Jones v. Diamond Motion for Leave to File Supplemental Memorandum and Supplemental Memorandum as Amicus Curiae
Public Court Documents
February 5, 1980

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Brief Collection, LDF Court Filings. Jones v. Diamond Motion for Leave to File Supplemental Memorandum and Supplemental Memorandum as Amicus Curiae, 1980. c4024566-b99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/55c2d97e-05a0-4813-8c71-98ab33430a9b/jones-v-diamond-motion-for-leave-to-file-supplemental-memorandum-and-supplemental-memorandum-as-amicus-curiae. Accessed July 13, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 78-1289 MARVIN JONES, on his own behalf and on behalf of those similarly situated, Plaintiffs-Appellants, vs. FRED R. DIAMOND, et al., Defendants-Appellees. On Appeal From The United States District Court For The Southern District of Mississippi MOTION FOR LEAVE TO FILE SUPPLEMENTAL MEMORANDUM AND SUPPLEMENTAL MEMORANDUM OF THE NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., AS AMICUS CURIAE JACK GREENBERG JAMES M. NABRIT, III CHARLES STEPHEN RALSTON JOEL BERGER STEVEN L. WINTER Suite 2030 10 Columbus Circle New York, New York 10019 Attorneys for the NAACP Legal Defense & Educational Fund, Inc., as Amicus Curiae IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 78-1289 MARVIN JONES, on his own behalf and on behalf of those similarly situated, Plaintiffs-Appellants, vs. FRED R. DIAMOND, et al., Defendants-Appellees. On Appeal From The United States District Court For The Southern District of Mississippi MOTION FOR LEAVE TO FILE SUPPLEMENTAL MEMORANDUM Movant, NAACP Legal Defense & Educational Fund, Inc., as amicus curiae, respectfully moves the Court for permission to file the attached supplemental memorandum for the follow ing reasons. 1. On October 1, 1979, movant sought leave of this Court to participate in this case as amicus curiae. That motion was granted by order dated October 17, 1979. Movant filed a brief in this case but did not participate in oral argument. 2. It has come to the attention of the movant that during the oral argument before this Court sitting en banc, the plaintiffs argued the issue of the constitutionality of the blanket denial of contact visitation and the subjecting of pretrial detainees to barrier visits. This issue was only noted, but not briefed by any of the parties before this Court sitting en banc. Its interjection at this stage of the case comes as a surprise to amicus. 3. The barrier visitation issue is one of crucial importance to detainees and their families. Amicus respect fully submits that it be permitted to file this brief supplemental memorandum so that it may put its views before this Court on this critical question. Respectfully submitted, JAMES M. NABRIT, III CHARLES STEPHEN RALSTON JOEL BERGER STEVEN L. WINTER Suite 2030 10 Columbus Circle New York, New York 10019 Attorneys for the NAACP Legal Defense & Educational Fund, Inc., as Amicus Curiae 2 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 78-1289 MARVIN JONES, on his own behalf and on behalf of those similarly situated, Plaintif fs-AppeHants , vs. FRED R. DIAMOND, et al., Defendants-Appellees. On Appeal From The United States District Court For The Southern District of Mississippi SUPPLEMENTAL MEMORANDUM OF THE NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., AS AMICUS CURIAE During oral argument before this Court sitting en banc, the plaintiffs raised the question of the constitutionality of the blanket imposition of barrier visits on pre-trial detainees. Amicus respectfully submits that a decision on the issue is not appropriate at this time. While there is strong precedent in both this and other circuits for the constitutional right of pre-trial detainees to contact visits, it predates the Supreme Court's decision in Bell v. Wolfish, ____ U.S. ____ , 60 L.Ed.2d 447(1979). It would be appropriate 1/ See, e.g ., Miller v. Carson, 563 F.2d 741,749 (5th Cir. Wolfish standards by the district court in the first instance. 2/ Marcera v. chinlund, No. 78-2081 (2d Cir. July 31, 1979). On remand, the district court should take additional evidence and make specific findings regarding the issues as delineated in Wolfish. Valentine v. Englehardt, 474 F.Supp. 294, 303-j7 (D.N.J. 1979). The nature of the issues as posed under the standards enunciated in Wolfish make clear why a remand is necessary. The question now is whether the imposition of barrier visita tion amounts to punishment of pre-trial detainees. _ld. , 60 L.Ed.2d at 466-67, 468 n.20. Psychiatric testimony regarding the actual effect of barrier visits on detainees, see Rhem v . v. Malcolm. 371 F.Supp. 594, 601-07 (S.D.N.Y.) aff1d, 507 F.2d 333 (2d Cir. 1974); Jordan v. Wolke, No. 78-2648, Slip op. at for this Court to remand the case for the application of the 1/ (cont'd) 1977); Campbell v. McGruder, 580 F.2d 581 (D.C.Cir. 1978); Rhem v. Malcolm, 507 F.2d 333, 338 (2d Cir. 1974); McGoff v . Rapone, 78 F.R.D. 8(E.D.Pa. 1978); O'Bryan v. County of Saginaw, Mich., 437 F.Supp. 582 (E.D. Mich. 1977); Dillard v, Pitchess, 399 F.Supp 122T (C.D. Calif. 1975); Wesson v. Johnson, 579 P.2d 1165 (S.Ct. Colo. 1978) (en banc) . 2/ Upon remand from the Supreme Court for reconsideration in light of Wolfish, Lombard v. Marcera, ___ U.S.___, 61 L.Ed.2d 231 (1979), the Second Circuit in Marcera remanded the case to the district court for reconsideration and the application of the Wolfish standards in the first instance. 3/ In Valentine, the first district court decision to address the application of the Wolfish standards to the barrier visita tion issue, the court remanded the issue to a Special Master for further factual findings regarding the alleged security rationale and the actual physical facilities and capabilities of the jail bearing on the barrier visitation issue. 2 dissenting), is11-15 (7th Cir. January 8, 1980)(Swygert, J., necessary to the determination of this issue. Further, the court must ascertain whether the blanket imposition of barrier visits for all detainees is an excessive response to alleged security problems. Id., 60 L.Ed.2d at 468. This must be viewed in light of the actual physical facilities of the institution that bear on the security question. Valentine, supra, 474 F.Supp. at 303. Here, the district court could not even have made such findings since the current facility was not yet open. In addition, Wolfish suggests an additional area of inquiry both factual and legal, not previously explored. In Wolfish, the Court noted that it was not dealing with those fundamental liberty interests delineated in cases such as Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Stanley v. Illinois, 405 U.S. 645 (1972); Griswold v. Connecticut, 331 U.S. 479 (1965); Meyer v. Nebraska, 262 U.S. 260 U.S. 290 (1923). 60 L.Ed.2d at 465-66. However, the blanket imposition of barrier visits implicates the very fundamental interests alluded to in Wolfish. It strikes at the most fundamental aspect of the family; the way in which family members relate. The barrier interposed between the detainee and his family inhibits closeness and communication, "slicing deeply into the family itself." Moore v. City of East Cleveland, 431 U.S. 494, 498 (1977). Instead of physical closeness during a time of crisis, the detainee and his family are reduced to looking at each other separated by a glass or steel mesh barrier, shouting intimacies through steel mesh or often non-functioning 3 phones. See, e .g ., O'Bryan v. County of Saginaw, Mich., 437 F.Supp. 582, 599 (E.D. Mich. 1977); Rhem v. Malcolm, 371 F.Supp 594, 601 (S.D.N.Y. 1974). This not only interferes with the parental rights of those incarcerated, but also deprives the child, spouse and parents of those incarcerated of their rights 0 1 Bryan, supra, 439 F.Supp. at 598; Wesson v. Johnson, 579 P.2d 1165 (S.Ct.colo. 1978) (en banc). Since the rights of third par ties are involved, the courts must be even more exacting in the scrutiny applied to the practices of these correctional administrators. See Procunier v. Martinez, 416 U.S. 396, 407- 09 (1974). This Court should remand this issue so that the district court can apply these standards in the first instance. See, e.g ., G .M . Leasing Corp. v. United States, 429 U.S. 338, 360-61 (1977). Moreover, it must make findings of fact regard ing the actual effects of barrier visits on detainees and their families so that this Court will have a factual record upon which to base any subsequent decision. Accordingly, amicus respectfully submits that the issue of contact visitation be remanded for further proceedings. Respectfully submitted JACK GREENBERG JAMES M. NABRIT, III CHARLES STEPHEN RALSTON JOEL BERGER STEVEN L. WINTER 10 Columbus Circle New York, New York 10019 Attorneys for the NAACP Legal Defense & Educational Fund, Inc as Amicus Curiae 4 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Motion for Leave to File Supplemental Memorandum and Supplemental Memorandum of the NAACP Legal Defense & Educational Fund, Inc. have been served by placing same in the United States mail, postage prepaid to Raymond Brown, Esq., P.0. Box 787, Pascagoula, Mississippi 39507; John L. Walker, P.O. Box 2086, Jackson, Mississippi 39205; David B. Lipman, 9735 E. Fern Street, Miami Florida 33157; and Alvin J. Bronstein, National Prison Project of the ACLU, 1346 Connecticut Avenue, N.W., Washington, D.C. 20036, this 5> of February, 1980. Attorney for Amicus Curiae 5