Boulanger v. Brodeur

• Court: District Court, D. New Hampshire
• Decided: April 22, 1996
• Docket: CV-95-572-SD
• Status: Published

Opinion

Boulanger v . Brodeur CV-95-572-SD 04/22/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gerard Boulanger

v. Civil N o . 95-572-SD

Paul Brodeur, et a l .

REPORT AND RECOMMENDATION

The plaintiff, Gerard Boulanger, brings the underlying 42 U.S.C. § 1983 action against defendants, the Commissioner of the New Hampshire Department of Corrections and the Warden of the New Hampshire State Prison. The action is premised on defendants' (1) failure to provide plaintiff a copy of his disciplinary report, (2) denying plaintiff visitation rights,1 and (3) failure to comply with required and dictated prison policies, procedures and directives. Before the court is the plaintiff's Motion for a Temporary Restraining Order and/or Preliminary Injunction (document n o . 8 ) .

1 Defendants represent that plaintiff's visitation privileges with family members have been restored. However, plaintiff bases his "visitation" arguments on his inability to visit with non-family friends. BACKGROUND Plaintiff is currently incarcerated at the New Hampshire State Prison. On or about August 1 4 , 1995, plaintiff submitted a urine sample for testing at the Department of Corrections' Drug Testing laboratory in Laconia, New Hampshire. This urine sample subsequently tested positive for THC (tetrahydrocannabinol), a chemical component of marijuana. On August 2 8 , 1995, the plaintiff was informed that a disciplinary report had been prepared stemming from the urine sample results. Plaintiff states, however, that he never received a copy of the disciplinary report nor a copy of the hearing results. The plaintiff pled guilty to the disciplinary infraction and received a sentence of 100 hours of extra duty, 50 days loss of canteen privileges, and 10 days punitive segregation.

Following his guilty plea and the imposition by prison personnel of sanctions, plaintiff alleges that he received a letter, on October 2 6 , 1995, from a friend. This letter stated that the friend was told, by prison personnel, that plaintiff had lost his visitation privileges for one year. According to the plaintiff, representations were also made to him, after his guilty plea, that if an inmate receives a disciplinary report for positive THC urine test results, that inmate will lose visitation privileges for one year. Plaintiff allegedly requested

2 clarification on the particular visitation policy in question and

urine sampling procedures used at the prison from defendants to

no avail.

The instant lawsuit followed, and on March 2 5 , 1996

plaintiff submitted a motion for temporary restraining order

and/or preliminary injunction. In support of this motion,

plaintiff avers that his visitation privileges have been denied

for the last seven months, "constituting serious degeneration

with family and friends." Plaintiff's Motion for Temporary

Restraining Order and/or Preliminary Injunction at page 3 .

Plaintiff requests the court to order the "defendants to restore

fully [his] visiting privileges." Id. at page 4 .

On April 1 7 , 1996 the court conducted a hearing on the

motion for a preliminary injunction, during which it entertained

legal arguments as well as testimony from witnesses.

DISCUSSION "The purpose of a preliminary injunction is to preserve the

status quo, freezing an existing situation so as to permit the

trial court, upon full adjudication of the case's merits, more

effectively to remedy discerned wrongs." CMM Cable Rep., Inc. v .

Ocean Coast Properties, Inc., 48 F.3d 6 1 8 , 620 (1st Cir.

1995)(citing Chalk v . United States Dist. Court Cent. Dist. of

3 California, 840 F.2d 7 0 1 , 704 (9th Cir. 1988); American Hosp.

Ass'n v . Harris, 625 F.2d 1328, 1330 (7th Cir. 1980)).

In determining whether to grant a preliminary injunction,

this court considers four factors. Legault v . aRusso, 842 F.

Supp. 1479, 1485 (D.N.H. 1994). The four factors are: "(1) the

likelihood of the movant's success on the merits; (2) the

potential for irreparable harm to the movant; (3) a balancing of

the relevant equities, i.e., the `hardship to the nonmovant if

the restrainer issues as contrasted with the hardship to the

movant if interim relief is withheld,' Narragansett Indian Tribe

v . Guilbert, 934 F.2d 4 , 5 (1st Cir. 1991); and (4) the effect on

the public interest of a grant or denial of the injunction."

Gately v . Massachusetts, 2 F.3d 1221, 1224-25 (1st Cir. 1993);

see Campbell Soup C o . v . Giles, 47 F.3d 4 6 7 , 470 (1st Cir. 1995);

Sunshine Development, Inc. v . F.D.I.C., 33 F.3d 106, 110 (1st

Cir. 1994); Aoude v . Mobil Oil Corp., 862 F.2d 8 9 0 , 892 (1st Cir.

1988). Although each of the aforementioned factors is

significant, the sine qua non of the preliminary injunction

standard is whether the movant is likely to succeed on the

merits. Legault, 842 F. Supp. at 1485. Given that the

likelihood of the movant's success is the essential element of

the quadripartite test, the court starts with a consideration of

this component. Weaver v . Henderson, 984 F.2d 1 1 , 12 (1st Cir.

4 1993); Lancor v . Lebanon Housing Authority, 760 F.2d 3 6 1 , 362 (1st Cir. 1985). Within his complaint, plaintiff states that visitation privileges are protected under the First Amendment (right to freedom of association), Eighth Amendment (right against cruel and unusual punishment), and Fourteenth Amendment (right to due process of the l a w ) . As support for his contention that he was denied due process, plaintiff suggested during the course of the preliminary injunction hearing conducted on April 1 7 , 1996 that he was never notified that his plead of guilty to the particular disciplinary infraction would result in his loss of visitation rights.

Defendants represent that plaintiff was aware, or should have been aware, of the visitation consequences in light of a memorandum distributed throughout the prison. This memorandum informed the prison staff, prison inmates, and prison visitors that "any inmate found in possession of drugs, or whose urine test is positive for drugs, . . . , will have his visits suspended for one year." Exhibit A to Defendants' Objection to Plaintiff's Motion for Temporary Restraining Order and/or Preliminary Injunction (document n o . 1 3 ) . Plaintiff denies ever receiving or viewing this memorandum. Consequently, he stands by his due process violation contention.

5 In determining whether a prisoner's procedural due process

rights have been violated, a court must consider whether the

prisoner has a liberty or property interest with which the state

has interfered. Kentucky Dept. of Corrections v . Thompson, 490

U.S. 4 5 4 , 460 (1989). A protected liberty interest may originate

from either the Due Process Clause itself or from the laws of the

states. Id.

A prisoner's interest in visitation is not guaranteed

directly by the Due Process Clause. Id. Thus, if such an

interest exists at all, it must derive from state law.

Specific state implemented law or regulations may implicate

a procedurally protected liberty interest if (1) the state

statute or regulation narrowly restricts the power of prison

officials to levy the deprivation, i.e., give the inmate a kind

of right to avoid i t , and (2) the liberty interest at issue is

one of "real substance." Sandin v . Conner, 115 S . C t . 2293,

2297-2302 (1995). However, the only constitutionally protected

interest which might be created by a state law or regulation is

one to be free from a condition which results in an "atypical and

significant hardship" in relation to the usual incidents of

prison life. See id. at 2300.

In considering the impact of any state imposed restrictions

on inmates' daily living, the Supreme Court has stated that

6 punishment or restrictions imposed by prison personnel will not

violate due process unless such punishment or restrictions are

"qualitatively different from the punishment characteristically

suffered by a person convicted of a crime." Vitek v . Jones, 445

U.S. 4 8 0 , 493 (1980). Discipline, imposed by prison officials in

response to a prisoner's use of controlled substances, is

certainly "within the expected parameters of the sentence imposed

by a court of law." Sandin, 115 S . C t . at 2301.

An inability to have unfettered visitation is also within

the range of punishment a prisoner might expect to receive while

incarcerated. Kentucky Dept. of Corrections, 490 U.S. at 460.

Such a restriction is not atypical and unusually harsh compared

to the customary circumstances expected by a prison sentence.

Certainly, one's detachment from society is a basic incident of

imprisonment and even when visitation is allowed, it is quite

often narrowly circumscribed. See id. at 454 (denial of prison

visitation with mother characterized as well within ordinarily

contemplated terms of imprisonment). In fact, the court is

cognizant that prison officials must be afforded broad discretion

in maintaining their facilities and in managing, disciplining and

punishing inmates under their supervision. Rhodes v . Chapman,

452 U.S. 3 3 7 , 351-352 (1981)(discussing deference to prison

officials and legislators with regard to prison conditions);

7 Hudson v . McMillian, 503 U.S. 1 , 6, 112 S . C t . 995, 999-1000

(1992)(discussing deference to prison officials in use-of-force

cases).

In this case, plaintiff points to no state law or other

regulation which vests him with a visitation liberty interest.

Irrespective of plaintiff's failure to reference an applicable

law or regulation, the court is cognizant that there i s , in fact,

no state law or prison regulation which creates a liberty

interest in visitation. Moreover, revocation of visitation

privileges, for disciplinary reasons, does "not present the type

of atypical, significant deprivation in which a state might

conceivably create a liberty interest." Sandin, 115 S . C t . at

2301. Plaintiff in this case simply has not established that he

is likely to succeed on the merits of his due process claim

stemming from the denial of visitation privileges, with non-

family members, for one year. His "subjective expectations are

not dispositive of the liberty-interest analysis." Dominique v .

Weld, N o . 95-1465, slip o p . at 12 (1st Cir. Jan. 1 8 , 1996)(citing

Sandin, 115 S . C t . at 2301 n . 9 ) .

No doubt, "[p]risoners do not shed all constitutional rights

at the prison gate." See Wolff v . McDonnell, 418 U.S. 539, 555,

94 S . C t . 2963, 2974, 41 L.Ed.2d 935 (1974). Nevertheless, a

denial of visitation for plaintiff, following his positive urine

8 test for THC, is well within the restrictions envisioned or

contemplated by a prison sentence. Kentucky Dept. of

Corrections, 490 U.S. at 461. "`Lawful incarceration, [after

all,] brings about the necessary withdrawal or limitation of many

privileges and rights, a retraction justified by the

considerations underlying our penal system.'" Sandin, 115 S . Ct

at 2301 (Jones v . North Carolina Prisoners' Labor Union, Inc.,

433 U.S. 119, 125, 97 S . C t . 2532, 2537, 53 L.Ed.2d 629

(1977)(quoting in turn Price v . Johnston, 334 U.S. 266, 285, 68

S . C t . 1049, 1059, 92 L.Ed. 1356 (1948))).

Plaintiff has also premised his request for a preliminary

injunction on rights afforded by the Eighth Amendment. However,

a restriction on visitation is not a condition of confinement so

reprehensible as to be considered inhumane under contemporary

standards or one, for that matter, that deprives the plaintiff of

a minimal civilized measure of the necessities of life. See

Hudson, 503 U.S at 6, 112 S . C t . at 999-1000; Wilson v . Seiter,

501 U.S. 2 9 4 , 298 (1991). Plainly stated, prisoners have no

constitutional right to visitation under the Eighth Amendment.

See Bellamy v . Bradley, 729 F.2d 416, 420 (6th Cir. 1984), cert.

denied, 469 U.S. 845 (1984). Consequently, plaintiff's

contention that prison personnel inflicted cruel and unusual

punishment by restricting his visitation for one year is fatuous.

9 To the extent the plaintiff asserts a claim that denial of

his visitation privileges abridged his First Amendment rights to

association, such a claim is summarily rejected based upon the

discussion concerning due process rights previously noted. See

McDiffett v . Stotts, 902 F. Supp. 1419, 1427 (D.Kan.

1995)(rejecting argument the First Amendment freedom of

association is implicated when visitation rights are restricted).

Having determined that plaintiff is not likely to succeed on

the merits of his "visitation" claim, the court need not consider

the remaining preliminary injunction factors involving potential

for irreparable injury, the relevant equities, or the effect on

the public interest. See Jackson v . Fair, 846 F.2d 8 1 1 , 815 (1st

Cir. 1988).

Aside from the consideration of whether visitation is a

right protected under the constitution, the defendants have

sufficiently established that plaintiff had notice of the prison

drug policies that were in effect at the time of his disciplinary

infraction. Specifically, memoranda from Warden Cunningham

(Exhibits A , D and F of Defendants' Objection to Plaintiff's

Motion for Temporary Restraining Order and/or Preliminary

Injunction) set forth the manner with which inmates will be dealt

if involved with drugs. Further, following the hearing testimony

of Unit Manager Leo Kneeland and Cpl. Ralph Beaman, the court is

10 content that such memoranda were placed in location(s) where

inmates, including plaintiff, were apprised of the policies and

consequences concerning drugs in prison. Succinctly stated,

plaintiff received sufficient process prior to suspension of his

visitation privileges. Like other inmates at the New Hampshire

State Prison, plaintiff was aware, or should have been aware, of

the drug policies in place at the prison.

CONCLUSION

The court has carefully considered the parties' legal

arguments, the testimony by the witnesses, and the various

exhibits. Without speculating into particular circumstances in

which incidents of prison life might touch on due process rights,

this court concludes that plaintiff's contention that visitation

is one such circumstance is without merit. Plaintiff's denial of

visitation should not be characterized as atypical or one which

"work[s] a major disruption in his environment." See Sandin, 115 S . C t . at 2301.

Interestingly, plaintiff here has, in fact, not been denied

all visitation. A memorandum issued by Warden Michael Cunningham

on March 4 , 1996 (Defendant's Exhibit F ) states that a prisoner

"found in possession of drugs, or whose urine test is positive

for drugs . . . will have his visits of Category 1 visitors

11 suspended for thirty (30) days and Category 2 visitors suspended for one year." Defendant's Exhibit F to Objection to Plaintiff's Motion for Temporary Restraining Order and/or Preliminary Injunction (document n o . 1 3 ) . Based on the memorandum, plaintiff is currently entitled to receive visitation from Category 1 visitors i.e. immediate family.

Plaintiff's continued denial of visitation from category 2 persons has not resulted in the deprivation of any necessities or affected the duration of his sentence. Consequently, the plaintiff has no federally protected interest in having visitation following a disciplinary infraction which involved a positive urine test for drug use. Moreover, the court is content that defendants made aware to plaintiff the consequences and ramifications on visitation privileges deriving from detection of drugs in the prison.

Plaintiff's Motion for Temporary Restraining Order and/or Preliminary Injunction (document n o . 8 ) requesting the court to order the defendants to restore his visiting privileges should be denied.

Any objections to this Report and Recommendation must be filed within ten days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal

12 the district court's order. See Unauthorized Practice of Law

Committee v . Gordon, 979 F.2d 1 1 , 13-14 (1st Cir. 1992); United

States v . Valencia-Copete, 792 F.2d 4 , 6 (1st Cir. 1986).

James R. Muirhead United States Magistrate Judge

Date: April 2 2 , 1996

cc: Gerard Boulanger Martin P. Honigberg, Esq.