Harrison v. Federal Bureau of Prisons

• Decision Date: 14 December 2006
• Docket Number: No. 1:06CV1182 (TSE/TRJ).,1:06CV1182 (TSE/TRJ).
• Citation: 464 F.Supp.2d 552
• Court: U.S. District Court — Eastern District of Virginia
• Parties: William H. HARRISON, Plaintiff, v. FEDERAL BUREAU OF PRISONS, et al., Defendants.

Page 552

464 F.Supp.2d 552

William H. HARRISON, Plaintiff, v. FEDERAL BUREAU OF PRISONS, et al., Defendants.

No. 1:06CV1182 (TSE/TRJ).

United States District Court, E.D. Virginia. Alexandria Division.

December 14, 2006.

COPYRIGHT MATERIAL OMITTED

William Henry Harrison, Waymart, PA, pro se.

ORDER

ELLIS, District Judge.

William Henry Harrison, a federal inmate formerly housed in Virginia and proceeding pro se, has filed a civil action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and various federal statutes, challenging an increase of three cents in the long-distance telephone rate, from twenty cents per minute to twenty-three cents per minute, at Federal Bureau of Prisons ("BOP") institutions. He claims that the rate increase violated his (1) First Amendment rights; (2) Fifth Amendment right to due process; (3) Fifth Amendment right to equal protection; (4) the Administrative Procedure Act, 5 U.S.C. § 553; (5) the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671 et seq.; and (6) the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552.

In particular, plaintiff alleges that in late 2004, the long-distance telephone rate increased for domestic calls only. Unhappy about the increase, plaintiff submitted a complaint through the prison grievance process arguing that the "unilateral and arbitrary" three cent increase violated his constitutional rights. In response to his complaints, prison officials informed plaintiff that the rate change was a valid and reasonable increase in telephone charges. On October 16, 2006, plaintiff, dissatisfied with this response, filed the instant complaint.

I.

Well-settled principles furnish the legal lense through which plaintiffs claims must be viewed and assessed. Plaintiff has submitted an application to proceed in forma pauperis, thus, his claims are reviewable pursuant to 28 U.S.C. § 1915A, which requires early screening and dismissal of claims that are frivolous, malicious, or fail to state a claim upon which relief can be granted. Whether a complaint states a claim upon which relief can be granted is determined by "the familiar standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6)." Sumner v. Tucker, 9 F.Supp.2d 641, 642 (E.D.Va.1998). Thus, the alleged facts are presumed true, and the complaint should be dismissed only when "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hislion v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

II.

A. Constitutional Claims

1. First Amendment

Plaintiff claims defendants violated his First Amendment rights by increasing the long-distance telephone rates in federal correctional centers. To be sure, inmates have First Amendment rights notwithstanding their incarceration, but these rights are necessarily circumscribed because of the legitimate penological and administrative interests of the prison system. See Vester v. Rogers, 795 F.2d 1179, 1182 (4th Cir.1986) ("Although a prisoner does not shed his first amendment rights at the prison portals, it is equally true that lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights."). Thus, in the First Amendment context "prisoners have no per se constitutional right to use a telephone." United States v. Footman, 215 F.3d 145, 155 (1st Cir.2000).¹ Instead, "a prisoner's right to telephone access, if any, is subject to rational limitation based upon legitimate security and administrative interests of the penal institution." Arney v. Simmons, 26 F.Supp.2d 1288, 1293 (D.Kan.1998) (citing Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir.1994)). To that end, "the exact nature of the telephone service to be provided to inmates is generally to be determined by prison administrators." Evjene v. Hawsey, 1994 U.S. Dist. LEXIS 14526, at *7-8 (D.Ala.1994). And, "decisions made by prison officials regarding prison administration are entitled to significant deference." Shue v. Herring, 2006 U.S. Dist. LEXIS 73400, at *17-18 (M.D.N.C. 2006) (citing Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). As such, "absent extraordinary circumstances, the courts may not second-guess prison administrators, nor should federal courts immerse themselves in the management of state prisons." Id.

These principles make pellucidly clear that "prisoners are [not] entitled to a specific rate for their telephone calls." Johnson v. California, 207 F.3d 650, 656 (9th Cir.2000). Thus, by no stretch of the imagination does a three cent increase in the telephone rate implicate the First Amendment.² To hold otherwise would be to trivialize, and therefore undermine, a fundamental right. Accordingly, where, as here, plaintiff complains solely of a three cent increase in the telephone rate charged, dismissal is appropriate.

2. Due Process

Liberally construed, plaintiff argues that his Fifth Amendment rights have been violated because monies were removed from his prison inmate account to satisfy his telephone charges, without due process. To state a claim for a procedural due process violation, plaintiff must first allege a harm to a protectible interest in "life, liberty, or property." Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). Plaintiff has done so here because prisoners have a property interest in the funds held in their prison accounts. Waters v. Bass, 304 F.Supp.2d 802, 811 (E.D.Va.2004). Therefore, the questions is whether the BOP provided constitutionally adequate procedures when it withdrew money from plaintiffs prison trust account to satisfy his telephone usage charges.

In answering this question, it is important to note that "due process is flexible and calls for such procedural protections as the particular situation demands in order to minimize the risk of error." Id. In certain circumstances, due process will require pre-deprivation notice and a hearing, but where it is impractical to provide a meaningful hearing prior to an alleged deprivation, due process is satisfied when some meaningful post-deprivation procedure exists to assess the propriety of the state's action. Id.; Parratt v. Taylor, 451 U.S. 527, 538, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Thus, in Tillman v. Lebanon, 221 F.3d 410 (3d Cir.2000), the Third Circuit held it was impractical to require prisons to provide pre-deprivation proceedings where the prison withdrew ten dollars per day from a prisoner's account to pay for the costs of room and board because the withdrawal involved "routine matters of accounting," with a low risk of error. Id. at 421-22. Furthermore, Tillman held that due process is fully satisfied where post-deprivation procedures are available through the normal prison grievance system. Id. Likewise, in Waters, the court held that due process was satisfied where the :orison grievance process was available to evaluate plaintiffs challenge to the withdrawal from his account of a daily room and board fee of one dollar. 304 F.Supp.2d at 811. Thus, where, as here, the correctional facility routinely collects fees, or otherwise performs ministerial accounting tasks, procedural due process is satisfied by the availability of a post-deprivation proceeding, namely, the normal prison grievance process.. Thus, plaintiffs procedural due process rights have not been violated.³

3. Equal Protection

Next, plaintiff argues that the increased telephone rate, which applies only to domestic long-distance telephone calls, but not to local or foreign telephone calls, violates his equal protection rights under the Fifth Amendment. The Equal Protection Clause protects against arbitrary classifications by state actors. See U.S. Const. amend. XIV § 1. Nevertheless, a classification need only be rationally related to a legitimate state interest "unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion or alienage...." City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). While the Equal Protection Clause protects prisoners from discriminatory treatment by prison officials, prisoners are not considered a suspect class. Roller v. Gunn, 107 F.3d 227, 233 (4th Cir.1997). Therefore, prison regulations that classify prisoners need only meet a reasonableness test. See Washington v. Harper, 494 U.S. 210, 223, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990); Waters, 304 F.Supp.2d at 810 n. 15. Accordingly, a plaintiff must show "(i) that he has been treated differently from others with whom he is similarly situated and (ii) that the unequal treatment was a result of purposeful discrimination." Waters, 304 F.Supp.2d at 810.

Plaintiffs complaint fails to allege facts sufficient to demonstrate either showing. Plaintiff alleges that the telephone rate increase applies to long-distance calls in the United States, but not to local calls or foreign calls. While this may indicate that the telephone calls are classified differently, there is no indication that plaintiff has been treated differently from other inmates seeking to make domestic long-distance phone calls. See id. (dismissing equal protection claim where all inmates had to pay the daily room and board fee). Moreover, nothing in plaintiffs complaint suggests that prison officials imposed differing telephone rates for domestic and international long-distance because of purposeful discrimination. Thus, claim 3 must be dismissed.

B. Administrative Procedure Act

Plaintiff claims that the long-distance telephone rate increase violates the APA because the BOP did not promulgate the rate after complying with the notice and comment requirements of 5 U.S.C. § 553. While the Fourth Circuit has not addressed the issue, numerous circuits have either held or assumed that the BOP is an "agency" subject to the APA's rulemaking...