                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                   No. 11-1638
                                   ___________

                               DONNA PFENDER,
                                        Appellant

                                        v.

    *SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
  RAYMOND SOBINA, Warden SCI Forest, in his individual and official capacities;
   RAYMOND LAWLER, Warden, SCI Huntingdon, in his individual and official
                             capacities

                     *(Pursuant to Rule 43(c), Fed. R. App. R.)
                    ____________________________________

                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                      (D.C. Civil Action No. 4-09-cv-01838)
                   District Judge: Honorable John E. Jones III
                   ____________________________________

                Submitted Pursuant to Third Circuit LAR 34.1(a)
                              September 2, 2011
    Before: FUENTES, GREENAWAY, JR. AND GREENBERG, Circuit Judges

                        (Opinion filed: September 6, 2011 )
                                   ___________

                                    OPINION
                                   ___________

PER CURIAM.

     Donna Pfender appeals the District Court‟s entry of summary judgment for the
defendant prison officials in this suit under 42 U.S.C. § 1983. For the reasons that

follow, we will affirm.

                                             I.

       Because the parties are familiar with the background, we merely summarize for

purposes of addressing the issues on appeal. The facts are largely undisputed. Pfender‟s

common-law husband and daughter are incarcerated in Pennsylvania, and she is the

president of a prisoner rights advocacy group. In 2008, Raymond Lawler, Superintendent

of the State Correctional Institution (“SCI”) at Huntingdon, sent a letter to Pfender

advising that she was barred from visiting any SCI for an indefinite period of time.

Inmate Dwayne Hill, Pfender‟s common-law husband, had been found in possession of a

satellite photograph showing a complete aerial view of SCI-Huntingdon‟s layout. The

photograph, which was discovered in an envelope during a search of Hill‟s cell, was

deemed contraband because it could be used as an implement of escape. An investigation

determined that Pfender was the source of the contraband, that it was mailed from her

address, and that she used the name “Donna Hill” on the return address in an attempt to

disguise her identity due to her affiliation with the prisoner advocacy group.

       Pfender denied any connection to the contraband, and she wrote a letter to

Superintendent Lawler asking for reconsideration. Superintendent Lawler reaffirmed the

decision to suspend her visiting privileges. Pfender then appealed by writing a letter to

Jeffrey Beard, Secretary of the Department of Corrections (“DOC”). Secretary Beard

declined to reinstate Pfender‟s visiting privileges, concluding that the suspension was
                                             2
appropriate and in accordance with DOC policy, citing both the threat to security that

Pfender‟s actions posed at SCI-Huntingdon as well as a prior visiting room incident at

SCI-Forest in 2007. Secretary Beard advised that Pfender could apply for reinstatement

of her privileges after two years. On July 7, 2010, in response to Pfender‟s request,

Superintendent Lawler reinstated her non-contact visiting privileges, and he advised that,

if there were no further incidents, her contact visiting privileges would be reinstated

automatically on January 7, 2011.

       Pfender filed this pro se suit seeking damages and other relief under § 1983,

arguing that the suspension of visiting privileges violated her rights to due process and

equal protection. She named Beard, Lawler, and the Superintendent at SCI-Forest

(Raymond Sobina) as defendants. Pfender filed a motion for partial summary judgment,

which the District Court denied. Defendants moved for summary judgment after the

close of discovery, and the Magistrate Judge recommended granting the motion. The

Magistrate Judge determined that there is a rational basis for limiting visits when a

putative visitor is reasonably thought to have supplied a prison layout diagram to an

inmate, and that a legitimate interest in preventing escapes and escape attempts justifies

precluding inmates from having access to aerial depictions of the prison‟s layout. The

Magistrate Judge further concluded that Pfender was afforded adequate due process

through the exchange of letters regarding the suspension, and that she was not denied

equal protection because a rational basis supports the prison officials‟ decision.

       The District Court adopted the Report and Recommendation and entered summary
                                              3
judgment for defendants. It agreed that the due process claim must fail because

defendants had a rational basis for their actions. The District Court noted that it is

irrelevant whether Pfender actually sent Hill the photograph, as defendants had a

reasonable basis for concluding that the photograph was sent by Pfender since it was

found inside an envelope in Hill‟s cell bearing Pfender‟s identification on the return

address. The District Court further determined that defendants‟ actions comported with

the flexible due process standards that the situation demanded. With regard to equal

protection, the District Court concluded that, because Pfender did not allege any suspect

classification, a rational basis standard applies, and that defendants‟ decision to suspend

visiting privileges was adequately supported. Pfender timely filed this appeal.

                                             II.

       We have appellate jurisdiction under 28 U.S.C. § 1291. “We review an award of

summary judgment de novo, applying the same test on review that the District Court

should have applied.” Burns v. Pa. Dep‟t of Corr., 642 F.3d 163, 170 (3d Cir. 2011)

(quotation marks omitted). “The court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We review the facts in the light

most favorable to the nonmoving party and draw all inferences in that party‟s favor.”

Burns, 642 F.3d at 170 (quotation marks omitted).

       Pfender challenges the entry of summary judgment primarily by disputing the

determination that she supplied the contraband photograph to Hill. Although the prison
                                              4
officials investigated the matter and determined that Pfender supplied the photograph to

Hill, Pfender suggests that Hill received the photograph from another source, presumably

not through the mail, and that he merely chose to store the item in an old envelope that

bore Pfender‟s name. Pfender contends that “the logical connection between [her and]

the item of contraband is so remote as to render her visiting ban arbitrary or irrational.”

Appellant‟s Br. at 6.

       We agree with the District Court that defendants are entitled to summary

judgment. A claimed denial of procedural due process requires a plaintiff to show that a

protected liberty or property interest was taken in a procedurally deficient manner. See

Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 570-71 (1972). Any protection for

the liberty interest that Pfender might have in visiting with inmate family members must

derive either from the Due Process Clause itself or from state law. See Sandin v. Conner,

515 U.S. 472, 483-84 (1995). The Due Process Clause has not been held to guarantee an

interest in prison visitation. See Ky. Dep‟t of Corr. v. Thompson, 490 U.S. 454, 460

(1989) (rejecting notion that “unfettered visitation is guaranteed directly by the Due

Process Clause”); see also Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (observing that

“freedom of association is among the rights least compatible with incarceration”). In

addition, Pfender has made no showing that Pennsylvania law creates a protected liberty

interest in visiting privileges.

       Assuming some protection for Pfender‟s right of association, such a right is

necessarily circumscribed by the need to afford deference to prison officials in the
                                              5
exercise of their professional judgment when pursuing legitimate penological interests.

See Overton, 539 U.S. 126, 131-32 (concluding that the Court “need not attempt to

explore or define the asserted right of association at any length or determine the extent to

which it survives incarceration because the challenged regulations bear a rational relation

to legitimate penological interests”); see also Wirsching v. Colorado, 360 F.3d 1191,

1198 (10th Cir. 2004) (explaining that while “courts and commentators have observed

that visitation may significantly benefit both the prisoner and his family … the

Constitution allows prison officials to impose reasonable restrictions upon visitation”).

       The suspension imposed upon Pfender was “reasonably related to legitimate

penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). Superintendent Lawler

explained that, after an investigation, it was determined that Pfender had supplied Hill

with an aerial photograph of the prison‟s layout. The photograph was undeniably an item

of contraband because an inmate could use it to plot an escape. Pfender‟s visiting

privileges were suspended in accordance with DOC regulations,1 and she was afforded an

opportunity to seek reinstatement after two years. We agree with the District Court that

there is a rational basis for imposing this type of limitation upon the visiting privileges of

an individual who is determined to have supplied an inmate with a prison layout


   1
     See, e.g., Pa. DC-ADM 812.VI.A.2.i (“Any visitor‟s privileges may be limited,
   suspended, or restricted (such as non-contact visits only or a restriction on visiting at
   more than one facility) if information becomes available suggesting that allowing the
   individual to visit poses a threat to the safety and security of any Department
   facility.”); Pa. DC-ADM 812.VI.K.8 (“A visitor who is suspended or barred at one
   facility shall not be permitted to visit at any other facility.”).
                                              6
photograph. Prison officials have a legitimate penological interest in preventing inmates

from possessing items that can be used to escape, see, e.g., United States ex rel. Tyrrell v.

Speaker, 535 F.2d 823, 827 n.5 (3d Cir. 1976), and in restricting the visiting privileges of

individuals determined to pose a security risk by providing such items to an inmate.2

       Pfender denies having provided the photograph to Hill, but she has not pointed to

a “material” factual dispute that would preclude an entry of summary judgment. “A

disputed fact is „material‟ if it would affect the outcome of the suit as determined by the

substantive law.” J.S. v. Blue Mt. Sch. Dist., -- F.3d --, 2011 U.S. App. LEXIS 11947, at

*17 (3d Cir. June 13, 2011) (en banc) (quotation marks omitted). The contraband in

Hill‟s cell was discovered in an envelope that identified Pfender on the return address.

While Pfender proffers alternative explanations for how Hill might have obtained the

photograph, the evidence cited by the prison officials provides a reasonable basis for their

conclusion that Pfender supplied the contraband. We have explained, in conducting a

Turner analysis at the summary judgment stage, that merely “show[ing] there are

different views as to the relevant issues and underlying facts” is insufficient. Williams v.

Morton, 343 F.3d 212, 218 (3d Cir. 2003). Pfender‟s denial of culpability does not create

a triable issue on the question whether the suspension of her visiting privileges bears a


   2
    As the Pennsylvania Commonwealth Court concluded in denying Pfender‟s
   mandamus petition challenging the suspension of her visiting privileges, “Pfender is
   hard-pressed to assert a constitutional right to associate with incarcerated persons
   when respondents‟ internal investigation has revealed that she is a security risk.”
   Pfender v. Pa. Dep‟t of Corr., 2009 Pa. Commw. Unpub. LEXIS 754, at *7 (Pa.
   Commw. Ct. Sept. 23, 2009) (unreported memorandum opinion).
                                              7
rational relationship to legitimate penological interests. On that substantive question,

summary judgment was properly entered for defendants.3

       Finally, Pfender argues that suspension of her visiting privileges violated equal

protection because there was some unspecified “gender disparity in the [prison officials]‟

visiting ban practice,” and the suspension amounted to “arbitrary and irrational

government conduct.” Appellant‟s Br. at 9-10. “To prevail on an equal protection claim,

a plaintiff must present evidence that s/he has been treated differently from persons who

are similarly situated.” Williams, 343 F.3d at 221. Pfender has presented no such

evidence. Moreover, as the District Court explained, Pfender‟s equal protection claim

fails for the same reason that her due process claim fails: the suspension of her visiting

privileges was reasonably related to a legitimate penological interest. See, e.g., id.

(“Turner is equally applicable to Prisoners‟ equal protection claims.”).




   3
     Alternatively, we agree with the District Court that Pfender was provided all the
   process that she might have been due under the circumstances. Pfender argues that
   she was entitled to more formal process under Pennsylvania administrative agency
   law, but this argument finds no support in her brief or in the record before this Court.
   In addition, as the Commonwealth Court found, “Pfender has not set forth any
   Department regulation or policy that otherwise entitles her to an administrative
   hearing upon the removal of her visiting privileges.” Pfender , 2009 Pa. Commw.
   Unpub. LEXIS 754, at *8. To the extent that Pfender also challenges the District
   Court‟s analysis by suggesting that it was inconsistent with the alleged damage to her
   reputation, we agree with defendants that this assertion is insufficient to trigger due
   process protection on the record presented here. See Dee v. Borough of Dunmore,
   549 F.3d 225, 233 (3d Cir. 2008) (“By now it is clear that reputation alone is not an
   interest protected by the Due Process Clause.”) (quotation marks omitted).

                                              8
                                           III.

       We have considered Pfender‟s remaining arguments but find them without merit.

For the foregoing reasons, we will affirm the District Court‟s judgment.4




   4
     Given our disposition, we do not reach the prison officials‟ alternative argument that
   they are entitled judgment on the basis of qualified immunity.
                                            9
