This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-98-663

Nico Salas,
Appellant,

vs.

Eric Skon, et al.,
Respondents.

Filed September 29, 1998
Affirmed
Norton, Judge*

Washington County District Court
File No. C1966416

Bradford Colbert, Paul Weig, Certified Student Attorney, 875 Summit Ave., Room 371, St. Paul, MN 55105 (for appellant)

Hubert H. Humphrey III, Attorney General, W. Karl Hansen, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101 (for respondents)

Considered and decided by Huspeni, Presiding Judge, Norton, Judge, and Holtan, Judge.**

U N P U B L I S H E D   O P I N I O N

NORTON, Judge

Appellant Nico Salas challenges the district court's order granting respondents' motion for summary judgment. Salas argues that respondents violated his constitutional rights to substantive and procedural due process by prohibiting him from visiting his children while incarcerated at Stillwater Correctional Facility. We affirm.

FACTS

Appellant Nico Salas is the father of five children, including Angelica, Polita, and Julia. In 1992, Salas was incarcerated at Minnesota Correctional Facility - Stillwater (Stillwater) following his conviction for third-degree criminal sexual conduct and felony possession of a firearm. In 1993, Salas was convicted of four counts of first- degree criminal sexual conduct and sentenced to 40 years' imprisonment. In addition, in 1983, Salas was convicted of second-degree sexual conduct. All three of Salas's victims were minors.

At Stillwater, inmates who have been sentenced for offenses arising out of sexual assaults of minors are identified as abuse offenders and assigned visitation restrictions by the visiting classification committee. Since 1989, the visiting classification committee has imposed a nonwritten "no visitation with minors" restriction on any inmate who has more than two sexual assaults or abuse convictions involving minor victims.

In 1992, when Salas was admitted to Stillwater, the visiting classification committee assigned him a standard visiting restriction, which prohibited contact with any of his victims. Salas was transferred twice to other correctional facilities and his visitation restrictions were reviewed each time he was returned to Stillwater. In 1994, the first time Salas was transferred back to Stillwater, the classification committee determined that he should be restricted from visitation with his victims, as well as minors because of his multiple convictions involving sexual abuse of young girls. However, due to a clerical error, Salas's visitation notice incorrectly stated that he was only restricted from visitation with victims. In 1995, the second time Salas was transferred back to Stillwater, the visiting classification committee again determined that he was prohibited from visitation with any victims and minors.

Upon being notified of the new restrictions, Salas sent two inmate memoranda to then warden Dennis Benson complaining about the changes. Lieutenant Owiredu, the chair of the visiting classification committee, sent a memorandum to Salas, which explained that his visitation with minors had been restricted because Stillwater had a policy of not allowing inmates with two or more convictions for sexual assaults involving minors to have visitation with minors. Owiredu's memoranda noted that Salas had victimized three juveniles in an especially brutal and terroristic fashion.

In November 1996, Salas brought a civil rights action under 42 U.S.C. 1983 against respondents Erik Skon, the previous warden of Stillwater; Timothy Lanz, the chair of the visiting classification committee from 1992-1996; and Regina Stepney, the chair of the visiting classification committee following Lanz. Salas's complaint alleged that respondents violated his rights under the First and Fourteenth Amendments to the United States Constitution, as well as his companion rights under article 1, section 3 of the Minnesota Constitution, by prohibiting him from having visitation with three of his minor children. Salas asked the court to declare Stillwater's visitation policy unconstitutional as applied to him, issue an injunction and declaratory judgment, and award compensatory and punitive damages.

Following discovery, respondents moved for summary judgment, and Salas filed and served a cross-motion for summary judgment. The district court granted respondents' motion for summary judgment and dismissed Salas's claims, concluding that Salas had no fundamental constitutional right to visit with his children while in prison and that Stillwater's policies, procedures, and practices were rationally related to legitimate penological purposes.

D E C I S I O N

On appeal from summary judgment, this court must determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). This court must view the evidence in the light most favorable to the nonmoving party. Id. The nonmoving party, however,

cannot rely on the pleadings alone to defeat a summary judgment motion but instead must produce specific facts which establish the existence of a genuine issue for trial.

Krogness v. Best Buy Co., 524 N.W.2d 282, 285 (Minn. App. 1994), review denied (Minn. Jan. 25, 1995).

[S]ummary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.

Lloyd. v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).

I.

Substantive due process prohibits "certain arbitrary, wrongful government actions, 'regardless of the fairness of the procedures used to implement them.'" Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983 (1990) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 664 (1986)). Salas argues that respondents violated his constitutional right to substantive due process by prohibiting him from visiting with his children at Stillwater, where there was no legitimate penological goal justifying the prohibition.

Parents have a substantial and fundamental right to care and companionship with their children. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554 (1978); In re Welfare of H.G.B., 306 N.W.2d 821, 825 (Minn. 1981). However, convicted prisoners have no absolute constitutional right to visitation with family members. Bellamy v. Bradley, 729 F.2d 416, 420 (6th Cir. 1984). Courts have long recognized that "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a reaction justified by the considerations underlying our penal system." Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125, 97 S. Ct. 2532, 2537 (1977) (quoting Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 1060 (1948)) (alteration in original). Specifically, imprisonment deprives inmates of the freedom "to be with family and friends and form the other enduring attachments of normal life." Morrissey v. Brewer, 408 U.S. 471, 482, 92 S. Ct. 2593, 2600 (1972).

A prison regulation that burdens an inmate's constitutional rights is "valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987). The Supreme Court in Turner listed four factors relevant to this determination. Id. at 89-91, 107 S. Ct. at 2262.

First, there must be a "'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it." Second the court must consider "whether there are alternative means of exercising the right that remain open to prison inmates," giving deference to the judgement of correction officials. Third, the court must evaluate how accommodation of the right will impact guards, inmates, and resources at the prison, again giving deference to correction officials. Finally, the court must determine whether "ready alternatives" exist or whether the regulation is instead an "exaggerated response" to prison concerns.

Kristian v. State, 541 N.W.2d 623, 629 (Minn. App. 1996) (citing Turner, 482 U.S. at 89-91, 107 S. Ct. 2262) (citation omitted), review denied (Minn. Mar. 19, 1996). "The deference given to prison officials 'is at its height when the prison regulations at issue involve security and safety concerns.'" Id. (quoting Savko v. Rollings, 749 F. Supp. 1403, 1406 (D. Md. 1990)).

Salas argues that analyzing the four Turner factors, it is clear that respondents did not restrict his visitation with his children based on legitimate penological interests, but rather determined that visitation would not be in the children's best interests. We disagree.

First, there is a valid, rational connection between Stillwater's visitation restriction and a legitimate governmental interest. Stillwater's "no visitation with minors" restriction on any inmate who has more than two sexual assault convictions involving minor victims is designed to ensure the security, safety, and orderly operation of the institution, and the rehabilitation of inmates and ensure that children on family visits are not exposed to physical and sexual abuse. Second, despite the "no visitation with minors" restriction, Salas has alternative means available to maintain a relationship with his children while incarcerated. Salas can communicate with his children by phone and mail, which are alternatives courts have upheld as reasonable alternatives to visitation. See Pell v. Procunier, 417 U.S. 817, 826, 94 S. Ct. 2800, 2806 (1974) ("So long as reasonable and effective means of communication remain open and no discrimination in terms of content is involved, we believe that in drawing such lines [to limit face-to-face visitation], prison officials must be accorded latitude."). Moreover, Salas was also given the opportunity to arrange for possible supervised visitation with his children, but never took the steps necessary to do so. Third, allowing Salas to have contact visitation with his children would place a significant additional burden on Stillwater's staff and financial resources because other similarly situated inmates would undoubtedly demand similar treatment. See Turner, 482 U.S. at 90, 107 S. Ct. at 2262 ("When accommodation of an asserted right will have a significant 'ripple effect' on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials."). Fourth, there is no evidence of the existence of any "ready alternatives" to Stillwater's "no visitation with minors" restriction that would fully accommodate Salas's rights at a de minimis cost to valid penological interests. There is nothing in the record to demonstrate that there is an economically feasible alternative available to Stillwater's present visitation restrictions that have been placed on Salas. Therefore, we conclude that the district court correctly dismissed Salas' substantive due process claims on summary judgment because he failed to met his burden of demonstrating the existence of genuine issues of material fact regarding whether his visitation restrictions lacked a legitimate penological objective. See Krogness, 524 N.W.2d at 285 (nonmoving party cannot rely on pleading alone to defeat a summary judgment motion, but must produce specific facts which establish the existence of a genuine issue for trial).

II.

Salas also asserts that respondents violated his right to procedural due process by denying him visitation with his minor children. Salas argues that he has a protected liberty interest in visitation with his children that arises form the Due Process Clause of the United States Constitution, as well as Minnesota state law. We disagree.

The Fourteenth Amendment prohibits a state from depriving any person of "life, liberty, or property, without due process of law" and protects "the individual against arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539, 556, 558, 94 S. Ct. 2963, 2974, 2976 (1974). Our procedural due process analysis involves two inquiries:

the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second asks whether the procedures attendant upon that deprivation were constitutionally sufficient.

Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 1908 (1989) (citations omitted). Protected liberty interests "'may arise from two sources - the Due Process Clause itself and the laws of the States.'" Id. (quoting Hewitt v. Helms, 459 U.S. 460, 466, 103 S. Ct. 864, 868 (1983)).

"[A]s long as the condition or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight."

Id. at 460-61, 109 S. Ct. 1908-09 (quoting Montanye v. Haymes, 427 U.S. 236, 242, 96 S. Ct. 2543, 2547 (1976)).

Here, Salas was denied visitation with minor children based upon legitimate penological interests. Moreover, the "denial of prison access to a particular visitor 'is well within the terms of confinement ordinarily contemplated by a prison sentence'" and "not independently protected by the Due Process Clause." Id., 109 S. Ct. at 1909 (quoting Hewitt, 459 U.S. at 468, 103 S. Ct. at 869). Therefore, we conclude that the United States Constitution itself does not provide Salas with a due process liberty interest.

States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of it own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Sandin v. Conner, 515 U.S. 472, 483-84, 115 S. Ct. 2293, 2300 (1995) (citations omitted). Here, we believe that restrictions Stillwater placed on Salas's visitation are a necessary consequence of incarceration and the denial of visitation with his minor children does not create the type of atypical, significant deprivation in which a state might create a liberty interest. See Kentucky Dep't of Corrections, 490 U.S. at 461, 109 S. Ct. at 1909 ("denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence"). Therefore, we conclude that Salas does not have a state-created due process liberty interest in visitation.

Because Salas does not have a due process liberty interest in visitation with his minor children, we affirm the district court's granting of summary judgment on Salas' procedural due process claim. See Lloyd, 523 N.W.2d at 3 (summary judgment mandatory against party who fails to establish an essential element of claim).

Affirmed.

* Retired Judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.

** Retired Judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.