150 F.Supp.2d 36 (D.D.C. 2001), Civ. A. 97-2663, Kimberlin v. United States Dept. of Justice

Docket Nº:CIV. A. 97-2663(EGS).
Citation:150 F.Supp.2d 36
Party Name:Brett C. KIMBERLIN, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
Case Date:May 22, 2001
Court:United States District Courts, District of Columbia

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150 F.Supp.2d 36 (D.D.C. 2001)

Brett C. KIMBERLIN, et al., Plaintiffs,



No. CIV. A. 97-2663(EGS).

United States District Court, District of Columbia.

May 22, 2001

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[Copyrighted Material Omitted]

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Arthur Barry Spitzer, American Civil Liberties Unio, Washington, DC, for Plaintiff.

Brett C. Kimberlin, Pro Se.

Michael Anthony Humphrey, U.S. Atty's Office, Washington, DC, Robin Earnest, U.S. Dept. of Justice, Washington, DC, Jennifer U. Toth, U.S. Atty's Office, Washington, DC, Halsey B. Frank, U.S. Atty's Office, Portland, ME, for Defendant.


SULLIVAN, District Judge.


Brett Kimberlin and Darrell Rice, prison inmates, challenge the constitutionality of the Bureau of Prisons' ("BOP") ban on electric or electronic instruments in federal prisons, except those used in connection with religious activities, and the Zimmer Amendment, section 611 of Pub.L. No. 104-208, 110 Stat. 3009 ("the Amendment"), which bans federal funding for electric or electronic instruments in federal prisons but does not by its terms create a religious use exception. Claims 1 and 2 of plaintiffs' complaint allege that BOP violated the Administrative Procedures Act, 5 U.S.C. § 706 (1996)("APA"). Claim 3 alleges that BOP interferes with their First Amendment right to expression through music and music writing. Finally, Claim 4 alleges that BOP's policy deprives plaintiffs of their First and Fifth Amendment rights. Plaintiffs seek declaratory and injunctive relief against BOP.

Pending before the Court are BOP's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), and plaintiffs' motion for summary judgment pursuant to Fed.R.Civ.P. 56. Subsequent to the filing of these pleadings, plaintiff filed an Amended Complaint adding an additional plaintiff and updating and refining the original complaint which was filed pro se. All the Claims asserted in the Amended Complaint have been adequately addressed by the original pleadings, supplemental pleadings, and oral arguments in this case; thus, no additional pleadings are required. Upon careful consideration of those motions, the oppositions thereto, relevant case law, and the arguments in Court, BOP's motion to dismiss is GRANTED IN PART and DENIED IN PART. Plaintiffs' motion for summary judgment is GRANTED IN PART and DENIED IN PART. This case is DISMISSED.


The Zimmer Amendment was initially enacted as section 611 of the Omnibus Budget Act of Fiscal Year 1997, which expired at the end of the 1997 fiscal year. The Amendment has been re-enacted in each subsequent federal budget. The Amendment states that:

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None of the funds made available in this Act shall be used to provide the following amenities or personal comforts in the Federal prison system:

(i) in cell television viewing except for prisoners who are segregated from the general prison population for their own safety;

(ii) The viewing of R, X, and NC 17 rated movies, through whatever medium presented;

(iii)any instruction (live or through broadcasts) or training equipment for boxing, wrestling, judo, karate, or other martial art, or any bodybuilding or weightlifting equipment of any sort;

(iv) possession of in-cell coffee pots, hot plates, or heating elements;

(v) the use or possession of any electric or electronic musical instrument.

The Amendment's legislative history consists of this comment by Representative Dick Zimmer introducing the Amendment on the floor of the House of Representatives:

[T]his amendment deals with prison amenities. Prison perks are bad public policy and a waste of taxpayer dollars. My amendment is designed to start eliminating them from Federal Prisons.

In some prisons, inmate amenities are better than what law-abiding Americans have. Prisons should be places of detention and punishment; prison perks undermine the concept of jails as a deterrence. They also waste taxpayer money. ...

[M]y amendment would help end this taxpayer abuse by prohibiting funds from being spent in Federal prisons on luxuries such as martial arts instruction, weight rooms, in-cell televisions, sexually explicit or violent movies, and expensive electronic musical instruments. We must make sure we are spending public funds wisely, not using them on amenities that have little or no bearing on institutional security and that far exceed basic standards of human dignity....

[M]y amendment has won the support of the Law Enforcement Alliance of America, the Nation's largest coalition of law enforcement officers, crime victims, and concerned citizens. This is a reasonable amendment. It does not provide for a return of the chain gang. It does provide for a return to common sense....

I urge my colleagues to support this amendment. Prison perks are bad public policy and a waste of taxpayer dollars. My amendment is designed to start eliminating them from Federal Prisons.

. . . . .

Earlier this year during consideration of the anti-crime component of the Contract with America, this House accepted a no-frills prison amendment I offered that requires the Attorney General to set specific standards governing conditions in the Federal prison system that provide the least amount of amenities and personal comforts consistent with constitutional requirements and good order and discipline in the Federal prison system.

That amendment also requires the Bureau of Prisons to submit an annual audit to Congress listing exactly how much is spent at each Federal prison for basics and how much is spent on extras, perks, and amenities.

This requirement will allow Congress to get a handle on whether we are spending taxpayers money on reasonable items to maintain and secure prisoners, or whether money is being wasted on luxuries that many law-abiding Americans cannot afford.

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We must make sure we are spending public funds wisely-not using them on amenities that have little bearing on institutional security.

141 Cong. Rec. H7751-01.

BOP implements legislation through formal or informal rulemaking, Program Statements, Operations Memoranda, and/or other memoranda. According to BOP's Rules Administrator,

"[b]ecause the provisions of the Zimmer Amendment do not allow the BOP any discretion in the provisioning of specific amenities, there is not need to initiate rulemaking under the [APA]. BOP accordingly could proceed to advise ... wardens how to implement the legislation via internal memoranda."

BOP implemented the Amendment through Program Statements and Memorandum. Thus, there are no BOP regulations pertaining to the Amendment. 1

BOP issued a Program Statement--Guidelines for Implementation of the Amendment--on November 15, 1995. It states that "[p]rovisions of the Zimmer Amendment relate only to the use of appropriated funds. Given our understanding of the intent, however, the guidance provided herein may very slightly from a literal reading of the amendment." Specifically, referring to electrical instruments, it states:

1. Institutions which currently have electric guitars or electronic instruments may retain these instruments. No appropriated funds will be used to purchase new or to repair existing equipment.

2. New institutions will not purchase electric or electronic instruments.

3. Trust Fund profits or inmate organization funds will not be used to purchase or repair electric or electronic equipment. Donations of these types of instruments will not be accepted.

4. The only authorized exception is electric or electronic equipment which is used in conjunction with religious activities, stored in the chapel area and is [sic] under the supervision of the Religious Services Department. Appropriated funds may be used to purchase or maintain such equipment in all BOP facilities.

BOP implemented this policy immediately, and, as a result, it predates the enactment of the Amendment.

On August 26, 1996, BOP issued a memorandum addressing questions BOP received regarding how to implement the Amendment. The memorandum clarified the following:

1. Inmates may not use their own money to buy electric or electronic instruments as personal property.

2. Electric and electronic instruments are keyboards, electric guitars, and any other electric instrument that produces music.

3. Microphones, amplifiers, speakers, tape players, and record players are excluded from the prohibition.

4. The recreation staff may not purchase guitar strings for electric guitars nor may they use strings that were already on hand prior to Fiscal Year 1996.

5. Prisoners are to mail home all musical instruments by November 1, 1997.

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BOP phased electrical instruments out of the music program, rather than eliminating all the electrical instruments at once. BOP anticipated that this gradual change would minimize inmate reaction to the Amendment. The phase-out plan is not contrary to the Amendment because it does not involve appropriated funds to implement. In addition, the policy became effective prior to the enactment of the Amendment.

BOP interprets the Zimmer Amendment as not allowing inmates to use personal monies or trust funds 2 to purchase or repair electrical instruments. BOP is of the opinion that the use of other funding sources to purchase or repair electrical instruments would only circumvent the intent of Congress.

BOP also interprets the Amendment as not applicable to electrical instruments used in conjunction with religious activities. As BOP states:

[c]ongregational singing with musical instrument accompaniment is a traditional component of the worship experience. This exception was made because the BOP does not find that it was the intent of Congress to restrict the use of musical instruments as part of the religious services ceremonies.

The legislation did not refer to elimination of electric...

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