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KIMBERLIN v. QUINLAN

August 6, 1991

BRETT C. KIMBERLIN, Plaintiff,
v.
J. MICHAEL QUINLAN, et al., Defendants


Harold H. Greene, United States District Judge.


The opinion of the court was delivered by: GREENE

HAROLD H. GREEN, UNITED STATES DISTRICT JUDGE

 This suit charges that, in the fall of 1988, just prior to the presidential election, the plaintiff, at that time an inmate at the El Reno Federal Correctional Institution in Oklahoma, *fn1" contacted national and local journalists to inform them that in 1971 he had sold marijuana to Dan Quayle, then a candidate for and now Vice President of the United States. The complaint further alleges that plaintiff was prevented from speaking to the journalists by being placed in an isolation cell, and that he was subsequently retaliated against when he persisted in his attempts to contact the press. The action is now before the Court on defendants' motions to dismiss. *fn2"

 I

 Factual Background

 According to the complaint, Kimberlin was interviewed by NBC News on the afternoon of Friday, November 4, 1988, four days before the presidential election, and he was scheduled to have another interview, this time with a group of reporters, at 7:00 p.m. that same day. However, before the second interview could take place, defendant J. Michael Quinlan, the Director of the Bureau of Prisons, cancelled the meeting and ordered Kimberlin to be placed in administrative detention *fn3" where he remained until the next day. Two days after that, on Monday, November 7, the day before the presidential election, Kimberlin planned to address a conference of reporters in Washington, D.C. via telephone, but in the morning of that day he was again placed in detention, this time to be kept for seven days, until November 14. Kimberlin was placed in detention a third time, from December 22 until December 23, 1988.

 Based on these events, Kimberlin has filed Bivens4 actions against two government officials, Bureau of Prisons Director Quinlan, and Loye W. Miller, Jr., at the time Director of Public Affairs of the Department of Justice, in their individual capacities, for violating his rights under the First and Fifth Amendments. It is plaintiff's claim that it was the defendants' purpose, when issuing or participating in the issuance of the first two detention orders, to prevent him from informing the press prior to the election about his transactions with Dan Quayle, and that the third detention was ordered in retaliation for his previous contacts with the press. In their motion papers, the defendants contest plaintiff's claims. Specifically, they assert that Kimberlin's first detention was effected for his own safety, and that the second and third detentions were ordered because the correctional authorities were investigating whether he had violated prison rules against making third-party telephone calls. *fn5" Defendants' Statement of Material Facts at 2-4.

 In addition to the Bivens suit, Kimberlin has filed an action under the Federal Tort Claims Act (FTCA) against the United States and against Mr. Quinlan in his official capacity. It is charged in that action that the three detentions amounted to false imprisonment, and that Kimberlin's treatment by prison guards while he was in detention constituted assault and battery. Kimberlin also claims that prison officials monitored his telephone calls in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

 Pending before the Court at this time is a motion by the defendants in their individual capacities to dismiss or for summary judgment in the Bivens action, and a motion by the government and by Director Quinlan in his official capacity to dismiss the Federal Tort Claims Act and Title III actions.

 II

 Established Constitutional Rights

 Kimberlin's First Amendment Bivens claim hinges in large part on the motive of the government officials for placing him in administrative detention. While officials such as Quinlan and Miller have qualified immunity against suit, a plaintiff will prevail notwithstanding that immunity if he is able to prove that the officials were motivated by a purpose to violate rights that were clearly established at the time of the conduct in question. Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Martin v. D.C. Metro. Police Dep't., 259 App. D.C. 31, 812 F.2d 1425, 1431-33, vacated in part on other grounds, 260 App. D.C. 37, 817 F.2d 144, en banc reinstated sub nom. Bartlett on behalf of Neuman v. Bowen, 263 App. D.C. 260, 824 F.2d 1240 (D.C. Cir. 1987).

 For purposes of analysis, it is useful to determine first whether the conduct alleged by Kimberlin in light of the officials' alleged motivation violated a right that was clearly established at the time the conduct is alleged to have occurred. On that issue, the general rule is that the "contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987).

 Defendants argue that prison inmates do not have a right either to face-to-face press interviews or to telephonic press conferences, and that defendant's actions therefore did not violate plaintiff's rights under the First Amendment. It would follow, of course, that such a right was not clearly established at the time of the events in question.

 However, plaintiff is not claiming that there is or was a general Bureau of Prisons policy banning these methods of press contact, or that such a policy, if it existed, would violate the First Amendment rights of inmates. Rather, it is his contention that the prison officials cancelled one previously approved face-to-face interview, prevented him from conducting other telephonic interviews, and retaliated against him for his previous contacts with the press -- all not because these activities contravened a general prohibition on contacts with the press but because of the content of what he was expected to say to the journalists.

 It was clearly established in November 1988 that, absent special circumstances, federal prison inmates have a First Amendment right to be free from governmental interference with their contacts with the press if that interference is based on the content of their speech or proposed speech. As early as 1975, the Court of Appeals for the Third Circuit ruled explicitly that the First Amendment prohibits prison officials from granting or denying a prisoner's interview with the press based on the content of that interview. Main Road v. Aytch, 522 F.2d 1080, 1086-87 (3d Cir. 1975), where the court stated that the "First Amendment precludes [a prison official] from regulating, through the grant or denial of permission for prisoners to talk with reporters, the content of speech which reaches the news media, unless the restriction bears a substantial relationship to a significant governmental interest."

 The Supreme Court decided about the same time that a prison regulation that restricts prisoners' contact with the press is valid but only "so long as this restriction operates in a neutral fashion, without regard to the content of the expression." Pell v. Procunier, 417 U.S. 817, 828, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974). And it has likewise been decided that a prison regulation that operates in the area of inmates' First Amendment rights must have some rational connection with a legitimate governmental interest, and that regulation must "operate[] in a neutral fashion, without regard to the content of the expression." Turner v. Safley, 482 U.S. 78, 89-90, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987) (upholding ban on prisoner-to-prisoner correspondence in part because it was content-neutral). See also, Bell v. Wolfish, 441 U.S. 520, 551, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) (upholding content-neutral regulation requiring that hard cover books be sent only by publishers). *fn6"

 In sum, if the officials were motivated by a purpose to keep Kimberlin from speaking to the press because of the content of his expected communications, their conduct violated a well-established right, and qualified immunity would not attach to their actions.

 III

 Heightened Pleading Requirements

 The next issue revolves around the motivation of the defendants: did they intend to keep Kimberlin from speaking to the press because they were concerned about what he might say? That issue must be examined from two perspectives: first, did the allegations of First Amendment violations in plaintiff's papers comply with the heightened pleading requirements established in this Circuit with respect to claims of this type?, and second, were plaintiff's allegations concerning defendants' intent or motive substantively sufficient to withstand defendants' motion to dismiss? In this section of the opinion, the Court examines the law respecting the heightened pleading requirement; in the next section, it considers the facts as they are alleged by plaintiff to determine their sufficiency under that pleading requirement and in light of the motion to dismiss as such.

 The defendants argue that they should not be subjected to discovery and required to undergo a trial on the basis of mere general allegations of wrongdoing, and that is certainly correct. See Whitacre v. Davey, 890 F.2d 1168, 1171 (D.C. Cir. 1989); Hobson v. Wilson, 237 App. D.C. 219, 737 F.2d 1, 29, (D.C. Cir. 1984). The law is, at least in this Circuit, that a plaintiff who makes a Bivens claim which alleges unconstitutional motive must meet what are called heightened pleading requirements when he is faced with a motion to dismiss. Siegert v. Gilley, 895 F.2d 797 (D.C. Cir. 1990), affirmed on other grounds, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991). Because the ...


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