Harris, Paul E. v. Donahue, J. David

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 23, 2006*
Decided March 24, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-2195
PAUL E. HARRIS, JR., Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of
Indiana, Terre Haute Division
v.
No. 2:05-CV-0073-RLY-WGH
J. DAVID DONAHUE and INDIANA
DEPARTMENT OF CORRECTIONS, Richard L. Young,
Defendants-Appellees. Judge.
ORDER
Indiana inmate Paul Harris, Jr., filed a pro se civil rights complaint under 42
U.S.C. § 1983, complaining of constitutional violations stemming from an Indiana
Department of Corrections (“IDOC”) policy that prohibits children under the age of
18 from visiting adult sexual offenders in prison. The district court dismissed his
*
We granted appellees’ motion for an order of non-involvement on appeal
due to lack of service in the district court and ordered that this appeal be submitted
for decision without the filing of a brief by the appellees. After an examination of
the appellant’s brief and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the appellant’s brief and the record.
See Fed. R. App. P. 34(a)(2).
No. 05-2195 Page 2
complaint under 28 U.S.C. § 1915A(b)(1) for failure to state a claim, and Harris now
appeals. Because we believe that his complaint sufficiently stated a claim, we
vacate and remand.
In 2000, Harris was convicted of five counts of child molestation, Ind. Code
§ 35-42-4-3. In 2001, IDOC officials prohibited Harris’s children (all of whom were
under the age of 18 when Harris filed his complaint) from visiting him; as prison
officials explained to Harris, IDOC policy prohibited children under the age of 18
from visiting adult offenders who were convicted for a sexual offense involving a
minor “regardless of relationship to the offender.” See also Ind. Code § 11-11-3-
9(b)(1)(a); Doe v. Donahue, 829 N.E.2d 99, 103 (Ind. Ct. App. 2005) (describing
IDOC policy mandating “offenders who have a current or past
adjudication/conviction of a sex offense involving a minor shall not be permitted to
receive visits from minors”).
In 2005, Harris filed a complaint under § 1983, alleging that the denial of
visitation violated, among other things, his right to due process under the
Fourteenth Amendment. The district court disagreed and dismissed the complaint
under 28 U.S.C. § 1915A(b)(1): “It violates no federally secured rights when prison
authorities enact and enforce a policy prohibiting prisoners from visiting with
children, even the prisoner’s own children.” Harris then sought reconsideration,
which the district court denied.
Harris now appeals, reiterating that his challenge to IDOC’s visitation policy
does state a claim upon which relief can be granted. Harris argues in essence that
the policy violates his liberty interest to associate with his children that is inherent
in the Due Process Clause of the Fourteenth Amendment. We review de novo
dismissals for failure to state a claim under § 1915A. Westefer v. Snyder, 422 F.3d
570, 574 (7th Cir. 2005).
We note at the outset that the interest Harris asserts is an important one.
“Parents have a liberty interest, protected by the Constitution, in having a
reasonable opportunity to develop close relations with their children.” Hodgson v.
Minnesota, 497 U.S. 417, 483 (1990) (Scalia, J., concurring in part and dissenting in
part), quoted in Wirsching v. Colorado, 360 F.3d 1191, 1198 (10th Cir. 2004). In the
prison context, courts have observed that visitation may significantly benefit both
the prisoner and his family. See Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454,
465-70 (1989) (Marshall, J., dissenting), quoted in Wirsching, 360 F.3d at 1198; see
also Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (stating that “access [to
prisons] is essential . . . to families and friends of prisoners who seek to sustain
relationships with them”). Nevertheless, “the very object of imprisonment is
confinement,” and “many of the liberties and privileges enjoyed by other citizens
must be surrendered by the prisoner.” Overton v. Bazzetta, 539 U.S. 126, 131
No. 05-2195 Page 3
(2003). Prisoners do not retain rights inconsistent with proper incarceration, and
“freedom of association is among the rights least compatible with incarceration.”
Id. Accordingly, the Constitution allows prison officials to impose reasonable
restrictions upon visitation. See id.When a prison policy such as IDOC’s impinges on a prisoner’s constitutional
rights, courts assess whether it is reasonably related to legitimate penological
interests. See Overton, 539 U.S. at 132 (citing Turner v. Safley, 482 U.S. 78, 89-91
(1987)); Lindell v. Frank, 377 F.3d 655, 657-58 (7th Cir. 2004). There are four
factors that courts must consider in determining whether the policy is
constitutional: (1) whether a rational connection exists between the prison policy
regulation and a legitimate governmental interest advanced as its justification;
(2) whether alternative means of exercising the right are available notwithstanding
the policy or regulation; (3) what effect accommodating the exercise of the right
would have on guards, other prisoners, and prison resources generally; and
(4) whether ready, easy-to-implement alternatives exist that would accommodate
the prisoner’s rights. Overton, 539 U.S. at 132 (citing Turner, 482 U.S. at 89-91).
Although it is possible to envision a security justification or other penological
interest that would support IDOC’s visitation policy, see Overton, 539 U.S. at 132-
33; Thompson, 490 U.S. at 460; Wirsching, 360 F.3d at 1200-01, it would be
premature at this early stage to presume that such a justification exists. It may be
that the policy is intended to protect Harris’s children from abuse or misconduct
that could occur during their visit, see Overton, 539 U.S. at 132-33; Doe, 829 N.E.2d
at 103, or that it is based on the belief that Harris must abstain from contact with
children as part of his rehabilitation as a child sex offender, see Wirsching, 360 F.3d
at 1200-01. But because this claim was dismissed at screening, the defendants
were never required to explain the basis for their no-visitation policy. See Lindell,
377 F.3d at 657-58 (vacating § 1915A dismissal of prisoner’s First Amendment
claim because district court prematurely presumed a security justification that
would support the prison’s actions). Whether Harris can prove his claim is a matter
about which we express no opinion. We say only that the dismissal of his claim, at
the screening stage of the proceedings, was premature.
We accordingly VACATE the dismissal of Harris’s complaint, and REMAND
for further proceedings consistent with this order.