Kimberlin v. Quinlan, 91-5315

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation303 U.S.App.D.C. 330,6 F.3d 789
Docket NumberNo. 91-5315,91-5315
PartiesBrett C. KIMBERLIN, Appellee, v. Michael J. QUINLAN, et al., Appellants.
Decision Date08 October 1993

Appeal from the United States District Court for the District of Columbia (Civil Action No. 90-01549).

Robert M. Loeb, Attorney, U.S. Dept. of Justice, argued the cause for the appellants. On brief were Jay B. Stephens, U.S. Atty. at the time the briefs were filed, Stuart M. Gerson, Asst. Atty. Gen., and Barbara L. Herwig, Attorney, U.S. Dept. of Justice.

Howard T. Rosenblatt argued the cause for appellee.

Jane E. Kirtley filed the brief for amicus curiae Reporters Committee for Freedom of the Press.

David H. Remes and Arthur B. Spitzer filed the brief for amicus curiae American Civil Liberties Union of the Nat. Capital Area.

Before EDWARDS, WILLIAMS and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LECRAFT HENDERSON.

Separate concurring opinion filed by Circuit Judge STEPHEN F. WILLIAMS.

Dissenting opinion filed by Circuit Judge HARRY T. EDWARDS.


Brett C. Kimberlin, a federal prisoner, brought this action against J. Michael Quinlan, Director of the Bureau of Prisons (Bureau), Loye W. Miller, Jr., Director of Public Affairs at the Department of Justice (Department), and the United States. The complaint alleged Quinlan and Miller, in their individual capacities, conspired to violate and in fact violated Kimberlin's rights under the first and fifth amendments to the United States Constitution by denying him, respectively, access to the press and due process of law. In addition, the complaint charged the United States and Quinlan in his official capacity with the torts of assault and battery and with violating title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2511. The district court dismissed the tort claims in part 1 and the fifth amendment claims in toto but left intact the first amendment and title III claims. See Kimberlin v. Quinlan, 774 F.Supp. 1 (D.D.C.1991). Quinlan and Miller now appeal the district court's denial of their motions for dismissal or summary judgment on the first amendment claims, alleging they are entitled to qualified immunity from liability on those claims. 2 For the following reasons we conclude the appellants are entitled to qualified immunity and, accordingly, reverse the district court's decision and remand with direction to enter summary judgment in their favor on the first amendment claims.

The circumstances giving rise to Kimberlin's claims are largely undisputed. Sometime before the November 8, 1988 presidential election, while incarcerated at the El Reno Federal Correctional Institution (El Reno) in El Reno, Oklahoma, 3 Kimberlin announced to members of the news media that he had sold marijuana to Dan Quayle, the Republican candidate for Vice President, when Quayle was a law student in the early 1970s. On November 3, the Thursday before the election, NBC News contacted El Reno authorities and requested an interview with Kimberlin. The Bureau's Central Office in Washington, under pressure from NBC News, directed that the interview be expedited in order to occur before the election. Accordingly, the interview was conducted on Friday November 4. 4 On either Thursday or Friday, an official at the Bush/Quayle Campaign, having learned of the situation from other sources, telephoned the Bureau "for additional information" and was informed of the interview. Memorandum from Quinlan to Francis A. Keating, II, Associate Attorney General (Keating Memorandum) at 4. 5

Other interview requests followed and, according to Carolyn A. Sabol, Regional Counsel for the Bureau's South Central Regional Office, "the Acting Warden suggested that a joint interview be set up to reduce the strain on institution resources of handling each interview separately." June 19, 1990 Letter from Sabol to Howard T. Rosenblatt, Counsel for Brett C. Kimberlin (Sabol Letter). Accordingly, R.C. Benefiel, executive assistant to the El Reno warden, told Kimberlin that "he would set up a 'press conference' for that evening at 7:00." Oct. 30, 1990 Declaration of Brett C. Kimberlin (Kimberlin Declaration) at 2. Mark Goodin, Deputy Press Secretary for the Bush/Quayle campaign, learned of the impending press conference from a reporter and telephoned Miller to say he was "amazed" that Kimberlin was to hold a press conference. Oct. 16, 1990 Deposition of Mark W. Goodin 73. Miller responded "Well, amazed or not, he's going to have one. It's within his rights to have one according to the rules and regulations." Id.

Late in the afternoon of November 4, Quinlan ordered the press conference cancelled because, as he put it, "[t]he Bureau's policy on media access permits individual media contacts by inmates, as well as small press pools under specialized circumstances, but does not authorize inmate press conferences." Keating Memorandum at 3. Quinlan apparently maintained a consistent policy against press conferences by prisoners. See Aaron Freiwald, Isolation for Inmate with Quayle Claims, Legal Times, Dec. 19, 1988, at 10 ("Quinlan ... notes that he has not allowed a prison press conference since he became director of the bureau late last year."). 6 At approximately 11:30 p.m. on November 4 Kimberlin was placed in administrative detention at Quinlan's direction. Sabol Letter at 3. The administrative detention order entered by the El Reno prison officials on November 4 recited as the reason for detention that Kimberlin "stated to the National news media this [sic] his life is in danger." November 4, 1988 Detention Order. A contemporaneous memorandum from Benefiel to Kimberlin's file stated that J.D. Williams, the Bureau's South Central Regional Director, had telephoned to report that a radio reporter had informed Miller that Kimberlin "feared retaliation and had fear for his safeth [sic]." November 4, 1988 Memorandum from R.C. Benefiel to Investigative File. The memorandum further noted that "the evening watch lieutenant ... had been receiving information that inmates on the compound were saying that if Kimberlin will snitch on Quale [sic] he will do the same to us." Id. Benefiel's memorandum concluded: "Based upon the information about his being called a snitch and the telephone call from Mr. Williams it was decided that to insure the inmates [sic] safety he would be placed in administration detention until the matter could be throughly [sic] investigated by investigative staff. I directed the evening watch to make such placement." Id.

The following day, while Kimberlin was still in detention, Miller received another telephone call from Goodin who "noted the obvious: that the closer to the Tuesday election that the story were to break, the more attention it was likely to get, and the better the chance that it could have at least some adverse effect on the Bush-Quayle chances." October 11, 1989 Memorandum from Miller to Whom it May Concern (Miller Memorandum) at 4. Miller noted, however, that "Goodwin [sic] did not try in any way to influence the department's handling of Kimberlin." Id. Goodin himself denied seeking or receiving any "reassurances" from Miller, Goodin Deposition at 73, or ever speaking with anyone at the Bureau, id. at 90. In addition, Quinlan stated the Bureau received only a single call from the Bush/Quayle campaign regarding Kimberlin, the one described above, and that "[a]t no time during the entire period from Thursday, November 3rd through Election Day did anyone from the Bush/Quayle campaign ask or instruct the Bureau of Prisons to do anything with regard to this matter." Keating Memorandum at 4. Around 7:30 that evening, Kimberlin was released from detention after an investigation revealed no threat to his safety and "Kimberlin specifically stated he did not perceive a threat." Sabol Letter at 3.

On November 7, Kimberlin was again placed in administrative detention, this time, according to the Bureau, for violating a Bureau regulation prohibiting any prisoner from making a third-party telephone call, that is, a call placed to one party who electronically transfers it to another party. November 7, 1988 Incident Report; see 28 C.F.R. Sec. 540.104 (1988) ("Third party billing and electronic transfer of a call to a third party are not permitted."). According to El Reno records, the third-party call occurred on November 4 when Kimberlin telephoned a friend who in turn connected him through a conference call to a lawyer for the Democratic National Committee. Nov. 14, 1988 Disciplinary Hearing Officer Report 2. The same records noted that Kimberlin admitted making the call but denied knowing it was proscribed. Id. He was found guilty of the violation after a hearing on November 14 and was released later that day. Id.

Kimberlin was placed in detention for a third time on December 22, according to the Bureau, for again violating the third-party telephone prohibition. Local prison officials released Kimberlin on December 23 and found him not guilty because there was "no specific evidence that [Kimberlin] intentionally placed a conference/third-party call." January 9, 1989 Incident Report. This detention occurred a few days after news stories appeared describing Kimberlin's problems with prison officials and one day after Kimberlin had conducted two telephone interviews. Kimberlin Declaration at 4.

As previously noted, the foregoing facts are not in dispute. What is vigorously contested is the motivation for Kimberlin's three detentions. Kimberlin alleges the first two detentions were ordered to deny him access to the press while the third was in retaliation for his media interviews. The appellants, on the other hand, maintain that the detentions were ordered for the reasons set out above: the first to ensure Kimberlin's safety and the later two on account...

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