Scott v. Banks

          RECOMMENDED DISPOSITION

         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge Kristine G. Baker. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the date of this Recommendation. If you do not file objections, Judge Baker can adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may waive the right to appeal questions of fact.

         I. Introduction

         In this pro se § 1983 action, Plaintiff Mondrea Renee Scott (“Scott”) alleges that, while she was an inmate in the McPherson Unit of the Arkansas Department of Correction (“ADC”), Defendants Warden James Banks (“Banks”) and Warden Darryl Golden (“Golden”) violated her due process and equal protection rights by refusing to grant her applications to marry Shana Struble (“Struble”), a former inmate in the McPherson Unit.^[1]

         Banks and Golden have filed a Motion for Summary Judgment, a Brief in Support, a Statement of Facts, and a Reply, arguing that they are entitled to judgment, as a matter of law, on the due process and equal protection claims Scott is asserting against them.^[2] Docs. 69, 70, 71 & 78. Scott has filed a Response, a Brief, and two Statements of Facts in opposition to Defendants' Motion. Docs. 74, 75, 76 & 77.

         Scott has also filed a Motion for Summary Judgment, and supporting motion papers. Docs. 52, 59, 60, 61 & 62. Defendants have filed Responses, Briefs and Statements of Fact in opposition to Scott's Motion. Docs. 56, 57, 58, 63, 64 & 65.^[3]

         Before addressing the merits of the parties' cross Motions for Summary Judgment, the Court will summarize the relevant facts giving rise to Scott's constitutional claims:

         1. ADC Administrative Directive 13-59 (“AD 13-59”) sets forth the ADC's policy governing inmate marriages. See Att. A to Ex. 1 of Doc. 69. It provides that inmates “are permitted to marry when such action is consistent with the laws of the state of Arkansas and follows the procedures set out [therein.]” The directive makes it clear that an inmate's “right to marry … must be exercised in a manner that is consistent with the security and good order of the institution.” Id. §§ I & II.

         2. An inmate must file an application to marry with the unit warden, who has the discretion to grant or deny the application, based on whether it is deemed to be “consistent with the security and good order of the institution.” Id. §§ I, II, III, IV(A) & (M).

         3. The chaplains at each ADC prison have administrative responsibilities under AD 13-59 § III. After being informed by an inmate of his or her intention to marry, a unit chaplain sends the inmate a “marriage packet, ” which includes instructions and a marriage application form. See Doc. 9 at 2 & Ex. E.

         4. The marriage application form states that the prospective spouse must be on the inmate's “approved visitor list, ” but neither AD 13-59 nor the instructions in the “marriage packet” explain: (1) how an inmate should go about getting a prospective spouse added to his or her approved visitation list; or (2) the criteria for allowing a prospective spouse to be on that list. The chaplain's written instructions to the inmate state only that, if the prospective spouse is not on the approved visitation list, the “request for marriage will be denied by the Warden.” Doc. 9, Ex. E.

         5. On June 26, 2015, the Court issued its decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015), which recognized that individuals have a Fourteenth Amendment right to marry someone of the same sex.

         6. On September 21, 2015, Struble^[4] e-mailed ADC Director Wendy Kelley asking when AD 13-59 would be changed to allow inmates to marry partners of the same sex. Doc. 35, Ex. 1. Struble was a former inmate in the McPherson Unit who had served time with Scott, and had been released on parole for about five years. Doc. 60 at 2; Doc. 77 ¶7. In her e-mail, Struble advised Director Kelley that she and Scott, who was still incarcerated in the McPherson Unit, planned to get married. Doc. 35, Ex. 1.

         7. In her e-mail response to Struble, dated September 21, 2015, Kelley stated that she did “not believe a change to our [marriage] policy will be required, ” and that “[t]he inmate in question [Scott] need[ed] to initiate the [marriage] process with the chaplain.” Id.

         8. On October 2, 2015, Scott submitted an application to marry Struble. Doc. 71 ¶ 6; Doc. 76 ¶ 2. As the McPherson Unit Warden, ^[5] Banks was responsible for deciding whether to grant or deny Scott's same-sex marriage application.

         9. On December 2, 2015, Keith Chamberlain, a chaplain at the McPherson Unit, sent a memo to Scott which stated: “Your application for marriage has been denied by the Warden [Banks] .” Doc. 35, Ex. 2. No reason was given for Banks's denial of Scott's application to marry Struble.

         10. In early January of 2016, Golden replaced Banks as Warden of the McPherson Unit. Doc. 30 ¶ 5. Shortly thereafter, Scott submitted a second application to marry Struble. Doc. 71 ¶ 6. It then became Golden's responsibility to grant or deny Scott's same-sex marriage application.

         11. On February 26, 2016, Nicole Lang, a chaplain at the McPherson Unit, sent a memo to Scott which stated: “Please be advised that Warden Golden has denied your application for marriage.” Doc. 35, Ex. 3. No reason was given for Golden's denial of Scott's application to marry Struble.

         12. It is undisputed that Struble was a parolee for a number of years before Scott filed her applications to marry her. There is nothing in Defendants' summary judgment papers about the conviction that led to Struble's incarceration; her disciplinary history while incarcerated in the McPherson Unit; when she was paroled; or how she performed while on parole.

         13. At the time Scott submitted her marriage applications, Struble was not on Scott's “approved visitation list.” Doc. 56, Ex. A at 39-41 (Scott Dep.); Doc. 36, Ex. C at 2 & 5. There is nothing in the record suggesting that Struble ever attempted to visit Scott, after she was released on parole, or that Scott ever tried to have Struble added to her “approved visitation list.”

         14. On March 12, 2016, Scott filed a Grievance, complaining that both Banks and Golden had denied her separate applications to marry Struble “due to [her] partner and [her] being the same sex.” Doc. 36, Ex. C at 3. She also explained why she believed her constitutional rights had been violated:

Marriage is a fundamental constitutional right that I can retain whether confined or not. To deny this right violates … my constitutional right in marrying someone I've been with for 10 years. I shouldn't be discriminated against based on my sexual orientation.

Id.

         15. On April 6, 2016, Golden wrote a “Memorandum” to Scott, which stated the following:

Please be advised that I have received your grievance regarding your request to marry. In your grievance you allege that I am denying your opportunity to marry Shana M. Struble because you are of the same sex. I absolutely deny this as the reason why I have denied Ms. Struble and you to marry. You were denied the opportunity because of several reasons. First, Ms. Struble is a convicted felon that is still on supervised parole until 2019. In reviewing your application for approval this fact contradicts the agency's responsibility to ensure appropriate security practices on inmates [sic] contact with other known felons in and outside the prison. Secondly, Ms. Struble and you had an offender separation during her incarceration here in the Arkansas Department of Correction which is still in effect and will be enforced if ever she returns. Thirdly, Ms. Struble is not listed on your approved visitors list or on your relatives and associates list because of her status as a parolee. Let me assure you we will follow the laws of this land and our state in regards to allowing those who are eligible to marry and who meet our security and policy practices and guidelines regardless of sexual orientation. The issue of you not being afforded the opportunity to marry Ms. Struble is solely due impart [sic] with her present status on parole and your status as an inmate here at the McPherson Unit.

Doc. 36, Ex. C at 5 (emphasis added).

         16. On April 20, 2016, Golden filed a Response to Scott's Grievance, finding it was without merit. In his Response, he used the identical language from his April 6, 2016 Memorandum to explain his reasons for denying Scott's application to marry Struble. Doc. 36, Ex. C at 2.

         17. On May 4, 2016, ADC Deputy Director Dexter Payne affirmed the denial of Scott's Grievance. Doc. 36, Ex. C at 1.

         18. In February or early March of 2017, Scott was paroled from the ADC. Doc. 19. On March 18, 2017, Scott and Struble were married in Tarrant County, Texas. See https://ccrecordse.tarrantcounty.com/Marriage/SearchResults.aspx.

         19. The current record contains nothing at all about the reasons Banks denied Scott's first application to marry Struble. As far as Golden's reasons for denying Scott's second application, the record contains only his Memorandum and Response to her Grievance, which state vague “security concerns” that are in no way ...