DeWitt v. Wall , 41 F. App'x 481 ( 2002 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-2367
FRED E. DEWITT,
Plaintiff, Appellant,
v.
A.T. WALL,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
[Hon. Jacob Hagopian, U.S. Magistrate Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Fred E. DeWitt on brief pro se.
Patricia A. Coyne-Fague on motion for summary affirmance for
appellee.
June 21, 2002
Per Curiam. Pro se appellant Fred DeWitt, who is an
inmate at the Adult Correctional Institution in Rhode Island,
appeals from the grant of summary judgment in favor of
appellee, A.T. Wall, the Director of the Rhode Island
Department of Corrections ("RIDOC"). In his suit under 42
U.S.C. § 1983, DeWitt sought monetary and injunctive relief
relative to a new prison policy banning visits by certain
former correctional employees. Under the policy, DeWitt's
wife, Pamela, was unable to visit him, but she had alternative
means of communicating with him since she could write to him
and speak with him on the telephone. On appeal, DeWitt has
asserted various claims of error, but we find none of them to
be persuasive. Therefore, we affirm, essentially for the
reasons given in the magistrate judge's report and
recommendation dated July 31, 2001, which the district court
accepted as the basis for its September 6, 2001 order granting
summary judgment. We make only the following comments.
First, the case law confirms that the district
court properly concluded that a policy like the one at issue
here is rationally connected to legitimate concerns about
prison security. See Caraballo-Sandoval v. Honsted, 35 F.3d
521, 525 (11th Cir. 1994) (affirming summary judgment on claim
challenging ban on visits by former prison employee whom
plaintiff later married because prison officials were concerned
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that former employee might pass on knowledge of security
procedures); Blair v. Loomis, 1 F. Supp. 2d 769, 771-72 (N.D.
Ohio 1998) (denying motions for temporary restraining order and
preliminary injunction relative to ban on visits by wife, a
former correctional employee, pursuant to policy that
discouraged visits by former employees or persons lacking a
pre-incarceration relationship with the inmate); Welz v.
Degregorio, 646 F. Supp. 522, 523 (E.D. Pa. 1986) (denying
motion for temporary restraining order relative to ban on
contact visits by former correctional officer, who had resigned
during investigation into her fraternization with plaintiff,
where the warden had expressed security concerns); State ex
rel. Manson v. Morris, 66 Ohio St. 3d 440, 442, 613 N.E.2d 232,
234 (1993) (denying petition for writ of mandamus relative to
denial of visits by girlfriend, who was former correctional
officer, since defendants could reasonably view her as "a
security risk based on her training in security procedures and
knowledge of facility operations").
Second, DeWitt claims that the policy, even if
seemingly neutral, actually targets his wife, or is being
applied vindictively. However, he has not pointed to any
evidence of record that would impugn Director Wall's assertion
that security concerns motivated the policy, and, on the
undisputed facts of record, the policy applies to Pamela
DeWitt. Contrary to DeWitt's claim, the June 20, 2000 letter
by Wall to Pamela -- stating that he had referred her request
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for visiting privileges to a warden -- does not show that Wall
did not think that her status as a former correctional officer
made her a security risk. There is no evidence that Wall, who
assumed his present position well after Pamela (then surnamed
"Manson") had resigned her employment, knew that the "Mrs.
Pamela DeWitt" to whom he wrote was a former corrections
officer. Nor does it matter whether Pamela previously had
visited DeWitt "without incident," as DeWitt says, because Wall
could act preemptively to prevent breaches of security. Casey
v. Lewis, 4 F.3d 1516, 1521 (9th Cir. 1993) (sustaining ban on
attorney-inmate contact visits, which was based on desire to
prevent assaults, escapes, and hostage-taking, despite fact
that defendant had not pointed to prior problems arising out of
such visits).
Finally, it may be that former correctional
employees who are presently incarcerated have visitors, as
DeWitt claims in unsworn statements. Nonetheless, that fact
does not establish an equal protection violation because DeWitt
is not similarly situated. He is not a former correctional
employee who is incarcerated, but an inmate whose spouse is an
unincarcerated former correctional employee, meeting specified
criteria, who seeks to visit him. The present policy
reasonably addresses the security risks posed by the latter
situation. There is no equal protection violation. See United
States v. Bernal-Rojas, 933 F.2d 97, 99 (1st Cir. 1991)
(indicating that a prima facie equal protection claim would be
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made out if the plaintiff were to show that the government had
treated similarly situated persons differently); see also
Casey, 4 F.3d at 1521 (indicating that the appropriate inquiry
is whether a prison visitation regulation has a rational
connection to a legitimate penological goal, not whether the
goal would be better served by a more comprehensive ban on
visitation).
We summarily affirm the judgment below. See
Loc. R. 27(c).
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