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September 16, 1992

JOSEPH D. LEHMAN, Commissioner, Pennsylvania Department of Correction and DONALD T. VAUGHN, Superintendent, State Correctional Institution-Graterford

The opinion of the court was delivered by: BY THE COURT; JAY C. WALDMAN



 September 16, 1992


 Defendant Donald T. Vaughn is the Superintendent of the State Correctional Institution at Graterford ("Graterford") and defendant Joseph D. Lehman is the Commissioner of the Pennsylvania Department of Corrections. Plaintiff Roger Peter Buehl is a death-sentenced prisoner at Graterford. He and co-plaintiff Deborah J. Ayres wish to marry. Because Ms. Ayres has been prohibited from visiting Graterford since 1985 when she attempted to smuggle in marijuana, defendants have refused plaintiffs' requests for permission to be married. Plaintiffs assert a variety of constitutional claims, seeking declaratory and injunctive relief and $ 750,000 in damages. Presently before the court is defendants' Motion for Summary Judgment.


 In considering a motion for summary judgment, the court must consider whether the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Arnold Pontiac-GMC, Inc. v. General Motors Corporation, 786 F.2d 564, 568 (3d Cir. 1986); Only facts that may affect the outcome of a case under applicable law are "material." Anderson, 477 U.S. at 248.

 All reasonable inferences from the record must be drawn in favor of the non-movant. Anderson, 477 U.S. at 255. Although the movant has the initial burden of demonstrating an absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. J.F. Feeser, Inc. v. Serv-A-Portion, 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).


 The pertinent facts of record are uncontroverted and are as follow. *fn1" Buehl is a death row inmate who was convicted in 1983. *fn2" He is classified as a maximum management inmate and is housed in a Restricting Housing Unit ("RHU"). See Defs.' Exh. 2 (Vaughn Decl.), P 4. Inmates in a RHU are only allowed non-contact visits in the RHU visiting room. Id.

 On October 22, 1985, Ms. Ayres was visiting Nicholas Yarris, another Graterford death row inmate. *fn3" During processing, a search revealed that she had three balloons containing marijuana in her pocket which she was transporting for Yarris at his instruction. Defs.' Exh. 2A. Ms. Ayres was arrested for this incident and her visiting privileges were revoked about one week later. Vaughn Aff., P 8. She is the only visitor to Graterford to have attempted to smuggle contraband for a death row inmate in a non-contact visiting room. Id., P 19.

 In January 1989, plaintiff Buehl sought permission to include a "D. Jean Ayres Davis," whom he characterized as a "friend," on his list of authorized visitors. *fn4" Several months later, Ms. Ayres wrote to Superintendent Vaughn and requested reinstatement to visitor status at Graterford and requested placement on Buehl's visitor list. Citing the 1985 incident, Mr. Vaughn denied that request by letter of September 14, 1989. See Defs.' Exh. 2C.

 On March 18, 1990, plaintiff Buehl submitted a request for a one time special visit by plaintiff Ayres at Easter. See Defs.' Exh. 2D. Mr. Buehl's prison counselor denied that request but suggested that Buehl write Superintendent Vaughn and ask for one visit. Id.

 In October 1990, Mr. Buehl asked Superintendent Vaughn if Ms. Ayres could enter Graterford so that plaintiffs could be married. Vaughn Aff., P 11. Mr. Vaughn denied the request by memorandum of October 16, 1990. See Defs.' Exh. 2E. After acknowledging that the purpose of the requested visit was to permit plaintiffs to marry, he stated:

Based on the seriousness of the incident that caused Ms. Ayres to be barred from this institution, I do not consider her the appropriate kind of individual to be allowed to visit this facility. Your request is therefore denied.

 Plaintiff Buehl proceeded to file a grievance with the appropriate Graterford authorities. See Defs.' Exh. 2F. He asserted that "I was not involved in Ms. Ayres prior offense, I was not even here at SCI-G [Graterford] when it happened. This incident many years ago is unfairly depriving me of my U.S. constitutional right to get married." Id.

 The grievance officer reviewed the complaint and filed a report denying Mr. Buehl's request. She stated that Ms. Ayres has been prohibited from entering any SCI in Pennsylvania because she was caught trying to bring drugs into a State facility. See Defs.' Exh. 2G. A request by Buehl for an interview was denied by the officer because she could not reverse Superintendent Vaughn's decision. Id.

 Consistent with prison procedures, plaintiff Buehl appealed this decision to Mr. Vaughn. See Defs.' Exh. 2H. Although acknowledging that Vaughn had previously denied the same request, Buehl indicated that the Commissioner had subsequently advised him to pursue the grievance system. Buehl stated:

I realize that Miss Ayres' visiting privilege was suspended, however, that involved an incident many years ago, and with someone else. Unlike visiting, which is a privilege, marriage is a right under the constitution.
I'd like you to please reconsider this. If necessary, both Miss Ayres and myself will submit to any kind of search you feel is required to assure security is not breached. I've talked with Miss Ayres about this and she said she'd agree to x-ray or ...

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