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
We take judicial notice that Dennehy is no longer the 1

Commissioner of the DOC. 

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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. Poirier, a former DOC prison guard, 1

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. 
As to the third charge, the DOC did not impose a sanction for 2

this violation and allowed Poirier to maintain the friendship.

The record is unclear as to what precise role Novicki played 3

in the prior investigation.

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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. The DOC did not tell her to cease the association. 3

Poirier and Novicki then "developed a deep attachment and

commitment" to each other, and in July 2004, Poirier requested
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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
"A law survives rational basis review so long as the law is 4

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)).

This court's recent decision in Cook v. Gates concluded that 5

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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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 scrutiny is appropriate in this case, because 5

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
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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
As the district court correctly explained in its opinion, 6

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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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.