Searcy v. U.S.

• Decision Date: 09 November 2009
• Docket Number: Civil Action No. 08-0860 (JR).
• Citation: 668 F.Supp.2d 113
• Parties: Edgar SEARCY, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

668 F.Supp.2d 113

Edgar SEARCY, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Civil Action No. 08-0860 (JR).

United States District Court, District of Columbia.

November 9, 2009.

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Edgar Searcy, Petersburg, VA, pro se.

Andrea McBarnette, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES ROBERTSON, District Judge.

This matter is before the Court on the parties' cross-motions for summary judgment. For the reasons discussed below, summary judgment will be granted in favor of the United States.¹

I. BACKGROUND

Although plaintiff finds fault with a number of policies of the Federal Bureau of Prisons ("BOP"), only his challenge to the policy prohibiting an inmate from sharing his telephone access code with another inmate need be addressed here. As discussed below, this is the only claim for which plaintiff has exhausted his available administrative remedies.

1. The Inmate Telephone System

"The Bureau of Prisons extends telephone privileges to inmates as part of its overall correctional management." 28 C.F.R. § 540.100(a). "Telephone privileges are a supplemental means of maintaining community and family ties that will contribute to an inmate's personal development." Id. Inmates must use the BOP's Inmate Telephone System ("ITS") to make all personal telephone calls, and they "must not circumvent [the ITS] via call forwarding, including automatic electronic forwarding or any similar telephone function." Program Statement 5264.08, Inmate Telephone Regulations (corrected copy 02/11/2008) ("P.S. 5264.08") at 5. "An inmate telephone call shall ordinarily be made to a number identified on the inmate's official telephone list," and the list "ordinarily may contain up to 30 numbers." 28 C.F.R. § 540.101(a). The inmate certifies to the best of his knowledge that the persons on his list are agreeable to receiving his calls. 28 C.F.R. § 540.101(a)(1).

In order to place telephone calls, an inmate uses an access code number ("PAC"). See 28 C.F.R. § 540.101(c). He may neither possess another inmate's PAC nor give his PAC to another inmate. Id. Each inmate is responsible for the expenses of his telephone use, and "for staying aware of his ... account balance." 28 C.F.R. § 540.105(a).² The duration of a telephone call is subject to the availability of inmate funds, and, generally, an inmate having sufficient funds is allowed at least three minutes per call. 28 C.F.R. § 540.101(d). With the exception of inmates' conversations with their attorneys, inmate telephone calls are monitored. 28 C.F.R. § 540.102. "The inmate is responsible for any misuse of the telephone," and a "violation of the institution's telephone regulations may result in institutional disciplinary action." 28 C.F.R. § 540.104. The warden of any BOP facility may impose telephone restrictions "to protect the safety, security, and good order of the institution, as well as to protect the public." P.S. 5264.08 at 14.

2. Allegations of Plaintiff's Complaint

Plaintiff alleges that, "[o]n or about March 1, 2007, a free citizen on the outside deposited funds in [plaintiff's trust fund account] with the intent to pay for phone minutes ... [and] expected the right to associate by placing the money in the phone system." Compl. at 5. According to plaintiff, "[PAC] numbers of purchased minutes belong to the purchaser, and when [an inmate] purchases minutes for the depositor [of funds to his trust fund account], the [inmate] has the right to express 1st Amendment rights by providing the [PAC] number to the third party." Id. at 9. The purchaser, in turn, "[u]pon receipt of the [PAC] number, ... has the right to access the minutes on the phone to communicate with whomever they [sic] choose." Id. As a result, plaintiff alleges that "[BOP] staff improperly penalize[d] [him] for his constitutionally protected action of sharing the [PAC] number through expression, with the purchaser, and the third [party's] actions of using their [sic] purchased minutes with whomever they [sic] choose." Id. Plaintiff deems this punishment an act of retaliation for the "[valid] exercise of his rights." Id. Among other relief, plaintiff demands that the defendants be "restrained from penalizing any Trust fund member who shares the [PAC] of any phone account that contains funds placed on it by third parties on the outside, and those who the third parties share the [PAC] with[,]" and from "enforc[ing] any penalty that was placed on Trust fund members after they had exercised their rights to expression by sharing the [PAC.]" Id. at 7.

As I understand plaintiff's factual allegations, a third person deposited funds into plaintiff's inmate trust account in order that plaintiff could purchase telephone minutes. Plaintiff disclosed his PAC to that third person who, in turn, disclosed plaintiff's PAC to another inmate. That inmate made telephone calls to the third person using plaintiff's PAC in violation of BOP policy, subjecting plaintiff to disciplinary action. In plaintiff's view, the BOP's policy violates his First Amendment rights to free speech and free association with persons outside the prison via the ITS. He argues that any person who gives an inmate money so that the inmate may make telephone calls on the ITS is entitled to receive the inmate's PAC, and is entitled to share the PAC with whomever she chooses, notwithstanding any BOP policy, regulation or security concern regarding inmates' telephone use.

II. DISCUSSION

A. Exhaustion of Administrative Remedies

1. Exhaustion of Administrative Remedies Under the Prison Litigation Reform Act

In relevant part, the Prison Litigation Reform Act ("PLRA") provides that:

No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined to any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). This exhaustion requirement is mandatory and "applies to all prisoners seeking redress for prison circumstances or occurrences." Porter v. Nussle, 534 U.S. 516, 520, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); see Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); see Kaemmerling v. Lappin, 553 F.3d 669, 675 (D.C.Cir.2008). Exhaustion under the PLRA requires proper exhaustion, meaning that a prisoner must comply with procedural rules, including filing deadlines, as a precondition to filing a civil suit in federal court, regardless of the relief offered through the administrative process. Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). "Even if an inmate believes that seeking administrative relief from the prison would be futile and even if the grievance system cannot offer the particular form of relief sought, the prisoner nevertheless must exhaust the available administrative process." Kaemmerling v. Lappin, 553 F.3d at 675 (citing Booth v. Churner, 532 U.S. at 739, 741 & n. 6, 121 S.Ct. 1819). However, "if `the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint,' then a prisoner is left with nothing to exhaust and the PLRA does not prevent the prisoner from bringing his or her claim directly to the district court." Id. (citing Booth v. Churner, 532 U.S. at 736, 121 S.Ct. 1819). Typically, then, a prisoner may file a civil action concerning conditions of confinement under federal law only after he has exhausted the prison's administrative remedies. Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C.Cir.2001).

Exhaustion is an affirmative defense, not a jurisdictional bar, and the defense properly is raised in a motion for summary judgment. See Plummer v. District of Columbia, 596 F.Supp.2d 70, 73 (D.D.C.2009). Defendant argues that "[p]laintiff has failed to exhaust his administrative remedies for all but one of his claims," and, therefore, that "[a]ll of his unexhausted claims should be dismissed." Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss or, in the Alternative, for Summ. J. and Opp'n to Pl.'s Mot. for Summ. J ("Defs.' Mem.") at 7.

2. The BOP's Inmate Grievance Procedure

The Administrative Remedy Program is the means by which an inmate "seek[s] formal review of an issue relating to any aspect of his[] own confinement." 28 C.F.R. § 542.10(a). Generally, "an inmate shall first present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy." 28 C.F.R. § 542.13(a). If an informal resolution is not achieved, the inmate may submit a formal written Administrative Remedy Request within 20 calendar days following the date on which the basis for the request occurred. 28 C.F.R. § 542.14(a). The appeal of a Disciplinary Hearing Officer decision "shall be submitted initially to the Regional Director[.]" 28 C.F.R. § 542.14(d)(2). "An inmate who is not satisfied with the Regional Director's response may submit an Appeal ... to the General Counsel within 30 calendar days of the date the Regional Director signed the response." Id. An appeal to the Office of General Counsel is the final step in the administrative remedy process, and "[n]o request for [an] administrative remedy is considered exhausted until the Central Office has issued its formal response to the inmate." Defs.' Mem., Declaration of Bruce Plumley ("Plumley Decl.") ¶ 2.

BOP maintains a "computerized database known as SENTRY containing the log of all administrative remedy requests and appeals submitted by BOP inmates." Plumley Decl. ¶ 3. Each submission is assigned "a permanent and unique number in this log which is commonly referred to as the index." Id. A search of the index of administrative appeals submitted by plaintiff yielded "74 Requests and...