                                            No. 01-143

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2002 MT 155N


CHRISTINE LEE and JOHN MIDDLEMISS,

              Plaintiffs and Appellants,

         v.

CROSSROADS CORRECTIONAL CENTER,
through appointed agent
WARDEN JIM MACDONALD,

              Defendant and Respondent.



APPEAL FROM:         District Court of the Ninth Judicial District,
                     In and for the County of Toole,
                     The Honorable Marc G. Buyske, Judge presiding.

COUNSEL OF RECORD:

              For Appellants:

                     Christine Lee, Conrad, Montana (pro se), John Middlemiss, Crossroad
              Correctional Center, Shelby, Montana (pro se)

              For Respondent:

                     Daniel Hoven, Mary K. Giddings, Browning, Kaleczyc, Berry & Hoven,
              Helena, Montana

              For Amicus:

                     Diana L. Koch, Department of Corrections, Helena, Montana



                                                          Submitted on Briefs: March 28, 2002

                                                                     Decided: July 12, 2002
Filed:


                     __________________________________________
                                       Clerk
Justice James C. Nelson delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating

Rules, the following decision shall not be cited as precedent. The decision shall be filed as a public

document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court

cause number, and result to the State Reporter Publishing Company and to West Group in the

quarterly table of noncitable cases issued by this Court.

¶2     Appellants Christine Lee (Lee) and John Middlemiss (Middlemiss) appeal from an order of

the Ninth Judicial District Court, Toole County, dismissing their amended complaint with

prejudice for failure to state a claim upon which relief can be granted under Rule 12(b)(6),

M.R.Civ.P., based on a motion by Respondent Crossroads Correctional Center (CCC). We

reverse and remand for further proceedings consistent with this Opinion.

¶3     We address the following issue on appeal as framed by this Court: Did the District Court

err in dismissing Appellants’ claim of wrongful denial of visitation?

                  I. FACTUAL AND PROCEDURAL BACKGROUND

¶4     Lee was employed at CCC as the kitchen supervisor for Best Foods Inc. During this

same time, Middlemiss, an inmate at CCC, was assigned to the kitchen as a cook. Lee and

Middlemiss developed a friendship during this time. Shortly after their relationship

developed, Lee was terminated as an employee of CCC. Thereafter, Lee and Middlemiss

began corresponding by mail and telephone which led to the development of a relationship

which Appellants characterize as serious and intimate. Eventually, Lee and Middlemiss

requested visitation. CCC denied their request for visitation on the grounds that visitation of

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an inmate by a former employee of the facility created a security concern.

¶5     Lee and Middlemiss, acting pro se, then filed a complaint in District Court, later amended,

alleging that CCC wrongfully denied visitation. CCC filed a motion to dismiss Appellants’ amended

complaint for failure to state a claim under Rule 12(b)(6), M.R.Civ.P. 1 The District Court issued an

order granting CCC’s motion and dismissed Appellants’ amended complaint with prejudice. Lee

and Middlemiss then filed a motion to reconsider, which the District Court denied. Lee and

Middlemiss now appeal the order dismissing their claims with prejudice.              The Montana

Department of Corrections (DOC) requested leave to participate in this appeal as amicus

which we granted.

                                II. STANDARD OF REVIEW

¶6     Whether the district court properly granted a Rule 12(b)(6), M.R.Civ.P., motion to

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         We note here that in addition to the substantive issues discussed below, CCC asserted in
its motion at the trial court level that Lee and Middlemiss also failed to state a claim upon which
relief could be granted because they failed to exhaust the administrative appeals procedure by
appealing the denial of visitation to CCC’s Warden, as provided by CCC policies. See CCC
Visitation Policy 16-100.5 PROCEDURES A. APPROVAL OF VISITORS 10.; Sandin v.
Conner (1995), 515 U.S. 472, 487 n.11, 115 S.Ct. 2293, 2302 n.11, 132 L.Ed.2d 418 (prisoners
may find protection from arbitrary state actions by following internal prison grievance
procedures). However, CCC does not raise this as an issue on appeal. Therefore, for purposes of
this decision, we assume that Lee and Middlemiss properly exhausted the administrative
procedures.




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dismiss presents a question of law. Worden v. Montana Bd. of Pardons & Parole, 1998 MT

168, ¶ 5, 289 Mont. 459, ¶ 5, 962 P.2d 1157, ¶ 5. We review questions of law to determine

whether the district court’s application or interpretation of the law is correct. Worden, ¶ 5. A

complaint should not be dismissed for failure to state a claim unless it appears beyond doubt

that the plaintiff can prove no set of facts in support of the plaintiff’s claim which would

entitle the plaintiff to relief. Orozco v. Day (1997), 281 Mont. 341, 346, 934 P.2d 1009,

1012. A motion to dismiss pursuant to Rule 12(b)(6), M.R.Civ.P., has the effect of admitting

all well-pled allegations in the complaint; in considering the motion, the complaint is

construed in the light most favorable to the plaintiff, and all allegations of fact contained

therein are taken as true. Worden, ¶ 5.

                                     III. DISCUSSION

¶7      Did the District Court err in dismissing Appellants’ claim of wrongful denial of
visitation?

¶8     Lee and Middlemiss argue the District Court erred in dismissing their complaint. Lee

and Middlemiss assert their constitutional rights were violated when CCC denied Lee’s

visitation with Middlemiss because they have a liberty interest in visitation with each other

which this Court should recognize as a constitutional privilege. Lee and Middlemiss further

argue that CCC’s denial of their visitation request was arbitrary and a violation of CCC’s

visitation policy, as well as the visitation policy of the Department of Corrections. They

claim that Lee is being discriminated against and denied the right to visit Middlemiss on

unsubstantiated “vague” and “insulting” grounds. They also argue that CCC’s denial of


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visitation based on security concerns is inconsistent because, currently, they are allowed mail

and telephone contact. In making their arguments, Lee and Middlemiss assert that their

rights are distinguishable from each other and that Lee has additional constitutional rights as

a free person. Appellants ask for an order either granting visitation or an order requiring

CCC to give specific reasons for denial.

¶9      CCC contends that the District Court was correct in determining that Lee and Middlemiss

have no constitutional rights to visitation and that therefore no rights were violated. They further

assert that they have discretion to institute reasonable rules and policies for visitation based on

legitimate penological interests. CCC argues that it also has discretion to decide whether or not to

deny visitation for security reasons based on its policies. Finally, CCC asserts that it properly denied

Lee’s visitation because Lee’s former employment with CCC, including her knowledge of the

security procedures of the prison, and her romantic relationship with Middlemiss, pose a security

concern that constitutes a legitimate basis on which to deny visitation.

¶10     Amicus DOC generally agrees with CCC. In addition, Amicus also distinguishes between

Lee and Middlemiss by asserting that Lee does not have standing to assert deprivation of a liberty

interest.

¶11     The District Court relied on Deserly v. Department of Corrections, 2000 MT 42, ¶ 20, 298

Mont. 328, ¶ 20, 995 P.2d 972, ¶ 20 (citing Kentucky Dep’t of Corrections v. Thompson (1989), 490

U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506; and Spear v. Sowders (6th Cir. 1995), 71

F.3d 626, 630) and determined that there is no constitutional liberty interest in visitation for either

the inmate or the visitor. Therefore, the District Court decided as a matter of law that:

        If no such liberty interest exists, then the Defendants could not have violated due


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        process rights with respect to such non-existent liberty interest. Therefore,
        regardless of the factual allegations, no legal basis exists for Plaintiffs’ claim that
        they enjoy a liberty interest in prisoner visitation and the Defendants violated due
        process with respect to the deprivation of that interest.

On this basis, and no more, the District Court dismissed Appellants’ complaint.

¶12     Before we discuss the District Court’s decision, we must address the threshold issue asserted

by both Lee and Amicus, that Lee’s standing and rights in this case are somehow distinguishable

from those of Middlemiss. Both assert, for different reasons, that Lee’s position as a free person

requires a different analysis of the visitation at issue here than if the issues are analyzed from the

perspective of Middlemiss’ rights. We disagree. In Bazzetta v. McGinnis (6th Cir. 1997), 124 F.3d

774, 780-81, the court held that when considering regulations regarding contact visits, there is no

real distinction between the rights of an inmate versus the rights of an outsider, stating: “the spectre

of harm to innocent family members should not be permitted to insulate a felon from the condign

consequences of his criminal deportment.” Bazzetta, 124 F.3d at 781 (quoting United States v. De

Cologero (1st Cir. 1987), 821 F.2d 39, 44. For purposes of considering visitation issues between an

outsider and an inmate at a prison, we adopt this rationale and hold that the analysis here for Lee and

Middlemiss is dictated by Middlemiss’ rights.

¶13     Turning now to the main issue in this case, we agree with the District Court, with CCC, and

with Amicus that Lee and Middlemiss have no constitutional right of unfettered visitation as we held

in Deserly. Deserly, ¶ 20; see also Thompson, 490 U.S. at 461, 109 S.Ct. at 1909, 104 L.Ed.2d 506

(the “denial of prison access to a particular visitor ‘is well within the terms of confinement ordinarily

contemplated by a prison sentence,’ [citation omitted] and therefore is not independently protected

by the Due Process Clause”).

¶14     We also agree with CCC and Amicus that we must show deference to prison officials in

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matters involving institutional security and that the proper standard of review of a prison regulation

under constitutional challenge is whether it is reasonably related to a legitimate penological interest.

See Worden, ¶ 33; Lewis v. Casey (1996), 518 U.S. 343, 361, 116 S.Ct. 2174, 2185, 135

L.Ed.2d 606; Turner v. Safley (1987), 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64.

¶15     However, we disagree that the District Court was correct in dismissing Lee’s and

Middlemiss’ complaint based solely on whether Lee and Middlemiss had a constitutional right to

visitation. Rather, a review of federal and state case law reveals that, despite the lack of

constitutional significance for visitation, the general rule is that "[v]isitation privileges are a matter

subject to the discretion of prison officials." Berry v. Brady (5th Cir. 1999), 192 F.3d 504, 508

(quoting McCray v. Sullivan (5th Cir. 1975), 509 F.2d 1332, 1334); see also Thorne v. Jones (5th

Cir. 1985), 765 F.2d 1270, 1273; Puckett v. Stuckey (Miss. 1993), 633 So.2d 978, 982 (Although

prisoners do not enjoy an absolute constitutional right to unrestricted visitation, and their visitation

privileges are subject to the discretion of prison officials, restrictions on an inmate's visitation

privileges should not be imposed arbitrarily or discriminatorily). Consequently, because Lee and

Middlemiss also asserted that CCC’s exercise of discretion was arbitrary, the District Court was

required to consider whether CCC properly exercised its discretion. Therefore, the District Court

erred in granting the motion to dismiss under Rule 12(b)(6), M.R.Civ.P.

¶16     We note in making this holding that there is an important distinction between review of a

specific prison regulation and review of application of that regulation. While review of the

constitutionality of a regulation or policy is guided by whether it is reasonably related to a legitimate

penological objective, the review of a prison official’s exercise of discretion in the enforcement of

that regulation or policy necessarily requires consideration of specific facts as applied to specific


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individuals. See for example In re Brown (1968), 150 Mont. 483, 485, 436 P.2d 693, 694 (“There is

nothing alleged here that causes us to believe that any arbitrary action has been taken against

petitioner.”); Peterson v. Shanks (10th Cir. 1998), 149 F.3d 1140, 1145 (Peterson failed to allege

that discretion was abused); Shaw v. Murphy (2001), 532 U.S. 223, 232, 121 S.Ct. 1475, 1481, 149

L.Ed.2d 420 (to prevail on remand, inmate must overcome the presumption the prison officials acted

within their discretion); Abu-Jamal v. Price (3d Cir. 1998), 154 F.3d 128, 136 (prison official

justified in limiting visitation because prison had legitimate reason to suspect that visitation

privileges were being abused so that inmate could receive more than the permitted number of social

visits); Thorne, 765 F.2d at 1271-75 (prison officials justified in denying visitation privileges to

inmate's mother because mother refused to submit to strip search prior to visit and officials had

reliable information that prisoner was receiving narcotics through visiting room); Robinson v.

Palmer (D.C. Cir. 1988), 841 F.2d 1151, 1156-57 (prison officials' permanent ban on visits by

prisoner's wife after wife caught attempting to smuggle marijuana into prison justified because ban

was reasonable response to threat of future smuggling and prisoner had other ways to communicate

with wife); Stephen S. Sypherd and Gary M. Ronan, Substantive Rights Retained by Prisoners, 89

Geo. L.J. 1898 (2001).

¶17    Further, the trial court record established by the parties contains CCC’s written visitation

policy which also indicates that CCC’s exercise of discretion requires consideration of specific facts

as applied to specific individuals. These guidelines include the following:

       16-100.4 POLICY: . . . The number of visitors an inmate may receive and the length
       of visits are to be limited only by Facility schedules, space or personnel constraints
       or contract requirements. The Warden or designee can make an exception when
       Reasonable Suspicion exists that such visits jeopardize the security of the Facility or
       the safety of the Inmate or visitor.


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The policy also defines reasonable suspicion as:

       16-100.3 DEFINITIONS:            Reasonable Suspicion - Actions, conduct, or
       circumstances which lead an employee to suspect that the visitor may present a risk
       to the security and order of the Facility.

Finally, the CCC policies also state:

       16-100.5 PROCEDURES: A. APPROVAL OF VISITORS . . . 8. If there is
       reason to believe that a person may have a potentially detrimental effect on the
       inmate or who may constitute a threat to the security of the facility, that person
       will be excluded from the approved visitors list.

See also Montana Department of Corrections Offender Visiting Policy No. DOC 5.4.4,

IV(A)(4). Therefore, the Warden’s exercise of discretion regarding visitation must be based

on facts that are particularly related to an individual.

¶18    In this case, because Lee’s and Middlemiss’ complaint was dismissed based only on the

constitutional issue, the trial court did not consider whether CCC properly exercised its discretion.

Consequently, the trial court did not consider whether there was evidence demonstrating that prison

authorities had “reasonable suspicion”--based on specific, objective facts and rational inferences

specifically targeted at Lee--that Lee would be a threat to prison security. See CCC visitation

policies, 16-100.3, 16-100.4, 16-100.5.       Therefore, on remand the District Court must

determine whether CCC’s decision to deny Lee and Middlemiss visitation is a proper

exercise of discretion in light of specific objective facts and rational inferences specifically

targeted at Lee.

                                      IV. CONCLUSION

¶19    Because the District Court failed to address whether CCC appropriately exercised its

discretion in denying the request by Lee and Middlemiss for visitation and because we

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cannot exercise appellate review based on a decision that was not made by the trial court, we

reverse and remand for determination of this issue.

¶20     Reversed and remanded for further proceedings consistent with this Opinion.


                                                                  /S/ JAMES C. NELSON

We Concur:

/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER

Justice Jim Rice specially concurring.

¶21     I concur with the Court’s holding herein.

¶22     The District Court found that the “lynchpin of Plaintiffs [sic] amended complaint is the

assertion each enjoys a liberty interest in visitation . . .” and, after finding no such interest, dismissed

the Amended Complaint. The Court affirms the District Court’s holding on the liberty interest, but

finds, at ¶¶ 9 and 16, that the District Court erred because Lee and Middlemis had “also asserted that

CCC’s exercise of discretion was arbitrary” and “a violation of the CCC’s visitation policy,” claims

which the District Court failed to address.

¶23     The District Court’s failure to address violation of the visitation policy is understandable,

given the inadequacy of the Plaintiffs’ pleadings on this issue. The Court’s explanation of these

allegations is most generous. In fact, the Court’s summary of this “claim,” if it may properly be

called that, virtually exceeds the substance of the claim itself. And while the Amended Complaint

also referenced certain “prisoner’s rights” rules, it did not sufficiently cite to these rules to allow the

Defendant to identify them.


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¶24     Although asserting, in toto, a “blatant disregard for D.O.C. and state policy,” the Amended

Complaint does not allege what visitation policies have been disregarded nor does it set forth facts

which would demonstrate that a particular policy had been disregarded. “While Montana adheres to

the notice pleading requirements of ‘a short and plain statement of the claim showing that the

pleader is entitled to relief . . .’ (Rule 8(a), M.R.Civ.P.), the claim must give notice to the other party

of the facts which the pleader expects to prove, and the facts must disclose the presence of all the

elements necessary to make out a claim.” Mysse v. Martens (1996), 279 Mont. 253, 266, 926 P.2d

765, 773. Plaintiffs’ “claim” could very well have been subject to either a motion for more definite

statement or a motion to dismiss for failure to state a claim. However, neither motion was made by

the Defendant.     Instead, Defendant responded to the issue by offering the entirety of the

Department’s visitation policies and arguing that the policies were reasonable. For that reason, I

must concur with remanding the matter so that the District Court can determine if CCC properly

exercised its discretion under the policies in denying the requested visitation.



                                                         /S/ JIM RICE


Chief Justice Karla M. Gray joins in the concurring opinion of Justice Rice.


                                                         /S/ KARLA M. GRAY




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