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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Larson v. Cooper (03/05/2004) sp-5786

Larson v. Cooper (03/05/2004) sp-5786

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.  Readers   are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA
                                

LOREN J. LARSON, JR.,         )
                              )    Supreme Court No. S-10327
             Appellant,            )
                              )    Superior Court No. 3AN-00-7050
CI
     v.                       )
                              )    O P I N I O N
ALLEN COOPER, Director, Division   )
of Institutions, State of Alaska, Dep't )    [No. 5786 - March 5,
2004]
of Corrections and GARLAND         )
ARMSTRONG, former Superintendent )
of the Spring Creek Correctional   )
Center,                       )
                              )
             Appellees.            )
________________________________)
LOREN J. LARSON, JR.,         )
                              )    Supreme Court No. S-10431
          Appellant,               )
                               )     Superior  Court No.  3AN-99-
12826 CI
     v.                       )
                              )
ALLEN COOPER, Director, Div.  )
of Institutions, State of Alaska,       )
Dept. of Corrections and LARRY     )
DAVIS, Correctional Officer,       )
Spring Creek Correctional Center,  )
                              )
          Appellees.               )
________________________________)


          Appeals from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:  Loren J. Larson, Jr.,  pro  se,
          Seward.    Timothy   W.  Terrell,   Assistant
          Attorney  General, Anchorage,  and  Bruce  M.
          Botelho,   Attorney  General,   Juneau,   for
          Appellees.
          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          EASTAUGH, Justice.

I.   INTRODUCTION

           Does  a  prison violate a maximum security  prisoner's

constitutional rights by limiting his physical contact  with  his

wife to a brief kiss and embrace at the beginning and end of  her

visits?   In S-10327, we hold that the free exercise of  religion

clause of the federal constitution does not require the prison to

allow  hand-holding, kissing, and embracing throughout the visit,

because  we  conclude  that the visitation rules  are  reasonably

related to legitimate penological objectives.  We also hold  that

the  free  exercise  clause of the Alaska Constitution  does  not

require  the  prison  to  permit  these  activities,  because  we

conclude that they would threaten the state's compelling interest

in maintaining institutional security.  In S-10431, we reject the

prisoner's due process claims, because we hold that the temporary

interruption  of  contact visitation did  not  interfere  with  a

protectable liberty interest.

II.  FACTS AND PROCEEDINGS

          A.   Events Surrounding the Visitation and Discipline

           Loren J. Larson, Jr. is a maximum security prisoner at

Spring  Creek Correctional Center in Seward, an Alaska Department

of  Corrections (DOC) facility.  In 1999 the correctional  center

revised  the rules governing contact visitations to prohibit  all

physical  contact between prisoners and visitors  other  than  "a

short  embrace  upon initial contact and again  upon  departure."

Prior  to  this  rule revision, handholding was permitted  during

visitation.

           According to a civil complaint later filed by  Larson,

he  and his wife joined hands in prayer during a contact visit on

September  20,  1999.   Correctional  Officer  Larry  Davis   was

monitoring   Larson's  visit.   Officer  Davis  determined   that

Larson's   conduct  violated  Spring  Creek's  visitation   rules

prohibiting  hand holding, and he ordered Larson to  release  his

wife's  hand.   Larson refused, and Davis terminated  the  visit.

Davis  filed  a disciplinary incident report describing  Larson's

refusal  to  obey a direct order.  As a result of this  incident,

Larson's contact visitation privileges were suspended, and he was

restricted to secure visitation.

           On  October 4, 1999 the prison disciplinary  committee

found   Larson   not  guilty  of  disobeying  a   direct   order.

Nevertheless,  prison officials continued to restrict  Larson  to

secure visitation until December 1999.

          B.   Proceedings in S-10431

          Larson filed several grievances and appeals challenging

the  disruption  of  his visit with his wife  and  the  temporary

suspension  of contact visitation; all were denied by the  Alaska

Department  of  Corrections.  Larson then filed a superior  court

administrative appeal in December 1999 in which he contended that

"[t]he  actions  of [DOC] officials are violative  of  their  own

policy  and procedures governing disciplinary [matters],  use  of

individualized  determination, [and] visitation."   The  superior

court  converted Larson's appeal against Officer Davis and  Allen

Cooper,  the  Director  of Institutions  for  the  Department  of

Corrections, into an original civil action in August 2000.

           Larson's  complaint against Cooper and  Davis  alleges

that  Officer Davis violated Larson's free exercise  of  religion

and  due process rights under the federal and state constitutions

when Davis ordered Larson to release his wife's hand during their

visit.  It also alleges that Cooper violated those rights when he

refused to reinstate Larson's contact visitation privileges.   It

also  claims  that DOC violated its own procedures  for  altering

rules.   The complaint sought a declaration that Davis and Cooper

violated his rights by terminating his September 20, 1999 contact

visit.  It also sought an injunction ordering DOC to apologize to

Larson's wife and to begin annual testing of corrections officers

on   their   knowledge  of  standard  operating  procedures   for

visitation, and requested compensatory and punitive damages.

           Both  sides in Larson's suit against Cooper and  Davis

moved  for  summary  judgment.  Superior  Court  Judge  Peter  A.

Michalski   granted  summary  judgment  to  the  defendants   and

dismissed  Larson's claims.  Larson's appeal from this ruling  is

before us in Supreme Court File No. S-10431.

          C.   Proceedings in S-10327

            In   January   2000   Larson   asked   Spring   Creek

Superintendent  Garland  Armstrong for permission  to  conduct  a

"religious  visit"  with his wife; as described  by  Larson,  the

visit  would have included extensive contact prohibited by Spring

Creek's visitation rules:

                 I   request  approval  to  receive   a
          religious visit from my wife on 2-19-00  6:30
          to  9:00 pm.  This visit is in compliance  to
          our   Christian  Faith  in  maintaining   the
          institution of marriage.
               Activities will include reading from the
          New   International  Readers  Version  Bible,
          Kneeling  in  prayer to our Lord  and  Savior
          Jesus  Christ, Embracing for long periods  of
          time  and  when needed, holding of hands  and
          kissing.    All   of  these  activities   are
          fundamental   in  our  Christian   Faith   to
          maintain our marriage.  The attorney visiting
          room  will  be  needed for  this  visit.   If
          needed, my wife will agree to a strip  search
          in   accordance   to  Policy  and   Procedure
          (810.02) to alleviate any security concerns.
          
Larson's request was denied, as were his subsequent grievance and

appeal to Allen Cooper.

           Larson filed a superior court complaint in April  2000

alleging  that  Superintendent  Armstrong  and  Director   Cooper

violated  his  religious free exercise rights guaranteed  by  the

United  States and Alaska Constitutions as well as the  Religious

Freedom  Restoration  Act of 1993 (RFRA).1   His  complaint  also

alleges that the defendants violated his right, guaranteed by the

Alaska   Constitution,  to  rehabilitation.    Larson   requested

declaratory and injunctive relief.  Both sides moved for  summary

judgment.   Judge Michalski granted the defendants'  motion,  and

held,  among  other things, that Spring Creek's visitation  rules

limiting  physical contact were narrowly tailored to achieve  the

state's compelling interest in reducing the influx of contraband.

Larson's  appeal from this ruling is before us in  Supreme  Court

File No. S-10327.2

          D.   Consolidation

           Larson also has a third appeal, Supreme Court File No.

S-10708,  pending before us.   Cooper and Spring Creek  Assistant

Superintendent  Thomas Reimer are the appellees in  that  appeal.

Larson  there contends that Reimer restricted Larson's visitation

privileges   in  retaliation  for  the  finding  of  the   prison

disciplinary  committee that Larson was not guilty of  disobeying

Davis's  order  to  release his wife's hand.  Cooper,  Armstrong,

Reimer, and Davis moved to consolidate the three appeals.  Larson

opposed  consolidation.  We issued an order on  March  25,  2003,

stating  that we would consolidate S-10327 and S-10431, but  that

we would address S-10708 in a separate disposition.

III. DISCUSSION

           We  hold in these two appeals that the superior  court

properly  granted summary judgment to the defendants on  Larson's

claims.3   We  first consider in S-10327 whether  Spring  Creek's

limitations  on contact visits satisfy the free exercise  clauses

of the Federal and state Constitutions.  We then consider whether

the  rehabilitation  right guaranteed by the Alaska  Constitution

entitles  a maximum security prisoner to have extensive  physical

contact with visitors.  In S-10431, we consider whether Davis and

Cooper   violated  Larson's  due  process  rights;  this  inquiry

requires  us  to  decide  whether the  temporary  restriction  of

Larson's  contact visitation privileges implicated a  protectable

liberty interest.

          A.    Larson's Free Exercise and Rehabilitation  Claims

          in S-10327

                     1.    The  superior court  did  not  err  in
               holding  that Spring Creek's visitation  rules  do
               not violate the Federal Free Exercise Clause.
               
           Defendants  Cooper and Armstrong discuss two  possible

standards for analyzing Larson's federal free exercise claim.  We

need  not  decide  which is the correct standard  because  Spring

Creek's visitation rules satisfy either standard.4

                              a.   The Smith test

           The  United  States Supreme Court held  in  Employment

Division, Department of Human Resources v. Smith that a  neutral,

generally applicable law or regulation does not offend  the  free

exercise  clause  even  if  the law has  an  incidental  -  i.e.,

unintended  -  effect  on  religious  practice.5   As  defendants

contend,  Spring  Creek's  visitation  rules  are  unquestionably

constitutional  under  this standard: they  do  not  discriminate

against religion on their face.  They apply to all prisoners, and

Larson  has  not claimed that the rules are aimed at a particular

religion.6

                              b.   The Turner test

           The superior court held that Spring Creek's visitation

rules  limiting physical contact do not violate the federal  free

exercise  clause because, following the test established  by  the

United States Supreme Court in Turner v. Safley, it reasoned that

the  rules  were  "reasonably related to  legitimate  penological

interests."7   In  Turner the Supreme Court  reasoned  that  this

deferential standard was required to prevent courts from becoming

unduly   involved  in  the  "intractable  problems"   of   prison

administration.8  The Court listed four factors that are relevant

to determining whether a regulation is reasonable.9  We hold that

Spring Creek's visitation rules satisfy each factor.

            The   first  factor  requires  "a  `valid,   rational

connection'  between  the prison regulation  and  the  legitimate

governmental  interest  put forward  to  justify  it."10   Prison

security is a compelling governmental interest,11 and limitations

on  contact  visits  are rationally related to  this  interest.12

Superintendent Armstrong stated in his affidavit that  the  types

of contact Larson seeks are specifically prohibited, because they

facilitate the smuggling of contraband.  Larson does not  contest

this  assertion,  and  we have been given no  basis  for  second-

guessing the judgment of prison administrators on this score.13

          Larson asserts that correctional officers are primarily

responsible  for  introducing contraband into  Spring  Creek  and

correctional  facilities  generally.  But  this  proposition,  if

true,  is  beside the point.  Larson does not argue that  contact

visits  do  not  also  create a significant  risk  of  contraband

smuggling.   Furthermore, Larson does not  directly  counter  the

defendants'  argument  that the types of contact  Larson  desires

would  exacerbate this problem.  Thus, any dispute about  whether

correctional  officers are responsible for  more  smuggling  than

visitors is not material to the issues properly before us.

           The  second Turner factor requires courts  to  examine

"whether there are alternative means of exercising the right that

remain  open  to  prison inmates."14  Larson argues  that  Spring

Creek's  contact  limitations leave him no alternative  means  of

practicing "Physical Religious Worship" with his wife.   But  the

"alternative means" factor merely requires that adherents not  be

"deprived  of  all forms of religious exercise,"  not  that  they

remain free to engage in the prohibited activity.15  In this case,

the  contact  limitations do not otherwise  prevent  Larson  from

fully practicing his religious beliefs.

           The  third  Turner factor requires courts to  consider

"the  impact  accommodation of the asserted constitutional  right

will  have on guards and other inmates, and on the allocation  of

prison  resources  generally."16  Cooper  and  Armstrong  provide

evidence   of  several  likely  impacts,  principally   increased

security  risks from expanded contact visits and the commensurate

burden on prison resources created by the need to mitigate  those

risks  through increased searches, monitoring, or  both.   Larson

claims  that  his  requested "religious visits"  would  not  pose

additional  security  risks  and  would  not  require  additional

security  measures, but these arguments fail  to  create  genuine

issues of material fact for several reasons.

           We  note  preliminarily that Larson did not offer  any

admissible evidence regarding his religious practices to  counter

the  affidavits Cooper and Armstrong offered in support of  their

motion  for  summary judgment.  Rather, his opposition  to  their

motion  and  affidavits relied exclusively  on  his  own  unsworn

contentions.   Ordinarily  this would be  cause  for  affirmance,

because  non-movants  may not rely upon  assertions  of  fact  in

unverified pleadings and memoranda to oppose a motion for summary

judgment.17   But  we  have held that "the pleadings  of  pro  se

litigants  should be held to less stringent standards than  those

of  lawyers,"  and  have  held that pro se  litigants  should  be

informed  of  the need to submit affidavits or other evidence  to

preclude summary judgment.18  The superior court's ruling did not

rely  on  Larson's  failure to produce admissible  evidence,  and

instead   appeared  to  treat  Larson's  pleadings  as   counter-

affidavits.  We will do the same in this appeal.

           Larson asserts that his wife would voluntarily  submit

to  a  strip-search before visiting him, that he is always strip-

searched following contact visits, and that he could be placed in

a  "dry  cell"  to  further  ensure  that  he  had  not  received

contraband.  But the governing regulations and constitutional law

do  not  permit  strip-searches  of  visitors  unless  there  are

reasonable   grounds  to  suspect  that  the  visitor   possesses

contraband.19

           Larson  emphasizes  that his  wife  would  voluntarily

submit  to such searches.  Larson cannot waive his wife's  Fourth

Amendment rights to be free from unreasonable searches.  But even

if  she  unconditionally  agreed to submit  to  pre-visit  strip-

searches, we are not convinced that her submission would  require

prison  officials to grant Larson's request for extended  contact

visitation  privileges.  Suspicionless searches of  visitors  and

prisoners20  would  impose additional burdens  on  prison  staff.

Superintendent Armstrong's affidavit established that the  prison

staff  is  already short-handed.  Intrusive searches are normally

not  cross-gender,  and  searches of  female  visitors  would  be

disruptive,  considering that only twelve of the 127 correctional

officers  are female.  Likewise, using a dry cell to prevent  the

introduction  of  ingested  contraband  is  even  more  resource-

intensive, because the inmate must be placed under observation in

the  designated  cell  until  the inmate  excretes  any  ingested

contraband.   Finally, the impacts resulting  from  Larson's  own

visitation requests cannot be considered in isolation.  Based  on

the statements in Superintendent Armstrong's affidavit, we assume

that  a significant number of other Spring Creek prisoners  would

ask for similar privileges.21  Accordingly, the superior court did

not  err  in  analyzing the third factor when it held  that  "the

impact  of allowing for an exception is unduly burdensome to  the

prison."

           The  final  Turner factor requires courts to  consider

whether  there  are any "ready alternatives"  to  the  policy  in

dispute.22  The Supreme Court made it clear, however, that "[t]his

is  not  a `least restrictive alternative' test: prison officials

do  not  have  to  set up and then shoot down  every  conceivable

alternative method of accommodating the claimant's constitutional

complaint."23   The  Court  further  suggested  that  only  those

alternatives that would accommodate the prisoner's rights at  "de

minimis  cost to valid penological interests" could be considered

relevant  to  a  court's  inquiry into whether  a  regulation  is

reasonable.24   Larson's  proposed  alternative  of   intensified

searches  imposes  more than de minimis costs.   The  only  other

alternative  that  might  accommodate  Larson's  claim  would  be

increased   monitoring,  which  is  also   a   resource-intensive

undertaking.  Either way, Spring Creek would have to invest  more

resources  in  security or simply accept the  risk  of  increased

contraband  smuggling  that  Larson's  claimed  exemption   would

entail.   There  is  no  "obvious, easy  alternative"  to  Spring

Creek's visitation rules.25

                     2.    The  superior court  did  not  err  in
               holding  that Spring Creek's visitation  rules  do
not violate the         Alaska        Constitution's         free
               exercise clause.
               
           The superior court held that Spring Creek's visitation

rules  do  not  violate the Alaska Constitution's  free  exercise

clause.26   Frank v. State established a two-part test  governing

claims  brought  under this clause challenging  facially  neutral

laws.27   Under  the first part of the test, the challenger  must

satisfy  three requirements: a religion is involved, the  conduct

in  question is religiously based, and the claimant is sincere in

his or her religious belief.28  Under the second part of the test,

courts  must consider whether the conduct poses "some substantial

threat to public safety, peace or order,"29 or whether "there are

competing  governmental interests that are `of the highest  order

and . . . (are) not otherwise served.' "30

           The  superior court assumed that Larson satisfied  the

first part of the test, and Cooper and Armstrong do not ask us to

re-visit  this  assumption.   The superior  court  addressed  the

second  part  of  the Frank test by holding that  Spring  Creek's

visitation  rules were narrowly tailored to serve the "compelling

state  interest  in  secure prisons free from  contraband."   The

court further held that granting Larson's religious exemption  by

adopting  the alternative security measures he proposed would  be

"unduly burdensome."

               a.   How to apply Frank's second part

           Before  they  discuss Larson's claims under  the  free

exercise  clause of the Alaska Constitution, Cooper and Armstrong

address  at  length  the standard governing  such  claims.   They

ultimately   ask   us  to  adopt  a  "compelling  interest/narrow

tailoring"  standard  most  commonly  found  in  First  Amendment

jurisprudence governing time, place, and manner restrictions  and

commercial  speech  restrictions,  rather  than  the  "compelling

interest/least  restrictive means" standard  applied  in  federal

free exercise cases predating Employment Division, Department  of

Human  Resources v. Smith.31  Defendants argue that we have never

clearly articulated the second part of the standard we adopted in

Frank.   Frank made it clear that only compelling state interests

could  justify burdens on the exercise of religion.32  Frank  and

our  subsequent  Alaska free exercise cases  have  not  explained

exactly  what degree of fit is required between the interest  and

the  means used to achieve it to satisfy the second part  of  the

Frank analysis.

          Nonetheless, this case does not require the elaboration

defendants seek.  Frank explained that the appropriate  question,

after a court determines that the claimed exemption implicates  a

compelling government interest, is "whether that interest, or any

other, will suffer if an exemption is granted to accommodate  the

religious  practice in issue."33  This test adequately  addresses

the  closeness  of the fit between the state's interest  and  the

means  used  to achieve it.  If an exemption would not  harm  the

government's  interest, the means chosen to achieve the  interest

were  probably  neither narrowly tailored nor least  restrictive.

For   purposes  of  this  case,  Frank  and  its  Alaska  progeny

adequately state the dispositive standard.

           Moreover, it is not obvious why Frank's analysis  must

coincide  with  either of the two formulations discussed  in  the

defendants' brief.  The concepts of "narrow tailoring" and "least

restrictive   means"  no  longer  apply  to  prisoners'   federal

constitutional claims or federal free exercise claims generally.34

We   therefore  see  no  reason  to  determine  which  of   these

formulations best characterizes the Frank test in the context  of

prisoner  free  exercise  claims  brought  under  Alaska's   free

exercise clause.

           Finally,  in  the  context of prisoner  free  exercise

claims  we think it appropriate to temper our application of  the

Frank test in recognition of the Supreme Court's observation that

"[r]unning  a prison is an inordinately difficult undertaking,"35

and  its statement that " `prison administrators . . . , and  not

the  courts,  [are]  to  make the difficult judgments  concerning

institutional operations.' "36  This statement indicates that the

federal  courts apply a highly deferential standard in  reviewing

the  decisions of prison administrators.  Larson's case does  not

require  us  to  consider whether Alaska courts should  apply  an

equally deferential standard.  Rather, we simply acknowledge,  as

we  did  in  Mathis v. Sauser, that "[s]ubjecting the  day-to-day

judgments  of  prison officials to an inflexible  strict-scrutiny

analysis  would  seriously  hamper their  ability  to  anticipate

security  problems  and  to  adopt innovative  solutions  to  the

intractable problems of prison administration."37



                               b.    Applying the second part  of

                    the Frank test here

           The  defendants'  appellate brief  does  not  directly

discuss how the second part of the Frank test applies here.38  But

their analysis of the third and fourth Turner factors - impact of

accommodation   and   availability  of   ready   alternatives   -

convincingly addresses the values that underlie the  second  part

of the Frank test.

           Superintendent Armstrong's affidavit provides evidence

that the contact visitation accommodations Larson seeks (and that

other  prisoners would also then predictably claim) would require

significant  resource outlays to mitigate against  the  resulting

increased  risk  of  contraband smuggling.  These  outlays  would

result   from   increased   searches,  monitoring,   or   both.39

Armstrong's  affidavit  states that budgetary  constraints  would

prevent  Spring  Creek  from implementing the  security  measures

Larson proposes without jeopardizing other areas of Spring Creek.

          Larson's claim that an accommodation would be virtually

without  cost  does not create genuine issues  of  material  fact

precluding summary judgment for the defendants.40  The record  in

this case establishes beyond dispute that Larson's recommendation

that he and his wife be strip-searched, or that he be placed in a

dry  cell  in  connection with each "religious visit,"  would  be

resource-intensive;  the  cost  would  be   multiplied   by   the

accommodations  needed  to  satisfy  other  prisoners  who  would

inevitably   claim  similar  privileges.41   Likewise,   we   are

unpersuaded  by  Larson's  claim  that,  because  the  "religious

visits"  would  take  place  in a room currently  designated  for

attorney-client  visits,  increased  monitoring  would   not   be

necessary.   Larson  asserts  that the  room  has  large  one-way

observation mirrors that permit officers "in or around" the shift

supervisor's  office across the hallway to monitor  visits  while

going  about  their other tasks; no additional  prison  resources

would have to be dedicated to the monitoring effort.  As a matter

of  law,  this  proposed accommodation raises no genuine  factual

dispute.   Monitoring  contact visits is  an  important  security

function   that   cannot  be  informally  satisfied   by   random

observations  by  officers  who  happen  to  be  going  past  the

observation mirrors.42

          Spring Creek placed additional limits on contact visits

in  1999,  but  did not prohibit them entirely.   The  defendants

argue  that  the  new rules are a proportionate response  to  the

risks   posed  by  contact  visits:  the  new  rules  limit   the

opportunities   to  smuggle  contraband  while   affording   some

opportunity  to  engage in the natural desire  to  be  physically

affectionate  with friends and loved ones.  Courts are  generally

ill-positioned  to  second-guess prison administrators'  judgment

that hand-holding between visitors and maximum security prisoners

would jeopardize the state's compelling interest in security.  In

any  event, we conclude that Larson has not demonstrated that any

genuine, material factual disputes precluded summary judgment for

defendants on Larson's state free exercise claim.

                     3.    Spring Creek's visitation rules do not
               infringe on Larson's right to rehabilitation.
               
            Larson  argues  that  his  right  to  rehabilitation,

guaranteed  by  article 1, section 12 of the Alaska Constitution,

includes the right to "religious visits" described above, because

such visits promote rehabilitation "as nothing else can."  Cooper

and  Armstrong argue that this cannot be correct because  nothing

in  the  text  of  article 1, section 12  or  the  constitutional

convention minutes supports a right to have the extended  contact

visitation Larson seeks.43

           We  recognized  in  Brandon v.  State,  Department  of

Corrections  that "visitation privileges are a component  of  the

constitutional right to rehabilitation" guaranteed by article  1,

section  12  of  the Alaska Constitution.44   But  we  have  been

referred   to   nothing  in  article  1,  section   12   or   the

constitutional   minutes   that   implies   any   intention    to

constitutionalize  extended contact visits for  maximum  security

prisoners  or to preclude prisons from putting reasonable  limits

on  contact  visitation  of  maximum  security  prisoners.   Some

physical contact may well promote rehabilitation, but that  would

not  alone justify a conclusion in this case that Larson  had  an

unqualified  constitutional right to extended contact  visitation

with  his  wife.  The security risks posed by contact visits  and

the  high  costs of mitigating such risks convince  us  that  the

degree of contact permitted between visitors and maximum security

prisoners   lies   within   the  sound   discretion   of   prison

administrators.

                     4.    The  superior court  did  not  err  in
               failing to grant Larson conjugal visits.
               
            Larson  also  contends  on  appeal  that  he  has   a

constitutionally  protected religious right  to  conjugal  visits

with  his  wife.   But in the superior court he expressly  stated

that he was not making that contention.  He therefore waived  any

claim that he has a constitutional right to conjugal visits.   He

cannot make such a claim for the first time in this appeal.45

           B.  Larson's Claims in S-10431

           Larson  argues  in  S-10431 that  the  superior  court

erroneously granted summary judgment to Superintendent Cooper and

Officer  Davis.  In arguing error, he advances seven contentions:

(1)  Davis's order to Larson that he release his wife's hand  was

"illegal"  and  violated Larson's constitutional  right  to  free

exercise  of  religion;  (2) Davis had no  legitimate  reason  to

demand  that  Larson release his wife's hand; (3)  Larson  has  a

liberty  interest, apparently originating in the First Amendment,

in  having  contact visitation with his wife; (4)  Larson  has  a

state-created   liberty   interest,   originating    in    Alaska

Constitution  article I, section 12, in contact  visitation;  (5)

DOC  violated Larson's due process rights by failing to give  him

fair  notice  that hand-holding was not permissible; (6)  Davis's

order to Larson violated the prison standard operating procedure,

thereby  violating Larson's constitutional right to free exercise

of  religion and due process; and (7) Larson was entitled  to  an

administrative   hearing  concerning   his   right   to   contact

visitation.

          Larson provides no meaningful substantive discussion of

these theories.

           Larson's  first  contention,  that  Davis  and  Cooper

violated  his right to free exercise of religion, is resolved  by

our discussion of his appeal in S-10327.  Because the rules Davis

and  Cooper enforced did not themselves violate the right to free

exercise  of religion, enforcing those rules did not violate  the

free exercise clauses, either.46

           The  rest of Larson's contentions in S-10431  turn  on

whether  under  the  circumstances  of  this  dispute  he  has  a

protectable  federal  or  state  liberty  interest   in   contact

visitation.  We conclude that he does not.

           The  United  States Supreme Court has  explained  that

under  the federal constitution's Fourteenth Amendment,  "  `[a]s

long  as  the  conditions or degree of confinement to  which  the

prisoner is subjected is within the sentence imposed upon him and

is  not  otherwise violative of the Constitution, the Due Process

Clause does not in itself subject an inmate's treatment by prison

authorities to judicial oversight.' "47  The Court has  explained

that  the  guarantee of due process does not provide a  right  to

parole,48 freedom from transfer to higher-security facilities,49 or

a right to avoid segregation from the general prison population.50

          We conclude that if the federal due process clause does

not  guarantee these benefits, it necessarily must not provide  a

lesser right to contact visitation.

           We  next  consider whether Alaska law  has  created  a

liberty  interest that is protected by the federal constitution's

Fourteenth Amendment.  The United States Supreme Court  explained

in  Sandin  v.  Conner that in the prison context,  state-created

liberty interests protected by the Fourteenth Amendment "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."51

In  Sandin,  the  Court  ruled  that  "discipline  in  segregated

confinement  did  not  present the type of atypical,  significant

deprivation in which a State might conceivably create  a  liberty

interest."52   The  Court reasoned that  placing  a  prisoner  in

solitary  confinement  for thirty days  "did  not  work  a  major

disruption in his environment."53

           Larson was denied contact visitation for seventy-three

days  but  was allowed secure visitation throughout that  period.

Whether  or not the temporary suspension of all visitation  might

implicate  a liberty interest, we agree with the defendants  that

temporarily  suspending contact visitation, while  continuing  to

allow  secure  visitation, is not so atypical and  significant  a

hardship  beyond  ordinary  prison  life  that  it  implicates  a

protected liberty interest.54

           Finally,  we  consider Larson's  contention  that  the

Alaska  Constitution  creates a protectable liberty  interest  in

contact  visitation.   Larson argues that defendants  Cooper  and

Davis   deprived  him  of  a  liberty  interest  he  claims   was

established by the reformation clause of article I, section 12 of

the Alaska Constitution.  That clause states in part, "[c]riminal

administration shall be based upon the following:  the  need  for

protecting  the public, community condemnation of  the  offender,

the  rights of victims of crimes, restitution from the  offender,

and the principle of reformation."

           In  Brandon  v.  State, Department of  Corrections  we

considered  article I, section 12 of the Alaska  Constitution  in

the  context  of  the  transfer  of  a  prisoner  out  of  state,

potentially  preventing  the prisoner's relatives  from  visiting

him.55   We  recognized that visitation was "a component  of  the

constitutional  right to rehabilitation."56  But we  declined  to

define  the  scope  of  visitation privileges  protected  by  the

constitution and any limits on the exercise of those  privileges;

instead,  we explained that "[s]uch definitions will have  to  be

achieved  in  future  adjudications."57  Today  we  hold  that  a

temporary  suspension  of  contact visitation  is  a  permissible

limitation on visitation.

           In Matson v. Commercial Fisheries Entry Commission, we

explained that "[f]or the due process clause to apply, there must

be  `the  deprivation  of  an individual interest  of  sufficient

importance  to warrant constitutional protection.' "58   Although

visitation  implicates the constitutional right  to  reformation,

Cooper  and  Davis  did not deprive Larson of  visitation.   They

temporarily deprived Larson of contact visitation as  a  form  of

prison  discipline.  As the United States Supreme Court noted  in

Overton  v. Bazzetta, many states "us[e] withdrawal of visitation

privileges  for a limited period as a regular means of  effecting

prison  discipline.   This  is  not  a  dramatic  departure  from

accepted standards for conditions of confinement."59  But as  the

Court   recognized,  "[i]f  the  withdrawal  of  all   visitation

privileges were permanent or for a much longer period, or  if  it

were  applied in an arbitrary manner to a particular inmate,  the

case would present different considerations."60  In this case, the

temporary   interference   with   Larson's   contact   visitation

privileges as a means of effecting prison discipline was  not  so

severe  that  it implicated a constitutionally protected  liberty

interest.

V.   CONCLUSION

           For  these  reasons,  we AFFIRM the  superior  court's

grants of summary judgment.61

_______________________________
1    42 U.S.C.  2000bb et seq. (2000).
2     Larson no longer contends that the RFRA affords grounds for
relief  in  his  suit against Armstrong and Cooper.   The  United
States  Supreme Court held the RFRA unconstitutional in  City  of
Boerne v. Flores, 521 U.S. 507, 536 (1997).
3     "We  review  a  grant  of summary judgment  de  novo.   All
reasonable  factual inferences are drawn in  favor  of  the  non-
moving party to determine whether genuine issues of material fact
exist and whether the moving party is entitled to judgment  as  a
matter  of law."  Wongittilin v. State, 36 P.3d 678, 680  (Alaska
2001)   (original  emphasis)  (internal  quotation  and  citation
omitted).    In  reviewing  questions  of  law,  we   apply   our
independent  judgment and adopt the rule  of  law  that  is  most
persuasive in light of precedent, reason, and policy.  Mathis  v.
Sauser, 942 P.2d 1117, 1120 (Alaska 1997).
4     Cf.  Hines v. South Carolina Dep't of Corr., 148 F.3d  353,
357  (4th Cir. 1998) (declining to address question of which free
exercise standard applied because policy at issue was valid under
either approach).
5    Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872,
878-79 (1990).
6     Facially  neutral laws of general applicability  can  still
offend  the free exercise clause if they are clearly aimed  at  a
particular  religion, Church of the Lukumi Babalu  Aye,  Inc.  v.
City  of Hialeah, 508 U.S. 520 (1993), but Larson has not alleged
that  the  disputed  visitation  rules  were  enacted  with   any
discriminatory animus.
7    Turner v. Safley, 482 U.S. 78, 89 (1987); see also O'Lone v.
Estate of Shabazz, 482 U.S. 342, 349 (1987) (applying Turner test
to prisoner free exercise claim).
8     Turner,  482 U.S. at 84-85, 89 (explaining that courts  are
ill-equipped to deal with problems of prison administration,  and
that  these  problems  have  been committed  to  legislative  and
executive branches).
9    Id. at 89.
10    Id. (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)).
11     Pell v. Procunier, 417 U.S. 817, 823 (1974) ("[C]entral to
all other corrections goals is the institutional consideration of
internal    security    within   the    corrections    facilities
themselves.");  see  also Hines, 148 F.3d at  358  (stating  that
institutional security is compelling interest); May  v.  Baldwin,
109 F.3d 557, 563 (9th Cir. 1997) (same).
12     Block,  468 U.S. at 586 ("That there is a valid,  rational
connection between a ban on contact visits and internal  security
of  a  detention  facility  is too obvious  to  warrant  extended
discussion.").
13     See,  e.g.,  O'Lone,  482  U.S.  at  353  ("We  take  this
opportunity to reaffirm our refusal, even where claims  are  made
under the First Amendment, to `substitute our judgment on .  .  .
difficult and sensitive matters of institutional administration .
. . .' ") (quoting Block, 468 U.S. at 588).
14    Turner, 482 U.S. at 90.
15     O'Lone,  482 U.S. at 352 (emphasis added) (observing  that
Muslims  who  were  prevented from attending  Jumu'ah  by  prison
regulation remained free to "observe a number of their  religious
obligations").
16    Turner, 482 U.S. at 90.
17     Brock v. Rogers & Babler, Inc., 536 P.2d 778, 783  (Alaska
1975).
18     Breck  v.  Ulmer, 745 P.2d 66, 75 (Alaska 1987)  (original
emphasis).
19     22 Alaska Administrative Code (AAC) 05.130(b) (1991)  ("In
order  to have contact visitation with a prisoner, a visitor  may
be  required  to submit to a strip search, if reasonable  grounds
exist   to   believe  that  the  visitor  is  in  possession   of
contraband."); see also Leverette v. Bell, 247 F.3d 160, 167 (4th
Cir.  2001)  (collecting cases holding that  invasive  search  of
visitor must be supported by reasonable suspicion that visitor is
carrying contraband).
20     Bell v. Wolfish, 441 U.S. 520, 558-60 (1979) (stating that
suspicionless  body  cavity search of all  inmates  at  detention
facility following every contact visit is not unreasonable).
21     Cf.  Turner,  482  U.S. at 90 ("When accommodation  of  an
asserted  right will have a significant ripple effect  on  fellow
inmates  or  on  prison  staff,  courts  should  be  particularly
deferential   to   the   informed   discretion   of   corrections
officials.").
22    Id.
23    Id. at 90-91.
24    Id. at 91.
25    Id. at 90.
26    Alaska Const. art. 1,  4.
27    Frank v. State, 604 P.2d 1068, 1070-73 (Alaska 1979).
28     Id. at 1071-73; see also Swanner v. Anchorage Equal Rights
Comm'n, 874 P.2d 274, 281 (Alaska 1994).
29     Frank,  604 P.2d at 1070 (quoting Sherbert v. Verner,  374
U.S. 398, 403 (1963)).
30    Id. (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)).
31    See Employment Div., Dep't Human Res. v. Smith, 494 U.S. 872
(1990).  We chose not to follow Smith in Swanner, 874 P.2d at 280-
81,  and  instead chose to evaluate free exercise claims  brought
under  the  Alaska  Constitution using the  test  established  in
Frank.
32    Frank, 604 P.2d at 1073.
33    Id.
34     See  supra  Part  III.A.1  (discussing  Turner  and  Smith
standards).
35     Turner  v.  Safley, 482 U.S. 78, 84-85  (1987);  see  also
Overton  v.  Bazzetta,  123 S. Ct. 2162, 2167  (2003)  (according
"substantial  deference to the professional  judgment  of  prison
administrators,   who  bear  a  significant  responsibility   for
defining  the  legitimate goals of a corrections system  and  for
determining the most appropriate means to accomplish them").
36     Turner,  482  U.S. at 89 (quoting Jones v. North  Carolina
Prisoners' Union, 433 U.S. 119, 128 (1977)).
37     Mathis  v.  Sauser, 942 P.2d 1117, 1121 n.7 (Alaska  1997)
(quoting Turner, 482 U.S. at 89).
38    604 P.2d at 1073-74.
39    See the discussion above in Part III.A.1.b.
40     See id. (discussing increased monitoring and search  costs
associated  with  granting  Larson's requested  accommodation  in
context of Turner's third factor).
41    See id.
42    Larson contends that Spring Creek has never had to increase
staff to monitor the attorney-client visitation room in the past.
But  past staffing needs are based on past visitation rules; they
are irrelevant to the expanded visitation Larson seeks and others
would then demand.
43     The superior court did not reach this issue although it was
briefed below by both parties.
44     Brandon v. State, Dep't of Corrs., 938 P.2d 1029, 1032 n.2
(Alaska 1997).
45    Pasco v. State, Dep't of Admin., 45 P.3d 325, 328-29 (Alaska
2002) (holding that this court will not consider arguments raised
for first time on appeal).
46     We  consider in S-10708 the separate issue whether  prison
officials  had  an improper retaliatory motive for continuing  to
deny contact visitation to Larson for about two months after  the
prison  disciplinary committee found him not guilty of disobeying
a direct order.
47     Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 460-61
(1989) (quoting Montayne v. Haymes, 427 U.S. 236, 242 (1976)).
48    Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442
U.S. 1, 7 (1979).
49    Meachum v. Fano, 427 U.S. 215, 225 (1976).
50    Hewitt v. Helms, 459 U.S. 460, 468 (1983).
51     Sandin  v.  Conner,  515 U.S. 472,  484  (1995)  (citation
omitted).
52    Id. at 486.
53    Id.
54     Cf.  Ware v. Morrison, 276 F.3d 385, 387 (8th  Cir.  2002)
(holding prisoner's "loss of visitation privileges is within  the
ordinary  incidents of confinement and cannot  be  considered  an
atypical and significant hardship"); Blair v. Loomis, 1 F.  Supp.
2d 769, 772-73 (N.D. Ohio 1998); Drayton v. Comm'r of Corrs., 751
N.E.2d   916,  919-20  (Mass.  App.  2001)  (loss  of  visitation
privileges  for  one  year  did not implicate  liberty  interests
protected by Fourteenth Amendment).
55     Brandon v. State, Dep't of Corrs., 938 P.2d 1029,  1030-32
(Alaska 1997).
56    Id. at 1032 n.2.
57    Id.
58    Matson v. Commercial Fisheries Entry Comm'n, 785 P.2d 1200,
1206  (Alaska  1990) (quoting Nichols v. Eckert, 504  P.2d  1359,
1362 (Alaska 1973)).
59    Overton v. Bazzetta, 123 S. Ct. 2162, 2170 (2003).
60    Id.
61    Our conclusion that Cooper and Davis did not deprive Larson
of   a   protectable  liberty  interest  in  contact   visitation
necessarily  disposes of his contention that it was a  denial  of
his  procedural due process rights not to give him a  hearing  on
his  alleged  right to have contact visitation.  He was  given  a
hearing  after  he was charged with disobeying  a  direct  order.
This  hearing gave him an opportunity to dispute the adequacy  of
notice.