Ky. Dept. of Corrections v. Thompson
490 U.S. 454 (1989)

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U.S. Supreme Court

Ky. Dept. of Corrections v. Thompson, 490 U.S. 454 (1989)

Kentucky Department of Corrections v. Thompson

No. 87-1815

Argued January 18, 1989

Decided May 15, 1989

490 U.S. 454




Following the District Court's issuance of a consent decree settling a class action brought by Kentucky penal inmates under 42 U.S.C. § 1983, the Commonwealth promulgated "Corrections Policies and Procedures," which, inter alia, contain a nonexhaustive list of prison visitors who "may be excluded," including those who "would constitute a clear and probable danger to the institution's security or interfere with [its] orderly operation." The Kentucky State Reformatory at La Grange subsequently issued its own "Procedures Memorandum," which, in addition to including language virtually identical to that of the state regulations, sets forth procedures under which a visitor "may" be refused admittance and have his or her visitation privileges suspended by reformatory officials. After the reformatory refused to admit several visitors and denied them future visits without providing them a hearing, the representatives of an inmate class filed a motion with the District Court, claiming, among other things, that the suspensions violated the Due Process Clause of the Fourteenth Amendment. The court agreed, and directed that minimal due process procedures be developed. The Court of Appeals affirmed and remanded, concluding, inter alia, that the language of the relevant prison policies created a liberty interest protected by the Due Process Clause.

Held: The Kentucky regulations do not give state inmates a liberty interest in receiving visitors that is entitled to the protections of the Due Process Clause. Pp. 490 U. S. 459-465.

(a) In order to create a protected liberty interest in the prison context, state regulations must use "explicitly mandatory language," in connection with the establishment of "specific substantive predicates" to limit official discretion, and thereby require that a particular outcome be reached upon a finding that the relevant criteria have been met. Hewitt v. Helms,459 U. S. 460, 459 U. S. 472. Pp. 490 U. S. 459-463.

(b) Although the regulations at issue do provide certain "substantive predicates" to guide prison decisionmakers in determining whether to allow visitation, the regulations lack the requisite relevant mandatory language, since visitors "may," but need not, be excluded whether they. fall within or without one of the listed categories of excludable visitors.

Page 490 U. S. 455

Thus, the regulations are not worded in such a way that an inmate could reasonably form an objective expectation that a visit would necessarily be allowed absent the occurrence of one of the listed conditions or reasonably expect to enforce the regulations against prison officials should that visit not be allowed. Pp. 490 U. S. 463-465.

833 F.2d 614, reversed.

BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 490 U. S. 465. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined,, post, p. 490 U. S. 465.

JUSTICE BLACKMUN delivered the opinion of the Court.

In this case, we consider whether Kentucky prison regulations give state inmates, for purposes of the Fourteenth Amendment, a liberty interest in receiving certain visitors.

Page 490 U. S. 456


In September, 1976, Kentucky inmates brought a federal class action under 42 U.S.C. § 1983 challenging conditions of confinement in the Kentucky State Penitentiary at Eddyville. Other cases, one of them relating to the Kentucky State Reformatory at La Grange, were consolidated with the one concerning the penitentiary. The litigation was settled by a consent decree dated 28 May, 1980, and supplemented 22 July, 1980, containing provisions governing a broad range of prison conditions. App. 2-44, 45-55. See Kendrick v. Bland, 541 F.Supp. 21, 27-50 (WD Ky.1981); see also Kendrick v. Bland, 740 F.2d 432 (CA6 1984). Of sole relevance here, the consent decree provides:

"The Bureau of Corrections encourages and agrees to maintain visitation at least at the current level, with minimal restrictions,' and to 'continue [its] open visiting policy."

See 541 F.Supp. at 37.

The Commonwealth in 1981 issued "Corrections Policies and Procedures" governing general prison visitation, including a nonexhaustive list of visitors who may be excluded. [Footnote 1] Four years later, the reformatory issued its own more detailed

Page 490 U. S. 457

"Procedures Memorandum" on the subject of "Visiting Regulations." The memorandum begins with a Statement of Policy and Purpose:

"Although administrative staff reserves the right to allow or disallow visits, it is the policy of the Kentucky State Reformatory to respect the right of inmates to have visits in the spirit of the Court decisions and the Consent Decree, while insuring the safety and security of the institution."

App. 106. The memorandum then goes on to state that a visitor may be denied entry if his or her presence would constitute a "clear and probable danger to the safety and security of the institution or would interfere with the orderly operation of the institution."

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