# U nit edSta tes C ou rt o f A pp eal s For t h e Firs t C ircu it

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 a n dR odgers, Powers & Schwartz, LLP, were on brief for appellant. Sarah M. Joss, Assistant Attorney Gene r a l , with whom Martha Coakley, Attorney General, was on brief for appellee.

February 27, 2009We t a k e j u d i c i a l n o t i c e t h a t D e n n e h y i s n o l o n g e r the 1 Commissioner of the DOC. -2-

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) a n dKathleen Dennehy, its Comm i s sioner. 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 ove r t he 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. -3-

Rule 8(c) of the "Rules and Regulations Governing All Employees of the Massac h u s etts Department of Corrections" states that:
You must not as sociate with, accompany, correspond or

consort with any inmate or former i nmate 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 w o u l dwillingly 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

. A f ter conducting an investigation and hearing, the DOC found no evidence to support the first two charges, but sustained the third charge. 2

In April 2 0 0 4 , Poirier notified her superiors that she would be in social contact with a former inmate, Dennis Novicki, who, accordi n g 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-4-

p e r m i s sion 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,
Den n e h y denied Poirier's request for Novicki to reside with her, but di dn o t o r d e r h e r t o c e a s e p e r s o n a l c o n t a c t w i t h t h e former inmate. On Au g u st 11, 2005, the DOC terminated Poirier's employment for having unauthorized contact with Novicki.

The district court gran t e d the defendants' motion to dismiss, holding that (1) the DO C i s i mm u ne 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 o f a ssociation because, under rational basis review, the rule is a rational means of pro m o ting the legitimate government interest in priso n security. Poirier now appeals from those rulings. Poirier claims that Denne h y 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.-5-

J a y c e e s, 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 rela t i o n s hips 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 c r e a tion and sustenance of a family -- marria g e , childbirth, the raising and education of children, and cohabitation with o n e ' 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 facto r s f o r consideration include "size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent." Id. Second, t h e 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 i d eals and-6-

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 iss u e , 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 Poiri e r seeks to protect. The unmarried cohabitation of adults does not fall under"A law survives rational basis re v iew 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 cau s e d b y t h e 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 inter e sts 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. -7- 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 imprec i s e . Therefore, strict scrutiny is not the appropriate measure of review.

Second, we need not decide whether rational basis review 4 or intermediate scrutiny is appropriate in this ca s e , because 5 Poirier's claim would fail under e ither 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-8-

execution of policies and practices that in their judgment are needed to preserve inte r n a l 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 ris k."). The prospect o f a guard-prisoner or guard-former prisoner relationship poses a clear and obvious threat to the maintenance of prison o r der 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 B o s ton Globe, November 26, 2008, at 1 ("A nurse was charged yesterday with trying to help one of the state's most dangerous i n m a tes escape from the prison at Walpole by smuggling him saw blades and a handcuff key."). Whether we employ rational basi s r e v i e w o r i n t e r m e d i a t e s c r u t i n y , t h e s t a t e ' s i n t e r e s t in preserving prison security i s c ertainly reasonably advanced by prohibiting guard-prisoner or guard-former prisoner relationships; further, the state's i n t erest 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 areAs 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 i t s p r ogeny. A plaintiff may seek prospective injunctive relief against a state official, but may not obt a i n s u c h r e l i e f a g a i n s t a s t a t e o r i t s a g e n c y b e c a u se of the sovereign immunity bar of the Elevent h Am e ndment. 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 i n j u nctive relief, but the Commonwealth or the Department qua Department were not.") (internal citation omitted). -9- 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 fo r d amages 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.