Opinion
No. 92-2179
Submitted February 9, 1993 —
Decided June 16, 1993.
IN MANDAMUS.
In his petition for a writ of mandamus, relator, David A. Manson, alleges that the visiting office of the Chillicothe Correctional Institution ("CCI") and the Ohio Department of Rehabilitation and Correction ("the department") violated his Fourteenth Amendment rights to due process and equal protection by denying his "ladyfriend" the right to visit him because of her past employment with the state of Ohio.
Relator is presently incarcerated at CCI. He alleges that he met Nancy J. Addy in 1986, before she was employed as a correctional officer by the department, and that he entered into a relationship with her in February 1992. Addy resigned from her position as a correctional officer in March 1992 so that, Manson alleges, there would not be a conflict between her job and her relationship with Manson.
By letter dated September 13, 1992, respondent, CCI's visiting supervisor Dillard A. Davidson, notified Addy that her application for visiting Manson had been disapproved because she "is or was an employee, vendor, volunteer, or contract employee" of the department.
On October 29, 1992, Manson filed this mandamus action, naming as respondents Terry L. Morris, the Warden at CCI, Lynn Goff, the administrative assistant at CCI, and Davidson. On December 4, 1992, respondents moved to file their answer instanter. On December 14, 1992, Manson filed a "motion in opposition" to respondents' answer. On January 13, 1993, this court ordered respondents to show cause on or before January 27, 1993, why the writ should not be granted. On January 20, 1993, respondents filed a motion for summary judgment. On February 1, 1993, Manson filed a motion contra respondents' motion for summary judgment.
David A. Manson, pro se. Lee I. Fisher, Attorney General, and Joseph Mancini, Assistant Attorney General, for respondents.
For the following reasons we grant respondents' motion for summary judgment. Accordingly, Manson's request for a writ of mandamus is denied.
Manson argues that CCI's visiting office and the Ohio Department of Rehabilitation and Correction denied him Addy's visitation because she was a former employee of the department and that the denial was unconstitutional.
Three requirements must be met to establish a right to a writ of mandamus: that relator have a clear legal right to the relief prayed for, that respondent have a clear legal duty to perform the acts, and that relator have no plain and adequate remedy in the ordinary course of law. State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 29, 6 OBR 50, 51, 451 N.E.2d 225, 226.
Manson does not meet the first requirement because he does not have a constitutional right to receive certain visitors. As the Sixth Circuit Court of Appeals has stated: "Prison inmates have no absolute constitutional right to visitation." Bellamy v. Bradley (C.A.6, 1984), 729 F.2d 416, 420, certiorari denied (1984), 469 U.S. 845, 105 S.Ct. 156, 83 L.Ed.2d 93.
In Kentucky Dept. of Corr. v. Thompson (1989), 490 U.S. 454, 460-461, 109 S.Ct. 1904, 1908-1909, 104 L.Ed.2d 506, 515, the United States Supreme Court stated:
"Respondents do not argue — nor can it seriously be contended, in light of our prior cases — that an inmate's interest in unfettered visitation is guaranteed directly by the Due Process Clause. * * * The denial of prison access to a particular visitor `is well within the terms of confinement ordinarily contemplated by a prison sentence,' Hewitt v. Helms, 459 U.S. [460] at 468, [ 103 S.Ct. 864, 869, 74 L.Ed.2d 675, 686] and therefore is not independently protected by the Due Process Clause."
In addition, Manson, as an Ohio inmate, does not have a state-protected liberty interest in receiving certain visitors. The Thompson court found that in order for prison regulations to create for an inmate a protected liberty interest in receiving certain visitors, the relevant regulations must contain "`explicitly mandatory language,' i.e., specific directives to the decisionmaker that if the regulations' substantive predicates are present, a particular outcome must follow * * *." Id., 490 U.S. at 463, 109 S.Ct. at 1910, 104 L.Ed.2d at 516. Ohio Adm. Code 5120-9-15, which governs prison visitation in Ohio, is not sufficiently mandatory to create for Manson a protected liberty interest in receiving certain visitors. Addy clearly falls within the rule's excludable visitor category. Ohio Adm. Code 5120-9-15(C) states in part:
"It is recognized that certain visitors should be excluded. A visitor may be excluded when there are reasonable grounds to believe that:
"(1) The visitor's presence in the institution could reasonably pose a threat to the institution's security, or disrupt the orderly operations of the institution[.] * * *"
Because Addy was a former correctional officer of the Ross Correctional Institution located across the street from CCI, she could reasonably be considered a security risk based on her training in security procedures and knowledge of facility operations.
Accordingly, Manson has failed to meet the first and second requirements for a writ of mandamus. He has no clear legal right to the relief prayed for, nor do respondents have a clear duty to perform the acts. Respondents' motion for summary judgment is granted.
Writ denied.
MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK and F.E. SWEENEY, JJ., concur.
PFEIFER, J., dissents.