United States Court of Appeals
For the First Circuit
No. 08-1290
MELISSA J. POIRIER,
Plaintiff, Appellant,
v.
MASSACHUSETTS DEPARTMENT OF CORRECTION AND
KATHLEEN M. DENNEHY,
INDIVIDUALLY AND IN HER CAPACITY AS COMMISSIONER OF THE
MASSACHUSETTS DEPARTMENT OF CORRECTION,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Boudin, Selya and Stahl, Circuit Judges.
Lori A. Jodoin with whom Harvey A. Schwartz and Rodgers,
Powers & Schwartz, LLP, were on brief for appellant.
Sarah M. Joss, Assistant Attorney General, with whom Martha
Coakley, Attorney General, was on brief for appellee.
February 27, 2009
STAHL, Circuit Judge. Plaintiff-Appellant Melissa
Poirier brought a civil rights claim under 42 U.S.C. § 1983 against
the Massachusetts Department of Corrections (DOC) and Kathleen
Dennehy, its Commissioner.1 Poirier, a former DOC prison guard,
claimed that her constitutional right to intimate association was
violated when she was fired for conducting a romantic relationship
with a former inmate, in violation of department rules. The
district court dismissed the action for failure to state a claim
under Rule 12(b)(6), concluding that the DOC's actions survived
rational basis review. Poirier appeals the dismissal, arguing that
her romantic relationship constitutes a fundamental liberty
interest that should receive strict scrutiny protection. After
careful review, we affirm.
We review de novo a dismissal by the district court for
failure to state a claim, drawing all reasonable inferences in
favor of Poirier, the non-moving party. See Redondo-Borges v. U.S.
Dept. of Housing & Urban Dev., 421 F.3d 1, 5 (1st Cir. 2005).
Melissa Poirier was employed for fifteen years as a
correction officer with the Massachusetts Department of Correction.
She received positive performance evaluations over the course of
her career.
1
We take judicial notice that Dennehy is no longer the
Commissioner of the DOC.
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Rule 8(c) of the "Rules and Regulations Governing All
Employees of the Massachusetts Department of Corrections" states
that:
You must not associate with, accompany, correspond or
consort with any inmate or former inmate except for a
chance meeting without specific approval of your
Superintendent, DOC Department Head or Commission of
Correction. Your relations with inmates, their relatives
or friends shall be such that you would willingly have
them known to employees authorized to make inquiries.
Conversations with inmates' visitors shall be limited
only to that which is necessary to fulfill your official
duties.
In 2000 and 2001, the DOC investigated allegations that Poirier (1)
maintained an inappropriate relationship with a current inmate; (2)
delivered contraband to an inmate; and (3) communicated with a
relative of an inmate. After conducting an investigation and
hearing, the DOC found no evidence to support the first two
charges, but sustained the third charge.2
In April 2004, Poirier notified her superiors that she
would be in social contact with a former inmate, Dennis Novicki,
who, according to the record, had been a figure in the prior
investigation.3 The DOC did not tell her to cease the association.
Poirier and Novicki then "developed a deep attachment and
commitment" to each other, and in July 2004, Poirier requested
2
As to the third charge, the DOC did not impose a sanction for
this violation and allowed Poirier to maintain the friendship.
3
The record is unclear as to what precise role Novicki played
in the prior investigation.
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permission from Commissioner Dennehy for Novicki to move in with
her. In response, the DOC reopened the prior investigation and
placed Poirier on leave pending review. On September 23, 2004,
Dennehy denied Poirier's request for Novicki to reside with her,
but did not order her to cease personal contact with the former
inmate. On August 11, 2005, the DOC terminated Poirier's
employment for having unauthorized contact with Novicki.
The district court granted the defendants' motion to
dismiss, holding that (1) the DOC is immune from suit under the
Eleventh Amendment; (2) Dennehy, in her personal capacity, enjoys
qualified immunity as to damages; and (3) enforcement of the DOC
rule by Dennehy did not violate Poirier's constitutional right to
freedom of association because, under rational basis review, the
rule is a rational means of promoting the legitimate government
interest in prison security. Poirier now appeals from those
rulings.
Poirier claims that Dennehy and the DOC violated her
right to substantive due process, specifically the right to
intimate association, which is guaranteed as against the states by
the personal liberty protection of the Fourteenth Amendment. See
Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S.
537, 545 (1987) ("[T]he freedom to enter into and carry on certain
intimate or private relationships is a fundamental element of
liberty protected by the Bill of Rights."); Roberts v. U.S.
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Jaycees, 468 U.S. 609, 617-18 (1984) ("[T]he court has concluded
that choices to enter into and maintain certain intimate human
relationships must be secured against undue intrusion by the State
because of the role of such relationships in safeguarding the
individual freedom that is central to our constitutional scheme.").
The Supreme Court has identified several intimate
associations that constitute fundamental rights and receive strict
scrutiny review, including those that "attend the creation and
sustenance of a family -- marriage, childbirth, the raising and
education of children, and cohabitation with one's relatives."
Roberts, 468 U.S. at 619 (internal citations omitted). Beyond this
list of bright-line fundamental rights, the Court has explained
that human relationships are arrayed on a spectrum "from the most
intimate to the most attenuated of personal attachments." Id. at
620. The Court in Roberts offered two guideposts for identifying
the location of a relationship on this spectrum. First, the Court
noted that relevant factors for consideration include "size,
purpose, policies, selectivity, congeniality, and other
characteristics that in a particular case may be pertinent." Id.
Second, the Court noted that relationships that receive such
constitutional protection are those that involve "personal bonds"
that have "played a critical role in the culture and traditions of
the Nation by cultivating and transmitting shared ideals and
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beliefs; they thereby foster diversity and act as critical buffers
between the individual and the power of the State." Id. at 618-19.
The Roberts analysis, therefore, "unavoidably entails a
careful assessment" by the court of where on the spectrum the
relationship in question falls. Id. at 620. Poirier's claim
encounters its first obstacle here. Poirier has failed to present
this court with a sufficiently precise definition of the type of
relationship that she believes is at stake in this case. Without
such a definition, it is difficult for this court to carry out the
required "careful assessment" of her claim. In both her briefing
and her oral argument, Poirier offered numerous different versions
of the type of relationship she believed was at issue, from "the
right of a woman to love another private citizen" to "a monogamous
committed romantic and domestic relationship" to a relationship of
"deep commitment and future intentions." Poirier, as the
plaintiff, has the responsibility to identify the right she seeks
to vindicate.
That said, even under the most charitable reading of her
ill-defined claim, Poirier faces a second problem. If we assume
that the right she seeks to vindicate is that of cohabitation
between unmarried adults, her claim nonetheless fails. The
threshold question in this case is what level of scrutiny should be
applied to the type of intimate association Poirier seeks to
protect. The unmarried cohabitation of adults does not fall under
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any of the Supreme Court's bright-line categories for fundamental
rights in this area, see Roberts, 468 U.S. at 619, and we decline
to expand upon that list to include the type of relationship
alleged here, particularly in a case where the definition of the
relationship is so imprecise. Therefore, strict scrutiny is not
the appropriate measure of review.
Second, we need not decide whether rational basis review4
or intermediate scrutiny5 is appropriate in this case, because
Poirier's claim would fail under either scenario. This outcome
turns on the fact that we afford significant deference to prison
administrators in regard to prison security measures. See Bull v.
Wolfish, 441 U.S. 520, 548 (1979) ("Prison administrators . . .
should be accorded wide-ranging deference in the adoption and
4
"A law survives rational basis review so long as the law is
rationally related to a legitimate governmental interest." Cook v.
Gates, 528 F.3d 42, 55 (1st Cir. 2008) (citing Nordlinger v. Hahn,
505 U.S. 1, 11-12 (1992)). "Rational basis review does not permit
consideration of the strength of the individual's interest or the
extent of the intrusion on that interest caused by the law; the
focus is entirely on the rationality of the state's reason for
enacting the law." Id. (citing Heller v. Doe, 509 U.S. 312, 324
(1993)).
5
This court's recent decision in Cook v. Gates concluded that
the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558
(2003), requires courts to review claims involving the "liberty
interest for adults to engage in private, consensual sexual
intimacy" under a "balancing of constitutional interests that
defies either the strict scrutiny or rational basis label." Cook,
528 F.3d at 52. Cook explained that the intermediate scrutiny test
in Lawrence weighed "the strength of the state's asserted interest
in prohibiting immoral conduct against the degree of intrusion into
the petitioners' private sexual life caused by the statute." Id.
at 56.
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execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to maintain
institutional security."); United States v. Conley, 531 F.3d 56, 59
(1st Cir. 2008) ("We give great deference to a prison
administrator's determination that prison safety is at risk.").
The prospect of a guard-prisoner or guard-former prisoner
relationship poses a clear and obvious threat to the maintenance of
prison order and security. Contemporary news stories remind us
that prison rules barring fraternization between prison staff and
prisoners are eminently reasonable. See "Prison escape foiled, DA
says," The Boston Globe, November 26, 2008, at 1 ("A nurse was
charged yesterday with trying to help one of the state's most
dangerous inmates escape from the prison at Walpole by smuggling
him saw blades and a handcuff key."). Whether we employ rational
basis review or intermediate scrutiny, the state's interest in
preserving prison security is certainly reasonably advanced by
prohibiting guard-prisoner or guard-former prisoner relationships;
further, the state's interest in prison security outweighs the
degree of intrusion into Poirier's private life imposed by the
anti-fraternization rule. We therefore affirm the district court's
dismissal of Poirier's complaint.
Two other issues require our brief attention. First, we
affirm the district court's dismissal of Poirier's suit against the
DOC on sovereign immunity grounds. States and their agencies are
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entitled to sovereign immunity "regardless of the relief sought."
Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). Poirier's
argument that she only seeks prospective injunctive relief against
the DOC is therefore unavailing.6
Second, we also affirm the district court's dismissal of
Poirier's claim against Commissioner Dennehy for damages under §
1983. Even if we had concluded that Poirier had stated a claim for
violation of her right to intimate association, she would not be
entitled to seek damages against Dennehy in her personal capacity
because such a right was not "clearly established" at the time of
the purported violation. See, e.g., Santana v. Calderon, 342 F.3d
18, 30-31 (1st Cir. 2003).
For the foregoing reasons, we affirm the district court's
decision in all respects.
6
As the district court correctly explained in its opinion,
Poirier has confused the basic concept underlying Ex parte Young,
209 U.S. 123 (1908), and its progeny. A plaintiff may seek
prospective injunctive relief against a state official, but may not
obtain such relief against a state or its agency because of the
sovereign immunity bar of the Eleventh Amendment. See, e.g.,
Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 114 n.1 (1st Cir.
2003) ("Under Ex parte Young the defendant state officers were
proper defendants for prospective injunctive relief, but the
Commonwealth or the Department qua Department were not.") (internal
citation omitted).
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