559 F.2d at 291. It was held improper to dismiss a case as frivolous where the plaintiff alleged that he was Black and that he had been denied a visit from a friend by prison officials in an effort to harass and discourage the friend from ever attempting to visit him. Thomas v. Brierley, 481 F.2d 660 (3d Cir. 1973). The court held that "A refusal to allow a prisoner visitors because of his race would violate the equal protection clause of the Fourteenth Amendment And it is conceivable that the denial of visitation privileges without a reasonable justification might amount to cruel and unusual punishment." 481 F.2d at 661.88 A complaint alleging that inmates were denied physical contact with their families failed to state a cause of action. Oxendine v. Williams, 509 F.2d 1405 (4th Cir. 1975). Similarly, contact visits were held not to be constitutionally compelled in Feeley v. Sampson, 570 F.2d 364, 373 (1st Cir. 1978).89 Rules governing visitation privileges were ordered by the court in James v. Wallace, 406 F.Supp. 318 (M.D. Ala. 1976): Each institution shall provide a comfortable, sheltered area for 88. But see Henry v. State of Delaware, 368 F.Supp. 286, 288 (D. Del. 1973) (there is no federal constitutional or statutory right to visitation privileges). See also White v. Keller, 438 F.Supp. 110, 118 (D. Md. 1977) ("whether visitation is a right or not, it is at best a non-fundamental right, and hence may not only be restricted, but may be restricted by other than the least drastic means."). 89. See subsection d infra. reasonable time and space for each visit. Visitors shall not be subjected to any unreason- 406 F.Supp. at 334. Evening hours of visitation for regular prisoners should be made available to facilitate visits by those who attend school or must work during the day. Dillard v. Pitchess, 399 F. Supp. 1225, 1240 (C.D. Cal. 1975). There was no error in the failure of a district court to submit to the jury plaintiff's complaint that visitation was allowed only in the visiting facilities at the segregation unit of the institution and that visitation was not permitted over a weekend. Dorrough v. Milliken, 563 F.2d 187 (5th Cir. 1977). Christman v. Skinner, 468 F.2d 723 (2d Cir. 1972) stated: Plaintiff alleged in his fourth cause of action that defendants violated his right of privacy by monitoring his conversations with visitors. The district court was correct in dismissing this cause of action, for plaintiff's claim is foreclosed by Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 1221, 8 L.Ed.2d 90. "Every effort should be made to allow visitations by children, and the length of the visit should be extended to allow the inmates the benefits of visiting friends and family." Lovern v. Cox, 374 F. Supp. 32, 36 (W.D. Va. 1974). See also Hughes, J., Play of Children In a Visiting Room of a Maximum Security Prison: A Comparison of Behavior Before Play Materials Were Available and After a Play Situation Was Provided. (Doctoral dissertation, University of Pittsburgh) Ann Arbor, Michigan: Univ. Microfilm, 1975, No. 75-13193. 384 (1962), where the Supreme Court indicated "that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room." 468 F.2d at 726. A district court's dismissal of plaintiff's request for conjugal visits was affirmed in McCray v. Sullivan, 509 F.2d 1332 (5th Cir. 1975), cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86. b. Interviews with Attorney's Aides and Investigators Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) held that a rule which provided that an attorney of record could utilize no more than two investigators who were required to be licensed by the state or members of the state bar constituted an unconstitutional burden on the right to access to the courts: The constitutional guarantee of due process of law has a corol- 416 U.S. at 419, 94 S.Ct. at 1814, 40 L.Ed.2d at 243. In Taylor v. Sterret, 532 F.2d 462, 482 (5th Cir. 1976), a district court order requiring the sheriff to limit visits of district attorney's representatives to those who asked or consented to see them was held to be overly restrictive. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) held that the right to free speech under the First and Fourteenth Amendments to the United States Constitution does not afford prisoners the right to interviews with members of the press where the prisoners have alternative channels of communication, such as communication by mail and visits from members of their families, the clergy, attorneys, and friends of prior acquaintance. The Court stated that "So long as this restriction operates in a neutral fashion, without regard to the content of the expression, it falls within the 'appropriate rules and regulations' to which 'prisoners necessarily are subject' . . . and does not abridge any First Amendment freedoms retained by prison inmates." 417 U.S. at 828, 94 S. Ct. at 2807, 41 L.Ed.2d at 505. Further, the Court held that "newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public. Id. at 834, 94 S.Ct. at 2810, 41 L. Ed. 2d at 508.91 The Court observed that under a prior practice members of the press had free access to interview any individual inmate. As a result, press attention was concentrated "on a relatively small number of inmates who, as a result, became virtual 'public figures' within the prison society and gained a disproportionate degree of notoriety and influence among their fellow inmates. Because of this notoriety and influence, these inmates often became the source of severe disci plinary problems."92 Therefore, the regulation was adopted prohibiting press and other media interviews with specific individual inmates. Newsmen were permitted to visit both the maximum and minimum security sections of the institutions, to stop and speak about any subject to any inmates whom they might encounter, and to enter the prisons to interview inmates selected at random by the corrections officials. The Court upheld the regulation. Accord, Saxbe v. Washington 91. This holding was reaffirmed in Houchins v. KQED, Inc., 92. See also Seattle-Tacoma Newspaper Guild, Local #82 v. Parker, 480 F.2d 1062 (9th Cir. 1973), where the court held a ban on interviewing prison strike leaders was reasonable since the interviews tended to increase disciplinary problems and make some inmates celebrities. Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974). When pre-trial detainees are permitted some press interviews, the determination must be based upon predetermined regulations which delineate precise and objective tests. Main Road v. Aytch, 522 F.2d 1080 (3d Cir. 1975).93 Further, due process requires a procedure for administrative review of a denial in order to assure the implementation of the standards: Even if the prisoners held pending trial have no constitutional right to meet with reporters, the First Amendment precludes Aytch from regulating, through the grant or denial of permissions for prisoners to talk with reporters, the content of speech which reaches the news media, unless the restriction bears a substantial relationship to a significant governmental interest. [W]hen the government makes an avenue of communication available to the proponents of some views, the same opportunity must, absent exceptional circumstances, be afforded to others who wish to express their ideas in that manner, whether or not the governmental officials endorse or sanction the thoughts to be expressed. 522 F.2d at 1086-87. Although the scope of a prisoner's First Amendment rights is not unaffected by the fact of his incarceration, an inmate's interest in communicating with the press through face to face encounters is, like his interest in sending and receiving mail, 93. The opinion in Main Road is criticized in Note, Main Road v. Aytch, 44 Geo. Wash. L. Rev. 453 (1976). |