Jones v. Diamond Motion for Leave to File Supplemental Memorandum and Supplemental Memorandum 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 
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

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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,

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.

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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

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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
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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

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