Karl Whitmire v. State of Arizona Arizona Department of Corrections

298 F.3d 1134 Karl WHITMIRE, Plaintiff-Appellant, v. State of ARIZONA; Arizona Department of Corrections, Defendants-Appellees. No. 00-16896. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 15, 2002. Filed August 12, 2002. Courtney Joslin, San Francisco, CA, and Martha Matthews, Los Angeles, CA, for the plaintiff-appellant. Daniel P. Schaack, Assistant Attorney General, Phoenix, AZ, for the defendants-appellees. Appeal from the United States District Court for the District of Arizona, Roger G. Strand, District Judge, Presiding, D.C. No. CV 98-0641 RGS. Before HUG, and TASHIMA, Circuit Judges, and SEDWICK, * District Judge. OPINION TASHIMA, Circuit Judge. 1 Karl Whitmire ("Whitmire") appeals the district court's dismissal of his constitutional equal protection claim, brought against the Arizona Department of Corrections ("ADOC"), which prohibits same-sex kissing and hugging during prison visits, unless the visitors are members of the inmate's family. The ADOC asserted, without corroborating evidence, that the visitation policy furthered the legitimate penological interest of correctional safety. The district court agreed with the ADOC on the basis of that…

Karl Whitmire (“Whitmire”) appeals the district court’s dismissal of his constitutional equal protection claim, brought against the Arizona Department of Corrections (“ADOC”), which prohibits same-sex kissing and hugging during prison visits, unless the visitors are members of the inmate’s' family. The ADOC asserted, without corroborating evidence, that the visitation policy furthered the legitimate penological interest of correctional safety. The district court agreed with the ADOC on the basis of that naked assertion. We have jurisdiction under 28 U.S.C. § 1291 , and we reverse.

I. BACKGROUND

ADOC regulations on inmate visitation provide: “Kissing and embracing shall be permitted only at the beginning and end of each visit and shall not be prolonged.” These same regulations, however, further provide that “[s]ame-sex kissing, embracing (with the exception of relatives or immediate family) or petting” is prohibited.

Whitmire and William Lyster (“Lyster”) are an openly gay couple; Lyster is a prisoner incarcerated in the Arizona correctional system. Lyster was instructed by prison staff that he was not permitted to hug or kiss Whitmire during visits, and after Lyster…

concurring.

I concur, but write briefly to elaborate on the point made in footnote 4; our observations regarding Whitmire’s and Ly-ster’s situation do not portend any particular outcome. This case is remanded for development of a factual record, because the existing record affords virtually no information. It does not show how prison visits are arranged or structured, where they take place, whether inmates from several cell blocks enjoy visitation rights at the same time, how homosexual inmates other than Lyster might behave in the absence of the challenged policy, whether an open display of physical affection between Whitmire and Lyster might affect other prisoners’ behavior even though Ly-ster’s sexual orientation were already known, nor any of the other facts that may bear upon why prison officials, exercising their discretion, decided to implement the challenged policy.