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Washington EFV Ban Upheld

In an unpublished opinion the ninth circuit court of appeals affirmed dismissal of a Washington prisoner's challenge to a prison policy restricting participation in the Extended Family Visiting (EFV) program. Jerry Harrison was a Washington state prisoner with a prior domestic violence conviction. He filed suit after, due to this conviction, he was excluded from participating in the EFV program by Division of Prisons (DOP) policy 590.100, enacted on February 13, 1995. The district court dismissed the suit as frivolous; the court of appeals affirmed.

The appeals court noted that prisoners have no constitutional right to family visiting. In Mendoza v. Blodgett, 960 F.2d 1425 (9th Cir. 1992) the ninth circuit held that Washington prisoners have a state created liberty interest in visiting. In this ruling the court held that Mendoza is not dispositive because under Sandin v. Connor, 115 S.Ct. 2293 (1995) "Harrison lacks a state created liberty interest in the EFV program. EFV's are not 'ordinary incidents of prison life."'

The court also rejected as meritless the argument that the EFV policy violated Harrison's right to equal protection and the constitutional provisions of ex post facto and separation of powers. In doing so the court noted that the policy "reasonably relates to prison safety by preventing inmates with histories of domestic violence form having extended, unsupervised visits with family members." The denial of EFV's doesn't constitute "punishment" and thus has no punitive effect. See: Harrison v. Barbour, 98 F.3d 1345, 1996 WL 570396 (9th Cir. 1996).

As an unpublished ruling it is not dispositive and cannot be cited as binding authority. But it well illustrates that any federal court challenges to bans, restriction or elimination of EFV programs are likely to fail. The few successes in EFV suits have been where the restriction was due to something else. See: Bullock v. Gomez, 929 F. Supp. 1249 (CD CA 1996)(HIV status) and Griffin v. Coughlin, 88 NY.2d 674 (1996)(violation of establishment clause). Past issues of PLN have detailed struggle around EFV issues in California and Washington, the battlefield on this issue is legislative and political, not in court.

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Related legal case

Harrison v. Barbour

[T][U] Harrison v. Barbour, 98 F.3d 1345 (9th Cir. 10/04/1996)

[1] U.S. Court of Appeals, Ninth Circuit

[2] No. 95-36196

[3] 98 F.3d 1345, 1996

[4] filed: October 4, 1996.


[6] Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-95-01016-WLD. William L. Dwyer, District Judge, Presiding.

[7] JERRY D. HARRISON, Plaintiff - Appellant, Pro se, TWINS RIVERS CORRECTION CENTER, Monroe, WA.

[8] Before: Wright, Schroeder and Kleinfeld, Circuit Judges.


[10] Harrison appeals the dismissal of his action, which alleged that prison officials deprived him of due process by terminating his extended family visitation ("EFV") privilege pursuant to a new EFV directive. Harrison raises several other constitutional challenges on appeal.

[11] Harrison is an inmate at the correctional facility in Monroe, Washington. He and his wife participated in the EFV program for six years. The EFV program allows a family member to stay with an inmate in a private trailer on prison grounds for up to 48 hours. In January 1995, an inmate stabbed his wife during an EFV visit. One month later, the director of the division of prisons issued a directive that revised the EFV program. The revision at issue bars any inmate with a history of domestic violence from participating in the EFV program. See DOP 590.100 (Feb. 13, 1995). Harrison is no longer eligible to participate.

[12] After unsuccessfully appealing his exclusion from the program to prison authorities, Harrison brought this § 1983 action. The court dismissed the action prior to service as frivolous under 28 U.S.C. § 1915(d). We review dismissal of a claim pursuant to 28 U.S.C. § 1915(d) for abuse of discretion. Trimble v. City of Santa Rosa, 49 F.3d 583, 584 (9th Cir. 1995). We may affirm based on any ground supported by the record. Id.

[13] I. Due Process

[14] Harrison argues that he has a state-created liberty interest in continued participation in the EFV program.*fn1 He looks to the Washington Administrative Code and prison regulations for language creating a justifiable expectation of continued EFV privileges.

[15] Until recently, courts determined whether a prison regulation gave rise to a protected liberty interest by asking whether it used mandatory language. See, e.g., Hewitt v. Helms, 459 U.S. 460, 471-72, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). Based on this analysis, this court has held that Washington had created a liberty interest in its standard visiting procedures because "an inmate may reasonably form an objective expectation that visiting privileges will not be suspended without compliance with the applicable rules." Mendoza v. Blodgett, 960 F.2d 1425, 1433 (9th Cir. 1992), cert. denied, 506 U.S. 1063, 122 L. Ed. 2d 154, 113 S. Ct. 1005 (1993).

[16] Mendoza, however, does not determine the result of Harrison's complaint. Recently, the Supreme Court altered the relevant test. Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293, 2300 (1995), held that due process protections apply only to prison regulations that impose "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. Under Sandin, Harrison lacks a state-created liberty interest in the EFV program. EFVs are not "ordinary incidents of prison life." Cf. id. The district court did not abuse its discretion when it dismissed the complaint as frivolous.

[17] II. Other Arguments

[18] Harrison argues that the new directive also violates the Equal Protection and Ex Post Facto Clauses and the separation of powers doctrine. He raised these arguments for the first time in his objections to the magistrate Judge's report and recommendation, and the district court did not consider them. We have done so and find them meritless.

[19] A. Equal Protection

[20] Harrison cannot bring an equal protection challenge because the directive does not impinge on his constitutional rights. See Turner v. Safley, 482 U.S. 78, 91, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). As explained above, Harrison does not have a constitutional or state-created right to EFVs. The directive reasonably relates to prison safety by preventing inmates with histories of domestic violence from having extended, unsupervised visits with family members. And, the Supreme Court has recognized that protecting visitors from harm by inmates is a valid penological goal. See Block v. Rutherford, 468 U.S. 576, 586-87, 82 L. Ed. 2d 438, 104 S. Ct. 3227 (1984) (upholding ban on contact visits as reasonably related to the goal of protecting visitors).

[21] B. Ex Post Facto

[22] Harrison argues that the directive violates the Ex Post Facto Clause by imposing punishment on inmates with a history of domestic violence beyond that prescribed when they were convicted. His argument fails because the directive is not "punishment." See United States v. Collins, 61 F.3d 1379, 1383 (9th Cir.) (new procedure must constitute punishment in order to violate Ex Post Facto Clause), cert. denied, 133 L. Ed. 2d 446, 116 S. Ct. 543 (1995); United States v. Huss, 7 F.3d 1444, 1447 (9th Cir. 1993) (same). The directive's regulatory goals include continuing the EFV program in an acceptable form and preventing violence in the prison. The restrictions added to the EFV program reasonably relate to these goals, and their effect is not unduly punitive.

[23] C. Separation of Powers

[24] Harrison argues that the directive violates the separation of powers doctrine by punishing those with a history of domestic violence. He appears to argue that the policy is punitive and that punishment may be authorized only by the legislature and meted out only by the judiciary. If so, his argument fails. The administration and regulation of EFV privileges is properly the function of prison administrators. See Turner v. Safley, 482 U.S. 78, 84-85, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1974). There was no separation of powers violation.

[25] Conclusion

[26] We affirm the dismissal of the complaint.


[28] Disposition



Opinion Footnotes


[30] *fn1 Wisely, Harrison does not argue that he has a constitutional right to extended or conjugal visitation. None exists. See, e.g., Hernandez v. Coughlin, 18 F.3d 133, 137 (2d Cir.) (no liberty interest in extended family visits), cert. denied, 130 L. Ed. 2d 63, 115 S. Ct. 117 (1994); Davis v. Carlson, 837 F.2d 1318, 1319 (5th Cir. 1988) (no constitutional right to conjugal visits). "Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948).

[31] *fn* This Disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.