Phillips v. Bureau of Prisons

Decision Date15 January 1979
Docket NumberNo. 76-2142,76-2142
Citation591 F.2d 966,192 U.S.App.D.C. 357
PartiesRonald T. PHILLIPS et al., Appellants, v. BUREAU OF PRISONS et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

William H. Allen, Washington, D. C., with whom Mark D. Herlach, Washington, D. C., was on the brief, for appellants.

Mitchell B. Dubick, Atty., Dept. of Justice, Washington, D. C., with whom George W. Calhoun, Atty., Dept. of Justice, Washington, D. C., was on the brief, for appellees.

Before BAZELON, LEVENTHAL and ROBINSON, Circuit Judges.

Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Ronald T. Phillips is one of a number of paralegal staff assistants employed by the National Prison Project, an organization engaged in the provision of legal services to prisoners. 1 The duties assigned Project paralegals include interviewing prisoners who are witnesses in pending cases or present or prospective clients of attorneys associated with the Project. Envisioning this role for Phillips, himself a former federal prisoner, the Project sought permission from the Bureau of Prisons for Phillips to enter federal penal institutions for the purpose of conducting such interviews. 2 By letter, the Bureau promptly denied the Project's request. 3

Shortly thereafter, this litigation was launched in the District Court by Phillips, the Project and its executive director, and three federal inmates who are clients of the Project. 4 Characterizing Phillips' exclusion as arbitrary, their complaint demanded declaratory and injunctive relief. The court, deeming the Bureau's action "a reasonable exercise of . . . discretion," dismissed the suit for lack of a claim upon which relief could be granted, 5 whereupon this appeal was taken. 6

We are mindful that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 7 We think, however, that stringent standard has been met here and, accordingly, we affirm the judgment of dismissal.

I. THE FACTUAL BACKGROUND

The posture of the case constrained the District Court as it does us to accept the truth of the well-pleaded factual allegations of the complaint. 8 We are mindful, too, that when passing on a motion attacking the legal efficacy of the plaintiff's statement of his claim, the court may properly look beyond the complaint only to items in the record of the case or to matters of general public record. 9 We accordingly confine ourselves largely to the contents of the complaint, including prominently the text of the Bureau's letter-decision incorporated therein, 10 in distilling the factual predicate for resolution of this appeal.

In responding to the Project's request on Phillips' behalf, the Bureau emphasized that it had no general policy of automatically excluding ex-offenders from paralegal activity inside federal prisons. 11 On the contrary, the Bureau declared, each such application is considered on its own merits. 12 Phillips was refused permission, the Bureau said, principally because of his disciplinary record during his seven years of federal incarceration. 13 While confined, Phillips had taken part in several serious institutional disturbances, playing a leadership role in at least two of them. 14 These incidents included an attempt to incite a work stoppage, encouraging and engaging in other group demonstrations, endeavoring to introduce contraband into a segregation unit, threatening bodily harm, and "fighting, refusing orders, and possession of a stolen radio." 15 In the Bureau's view, this history revealed Phillips as "disruptive and a poor influence on other inmates," 16 and portrayed a relevant "course of conduct" which the Bureau could not "responsibly ignore." 17

The complaint recounted, without controverting in any manner, this recitation of Phillips' record as a federal inmate. This may be explained by appellants' consistent position that Phillips' past should be irrelevant to determination of whether he should be granted entry into federal prisons, and that only his post-release record should be considered. 18 The Bureau responds by noting that when the Project's request was acted on Phillips had been paroled only three months earlier 19 and therefore that his prison record was a necessary determinant in their predictive decision to deny him access in order to safeguard order and discipline in the institutions under their charge.

Appellants complained to the District Court that the Bureau's decision trespassed on rights secured to them by the Constitution. We examine, in turn, each of their several claims and as we are obliged to do 20 such additional theories of recovery that the factual averments of their complaint might support. In the end, we conclude that none can prevail.

II. PHILLIPS' CLAIMS

Phillips maintains that the Bureau's decision deprived him of liberty and property without due process of law in violation of the Fifth Amendment. He asserts that the Bureau's action was taken without reference to any established standard. He insists, too, that it was arbitrary because unaccompanied by any showing that he actually presented a threat to prison security. 21

A. The Right Involved

It cannot be gainsaid that Phillips enjoys an interest in the pursuit of his newly-found vocation commanding a measure of constitutional protection. His want is to function as a paralegal, and he has manifested an interest in working with prisoners, many of whom, of course, are kept in federal facilities. No one can deny that "the right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the 'liberty' and 'property' concepts of the Fifth Amendment . . .." 22 To be sure, the right to ply the paralegal's trade does not per se entail a concomitant right to freely enter federal prisons to do so; the Bureau need not afford opportunities to realize one's occupational aspirations. 23 But the Bureau may not capriciously foreclose to particular individuals opportunities that it has previously and independently created generally for others. 24

A critical factor in our present analysis is that paralegals ordinarily may enter federal penal institutions for conferences with inmates related to legal business. The Bureau has a long-standing policy 25 of extending visitation privileges liberally to attorneys. 26 Paralegals, treated identically 27 save for required supervision by an attorney, 28 are "routinely granted access to federal prisoners." 29 Indeed, visits of all sorts are encouraged except when their denial becomes "necessary to insure the security, good order, and discipline of the institution." 30 Hence, "consistent, positive action of government officials" has created "a justifiable expectation that the only basis for the government's refusal to grant" 31 entrance is concern for internal security, order and discipline. 32 Put another way, "rules or mutually explicit understandings" 33 have given rise to a "legitimate claim of entitlement." 34 Phillips has alleged facts making out this much, and it is too early in the litigation to be certain that he is wrong.

B. The Balance of Interests

Nonetheless, while we believe that paralegals enjoy the safeguard of due process for their general entitlement to enter federal prisons to function as such, we are satisfied that the Bureau's decision to exclude Phillips was faithful to a constitutionally permissible standard and was reached by constitutionally acceptable means. And we reject the suggestion that the Bureau must demonstrate that Phillips, if admitted would actually upset institutional tranquility.

The Bureau's decision made reasonably clear that Phillips was refused ingress because his prison record disclosed his disruptive proclivities and led Bureau officials to consider him a serious threat to the stability of conditions essential to prison security. 35 The Bureau's governing standard that paralegals may be kept out when that is adjudged necessary to insure discipline and good order 36 strikes us as definite as protection of the governmental interest, involving as it does a predictive determination, permits, and is sufficiently precise to satisfy constitutional demands. 37 As the Supreme Court has acknowledged, "(b)ecause the realities of running a penal institution are complex and difficult, we have . . . recognized the wide-ranging deference to be accorded the decisions of prison administrators." 38 And as the Court has underscored, "central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves." 39 In sum, the judiciary is duty bound to uphold the reasonable judgments of responsible officials on that score. 40

Phillips argues, however, that the Bureau's failure to Demonstrate that he would disrupt order and discipline in federal facilities to which he might be admitted as a paralegal renders his exclusion constitutionally infirm. 41 This position misallocates the burden of proof. Nothing in the Constitution compelled the Bureau, in order to sustain its decision to exclude Phillips, to prove to the satisfaction of a judge that he actually posed a threat to prison security. As the Supreme Court has declared, "(t)he necessary and correct result of (judicial) deference to the informed discretion of prison administrators permits them, not the courts, to make the difficult judgments concerning institutional operations in situations such as this." 42 Consequently, a "further requirement of a demonstrable showing that (Phillips) was in fact harmful is inconsistent with the deference federal courts should pay to the informed discretion of prison officials." 43 Concededly, the Bureau's decision would be vulnerable were it...

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