# Kentucky Department of Corrections v. Thompson

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## Concurring Opinion

    Kennedy

## Dissenting Opinion

    Marshall
United States Supreme Court
490 U.S. 454
Kentucky Department of Corrections v. Thompson
No. 87-1815 Argued: Jan. 18, 1989. --- Decided: May 15, 1989
Syllabus
Following the District Court's issuance of a consent decree settling a class action brought by Kentucky penal inmates under 42 U.S.C. § 1983, the Commonwealth promulgated "Corrections Policies and Procedures," which, inter alia, contain a nonexhaustive list of prison visitors who "may be excluded," including those who "would constitute a clear and probable danger to the institution's security or interfere with [its] orderly operation." The Kentucky State Reformatory at LaGrange subsequently issued its own "Procedures Memorandum," which, in addition to including language virtually identical to that of the state regulations, sets forth procedures under which a visitor "may" be refused admittance and have his or her visitation privileges suspended by reformatory officials. After the reformatory refused to admit several visitors and denied them future visits without providing them a hearing, the representatives of an inmate class filed a motion with the District Court, claiming, among other things, that the suspensions violated the Due Process Clause of the Fourteenth Amendment. The court agreed and directed that minimal due process procedures be developed. The Court of Appeals affirmed and remanded, concluding, inter alia, that the language of the relevant prison policies created a liberty interest protected by the Due Process Clause.
Held: The Kentucky regulations do not give state inmates a liberty interest in receiving visitors that is entitled to the protections of the Due Process Clause. Pp. 459-465.
(a) In order to create a protected liberty interest in the prison context, state regulations must use "explicitly mandatory language" in connection with the establishment of "specific substantive predicates" to limit official discretion, and thereby require that a particular outcome be reached upon a finding that the relevant criteria have been met. Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675. Pp. 1908-1910.
(b) Although the regulations at issue do provide certain "substantive predicates" to guide prison decisionmakers in determining whether to allow visitation, the regulations lack the requisite relevant mandatory language, since visitors "may," but need not, be excluded whether they fall within or without one of the listed categories of excludable visitors. Thus, the regulations are not worded in such a way that an inmate could reasonably form an objective expectation that a visit would necessarily be allowed absent the occurrence of one of the listed conditions or reasonably expect to enforce the regulations against prison officials should that visit not be allowed. Pp. 463-465.
833 F.2d 614 (CA 6 1987), reversed.
BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. ----. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post, p. ----.
Barbara Willett Jones, for petitioners.
Joseph S. Elder, II, Louisville, Ky., for respondents.
Justice BLACKMUN delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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