Felch v. Hills. C t y .

2000 DNH 032

• Court: District Court, D. New Hampshire
• Decided: February 8, 2000
• Docket: CV-98-532-JD
• Status: Published

Opinion

Felch v. Hills. C t y . CV-98-532-JD 02/08/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Howard M. Felch, Jr.

v. Civil No. 98-532-JD Opinion No. 2000 DNH 032 Hillsborough County Department of Corrections

O R D E R

Pro se plaintiff Howard M. Felch, Jr., who was detained at

the Hillsborough County Department of Corrections ("HCDOC")

pursuant to a federal detainer, has filed this action alleging a

denial of adequate visitation with his family in violation of the

Fourteenth Amendment.1 The defendant, HCDOC, moves for summary

judgment (document no. 15). Felch has not filed an objection.

Background

Felch was detained at HCDOC from July 31, 1998, to November

23, 1998. While Felch was detained, he was permitted one half-

hour of non-contact visitation with his family each week,

pursuant to HCDOC policy. Visitation times are assigned

according to the various housing units within the Hillsborough

County Jail, so an inmate's scheduled visitation time changes

Welch's claim under the Eighth Amendment was dismissed pursuant to this court's order dated December 10, 1998. whenever he is reassigned to a different housing unit. It is

unclear from the record whether Felch was ever transferred to a

different housing unit or had his visitation schedule changed

while at HCDOC.

Felch alleges that visitation occurred through glass-walled

booths and inmates communicated with their visitors via a

telephonic device that required speakers to talk very loudly,

compromising their privacy. Felch has family members, including

a minor child, with whom he feels his familial bond degenerated

due to the schedule and conditions of visitation at HCDOC. He

claims that these circumstances caused him mental and emotional

pain.

Standard of Review

Summary judgment is appropriate when the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law. Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue

is only genuine if there is sufficient evidence to permit a

reasonable jury to find for the nonmoving party, while a fact is

2 only material if it has the potential to affect the outcome of

the suit under the applicable law. See Bourque v. EPIC, 42 F.3d

704, 708 (1st Cir. 1994) (citing NASCO, Inc. v. Public Storage,

Inc., 29 F.3d 28, 32 (1st Cir. 1994)). In response to a properly

supported motion for summary judgment, the nonmoving party bears

the burden to show a genuine issue for trial by presenting

significant material evidence in support of the claim. See

Tardie v. Rehabilitation Hosp., 168 F.3d 538, 541 (1st Cir.

1999). The record evidence is taken in the light most favorable

to the nonmoving party. See Zambrana-Marrero v. Suarez-Cruz, 172

F.3d 122, 125 (1st Cir. 1999). Summary judgment will not be

granted as long as a reasonable jury could return a verdict in

favor of the nonmoving party. Anderson v. Liberty Lobby, Inc..

477 U.S. 242, 248 (1986) .

Discussion

HCDOC argues that its visitation policy did not violate

Felch's constitutional rights under the Fourteenth Amendment.

Alternatively, HCDOC argues that it enjoys qualified immunity

from suit.

The Due Process Clause protects pretrial detainees from

being punished before an adjudication of guilt. See Bell v.

Wolfish, 441 U.S. 520, 535 (1979); Collazo-Leon v. United States

3 Bureau of Prisons, 51 F.3d 315, 317 (1st Cir. 1995) (citing

Bell) . Therefore, in order to violate a pretrial detainee's

right to due process, prison conditions must amount to punishment

of the detainee. See i d . If a particular condition of detention

is reasonably related to a legitimate government concern, it does

not amount to punishment, even if it may be viewed as having a

punitive effect. See Collazo-Leon, 51 F.3d at 318. If the

condition is arbitrary or unrelated to a legitimate government

concern, the court may infer an intent to punish the detainee.

See i d . Included among legitimate government concerns are

maintaining safety, internal order, and security within the

detention facility. See i d . at 318.

"Certain disabilities, such as restriction of movement and

loss of freedom of choice and privacy, [are] natural by-products

of the detention process, and should not be considered

'punishment' in the constitutional sense." Lyons v. Powell, 838

F.2d 28, 29 (1st Cir. 1988). For example, the Supreme Court has

held that a blanket prohibition on contact visits is "an entirely

nonpunitive response" to legitimate security concerns, and

therefore does not violate a pretrial detainee's right to due

process. Block v. Rutherford, 468 U.S. 576, 588 (1984); see also

Feelev v. Sampson, 570 F.2d 364, 373 (1st Cir. 1978) (holding

4 rights of pretrial detainees not violated by ban on contact

visits) .

Any limitations on visitation must be justified by concerns

of security and order. See Feelev, 570 F.2d at 372. However,

"[w]hat days and hours and circumstances are reasonable is

largely for the local authorities to decide in the first

instance, subject only to limited court review for arbitrari­

ness." I d . (holding arbitrary for prison not to clarify how much

visitation allowed). The court accords prison administrators

substantial deference to their judgment of policies and pro­

cedures that are needed to maintain internal order and security,

given their relevant expertise. See Bell, 441 U.S. at 547-48;

Feelev, 570 F.2d at 372. Prison administrators must consider the

physical limitations of the jail and security concerns when

determining the time and duration of visitation. See Feelev, 570

F .2d at 372 .

HCDOC argues that tying an inmate's visitation schedule to

his housing unit allows for fair and orderly visitation. Safety

concerns and administrative limitations prevent HCDOC from

allowing each inmate to schedule individual visiting hours.

HCDOC also argues that contact visits would be exceedingly

dangerous, given the opportunity to transfer contraband.

Therefore, barriers between the inmate and the visitors are

5 necessary for security reasons.

The record does not show a triable issue of fact. Based on

the facts before the court on this motion for summary judgment,

and given proper deference to prison administrators, HCDOC has

shown that its visitation policies and procedures are nonpunitive

and are reasonably related to legitimate government interests.

Accordingly, HCDOC is entitled to summary judgment.

Conclusion

For the foregoing reasons, the defendant's motion for

summary judgment is granted (document no. 15). The clerk shall

enter judgment and close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

February 8, 2000

cc: Howard M. Felch Jr., pro se Carolyn M. Kirby, Esquire