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Gay Visiting Rule Challenged

The Ninth Circuit U.S. Court of Appeals reversed the U.S. District Court's (D.Ariz.) Fed.Rules Civ.Proc. Rule 12(b)(6) dismissal of an equal protection claim raised by an Arizona prisoner and his gay visitor who were denied the right to kiss and hug during prison visits solely because they were non-family homosexual partners.

Karl Whitmire visited with his incarcerated gay partner William Lyster in an Arizona state prison. Lyster was chastised by prison staff after he was observed briefly hugging Whitmire during a visit, and was told "if it happens again, it will be a long time before you see him again."

Although both men initially filed a complaint under 42 USC § 1983, Lyster subsequently dismissed his claims. Whitmire proceeded - transforming the case from a pro se prisoner claim into a standard civil case. As a threshold matter, the court first ruled that as a non-prisoner, Whitmire still had standing to challenge a prison regulation (citing Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001)). Whitmire asserted that the prison rule violated his US Constitutional equal protection rights because it amounted to both sexual-orientation and sex-based discrimination.

The district court had summarily dismissed Whitmire's claim without requiring Arizona to produce any evidence corroborating a rational connection between their suspect visitation policy and a legitimate penological interest. Because Lyster and Whitmire had told other prisoners that they were openly gay, Arizona could not rationally maintain its claim that a ban on embracing in the visiting room would act to protect Lyster from becoming a target of abuse from other prisoners.

Accordingly, the Ninth Circuit held that the district court had erred in ruling that there was common-sense connection between the visiting policy and prison safety and reversed the dismissal below and remanded for further proceedings to develop an appropriate record. PLN readers should note that this is not a ruling on the merits. See: Whitmire v. Arizona, 298 F.3d 1134 (9th Cir. 2002).

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Related legal cases

Whitmire v. Arizona, 298 F.3d 1134 (9th Cir. 2002)

Whitmire v. State of Arizona, 298 F.3d 1134 (9th Cir. 08/12/2002)

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

[2] No. 00-16896

[3] 298 F.3d 1134, 2 Cal. Daily Op. Serv. 7316, 2002 Daily Journal D.A.R. 9214

[4] August 12, 2002


[6] D.C. No. CV 98-0641 RGS Appeal from the United States District Court for the District of Arizona Roger G. Strand, District Judge, Presiding

[7] Counsel

[8] Courtney Joslin, San Francisco, California, and Martha Matthews, Los Angeles, California, for the plaintiff-appellant.

[9] Daniel P. Schaack, Assistant Attorney General, Phoenix, Arizona, for the defendants-appellees.

[10] Before: Procter Hug, Jr. and A. Wallace Tashima, Circuit Judges, and John W. Sedwick,*fn1 District Judge.

[11] The opinion of the court was delivered by: Tashima, Circuit Judge


[13] Argued and Submitted March 15, 2002--San Francisco, California

[14] Opinion by Judge Tashima; Concurrence by Judge Sedwick


[16] Karl Whitmire ("Whitmire") appeals the district court's dismissal of his constitutional equal protection claim, brought against the Arizona Department of Corrections ("ADOC"), which prohibits same-sex kissing and hugging during prison visits, unless the visitors are members of the inmate's family. The ADOC asserted, without corroborating evidence, that the visitation policy furthered the legitimate penological interest of correctional safety. The district court agreed with the ADOC on the basis of that naked assertion. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.


[18] ADOC regulations on inmate visitation provide: "Kissing and embracing shall be permitted only at the beginning and end of each visit and shall not be prolonged." These same regulations, however, further provide that "[s]ame-sex kissing, embracing (with the exception of relatives or immediate family) or petting" is prohibited.

[19] Whitmire and William Lyster ("Lyster") are an openly gay couple; Lyster is a prisoner incarcerated in the Arizona correctional system. Lyster was instructed by prison staff that he was not permitted to hug or kiss Whitmire during visits, and after Lyster briefly hugged Whitmire during a visit, Lyster was told by ADOC officials that "[i]f that happens again it will be a long time before you see him again."

[20] Whitmire and Lyster filed suit alleging that the State of Arizona violated their rights under the First and Third Amendments to the United States Constitution, and Title VII of the Civil Rights Act of 1964. *fn2 The ADOC filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The district court granted the motion and dismissed Whitmire's action. *fn3 Whitmire timely appeals.


[22] The district court may grant a motion to dismiss for failure to state a claim only if it is clear that no relief can be granted under any set of facts that could be proved consistent with the allegations. Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993). We review de novo a dismissal for failure to state a claim under Rule 12(b)(6). Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001).


[24] The Supreme Court held in Turner v. Safley, 482 U.S. 78, 89 (1987), that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Under rational basis review, *fn4 the issue is whether there is a "valid, rational connection" between the prison regulation and the asserted, legitimate governmental interest. Id.

[25] [1] A dismissal on the pleadings, without requiring any evidence corroborating that a rational connection exists between the visitation policy and correctional safety, is appropriate only when a common-sense connection exists between the prison regulation and the asserted, legitimate governmental interest. Frost v. Symington, 197 F.3d 348, 357 (9th Cir. 1999). Here, the ADOC asserts that its visitation policy protects inmates from being labeled as homosexuals and from being targeted for physical, sexual, or verbal abuse on account of such labeling. The ADOC's visitation policy, however, does not possess a common-sense connection to the concern against homosexual labeling; thus, the district court erred when it upheld the ADOC policy without requiring any corroboration.

[26] [2] Common sense indicates that an inmate who intends to hide his homosexual sexual orientation from other inmates would not openly display affection with his homosexual partner during a prison visit. Rather, prisoners who are willing to display affection toward their same-sex partner during a prison visit likely are already open about their sexual orientation. Whitmire's and Lyster's situation is illustrative. Lyster openly told other prisoners that he was gay. In situations like this, Arizona's policy prohibiting same-sex displays of affection during visitation does nothing to prevent the marking of homosexual prisoners. See Espinoza v. Wilson, 814 F.2d 1093, 1098 (6th Cir. 1987) (finding the homosexual "marking" justification unbelievable when " 'neither [plaintiff] tried to hide the fact that they were homosexual' ").


[28] [3] The district court erred in holding, on a 12(b)(6) motion, that a common-sense connection exists between the ADOC visitation policy and the penological interest of correctional safety. *fn5 The judgment is reversed and the case is remanded to the district court for further proceedings.


[30] SEDWICK, District Judge, concurring:

[31] I concur, but write briefly to elaborate on the point made in footnote 4; our observations regarding Whitmire's and Lyster's situation do not portend any particular outcome. This case is remanded for development of a factual record, because the existing record affords virtually no information. It does not show how prison visits are arranged or structured, where they take place, whether inmates from several cell blocks enjoy visitation rights at the same time, how homosexual inmates other than Lyster might behave in the absence of the challenged policy, whether an open display of physical affection between Whitmire and Lyster might affect other prisoners' behavior even though Lyster's sexual orientation were already known, nor any of the other facts that may bear upon why prison officials, exercising their discretion, decided to implement the challenged policy.

Opinion Footnotes

[32] *fn1 Honorable John W. Sedwick, United States District Judge for the District of Alaska, sitting by designation.

[33] *fn2 While the Complaint never alleged an equal protection violation per se, the district court held: "Although Plaintiff does not mount an explicit equal protection challenge to the ADOC policy, broadly construed, the Complaint appears to allege that the same-sex hugging prohibition discriminates against homosexuals." Whitmire asserts on appeal that the ADOC policy violates constitutional equal protection because it constitutes both sexual orientation and sex-based discrimination.

[34] *fn3 When this case was originally filed, by both Whitmire and Lyster, it was automatically assigned to the district court's pro se prisoner claims track. Lyster subsequently dismissed his claims, leaving Whitmire as the sole plaintiff, and the case was reassigned to the standard civil track. Although he is not a prisoner, Whitmire has standing to challenge the prison regulation. See Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) ( recognizing standing of non-prisoner publisher to challenge prison regulation) (citing Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)).

[35] *fn4 Whitmire argues that heightened, intermediate scrutiny is justified because the ADOC regulations discriminate on the basis of sex. We do not reach this argument, however, because we conclude that the ADOC visitation policy does not survive rational basis review.

[36] *fn5 We emphasize that we are ruling only on a 12(b)(6) dismissal on the pleadings. We intimate no view on the merits after the development of an appropriate record.

Brisco-Wade v. Carnahan

Brisco-Wade v. Carnahan, 297 F.3d 781 (8th Cir. 07/25/2002)

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

[2] No. 01-3821

[3] 297 F.3d 781, 2002

[4] July 25, 2002


[6] Appeal from the United States District Court for the Eastern District of Missouri.

[7] Before McMILLIAN, Beam, and Bye, Circuit Judges.

[8] The opinion of the court was delivered by: Per Curiam.


[10] Submitted: July 18, 2002

[11] Missouri state and prison officials, defendants below, appeal from the district court's judgment ordering them to pay mediation costs. We reverse and remand.

[12] Briefly, defendants moved for summary judgment on the grounds of qualified immunity after they were named in a 42 U.S.C. § 1983 action by a former prisoner. The district court stayed the motion and ordered the parties to attend mediation proceedings that were to be held on January 22, 2001. Eleven days before the scheduled mediation session, defendants asked the court to rule on their summary judgment motion. Two days after the scheduled session, the court denied defendants' motion to rule and ordered that a new mediation schedule be established. Defendants appealed, and we stayed the order requiring mediation and remanded with directions to rule on the qualified-immunity issue. On remand, the district court granted defendants summary judgment, and nearly five months later, the court ordered defendants to pay the mediator's fee (for time he had spent reviewing the file).

[13] Under 28 U.S.C. § 1920, a judge or court clerk "may tax as costs" fees of the clerk and marshal, fees of the court reporter, fees and disbursements for printing and witnesses, fees for copies of necessary papers, docket fees, and compensation of court-appointed experts and interpreters. Section 1920 imposes "rigid controls on cost-shifting in federal courts," and "absent explicit statutory or contractual authorization for the taxation of the expenses of a litigant's witness as costs, federal courts are bound by the limitations set out in" section 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 444-45 (1987). Under Federal Rule of Civil Procedure 54(d)(1), "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs."

[14] We find that the district court abused its discretion in taxing the mediator's fee against defendants. See Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 363 (8th Cir. 1997) (standard of review). In the first place, the Eastern District of Missouri Local Rules do not permit prisoner civil rights cases to be referred for mediation. See E.D. Mo. Local R. 6.01(A). Second, section 1920 does not list mediation fees as taxable costs, and we have found no statutory authority (nor did the district court cite to any) permitting the taxation of mediation fees in section 1983 litigation. See Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 529-30 (5th Cir. 2001) (in Title VII case, district court abused its discretion in taxing losing party with costs of mediation because neither § 1920 nor Title VII listed such expenses as taxable). Assuming the district court was following a local rule in taxing the mediator's fee against defendants, we conclude that the court lacked authority to do so given section 1920's exhaustive list of what costs may be assessed. Cf. Tiedel v. Northwestern Mich. Coll., 865 F.2d 88, 92-94 (6th Cir. 1988) (district court is not empowered to enact local rule giving itself authority to award attorney's fees to prevailing party as part of pretrial mediation scheme; absent express Congressional action to contrary, § 1920 is uniform standard Congress intends federal courts to follow in assessing costs). Third, while Rule 54(d) gives the district court discretion not to award costs to the prevailing party, see Crawford, 482 U.S. at 441-42 (Rule 54(d) grants district courts discretion to decline to tax costs), it gives the court no explicit authority to tax costs against the prevailing party, cf. Greaser v. Missouri, 145 F.3d 979, 985 (8th Cir.) (Rule 54 codified presumption that prevailing party is entitled to costs), cert. denied, 525 U.S. 1056 (1998).

[15] Accordingly, we reverse and remand to the district court with directions that the court consider ordering the mediator's fee to be paid out of the court's attorney admission fee fund. See E.D. Mo. Local R. 12.03.