UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Robert Towle

v. Civil No. 06-cv-464-JM

Commissioner, New Hampshire

Department of Corrections, et al.

O R D E R

Plaintiff Robert Towle is an inmate at the New Hampshire

State Prison (“NHSP”). Towle seeks an injunction from this Court

directing the NHSP authorities to allow Towle visitation with his

wife. A hearing on Towle’s motion was held before me on March

22, 2007. I directed the parties to file supplemental memoranda

which I have received and reviewed. Upon consideration of the

evidence adduced at the hearing, and the arguments before the

Court, I deny the motion for a preliminary injunction for the

reasons stated herein.

Standard of Review

Preliminary injunctive relief is available to protect the

moving party from irreparable harm, so that he may obtain a

meaningful resolution of the dispute after full adjudication of

the matter. Such a situation arises when some harm from the

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 1 of 27
2

challenged conduct could not be adequately redressed with

traditional legal or equitable remedies following a trial. See

Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 18

(1st Cir. 1996) (finding irreparable harm where legal remedies

are inadequate); see also Acierno v. New Castle County, 40 F.3d

645, 653 (3rd Cir. 1994) (explaining irreparable harm and its

effect on the contours of preliminary injunctive relief). 

Absent irreparable harm, there is no need for a preliminary

injunction.

The need to prevent irreparable harm, however, exists only

to enable the court to render a meaningful disposition on the

underlying dispute. See CMM Cable Rep., Inc. v. Ocean Coast

Props., Inc., 48 F.3d 618, 620-21 (1st Cir. 1995) (explaining the

purpose of enjoining certain conduct as being to “preserve the

‘status quo’ . . . to permit the court more effectively to remedy

discerned wrongs”); see also Becton v. Thomas, 48 F. Supp. 2d

747, 753 (W.D. Tenn. 1999) (“‘The purpose of a preliminary

injunction is always to prevent irreparable injury so as to

preserve the court’s ability to render a meaningful decision on

the merits.’” (quoting Stenberg v. Cheker Oil Co., 573 F.2d 921,

925 (6th Cir. 1978)). The court’s focus, therefore, must always

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 2 of 27
3

be on the underlying merits of the case, and what needs to be

done to ensure that the dispute can be meaningfully resolved.

A preliminary injunction cannot issue unless the moving

party satisfies four factors which establish its need for such

relief. See Esso Standard Oil Co. v. Monroig-Zavas, 445 F.3d 13,

17-18 (1st Cir. 2006) (discussing the requisite showing to obtain

a preliminary injunction); see also Ross-Simons, 102 F.3d at 18-

19 (explaining the burden of proof for a preliminary injunction). 

Those factors are: “(1) the likelihood of success on the merits;

(2) the potential for irreparable harm [to the movant] if the

injunction is denied; (3) the balance of relevant impositions,

i.e., the hardship to the nonmovant if enjoined as contrasted

with the hardship to the movant if no injunction issues; and (4)

the effect (if any) of the court’s ruling on the public

interest.” Esso Standard Oil, 445 F.3d at 18. If the plaintiff

is not able to show a likelihood of success on the merits, the

remaining factors “become matters of idle curiosity,” id.,

insufficient to carry the weight of this extraordinary relief on

their own. See id. (the “sine qua non of the four-part inquiry

is likelihood of success on the merits”). Yet, “the predicted 

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 3 of 27
4

harm and the likelihood of success on the merits must be

juxtaposed and weighed in tandem.” Ross-Simons, 102 F.3d at 19. 

Since Towle must demonstrate his likelihood of success on

the merits, the preliminary issue of whether he has stated a

claim upon which relief may be granted arises. Under this

Court’s local rules, when an incarcerated plaintiff commences an

action, the magistrate judge is directed to conduct a preliminary

review and to prepare a report and recommendation determining

whether the complaint or any portion thereof should be dismissed

because:

(i) the allegation of poverty is untrue, the 

action is frivolous, malicious, or fails to State 

a claim upon which relief may be granted, or seeks 

monetary relief from a defendant who is immune 

from such relief under 28 U.S.C. § 1915A(b); or

(ii) it fails to establish subject matter 

jurisdiction under Fed. R. Civ. P. 12(b)(1).

LR 4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 4 of 27
1In addition to the First Amendment claim, Towle’s initial

complaint challenged the denial of visitation with his wife under

5

correct cause of action, even if it was imperfectly pled.” Ahmed

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998). Additionally, all

plaintiff’s factual assertions and inferences reasonably drawn

therefrom must be accepted as true. See Aulson v. Blanchard, 83

F.3d 1, 3 (1st Cir. 1996) (stating the “failure to state a claim”

standard of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

ensures that pro se pleadings are given fair and meaningful

consideration. See Eveland v. Dir. of C.I.A., 843 F.2d 46, 49

(1st Cir. 1988).

Background

I. Procedural Posture of the Matter Before the Court

The complaint here was preliminarily reviewed on February 5,

2007. I issued an Order directing that the First Amendment right

of association claim raised in Towle’s complaint be served on

defendants Wrenn, Cattell and Crompton. In a Report and

Recommendation issued simultaneously with the February 5 Order, I

recommended that all of the other claims and defendants in

Towle’s complaint be dismissed.1

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 5 of 27
the Eighth Amendment’s prohibition against cruel and unusual

punishment as well as under the First Amendment. I recommended

dismissal of the Eighth Amendment claim as the Supreme Court, in

Overton v. Bazzetta, 539 U.S. 126, 137 (2003) held that temporary

denial of visitation rights was not actionable under the Eighth

Amendment. Towle also alleged a due process claim based on the

fact that someone other than the Commissioner of the New

Hampshire Department of Corrections responded to his appeal of

the visitation decision. Finding no due process right in having

the Commissioner personally answer the correspondence in

question, I recommended dismissal of that claim. My

recommendation became an order of dismissal of the Eighth

Amendment and Due Process claims when Judge Barbadoro was recused

from the case and the matter was reassigned to my docket on March

8, 2007.

2According to the New Hampshire Department of Corrections

website, Towle is serving a 1-2 year sentence for the habitual

offender offense, and will be eligible for parole in June of

2007. Towle stated at the hearing that he was facing a

consecutive sentence on child pornography charges, but it is not

clear whether Towle has been convicted of those charges, and, if

so, what sentence he will serve.

6

II. Facts Regarding the Denial of Visitation

Towle is in custody serving a sentence for operating a motor

vehicle after being certified as a habitual offender.2 Towle is

married to Katie Wilmot, with whom he is raising two young boys,

one of whom is his son, and one of whom is the son of another

prison inmate. Towle claims that he contacted the NHSP Warden,

pursuant to NHSP policy, to request that his wife be allowed to

visit him with the boys during his incarceration. Towle was

permitted to visit with his own son, as long as his son was

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 6 of 27
3Towle also alleged that prison officials initially denied

Wilmot visitation because they did not believe that Wilmot and

Towle were legally married. This misunderstanding seems to have

been resolved as the prison officials have accepted that Wilmot

is Towle’s legal wife.

7

accompanied by a responsible adult. The Warden denied Towle

visitation with his stepson, because his stepson appeared on

another inmate’s visiting list. On August 28, 2006, the Warden

denied Towle’s requests to visit with his wife, indicating that

the basis of her exclusion was Wilmot’s “recent criminal history,

specifically, her “felony conviction that [was] only three years

old.” Wilmot was convicted of felony theft from her former

employer, Wal-Mart, in January of 2007 and sentenced to two years

of probation. The theft conviction is her only criminal record.3

On September 3, 2006, Towle appealed the denial of

visitation with Wilmot to the Commissioner of the New Hampshire

Department of Corrections. On behalf of the Commissioner, Deputy

Commissioner Greg Crompton responded to Towle, stating “[t]he

conviction date does not meet the 5 yr. requirement. Request is

denied.” 

On November 4, Towle again asked the Warden to grant him

visits with his wife, claiming that the NHSP’s Policy and 

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 7 of 27
8

Procedure Directive (“PPD”) 7.09(I)(4) did not contain any

provision that specifically provided for the disallowal of his

wife. His appeal was denied. In the denial of the appeal, the

Warden noted that while PPD 7.09(I)(4) positively excluded two

categories of convicted persons from visitation, it did not

positively indicate that people convicted of other felonies or

who received non-incarcerative sentences would be approved. 

Towle again requested that the denial be reconsidered, to no

avail.

If an inmate is denied visits with a particular visitor

through ordinary channels, an inmate must request a special

visit. Towle alleges that he made a number of special visit

requests, and all but one of them were denied. During that

specially granted visit, which occurred in the fall of 2006,

Towle was able to spend two to two and a half hours with his wife

and son. On one other occasion, Towle was able to see his son

and his brother-in-law at a prison Christmas party. Prior to the

March hearing in this matter, Towle had not seen his wife on any 

other occasion since his June 2006 incarceration, except the one

specially allowed visit.

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 8 of 27
9

Both Towle and Wilmot testified at the hearing that they

communicate by letter and by collect phone call. Wilmot stated

that she can afford approximately six thirty minute phone calls

per month, but that they are expensive and inconvenient, as she

has to prepay the phone company $25 every two weeks so that she

can receive three collect calls lasting approximately 30-40

minutes apiece. Wilmot states that she is unemployed and exists

on government assistance, and that the $465 she has spent on

phone calls since Towle’s incarceration has been a significant

financial hardship for her. Towle and Wilmot both stated that

phone contact was insufficient to meet their emotional needs, and

their need to nurture their marriage during the hardship of

Towle’s incarceration and Wilmot’s resulting isolation. 

Additionally, Towle and Wilmot describe the phone calls as

difficult because of background noise, frequent interruptions and

disconnections, and lack of privacy, as phone calls are monitored

at the prison. 

Towle and Wilmot write to one another, but they find that

letters are insufficient to express everything that a marriage

needs to be sustained. Also, Towle stated that while he tries to 

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 9 of 27
4PPD 7.09 states, in parts relevant to this Order, as

follows:

I. Purpose: To establish a policy and procedure 

for secure, safe, orderly, manageable and pleasant 

inmate and business visitations and to implement 

COR 305.02 and COR 306.04 of the NH Code of 

Administrative Rules, (Attachment 1). Secondly, 

to foster relationships with family and community 

volunteers that will improve the opportunities for 

inmates to successfully reintegrate into the 

community.

. . . 

III. Policy: Visiting is a privilege. It is the 

policy of the Department of Corrections to provide 

time and facilities for inmate visitations in 

order to support and maintain relationships 

between inmates and significant people in their 

10

write to his wife three times a week, he has, of late, been

unable to afford the postage to continue that pace.

Wilmot testified that she independently wrote to the NHSP

Warden seeking permission to visit her husband. The Warden

denied her request due to her criminal history.

Finally, NHSP Major Daniel Shaw testified at the March 22

hearing on Towle’s motion. Shaw is the chief of security at the

NHSP. Shaw testified that in this capacity, one of his

responsibilities is reviewing inmate requests for visitors. Shaw

testified that in reviewing these requests, he utilizes PPD 7.09

to govern his decisions.4 Shaw also testified that while PPD 

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 10 of 27
lives, and to be no more restrictive toward 

visitors than necessary for the security of the 

visitation, the welfare of the inmates and staff 

and to exclude contraband.

. . . 

IV. B. Procedure/Authorized Visitors: DOC Staff 

must approve all visitors. Inmates will be 

authorized an unlimited number of family members 

on their visiting list. Non-family members will 

be limited in accordance with COR 305.02. All 

potential visitors will undergo a criminal history 

check.

. . . 

IV. I. 4. Visiting Lists: Potential visitors with 

criminal records or who are on probation/parole 

will not be granted visiting privileges. A direct 

family member (father, mother, sister, brother, 

child, spouse, aunts, uncles, grandparents, 

sister-in-law or brother-in-law) of an inmate who 

is also on probation/parole may be authorized to 

visit only with the written approval of the Warden 

and the supervising PPO. Potential visitors with 

drug convictions within the last fives years and/

or confinement for any offense within the last 

five years will be excluded. Exception to this 

policy may be made by written appeal to the 

Warden. Any articulable risk to security will 

exclude a visitor.

Furthermore, State administrative regulations also provide for

the exclusion or restriction of visitors to the prison when a

visit by that person would jeopardize security or safety. N.H.

Admin Code Cor 305.02(d)(1). Further, the State regulations

mandate that “[p]ersons convicted or under present indictment for

a misdemeanor or felony in any jurisdiction shall not visit any

resident without first obtaining written permission from the

commissioner of corrections, or his designee . . ..” N.H. Admin

11

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 11 of 27
Code Cor. 305.02(p).

12

7.09 offers guidelines and some criteria for denying visitation,

he understands his role to include a substantial exercise of

discretion in evaluating requests for visitation. He also

testified to the extent of his discretion in evaluating the 

security and other interests of the prison in determining whether

or not a particular individual should be permitted to visit.

Shaw stated that he was not in his current position at the

time that Towle was initially denied visitation with Wilmot and

did not have personal knowledge of how that particular request

was handled. Shaw stated, however, that in general, once an

inmate makes a request for a particular visitor, a criminal check

on that visitor is completed. If a criminal record is located

for a particular individual, that record is forwarded to a

Lieutenant to review for a determination of whether or not the

visitor will be permitted. If the Lieutenant denies the visitor,

an appeal can be made to the Major. Shaw testified that when he

reviews these appeals, he considers a variety of factors in

making the decision whether or not to overturn the Lieutenant’s

denial. Some of these factors are: the nature of the prior

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 12 of 27
13

offense, specifically, whether or not the prior offense involved

violence, deception or illegal drugs, the age of the prior

offense, whether or not the convicted person had been compliant

with the terms of his or her sentence, including whether or not

he or she had violated parole or probation, whether or not the

conviction was for a felony or misdemeanor, involved weapons or

children, whether or not the potential visitor had ever been

involved in an attempted escape, or whether there were any other

circumstances indicating that the potential visitor would create

a security concern relating to violence or contraband.

Although Shaw says that certain guidelines in PPD 7.09

indicate that a five year exclusion is applied to visitations for

certain convicted persons, Shaw claims he does not apply that

rule. Shaw instead relies on an evaluation of all of the factors

he feels are relevant to the security of the institution in

making a particular decision. Shaw stated that although he did

not make the decision to deny visits by Wilmot in this case, if

he had, he would likely have denied her visitation based on the

recency of her conviction, the fact that Wilmot was convicted of

a felony that involved deception, and the fact that the offense 

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 13 of 27
14

involved cooperation with a number of other people to commit the

offense. 

Shaw opined that if the prison were forced to admit visitors

who would be potentially detrimental to prison security without

having the discretion to exclude certain people, there would be

chaos at the prison. The visiting room, Shaw claims, would be a

dangerous place where violence and the passing of contraband

would occur, placing both inmates and visitors at risk.

Here, reviewing the language of PPD 7.09, Shaw testified

that he would not have excluded Wilmot based on a “five year

rule,” to the extent such a rule exists, but that he would

exclude Wilmot based on her criminal record, exercising the

discretion he believes is accorded to the prison administration

under the prison rules. Shaw conceded that if the prison

administration relied on the “five year rule” in PPD 7.09, than

the basis for the exclusion was incorrect. 

III. PPD 7.09

The parties dispute the proper interpretation of PPD

7.09(I)(4), which states:

Potential visitors with criminal records or who 

are on probation/parole will not be granted 

visiting privileges. A direct family member 

(father, mother, sister, brother, child, spouse, 

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 14 of 27
15

aunts, uncles, grandparents, sister-in-law or 

brother-in-law) of an inmate who is also on 

probation/parole may be authorized to visit only 

with the written approval of the Warden and the 

supervising PPO. Potential visitors with drug 

convictions within the last fives years and/or 

confinement for any offense within the last five 

years will be excluded. Exception to this policy 

may be made by written appeal to the Warden. Any 

articulable risk to security will exclude a 

visitor.

The plaintiff argues that the rule should be read to mean

that while potential non-family visitors with criminal records

will be excluded, that direct family members are excepted from

this rule. The plaintiff urges that under his reading of the

rule, direct family members would not be excluded on the basis of

a criminal record unless they are on probation or parole and

don’t have the permission of their probation or parole officer,

and if they have not had a drug conviction or any incarceration

in the last five years. 

Defendants, on the other hand, argue that the rule, while

poorly worded, states a general policy that all potential

visitors, including families, will be excluded if they have a

criminal record. The defendants further argue that the rule

states that no exceptions to the criminal record exclusion will

be granted for those potential visitors who have been convicted

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 15 of 27
16

of a drug offense or who have been incarcerated during the last

five years. Otherwise, an exception to the criminal record

exclusion may be had by appeal to the Warden. In any event, the

prison states that the provision in that paragraph that “[a]ny

articulable risk to security will exclude a visitor,” as well as

the provision granting inmates leave to seek an exception to the

rule by written appeal to the Warden, leaves the ultimate

decision to allow or disallow a potential visitor to the

discretion of the prison administration.

I agree wholeheartedly with the testimony describing this

rule as poorly worded and difficult to understand. Read

according to the defendants’ interpretation, the regulation

contains a wholly redundant exclusion of people convicted of drug

offenses or incarcerated in the last five years. The defendants

argue that this exclusion is merely identifying a subset of

“potential visitors with criminal records” that will not be

granted exceptions. I find that the rule does not actually make

that interpretation clear. On the other hand, the rule cannot be

clearly construed, as plaintiff claims, to mean that the

provisions concerning drug convictions or incarceration within

the last five years necessarily limits exclusion of family

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 16 of 27
5I note that the only person who specifically relied on the

“five year rule” to justify excluding Wilmot from the prison was

Greg Crompton, Deputy Commissioner of the Department of

Corrections, and the individual who responded to Towle’s appeal

17

members to those who fall within the two “five year” categories

of convicted persons. This reading would essentially exempt

direct family members from the visitation requirement that they

not be convicted criminals, unless their convictions were for

drugs or resulted in incarceration during the last five years. 

Applying this logic a bit further, it appears that, read as the

plaintiff urges, the prison would not be allowed to exclude a

prisoner’s family member, under this section of PPD 7.09, for a

sexual assault, a violent assault, a weapon charge, arson, or any

other serious felony, if that felony was not drug-related and did

not result in the serving of a prison sentence. While plaintiff

might argue that other sections of PPD 7.09 permit the exclusion

of such persons as generalized risks to institutional security,

such an argument also necessarily concedes that those other

sections of PPD 7.09 would permit the exclusion of Wilmot in this

instance.

PPD 7.09 is, at best, ambiguous on its face and, if it were

to be relied on as a basis to deny visitation with an inmate’s

family member, it might present a due process problem.5 The

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 17 of 27
on behalf of the Commissioner. It appears that in making an

effort to rubber-stamp the Warden’s denial of Wilmot as a

visitor, Crompton misread either the Warden’s denial, the rule,

or both, and incorrectly applied a rule to Wilmot that, under any

reading of the rule, simply does not apply. Whether the rule is

read to include a “five year” consideration for just family

members or for all potential visitors, it is clear that the five

year consideration, in either case, applies only to drug cases or

cases resulting in incarceration, neither of which apply to

Wilmot. My decision in this matter, however, is not ultimately

affected by Crompton’s misapplication of the rules, and I will

not, therefore, address possible remedies for Crompton’s error.

18

defendants proffered evidence at the hearing that this rule has

been identified by the newly installed NHSP Warden, Richard

Gerry, as one that is in need of rewriting and clarification, and

that the process to revamp this provision of the PPD, therefore,

is underway or will be underway in the near future. Because I

will deny the motion for injunctive relief without reaching the

merits of this particular rule, however, I find that for purposes

of this Order, and particularly in light of its numbered days, I

need not delve further into the correct interpretation of the

rule at this time.

Discussion

In order to obtain the injunctive relief he seeks, Towle

must establish that he is likely to succeed on the merits of his

First Amendment claim. Towle has alleged in this suit that his 

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 18 of 27
19

right of intimate association has been violated by the NHSP’s

denial of visitation with his wife. 

I. First Amendment Claim

While a prisoner loses many of his constitutional rights

upon incarceration, he “retains those First Amendment rights that

are not inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections system.” 

Pell v. Procunier, 417 U.S. 817, 822 (1974). However, the First

Amendment right to free association is “among the rights least

compatible with incarceration” and “[s]ome curtailment of that

freedom must be expected in the prison context.” Overton v.

Bazzetta, 539 U.S. 126, 131 (2003). However, the right to

intimate association is not necessarily entirely eliminated by

incarceration. Id. at 131-32. If prison officials seek to limit

the First Amendment right of association, it may do so if the

limiting regulations bear a rational relationship to legitimate

penological objectives. Id. at 132 (citing Turner v. Safley, 482

U.S. 78, 89 (1987)). This Court must accord prison

administrators significant deference in defining legitimate goals

for the corrections system, and for determining the best means of 

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 19 of 27
20

accomplishing those goals. See Overton, 539 U.S. at 132; Pell,

417 U.S. at 826-27.

A court, in evaluating whether or not a particular prison

regulation is constitutional, considers four factors: (1) whether

the regulation has a “valid, rational connection” to a legitimate

penological objective, (2) “whether any alternative means are

open to inmates to exercise the asserted right,” (3) “what impact

an accommodation of the right would have on guards and inmates

and prison resources,” and (4) “whether there are ready

alternatives to the regulation.” Overton, 539 U.S. at 132

(citing Turner, 482 U.S. at 89-91).

Applying the evidence introduced at the hearing on this

matter to the four Turner factors set out above, I find as

follows. First, the visitation restriction set forth in PPD

7.09, as described by Major Shaw, prohibits visits by people with

criminal records. While the rule is not absolute, as it allows

for the exercise of discretion in granting exceptions or requests

for special visits, the existence of the regulation advances the

legitimate penological goals of allowing prison officials to

determine whether or not the criminal history of a particular

person would create a likelihood of a security risk or a

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 20 of 27
21

disruption to order at the prison. The ability to exclude

potential visitors with criminal records also serves the

additional legitimate purposes of maintaining a safe visiting

room and controlling the flow of contraband into the prison. PPD

7.09, by its own terms, states that the rules restricting

visitors are intended to insure “the security of the visitation,

the welfare of the inmates and staff and to exclude contraband.” 

There is no question that all of these objectives are legitimate

penological interests, and that the regulation bears a rational

relationship to those objectives.

Second, the record demonstrates that Towle does have

alternative means to exercise his right to associate with his

wife. Towle is able to write to his wife when he has postage, as

much as he likes. Further, Towle is able to receive letters from

Wilmot. Towle and Wilmot also testified that they are able to

talk by telephone six times a month for approximately thirty

minutes at a time. While these modes of contact may not meet all

of Towle’s hopes for communication with his wife during his

incarceration, “[a]lternatives to visitation need not be ideal,

however; they need only be available.” Overton, 539 U.S. at 135

(finding brief and expensive phone calls are sufficient

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 21 of 27
22

substitutes to protect an inmate’s First Amendment right to

visitation). 

Regarding the third Turner factor, accommodating inmates’

right to associate with family members by removing discretionary

exclusion of family members with criminal records would cause

“chaos” unless changes were also made to the allocation of prison

resources. Shaw testified that denying the prison the ability to

exclude potential visitors who are potential security risks, as

many potential visitors with criminal histories are, would

significantly increase violence and contraband in the visiting

room, thereby making a significant impact on the guards, inmates,

and other resources of the prison.

Finally, the plaintiff alleges that there are ready

alternatives to the prohibition against relatives with criminal

behaviors. Exceptions can be, and have been, made to this rule,

and such an exception could be granted in Towle’s case. While

defendants concede that exceptions can be made, they assert that

an injunction requiring the prison to allow Wilmot to visit,

after she was properly excluded by legitimate regulations, would

set an undesirable precedent encouraging inmates to file lawsuits

every time they were dissatisfied with an administrative

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 22 of 27
23

decision. Aside from simply making an exception to the rule,

which the prison has legitimate reasons for not wanting to do,

plaintiff did not offer evidence of any alternative means of

accommodating his asserted right to visitation with his wife that

would not impose more than a de minimus strain on the NHSP’s

valid penological interests.

 Accordingly, I find that the regulation restricting

visitation, while it impinges in some instances on Towle’s

ability to exercise his right to association, does not do so in

an unconstitutional manner. Therefore, I find that Towle cannot

demonstrate that his First Amendment right has been

unconstitutionally abridged. Towle is therefore not likely to

succeed on the merits of his First Amendment claim.

II. Fourteenth Amendment Claim

While it was not explicitly raised in the complaint and,

consequently, not explicitly discussed in my February 5 Order, I

find that Towle’s assertions amount to a claim that he is

entitled to the protections of the Due Process Clause of the

Fourteenth Amendment because, while he may not have a First

Amendment right to visits with his wife, he alleges that the

regulations written by the State have created such a liberty

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 23 of 27
24

interest, and that he cannot be deprived of that liberty without

due process of law.

The Fourteenth Amendment forbids the State from depriving

“any person of life, liberty, or property, without due process of

law.” U.S. Const. amend. XIV. To State a Fourteenth Amendment

claim, therefore, a plaintiff must first allege either that the

Due Process Clause itself gives rise to the liberty interest

asserted, or that such an interest has been created by the State,

and second, that he has been denied adequate procedures prior to

being deprived of the right. Ky. Dep’t of Corrs. v. Thompson,

490 U.S. 454, 460 (1989) (citing Bd. of Regents of State Colls.

v. Roth, 408 U.S. 564, 571 (1972) and Hewitt v. Helms, 459 U.S.

460, 472 (1983)). 

The Supreme Court has found that a prisoner does not have a

right, arising out of the Due Process Clause, to “unfettered

visitation.” Thompson, 490 U.S. at 460. Further, “[t]he denial

of prison access to a particular visitor ‘is well within the

terms of confinement ordinarily contemplated by a prison

sentence,’ and therefore is not independently protected by the

due process clause.” Thompson, 490 U.S. at 461 (quoting Hewitt,

459 U.S. at 468) (internal citations omitted). Therefore, to

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 24 of 27
25

State a Fourteenth Amendment claim, plaintiff must allege that he

possesses a State-created liberty interest. See Thompson, 490

U.S. at 460.

To determine whether or not the State has created a liberty

interest, courts used to evaluate the language of the regulation

in question to determine whether it created a mandate to

administrators or allowed for administrative discretion in its

application. See Sandin v. Conner, 515 U.S. 472, 481-82 (1995). 

However, in Sandin, the Supreme Court rejected the approach of

parsing the language of a particular regulation to look for

mandatory clauses, and adopted an approach that examines the

nature of the liberty interest allegedly abridged. Id. at 482. 

Accordingly, a liberty interest

will be generally limited to freedom from restraint 

which, while not exceeding the sentence in such an 

unexpected manner as to give rise to protection by the 

Due Process Clause of its own force, nonetheless 

imposes atypical and significant hardship on the 

inmate in relation to the ordinary incidents of prison 

life.

Id. at 484.

This Court has previously held that an opportunity granted

to prisoners as a privilege, rather than as a right, is not a

liberty interest created by the State. Reid v. Stanley, Civ. No.

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 25 of 27
6Even if I were to find that a liberty interest in some

visitation had been created by virtue of the ambiguity in the

wording of PPD 7.09, I would find that the denial of visitation

here, made pursuant to that regulation, does not impose any

hardship that is “atypical of the normal incidents of prison

life” and therefore does not constitute a due process violation. 

See Sandin, 515 U.S. at 484. Prisoners can expect that their

contact with convicted felons, even those felons to whom they are

married, may be restricted during their incarceration. In this

case, the prison has not denied visitations between Towle and

Wilmot forever, but has found that her felony conviction

indicating deceptive behavior is too recent to make her a good

security risk at this time. This restriction is exactly the sort

of restriction an inmate must expect upon incarceration. See

Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (collecting

cases finding loss of visitation privileges to be ordinary

incidents of prison confinement).

26

04-cv-369-JD, 2006 WL 1875335, *4 (D.N.H. July 6, 2006) (finding

that because New Hampshire provides prisoners with the

opportunity for parole as a privilege and not as a right, that

the State has not created a liberty interest in the opportunity

for parole). Here, PPD 7.09 states several times that the

granting of visitation to inmates is a privilege, not a right. 

See PPD 7.09 (III) (“Visiting is a privilege.”); PPD

7.09(IV)(N)(1) (“Visitation is a privilege and not a right...”). 

Accordingly, I find that the State has not created a liberty

interest in visitation simply by creating opportunities for

inmates to receive visits.6 Therefore, the denial of visitation

does not deprive Towle of any right protected by the

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 26 of 27
27

Constitution, and I find, therefore, that he is unlikely to

succeed on the merits of his Fourteenth Amendment claim.

Conclusion

I find that Towle is unlikely to succeed on the merits of

either a First or Fourteenth Amendment claim for relief. As a

preliminary injunction may not issue absent a finding of

likelihood of success on the merits of the claims, I need not

address the other preliminary injunction factors. See Esso

Standard Oil, 445 F.3d at 18. Plaintiff’s motion for injunctive

relief (document no. 6) is denied.

SO ORDERED.

/s/ James R. Muirhead

James R. Muirhead

United States Magistrate Judge

Date: April 16, 2007

cc: Barbara R. Keshen, Esq.

Michael J. Sheehan, Esq.

Andrew B. Livernois, Esq.

Case 1:06-cv-00464-JL Document 27 Filed 04/16/07 Page 27 of 27