United States District Court, M.D. Pennsylvania
July 27, 2004.
ADAM ODENWALT, KRISTOPHER ODENWALT and JENNIFER ODENWALT, Plaintiffs
FRANK D. GILLIS, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Defendants.
The opinion of the court was delivered by: MALACHY MANNION, Magistrate Judge
Pending before the court are the defendants' motion to dismiss
the plaintiff's complaint, (Doc. No. 18), and two (2) motions for
injunctive relief filed by the plaintiff, (Doc. Nos. 2 & 14).
The plaintiff, Adam Odenwalt, filed the instant action pursuant
to 42 U.S.C. § 1983 on behalf of himself and his two (2) minor
children. The plaintiff alleges that the defendants have violated
his Eighth and Fourteenth Amendment rights in denying him contact
visits with his minor children. The defendants have moved to
dismiss the plaintiff's complaint pursuant to Fed.R.Civ.P.
The complaint alleges that the plaintiff was committed to the
State Correctional Institution, Camp Hill, ("SCI-Camp Hill"),
Pennsylvania, on January 10, 2002, after having been convicted on charges of
involuntary deviate sexual intercourse*fn1 and sentenced to
five (5) to ten (10) years of incarceration. The plaintiff notes
that he has not been classified as a sexually violent predator
under "Megan's Law."*fn2
The plaintiff alleges that from January 10, 2002, through March
24, 2002, he was allowed three (3) contact visits with his minor
children at SCI-Camp Hill. Subsequently, however, on March 25,
2002, his contact visits were terminated due to Department of
Corrections Policy DC-ADM 812-2, which states, in pertinent part,
"Any inmate who, as an adult or as a young adult offender, was
ever convicted or adjudicated for physical or sexual offense
against a minor is prohibited from having a physical contact
visit with any minor child . . ." As a result, from April 2,
2002, through May 2, 2002, the plaintiff alleges that he was
forced to have non-contact visits with his children. On May 3, 2002, the plaintiff was transferred to SCI-Coal
Township, where he remained until November 30, 2002. During that
time, the plaintiff alleges that he was allowed to have four (4)
contact visits with his children. After this time, the plaintiff
alleges that his contact visits were terminated and he was again
only permitted non-contact visits with his children.
According to the plaintiff, he has enrolled in and completed
Phase I of the Sex Offender Program, as well as the Parenting
Skills Program. Subsequent to the completion of these programs,
the plaintiff alleges that various individuals, including a
family therapist and a Department of Corrections Psychiatrist,
recommended that he be allowed contact visits with his children.
(Doc. No. 1, Ex. A). Despite these recommendations, the plaintiff
alleges that defendant Gillis continued to deny him contact
After unsuccessfully grieving the issue, the plaintiff alleges
that he hired an attorney to assist him in securing contact
visits with his children. On July 28, 2003, a hearing was held in
the Court of Common Pleas of York County, Pennsylvania, after
which an order was entered granting him contact visits with his
children "as they may be arranged."*fn3 (Doc. No. 1, Ex. B).
Despite the court's order, as of September 5, 2003, the plaintiff alleges
that the defendants continue to deny him contact visits with his
children. As a result, on October 27, 2003, the plaintiff filed
the instant action in which he alleges violations of his Eighth
and Fourteenth Amendment rights.
II. Motion to Dismiss Standard
Defendants' motion to dismiss is brought pursuant to provisions
of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of
a complaint, in whole or in part, if the parties fail to state a
claim upon which relief can granted. Dismissal should only occur
where it appears that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief. Conley
v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, dismissal is
appropriate "only if, after accepting as true all of the facts
alleged in the complaint, and drawing all reasonable inferences
in the plaintiff's favor, no relief could be granted under any
set of facts consistent with the allegations of the complaint." Trump Hotel and Casino Resorts, Inc. v.
Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir. 1998) (citing
ALA, Inc. v. CCair, Inc., 29 F.3d 855, 859 (3d Cir. 1994)).
In deciding a motion to dismiss, a court should generally
consider only the allegations contained in the complaint, the
exhibits attached to the complaint, matters of public record, and
"undisputably authentic" documents which plaintiff has identified
as the basis of his claim. See Pension Benefit Guarantee Corp.
v. White Consolidated Industries, Inc., 998 F.2d 1192, 1196 (3d
Cir. 1993). It must also be remembered that when considering a
motion to dismiss under Rule 12(b)(6), the important inquiry is
not whether the plaintiff will ultimately prevail on the merits
of his claim, but only whether he is entitled to offer evidence
in support of them. Scheuer v. Rhodes, 416 U.S. 233, 236
As a preliminary matter, the plaintiff has named as a defendant
the Pennsylvania Department of Corrections. To this extent,
federal courts can not consider suits by private parties against
states and their agencies unless the state has consented to the
filing of such a suit. Atascadero State Hospital v. Scanlon,
473 U.S. 234, 241 (1985); Edelman v. Jordan, 415 U.S. 651, 662
(1974). This immunity extends to suits asserting civil rights
violations where the state is named as a defendant. Laskaris v.
Thornburgh, 661 F.2d 23, 26 (3d Cir. 1981). "Under the Eleventh Amendment, a plaintiff other
than the United States or a state may not sue a state in federal
court without the latter state's consent unless Congress
abrogates the state's Eleventh Amendment immunity pursuant to a
constitutional provision granting Congress that power."
Chittister v. Dep't. of Community & Economic Dev.,
226 F.3d 223, 226 (3d Cir. 2000). The Commonwealth of Pennsylvania has not
waived its rights under the Eleventh Amendment. "By statute
Pennsylvania has specifically withheld consent [to be sued]."
Laskaris, 661 F.2d at 25 (citing Pa. Cons.Stat. Ann. §§
8521(b)). Additionally, § 1983 does not abrogate the Eleventh
Amendment. Quern v. Jordan, 440 U.S. 332, 345 (1979). Further,
an essential element of any claim under § 1983 is that the
alleged wrongdoing was committed by a "person." 42 U.S.C. § 1983.
"[N]either a State nor its officials acting in their official
capacities are `persons' under § 1983." Will v. Michigan Dep't.
of State Police, 491 U.S. 58, 71 (1989). Therefore, the instant
action will be dismissed with respect to the Pennsylvania
Department of Corrections.
With respect to the merits of the claims against defendant
Gillis, at the outset, the court notes that the interests
asserted by the plaintiff in the instant action are important
ones. The United States Supreme Court has held that "parents have
a liberty interest, protected by the Constitution, in having a
reasonable opportunity to develop close relations with their
children." Hodgson v. Minnesota, 497 U.S. 417, 483 (1990). Nevertheless, it has long been held that while "[p]rison walls
do not form a barrier separating prison inmates from the
protections of the Constitution," prison restrictions that
implicate prisoners' constitutional rights may be upheld if they
are "reasonably related to legitimate penological interests."
Turner v. Safley, 482 U.S. 78, 84, 89 (1987). Noting that
`courts are ill equipped to deal with the increasingly urgent
problems of prison administration and reform,' the Supreme Court
has counseled judicial restraint in the federal courts' review of
prison policy and administration. Id. at 84.
This deferential standard applies regardless of the fact that
the rights of non-inmates may also be implicated. Otherwise, to
apply a heightened level of scrutiny to cases involving prison
regulations affecting the rights of both prisoners and
non-prisoners would unreasonably constrain the corrections
system. See Thornburgh v. Abbott, 490 U.S. 401, 410 n. 9
(1989). See also Brewer v. Wilkinson, 3 F.3d 816, 823 n. 9
(5th Cir. 1993) ("the Thornburgh Court stressed . . . that
even though prison regulations or practices might burden the
fundamental rights of `outsiders,' the proper inquiry was whether
the regulation or practice in question was reasonably related to
legitimate penological objectives").
Recently, the Supreme Court addressed the issue of whether
restrictions on inmates' visitation privileges violated their
constitutional rights. Overton v. Bazzetta, 539 U.S. 126 (2003).*fn4 In
Overton, a class of state prisoners and their prospective
visitors brought a civil rights action pursuant to § 1983
challenging prison regulations that: (1) excluded from family
members with whom inmates were entitled to non-contact visits,
any minor nieces and nephews and children as to whom parental
rights had been terminated; (2) required all children visiting an
inmate to be accompanied by a family member or legal guardian;
(3) prohibited inmates from visiting with former inmates; and (4)
subjected inmates with two substance abuse violations to a ban of
at least two years on all future visitation, other than visits
from attorneys and members of the clergy.
In holding that the prison regulations did not infringe upon
the inmates' First Amendment constitutional rights, the Court
noted that "[a]n inmate does not retain rights inconsistent with
proper incarceration," and that "freedom of association is among
the rights least compatible with incarceration." Id. In
determining that the regulations survived constitutional
challenge, the court considered four (4) factors: "whether the
regulation has a `valid, rational connection' to a legitimate
governmental interest; whether alternative means are open to
inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and
prison resources; and whether there are `ready alternatives' to
the regulation.' Id. (quoting Turner, 482 U.S. at 89-91).
The Court further analyzed the regulations under the Eighth
Amendment and found that although the "restriction undoubtedly
makes the prisoner's confinement more difficult to bear," it
"[was] not a dramatic departure from accepted standards for
conditions of confinement"; it did not "create inhumane prison
conditions, deprive inmates of basic necessities or fail to
protect their health or safety"; and did not "involve the
infliction of pain or injury, or deliberate indifference to the
risk that it might occur." Id. Therefore, the Court found no
violation of the inmates' Eighth Amendment rights.
In Wirsching v. Colorado, infra, a convicted sex offender
filed a § 1983 civil rights action challenging a prison
regulation which denied him all visitation rights with his minor
daughter.*fn5 In that case, the United States Court of Appeals for the Tenth Circuit held that the regulation was not
violative of the plaintiff's First, Fourteenth or Eighth
Amendment rights. In so holding, the court addressed each of the
factors set forth in Turner and discussed in Overton.
Initially, with respect to the first Turner inquiry, the
court found that a rational connection existed between the prison
regulation and the legitimate governmental interest advanced by
prison officials for the regulation, in that the regulation was
implemented for the protection of the children themselves and to
further the rehabilitation of convicted sex offenders. Although
the plaintiff argued that the record contained no evidence that
he had ever harmed his daughter and cited to decisions acknowledging the
rehabilitation effect of prisoners' visits with family
members,*fn6 the court found that the plaintiff's arguments
ignored the substantial deference due "to the professional
judgment of prison administrators, who bear significant
responsibility for defining the legitimate goals of a corrections
system and for determining the most appropriate means to
accomplish them." Wirsching, 360 F.3d at 1200 (citing
Overton, 539 U.S. at 132). The court further recognized that
"the burden . . . is not on the State to prove the validity of
prison regulations but on the prisoner to disprove it." Id.
As to the second Turner inquiry, the court found that the
reasonableness of the regulation was supported by the fact prison
officials allowed the plaintiff to contact his children by letter
and telephone. In doing so, the court found that alternatives
"need not be ideal . . . they need only be available." Id.
(citing Overton, 539 U.S. at 135).
With respect to the third and fourth Turner inquiries, (i.e.,
the effect within the prison of accommodating the asserted right
and the availability of alternatives that would accommodate the
prisoner), the court gave "little weight" to the plaintiff's
arguments, again citing to the deference afforded to prison
officials. Id. at 1201 (citing Overton, 539 U.S. at 135).
In addressing the plaintiff's arguments, the court noted that
"we do not discount the importance of [the
plaintiff's] relationship with his children. Even inside the
prison walls, that relationship is generally
deserving of some form of protection. The complete
ban upon Mr. Wirsching's visits with his children is
indeed a harsh restriction, significantly more severe
than the ban on family visits upheld in Overton.
Prison officials should be careful to ensure that
restrictions upon visitation with a prisoner's
children are justified by the circumstances, and they
should seriously consider less draconian restrictions
such as closely monitored, noncontact visitation.
* * *
Nevertheless, we are aware that the treatment of sex
offenders, like many other aspects of prison
administration, presents substantial difficulties. On
this record we conclude that . . . the defendants did
not violate Mr. Wirsching's First and Fourteenth
Applying the analyses of the Turner factors in Overton and
Wirsching to the case at hand, the court holds that the prison
regulation in the instant case, which only places restrictions on
the plaintiff's contact visitations with his children, is not
violative of either the Eighth or Fourteenth Amendments.
Initially, as set forth above, there are clearly legitimate
penological interests in disallowing sex offenders from having
contact with minors, whether it be their own children or
otherwise. See Overton, 539 U.S. at 133 ("[p]rotecting
children from harm is also a legitimate goal."). Although the
plaintiff alleges that he had full custody of his children before
his incarceration and that they were never removed after his
arrest because he did not pose any harm to them, this again does not take into account the
substantial deference due "to the professional judgment of prison
administrators, who bear significant responsibility for defining
the legitimate goals of a corrections system and for determining
the most appropriate means to accomplish them." Wirsching, 360
F.3d at 1200 (citations omitted).
Moreover, considering the second Turner factor, the plaintiff
does not allege that he has been denied all visitation with his
children, but only that he has been denied contact visitation.
Although it may not be the type of visitation he chooses, the
plaintiff has been granted visitation with his children
nonetheless. This non-contact visitation is a reasonable
alternative to contact visitation in light of the circumstances
surrounding the regulation.
The third Turner factor also weighs in favor of the
defendants, as the plaintiff has failed to allege how
accommodating his request would not impair the ability of prison
officials to protect children within the confines of the
institution. Thus, particular deference must be given to the
prison administrators' regulatory judgment. See Overton, 539
U.S. at 135.
Finally, the plaintiff has failed to set forth any "ready
alternative" which would further his interest without imposing
more than de minimus cost to the penological goal asserted.
Considering the above, as well as the analysis of the Eight
Amendment claim set forth by the Court in Overton, the
plaintiff in the instant action has failed to set forth a
constitutional claim upon which relief may be granted. As such, the court will grant the defendants' motion to dismiss.
As a final matter, the plaintiff has pending before the court
two (2) motions for injunctive relief. (Doc. Nos. 2 & 14).
In considering motions for injunctive relief, the court must
evaluate: (1) whether the movant has shown probability of success
on the merits; (2) whether the movant will be irreparably harmed
by denial of the relief; (3) whether granting preliminary relief
will result in even greater harm to the nonmoving party; and (4)
whether granting the preliminary relief will be in the public
interest. Brian B. v. Commonwealth, 230 F.3d 582 (3d Cir.
Based upon the court's discussion above in relation to the
defendants' motion to dismiss the plaintiff's complaint, the
plaintiff has failed to show a probability of success on the
merits of his claim. Therefore, he is not entitled to injunctive
relief, and his motions will be denied.
Based upon the foregoing, the defendants' motion to dismiss the
plaintiff's complaint, (Doc. No. 18), will be granted, and the
plaintiff's motions for injunctive relief, (Doc. Nos. 2 & 14),
will be denied. An appropriate order will follow. ORDER
In accordance with the court's memorandum issued this same day,
IT IS HEREBY ORDERED THAT:
(1) the defendants' motion to dismiss the plaintiff's
complaint, (Doc. No. 18), is GRANTED; and
(2) the plaintiff's motions for injunctive relief, (Doc.
Nos. 2 & 14), are DENIED.