defend- if one of the cials “could” restrict visitation requirement ants claim that this is absent occurred, they but activities on the list mandatory AD from the because the lan- Compare to do so. Stokes are not forced guage in is not used contained the directive (1st Cir.1986) Fair, F.2d 237-38 v. way justify in a which would staying out of (liberty interest found believing that he or she has a to visit segregation where statute administrative prison. disagree. pris- prescribed four situations which Hewitt, required the statute that “an there; court held “may” placed oner ” investigation begin immediately fol- officials have the ultimate dis- that “while lowing disciplinary action. 459 U.S. at inmates, segregate segrega- cretion to added). (emphasis 103 S.Ct. at 871 permissible when one tion The statute also stated that the inmate exist”) with specific situations Culbert writing” “shall be notified as soon as Cir.1987)(no (7th 834 F.2d Young, possible following disciplinary action. liberty interest where statute states that (emphasis added). Finally, Id. the statute “should” consider cer- the decisionmakers stated that the “inmate released must be criteria). tain security as soon as the reason con- final on the ad The Defendant’s attack cern has abated but in all cases within ten in the form of ministrative directive comes added). days.” (emphasis Id. This use of First, correctly the Defendant syllogism. mandatory language by Pennsylvania con- recognizes procedures alone Supreme vinced the Court that the state liberty interests. cannot create See Shan predi- intended to make the substantive Jurich, go Cir. binding. cates 1982). points next out that The Defendant AD at issue this case con- contained in the Ad the lists of activities mandatory language closely tains which Directive are found in the ministrative parallels language of the statute at regulation. “Procedures” section of the requires in AD Thus, issue Hewitt. 05.01.106 contends that the Defendant because any involving in that witnesses to an incident of activities are contained the lists directive, immediately prepare a visitor an In- procedures they section of the “shall added). predicates Report.” (emphasis the substantive nec cident The cannot form essary liberty create interest. The Administrative Officer then must re- Chief interest, liberty the visitor must be able to determine report and “shall view the prisoner show that there is a who has the result in a written incident will whether the person ability and desire to have the visit. permanent re- temporary or warning or a Thus, rights if added). Mayo’s the visitation of Ms. mak- (emphasis After striction.” grandnephew legitimately had been re- determination, the Officer “shall ing the by stricted at the time of the desired visit will) (or prepare a letter to visitor.” Mayo, liberty Ms. no interest would have added). requires AD Finally, the (emphasis Similarly, Mayo’s grand- if Ms. arisen. restrictions “shall be any permanent that nephew for some reason did not want her by the Chief Ad- automatically reviewed visit, Mayo Ms. would not be able to year after the Officer” one ministrative liberty particular in claim a interest that there- every twelve months lifted, It is in this sense that AD cre- visit. added). (emphasis after until it only liberty ates interest in visit- limited Hewitt, Thus, in the state has just as ing Illinois correctional facilities. unmistakably manda- language “used of an majority does not reach these issues character, proce- tory requiring that certain Mayo instead holds that Ms. has no but ‘shall,’ ‘will,’ employed.” or ‘must’ be dures bring this claim there because 103 S.Ct. at 871. Where is no evidence that she ever desired to visit language and has the state has used such grandnephew period in the her between decisionmakers also furnished state restriction and his release. I find two upon criteria which to with substantive problems majority’s analysis. with the decision, created a their the state has base First, Mayo there is evidence that Ms. prison in visitation. grandnephew wanted to visit her while he that the state has created conclusion complaint giving was incarcerated. The I reach with interest is not one action, although rise to this not filed until complete equanimity. recognize I received, January appar- first deference we great run of cases the ently erroneously, by the United States At- prison the “informed discretion of owe to 9,1984, torney’s office on November over a them, permits and not the administrators McCall-Bey month before Mr. courts, judgments to make the difficult any leased. It is hard to conceive concerning operations....” institutional stronger procedural Mayo action Ms. could North Carolina Prisoners’ Un- Jones v. have taken to evidence her desire to visit ion, Second, drawing up complaint. than (1977). Absent the Admin- 53 L.Ed.2d 629 believes, majority not a as the this is Directive, I have no doubt istrative whose have been which could decisions as to visitation un- uninjured violated is because she is effectively by prison administra- handled Ms. received aware violation. oversight by the sort of tors without informing Geisen a letter Warden Nevertheless, Illi- federal courts. because permanently restricted from that she was a set of criteria for the nois has created facilities. At visiting Illinois correctional privileges, of visitation and has withdrawal posi- point, Ms. was not mandatory criteria with lan- joined those locked “person tion of a who is a room guage, I that Illinois has estab- believe does not know the from the outside but liberty interest in visitation lished a limited attempt is locked and does not room adherence that can be restricted with during locked.” In- leave the time it is process.6 to due stead, position Ms. is in the believe Still, interest created knows the door is locked and of one who pass giv- meaningless gesture unlimited AD cannot serve as an does not make the knows right knocking so desires the on the door when she ing every person who Thus, I response. believe prisons. In order to have a there will be to visit interest in virtue I find that the AD created a 6. Because not, any stigma privacy visitation I need and do her familial may interest not, Mayo actions. resulted from the Defendants’ the issues of whether Ms. had a have reach 384 335, Mathews, 96 424 U.S. at employed. standing to claim that Mayo have

Ms. requires considera- offi- This test from the state S.Ct. at 903. to relief she is entitled Illi- to visit factors: tion of three distinct restricted cials who prisons.7 nois First, that will be private action; second, by the official affected

III. deprivation of of an erroneous the risk the AD does If it can be concluded procedures through the such interest in visita- liberty interest create a limited value, any, if of used, probable and standing has tion, Plaintiff and that this procedural safe- or substitute additional interest, the next issue assert finally, government’s guards; and provided the Plaintiff the state whether interest, including the function involved depriving her of process due burdens and the fiscal and administrative that due kept mind It must be interest. proce- or substitute that the additional requirement but inflexible process is not an entail. requirement dural would fit the and varied to be molded should Id. 424 Eldridge, v. circumstances. Mathews factor, private the first 902, L.Ed.2d 819, 334, 47 96 S.Ct. U.S. interest, overwhelming signifi- not one of Helms, (1976); v. 459 U.S. 18 Hewitt recognized it cance. While should be 103 S.Ct. ones are incar- ability to visit loved who true in the area (1983). particularly This is important, the loss of visitation cerated is pro- particular due prisons “the of where mitigated by ability to commu- rights is by limited the need to protections are cess by phone or prisoner nicate with goals.” legitimate correctional pursue not a case through the mails. This is (7th Lane, 851 F.2d v. Williams confinement or loss of means where Cir.1988). administrators “Prison possibility longer confinement. wide-ranging deference accorded should be 464, 473, Hewitt, Compare 459 U.S. at policies adoption and execution of in the non-adversary (only informal S.Ct. at 872 judgment are practices that their prisoner merely required where review and disci- preserve internal order needed to from one restrictive environ- transferred to maintain institutional securi- pline and McDonnell, another) ment to with Wolff 520, 547, Wolfish, U.S. ty.” Bell 2963, 2978-79, 94 S.Ct. (1979); 1861, 1878, 60 L.Ed.2d 447 (1974)(more proce- formal 41 L.Ed.2d 935 Miller, 1287, 1292 779 F.2d Mendoza v. inmate faces loss of required dures where (7th Cir.1985). recognized, It must also be credits). good-time however, with the sweet” that the “bitter rejected theory of due factor, the risk of To assess the second therefore one must Supreme Court and of additional safe- error and the value ade- federal law to determine the look to guards, one must first review the actual procedures. of the state’s quacy required by AD. Before a procedures Loudermill, 470 Educ. v. Cleveland Bd. restricted, person’s 1487, 1492-93, 105 S.Ct. U.S. witnesses) (or report by a is filed witness L.Ed.2d 494 alleged Following that re- incident. Officer, has, port, or the Chief whether the state as To determine decision, claim, designee, his makes a pro- Ms. all the or they afforded due, report, to restrict balancing test should on the on whether cess she was based (7th holding ing Cir.1987) Paper Bags, majority 818 F.2d is correct in follow- J.N.S., action); (validity agency grandnephew, ing Inc. the release of her Ms. Indiana, request injunctive Cir. v. State 712 F.2d does not have declaratory relief); That, fact, 1983) teaching (declaratory injunctive Haase is the relief. Sessions, (D.C.Cir.1987) by majority propo- cited for the v. (declaratory of the cases relief). standing. cases cited lacks See Gold- None of the sition that Ms. Zwickler, 103, 108-09, majority such as this deal with a situation en v. 956, 959-60, (1969) money damages among (declaratory where were the reme 22 L.Ed.2d 113 relief); Drug requested. dies United States v. Articles Consist- hearing, lapse is not so person’s sort of unrea- rights. If a person’s visitation the sonable, peniten- in of the context permanently restrict- least rights are visitation tiary, where the minimum term of confine- person notice that ed, gives that state the year, ment is one as to amount to a viola- reviewed may have the decision he or she process.8 Eight as- tion of due See U.S. v. six months. One passage the of after occurs, Eight Fifty at Thousand Hundred and Dol- that review sumes when ($8,850), automatic lars when the first very the least (1983)(ultimate months, the L.Ed.2d 143 twelve occurs after review inquiry delay in of whether person to determination the restricted state allows process delay is the story either in violates due whether her side of the present his or “reasonable”). If the six month was writing person. or in restriction result in the does not review Supreme recognized that Court has automatically lifted, being the restriction is informal, an nonadversarial review of the months until it is every twelve reviewed supporting a restriction on evidence removed. requirements fulfill the can sometimes Hewitt, process prison setting. in due the in a obviously some risk of error is There 472, 103 In 459 U.S. at S.Ct. at 871-72. for the does allow procedure which Hewitt, Pennsylvania the Court held that witnesses, cross-examination calling of regulations gave prisoners a statutes and mag- This is procedures. formal risk other avoiding liberty interest administrative first by the fact Plaintiff’s nified segregation. deciding process Id. what charges does not the opportunity to rebut prisoners was due could be before until six months after the come placed segregation, the Court noted apparent It also imposed. is safety prison concerns endemic to life and reaching value, in terms of probable prison need deference to adminis- result, requiring additional safe- correct attempts to deal with trators their those Nevertheless, high. I find fairly guards is then stated that concerns. Court Id. cost that would given the enormous pe- us “[tjhese convince considerations procedures, additional with be associated engage only in obligated to titioners were procedures system of current state’s sup- of the information an informal review process requirements of fulfill the due con- administrative porting respondent’s of law. finement, re- including whatever statement above, preeminent pointed out As submit, a rea- spondent wished to within system is with the of the concern confining him to admin- sonable time after “The safe- penal institutions. safety of its segregation.” Id. The Court also istrative guards inmates is ty of the institution’s “periodic review” importance noted the responsibili- perhaps the most fundamental changed, if circumstances to ensure that Hewitt, 459 ty administration.” Id., would be taken. appropriate action This interest 103 S.Ct. at 872. U.S. at 9,n. 103 S.Ct. at 874 n. 9. 459 U.S. at 478 security justifies maintaining absolute gives I the state visitors who believe that affording suspect- in not a visitor the state due their restricted have to re- wrongdoing hearing prior ed of given notice of process the visitor where Moreover, rights. stricting the visitor’s him, including a de- charges against any sort of the state to afford quiring supporting the scription evidence of the hearing to the visitor restricted formal evidence, charge, present opportunity great expendi- undoubtedly entail a would by an decision- an initial unbiased review time and avail- ture the scarce resources reviews thereafter. periodic maker and already harried administra- able to provided Defendants recognize In this the state tors. While she Plaintiff all of months after the restriction be- waits six she was admits that due. The Plaintiff affording the restricted visitor fore delay encompass all or delay would most length be more trou- month would jail prisoner’s period of incarceration. county a six bling context where for II. Procedure reasons of and the extent told promptly contends, Plaintiff her restriction. Purpose A. due deprived of however, she was that at each Officer The Chief Administrative given a never she was process because facility ensure that a shall correctional charges against her. the hearing to rebut prop- has been established procedure this situation of unique factual inBut the inappropriate erly noting any behavior obligated to case, never became the state that consid- facility to visitors above, I hearing. detailed As give her a restricting given then future eration is give the obligated to not the state ba- temporary visits on a months follow- hearing until six a Plaintiff sis, severity depending upon the six By the time restriction. ing her incident. case, the Plaintiff run in this had months liberty interest longer claim the no could Applicability B. only grandnephew, since all the cor- applicable to This directive is visit, longer pris- no wanted she Adult, Juve- facilities within rectional required to Thus, was not the state on. Divisions. Community Services nile and Mayo, she hearing to Ms. since a provide hearing right which longer had the no C. Definitions the state did protected, and have would Temporary restriction 1. restriction—a liberty interest her of a deprive up to six months. of a visitor for process.9 due 2. Permanent restriction—a district affirm the Accordingly, would period of for an indefinite of a visitor case, this albeit to dismiss court’s decision time, review allowing an automatic grounds. on different possible future restoration. process for Appendix D. Provisions General 05.01.106 Administrative Directive Adult, of the Deputy Directors Policy I. Community Sevices Divi- Juvenile Authority A. a prepare and distribute sions shall restrictions to Ill.Rev.Stat., roster of visitor 1003-7-2 master Ch. Section divi- appropriate all facilities within Policy Statement B. will be shared This information sion. of the Deputy Directors other with the security of preserve the order to operating divisions. carefully facility, access be visitor Any restricted from inmate 2. visitor controlled. also re- facility shall be visits at one inappro- who demonstrate 1. Visitors at all other stricted from inmate visits temporarily or will be priate behavior appropriate divi- within the facilities from institutional restricted permanently sion. visits. employees Employees or former 2. Requirements E. in- an been involved with

who have following Any actions on mate(s) permanently restricted may be could result tem- part of the visitor visits. from institutional day period. hearing that ten saying within Ms. the same as is not 9. This example only and the pro- difference standing bring procedural between due hearing. To for a case is the limit quick example Ms. actual time will show that claim. A cess Mayo limit, however, necessarily we time bring claim. decide that does have of the due to reach the Plaintiffs have merits Suppose held that the the Due Process it was after we claim. It is reach requires whose visitation visitor Clause six months is the outer given hearing and decide merits limit, must be are restricted say this on the facts of that we can days that were If ten restriction. within case, deprived due not been true, Plaintiff has dam- be entitled to then Ms. would state, give process. Ms. ages did not since nated as a result of involvement with inmate, may permanently from all correction- porary restriction stricted from institutional visits. the division. al facilities within If contraband is discovered na- Disruptive conduct of a minor a. possession during of an inmate either ture. visit, or after a it will be assumed that posted Disobeying an order or b. the contraband was introduced rule. visitor(s). inmate’s c. Refusal to submit to search. any inappropriate If is behavior ob- drugs appar- with no d. Possession of visit, employee during served an a into intent to conceal or introduce ent immediately notify he will the Shift facility. Supervisor who will terminate the visit ap- alcohol with no e. Possession of visitor(s) and ensure that the is escort- parent intent to conceal or introduce facility. ed out of facility. into the reporting employee, Super- Shift Being the influence of alco- f. under any employee visor and other who wit- drugs. or hol immediately nessed the incident shall g. Possession of other contraband prepare report fully an Incident outlin- in this specifically outlined addition, ing exact details. clothing, jewelry). (e.g. Supervisor Shift will contact the As- following on the Any actions Operations sistant Warden of for the in perma- could result part of a visitor Division, Adult Chief Administrative from all correctional nent restriction designee Officer or his for the Juvenile facilities within the division. Supervisor Division or Assistant any on individ- a. Assaultive behavior Division, Community for the Services assault, physical threat (e.g. ual verbal temporary stop harm). will issue a order bodily to do who visitor(s). >onthe (e.g. misconduct sexual in- b. Sexual masturbation, tercourse, fondling of careful of all the 7. After a review writ- genitals). reports, ten the Chief Administrative weapons (e.g. guns, designee or his shall determine c. Possession Officer knife, bullets). whether the incident will result warning temporary or a or a written drugs drug par- or d. Possession of permanent restriction. aphenalia with intent to conceal and/or facility. introduce into a. If it is determined that a written money intent to e. Possession of with suffice, warning Admin- will the Chief facility. conceal and/or introduce into designee or his shall istrative Officer escape paraphenalia. f. Possession of visitor prepare a letter to the with inmate, copy outlining to the the inci- g. Possession of alcohol with intent indicating any future to conceal and/or to introduce into fa- dent and cility. occurrences result either a tem- porary permanent visiting or restric- in- Providing h. false identification or tion. formation. Disruptive major

i. conduct of a na- tempo- If it is determined that a b. ture. warranted, rary the Chief restriction j. designee for Arrest and/or conviction Administrative Officer or his during visitor, a visit. action committed prepare a letter to the inmate, outlining copy with a to the Any k. recurrence of an action that previously temporary indicating length in a exact resulted incident and striction. temporary restriction. This no- specifically indicate that tification will employee 3. An who has been involved cor- employee temporary or former restriction is all with inmate resigned either or who has rectional facilities within the division. .termi- approval written of the Chief Administrative Officer. perma- that a If it is determined c. order, is in the Chief

nent Officer, desig- his visitor,

nee, prepare a letter to will inmate, outlining the copy to the indicating that the visitor

incident and restricted from being permanently facilities within the di- correctional

all indicate This notification will vision. America, UNITED STATES restriction is while the Plaintiff-Appellee, nature, may request that the visitor re- Administrative Officer the Chief ESPOSITO, Tony Defendant-Appellant. month restriction after a six view the period. No. 88-1726. shall be All restrictions

8. Appeals, United States Court of automatically by the Chief reviewed Circuit. Seventh Officer, desig- or his Administrative Argued Dec. 1988. nee, year from the date of the one and, denied, every if twelve Decided 1989. Jan. Notification of months thereafter. review will be sent to the this annual

visitor, copy to the inmate indi-

cating the result of the review. The Chief Administrative Officer authority have the to restore vis-

shall

iting privileges time he deems

appropriate. The Chief Administrative Officer ensure that a list of all visi-

shall new restrictions and reinstatements will

tor Deputy sent to the Director of the monthly

appropriate division on a basis included on the new master ros-

to be list

ter for visitor restrictions. This include:

must The name and home address of

a. type and the

each visitor restricted

restriction. of each

b. The name and address visi- visiting rights

tor who has had their type previous

restored and

striction. Chief Officer ensure that the master roster of prior

visitor restrictions is checked Any

inmate visits. visitor who has facility

been restricted from one within

the division shall be restricted from all

facilities within a A restrict- division. facility

ed visitor shall not enter the all the state’s notes irrelevant, does not since she event system to con requires prison in she wants to visit contend that permanent of bar duct annual review an religious her connection with vocation. annual notify the visitor of this orders and challenging greater no interest She has review, no notice alleges she that such and pris excluding her from Illinois the order hardly sur though this is sent was her— panel of this would less ons than a member complaint filed prising, since her See, have, enough. good is not bar and that than months after six to e.g., Schlesinger v. Reservists Comm. was issued. 225-26, War, 418 Stop variety arguments of makes a The state (1974); 2925, 2934-35, 41 L.Ed.2d 706 conclusion the district court’s support (7th Schweiker, 698 F.2d 903 D’Amico v. not a directive is administrative order, Cir.1983). like the and does not She property liberty or within source of to; unless she has may but have reason meaning of the Fourteenth Amendment. by hurt it in the likely or is to be arguments. not consider these We need having approximately the sense of suffered argue standing to Mrs. has no support could a common kind of loss by As its was violated. shown the directive action, sue—for reasons of she cannot law “inmate frequent references to visits” economy prudence judicial (e.g., language in the directive by other “case or in the words contro summarized copy visitor with a to “letter to the complains of versy.” order she inmate”), regulates not visits the directive no but if it makes the Constitution violate taxpay prisons such—to see how to as it neither af her conduct—if difference in being spent money or whether er’s 19, 1984, July will on nor fected her visit are horrendous— of confinement conditions visiting plans of hers— any other affect to individual inmates. but visits standing challenge Mayo then she lacks There is no indication Mrs. obtaining dam purposes of either order for any inmate of to visit wants See, e.g., v. ages injunction. Golden McCall-Bey has prison system, now that to claim that she was and also has Zwickler, 394 U.S. pro- without due (1969); deprived of that States United Nevertheless, also Pa- cess. because would Consisting Drug Articles (7th Cir.1987); given Mayo has been all find that Ms. F.2d per Bags, 818 Indiana, upon she was due J.N.S., Inc. v. Sessions, visit, F.2d Cir.1983); I concur in the result Haase (D.C.Cir.1987). majority. reached right to dismiss judge was The district although he should have complaint, I. standing, that is grounds of it on done Elizabeth trav- July On subject-matter jurisdic- grounds on say Facility to elled to the Dixon Correctional He had reaching the merits. tion, without Larry McCall-Bey.1 grandnephew visit if, as we merits to reach the power accompanied trip by on Ms. judicial believe, is not within the case According three minor children. as defined the United States power of officials, suspicions these visitors about Article III. of the minor chil- aroused when one were AND AFFIRMED. MODIFIED bathroom without dren visited the women’s

Case Details

Case Name: Elizabeth B. Mayo v. Michael P. Lane

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 25, 1989

Citation: 867 F.2d 374

Docket Number: 85-3217

Court Abbreviation: 7th Cir.