Benjamin Woody v. Dushan Zatecky , 594 F. App'x 311 ( 2015 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 23, 2015*
Decided February 24, 2015
Before
DIANE P. WOOD, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 14-2316 Appeal from the
United States District Court
BENJAMIN P. WOODY, for the Southern District of Indiana,
Plaintiff-Appellant, Indianapolis Division.
v. No. 1:13-cv-1580-LJM-DML
DUSHAN ZATECKY, Larry J. McKinney,
Defendant-Appellee. Judge.
ORDER
Benjamin Woody, an Indiana prisoner, appeals the district court’s dismissal of his
civil-rights suit alleging that the prison’s superintendent denied him contact visitation in
violation of due process and other constitutional rights. We affirm.
According to Woody’s complaint, his contact visits were revoked in 2012 by the
superintendent at the Pendleton Correctional Facility, Dushan Zatecky, as discipline for
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP.
P. 34(a)(2)(C).
No. 14-2316 Page 2
“fleeing or physically resisting” a prison staff member. Woody sued Zatecky under
42 U.S.C. § 1983, asserting, among other things, violations of due process and equal
protection. The district court dismissed the complaint for failure to state a claim,
explaining that Woody had no protected liberty interest in visitation privileges and did
not allege being denied contact visits because of membership in a suspect class.1
On appeal Woody challenges the dismissal of his due-process claim by invoking
an Indiana statute, IND. CODE § 11-11-5-4(4) (2014), that in his view created a liberty
interest in continued contact visits. Under that statute the Department of Corrections
“may not impose” as disciplinary action “[r]estrictions on clothing, bedding, mail,
visitation, reading and writing materials, or the use of hygienic facilities, except for
abuse of these.” Id. But a liberty interest arising from state laws is generally limited to
freedom from restraint that imposes “atypical and significant hardship” on the inmate,
Wilkinson v. Austin, 545 U.S. 209, 222–23 (2005); Sandin v. Conner, 515 U.S. 472, 483–84
(1995), and courts have held that a loss of visitation privileges—including contact
visits—is not an atypical and significant hardship. Lekas v. Briley, 405 F.3d 602, 605,
607–08, 613 (7th Cir. 2005) (no liberty interest deprived by denial of contact visits plus
loss of other privileges); Dunn v. Castro, 621 F.3d 1196, 1202–03 (9th Cir. 2010); Phillips v.
Norris, 320 F.3d 844, 847 (8th Cir. 2003); Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir.
2002); Ramos v. Lamm, 639 F.2d 559, 580 n.26 (10th Cir. 1980).
Woody also maintains that the denial of contact visits ordered by Zatecky, a
member of Indiana’s executive branch, violated the principle of separation of powers
because it encroached on matters of prison administration that are entrusted to the state
legislature. But the federal constitution does not require the separation of powers within
state governments. Whalen v. United States, 445 U.S. 684, 689 n.4 (1980); Pittman v. Chi. Bd.
of Educ., 64 F.3d 1098, 1102 (7th Cir. 1995); Risser v. Thompson, 930 F.2d 549, 551–52 (7th
Cir. 1991).
AFFIRMED.
1 Woody does not challenge the dismissal of his equal-protection claim on appeal.