Opinion
Civ. No. 95-1259(PG)
September 1, 1995.
Gustavo A. Gelpí, Asst. Fed. Public Defender, Old San Juan, PR, for plaintiffs.
María Hortensia Ríos, Asst. U.S. Attorney, Hato Rey, PR, for defendant.
OPINION AND ORDER
This action was brought against the Warden of the Metropolitan Detention Center in Guaynabo ("MDC Guaynabo") by a group of inmates seeking injunctive relief for alleged Civil Rights violations regarding visitation privileges. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). According to the complaint, Warden Franco had recently reduced the number visitation days per week, and the duration of the visits by family members, contrary to U.S. Bureau of Prison's policy. See complaint at ¶¶ 6, 14, 16.
A status conference was held on May 9, 1995, to discuss the issues raised in the complaint. Prior to filing a motion to withdraw as counsel for plaintiffs — 18 U.S.C. § 3006A(a) does not authorize the Office to participate in Civil Rights suits —, the Public Defender's Office met with plaintiffs at MDC Guaynabo, and explained to them that the visitation hours at said institution exceeded the federal minimum standard. Subsequent to the status conference, a motion to dismiss was filed on May 15, 1995, on behalf of the Warden. After examining the applicable regulations, we grant the request to dismiss this suit since the Warden is not only complying, but exceeding, the federal minimum on inmate visitation. Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The Bureau of Prisons "encourages visiting by family, friends and community groups to maintain the morale of the inmate and to develop closer relationships between the inmate and family members or others in the community. The Warden shall develop procedures consistent with this rule to permit inmate visiting. The Warden may restrict inmate visiting when necessary to ensure the security and good order of the institution." 28 C.F.R. § 540.40.
"The Warden shall allow each inmate a minimum of four hours time per month . . . The Warden may establish a guideline for the maximum number of person who may visit an inmate at one time, to prevent overcrowding in the visiting room or unusual difficulty in supervising a visit . . ." 28 C.F.R. § 540.43.
According to the information provided by MDC Guaynabo, the visitation policy at the institution underwent changes effective March 1, 1995, due to the large volume of visitors. Inmates and visitors were notified in a memorandum about the new policy. The number of visitors at one same time for a given inmate is now limited to three — it had previously been five —. The frequency of visits has been reduced to once a week, all units rotating weekly, so that each one has at least one weekend visit per month. Also, the visiting hours are now from 8:00 a.m. to 11:00 a.m., and from 12:00 p.m. to 3:00 p.m. Finally, visiting days are from Thursdays to Mondays.
Pursuant to this new policy, each inmate may have three (3) hours of visits per week, clearly exceeding the federal minimum standard of four (4) hours per month. 28 C.F.R. § 540.43. Thus, plaintiffs' claim that the Warden is not complying with the applicable federal standard is incorrect.
As jurisdictional basis, plaintiffs cite Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Actions may be brought under Bivens for certain constitutional violations by federal employees. See Farmer v. Brennan, ___ U.S. ___, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (prison officials). However, as pointed out in the motion to dismiss, Courts should only decide unavoidable constitutional questions. See Commonwealth of Massachusetts v. Secretary of Health and Human Serices, 873 F.2d 1528, 1530 (1st Cir. 1989); Commonwealth v. Secretary of HHS, 899 F.2d 53, 55 (1st Cir. 1990). When there are suitable alternative grounds, it is the Courts' duty to avoid the constitutional issues alleged by the parties. Benoni v. Boston and Maine Corp., 828 F.2d 52 (1st Cir. 1987).
Although plaintiffs allege that the reduction in visitation days violates their rights under the Eighth Amendment, not only is the Warden complying with the applicable federal standard on visiting, but is currently granting inmates three times the federal minimum standard. Given compliance with the applicable federal regulations, it is unnecessary to address the allegations of constitutional violations.
Regarding the other basis for jurisdiction alleged in the complaint, 42 U.S.C. § 1983 is inapplicable, as it can only be asserted for constitutional violations committed by state officials under color of state law. The Warden of MDC Guaynabo is a federal official. Finally, the decision on whether to certify this suit as a class action is moot, given that plaintiffs have failed to bring to the attention of this Court a claim upon which relief may be granted.
Based on the above, it is hereby ordered that the motion to dismiss filed by defendant the Warden of MDC Guaynabo is GRANTED, and this case be DISMISSED.