19. Free speech, expression, assoc.

U.S. Appeals Court VISITS FAMILY FORMER PRISONERS

Bazzetta v. McGinnis, 286 F.3d 311 (6th Cir. 2002). [Reversed by U.S. Supreme Court on June 16, 2003, in a unanimous decision.] A class of state prisoners and their prospective visitors brought a [section] 1983 action against a state corrections department, alleging that restrictions on prison visitation violated their First, Eighth and Fourteenth Amendment rights. The district court entered judgment in favor of the plaintiffs and the appeals court affirmed. The appeals court held that prisoners have no freedom of association rights to contact visits, but that a close analysis of prison regulations is especially appropriate when the challenged restrictions interfere with family relationships, including the parent-child bond. The court held that a prison regulation that prohibited non-contact visits from inmates' minor siblings, nieces, and nephews, violated the First Amendment. The court also found a violation in the regulation that prohibited non-contact visits from an inmate's natural child if the parental rights of the inmate to the child had been terminated. Similar violations were found by the court for regulations that banned visits from a former prisoner, probationer or a parolee (other than a prisoner's immediate family), required children to be accompanied by an immediate family member or legal guardian, and a permanent ban on all visitation (other than attorney or clergy) for prisoners with two or more major misconduct charges for substance abuse. (Michigan Department of Corrections)

U.S. District Court HAIR

Gartrell v. Ashcroft, 191 F.Supp.2d 23 (D.D.C. 2002). Rastafarian and Muslim inmates, on behalf of a c]ass of inmates whose avowed religious beliefs forbid them from cutting their hair or shaving their beards, sued District of Columbia and federal prison officials. The inmates challenged the policy of housing inmates from the District of Columbia in facilities operated by the Virginia Department of Corrections (VDOC), which had a policy that prohibited long hair and beards. The district court ruled in favor of the inmates, finding that each individual decision to place or keep an inmate in a VDOC facility was subject to scrutiny under the Religious Freedom and Restoration Act (RFRA). The court held that the inmates' sincerely held religious beliefs were substantially burdened by the VDOC policy and that the Federal Bureau of Prisons failed to demonstrate that housing the inmates in VDOC facilities was the least restrictive means of achieving their governmental interest. (Federal Bureau of Prisons and Virginia Department of Corrections)

U.S. Appeals Court MARRIAGE VISITS FAMILY

Gerber v. Hickman, 291 F.3d 617 (9th Cir. 2002). A state prisoner brought a [section] 1983 action and state law claims against a warden, alleging violation of his constitutional right to procreate by the warden's refusal to allow the prisoner to artificially inseminate his wife. The district court dismissed the case; the appeals court reversed, vacated and remanded. On rehearing en banc, the appeals court affirmed the district court decision, finding that while the basic right to marry survives imprisonment, most of the attributes of marriage, including cohabitation, physical intimacy, sexual intercourse, and bearing and raising children, do not. The court noted that prisoners have no due process or Eighth Amendment right to contact visits or conjugal visits. The court found that a prisoner's right to marry while in prison does not include a right to consummate the marriage or to enjoy the "other tangible aspects of marital intimacy." According to the court, the prisoner's equal protection right to be free of forced surgical sterilization did not give the prisoner the right to exercise his ability to procreate while in prison. The court also found that the prisoner's equal protection rights were not violated because some prisoners were allowed to have conjugal visits, because these prisoners would eventually be released into the community, while the plaintiff would never be eligible for release. (Mule Creek State Prison, California)

U.S. Appeals Court RETALIATION

McQuillion v. McKenzie, 35 Fed.Appx. 547 (9th Cir. 2002). A prisoner brought a [section] 1983 action against correctional officers, alleging harassment and retaliation due to his role as chairman of the inmate advisory council. The district court granted summary judgment in favor of the officers and the prisoner appealed. The appeals court affirmed in part, and reversed in part. The appeals court held that genuine issues of material fact, as to whether the officers fried false administrative warnings against the prisoner, precluded summary judgment. The court found that the prisoner had provided sufficient evidence to advance his allegations that he was targeted for retaliation on the basis of his participation in a constitutionally-protected activity. (California Medical Facility, Vacaville)

U.S. Appeals Court PUBLICATIONS INTERNET

Rogers v. Morris, 34 Fed.Appx. 481 (7th Cir. 2002). A state prisoner brought a [section] 1983 action alleging that prison regulations violated his First Amendment rights. The district court granted summary judgment to the defendants and the appeals court affirmed. The appeals court held that prison regulations banning pornography and material that teaches or advocates behavior consistent with a gang did not violate the prisoner's First Amendment rights. Under the regulation, prison officials had withheld various magazines devoted to hip-hop music and culture, and certain "internet materials" sent to him by mail. (Wisconsin)