case was an informal, non-adversary review of the basis for his detentions within a reasonable time after they began. Hewitt, supra, 459 U.S. at 472.
As indicated above, Kimberlin was detained on three occasions. Two of the detentions (November 4-5; and December 22-23) were of very short duration. In both instances, he was released within twenty-four hours of being detained. The Court finds that under the Hewitt standard, Kimberlin was released with sufficient dispatch on both of these occasions, and that whatever review the prison officials provided conformed to Hewitt.
As concerns the remaining detention, that of November 7, the complaint alleges that Kimberlin was released after seven days, when a local disciplinary hearing officer determined that the alleged violation did not carry the sanction of segregation from the general prison population. First Amended Complaint at 17. This decision by the officer was likewise sufficiently speedy for due process purposes. See Hewitt, supra, where the Supreme Court held that prison officials are to be accorded wide-ranging deference in the adoption of policies and practices that, in their judgment, are needed to preserve prison order and discipline. The Court went on to say that such officials are obligated only to engage in an informal review of the information supporting the inmate's administrative confinement "within a reasonable time after confining him to administrative segregation." 459 U.S. at 472. It so happens that the inmate in Hewitt did not receive even an informal review until five days after his administrative detention, and that he remained in that detention for a considerable period thereafter. Nevertheless, the Supreme Court approved the actions of the officials. Under the standards established by the Supreme Court, Kimberlin was not deprived of procedural due process.
For the reasons stated, the Fifth Amendment claims will be dismissed.
Federal Tort Claims Act
Plaintiff next claims that he is entitled to damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), 1402(b), 2671 et seq.16 This entitlement is claimed to be based on his false imprisonment and the assault and battery, stemming from Director Quinlan's order that he be placed in administrative detention, and his handling by the prison guards while they took him to that detention. The government has moved to dismiss these claims on the basis of improper venue.
The statute lays venue of FTCA claims only in the "district where the plaintiff resides or wherein the act or omission complained of occurred." 28 U.S.C. § 1402(b). Since plaintiff does not reside in the District of Columbia, the issue is whether, under the standards established by cases, the acts complained of may be said to have occurred in this District.
The government relies principally upon Reuber v. United States, 242 App. D.C. 370, 750 F.2d 1039 (D.C. Cir. 1984). In that case, where a letter of reprimand concerning the plaintiff was written and circulated in Maryland, the Court of Appeals held venue in the District of Columbia to be improper even though it appeared that the letter was eventually leaked and posted on a bulletin board in this District. The court reached that result because the plaintiff could "point to no act in the District by any government employee that caused him any tortious injury," 750 F.2d at 1046-47 (emphasis added).
In the view of this Court, Reuber is not dispositive of the venue issues here. Unlike in that case, the plaintiff here has claimed that officials and other employees of the United States committed acts in this District that caused him injury. Specifically, the complaint alleges that Kimberlin was falsely imprisoned, i.e., placed in administrative detention, as a result of a conspiracy led by Director Quinlan in Washington, D.C. While the allegation of a conspiracy including officials in Washington would not, by itself, be sufficient to confer venue here,
the conspiracy allegation is here fleshed out with respect to the alleged false imprisonment by specific claims that Quinlan personally ordered Kimberlin held in administrative detention on November 4 and 7, 1988; that Quinlan falsely informed regional Bureau of Prisons officials that Kimberlin had told a member of the press that his life was in danger; and that Quinlan on November 7, 1988 approved and ratified Kimberlin's second administrative detention.
In short, Kimberlin's papers allege that the impetus for his administrative detentions came from Washington, D.C., where Director Quinlan ordered that Kimberlin be detained. Based on these allegations, the Court finds that there is a sufficient nexus between the false imprisonment claim and the District of Columbia for venue to be proper here with respect to that claim.
On the other hand, the Court concludes that venue does not lie in the District of Columbia with respect to the assault and battery claim. To be sure, plaintiff argues in his opposition to the motion to dismiss that the facts alleging false imprisonment are closely intertwined with those alleging assault and battery, and that "in ordering Kimberlin into confinement, Quinlan [in Washington] is responsible for the foreseeable consequences of his actions, including the assault and battery . . . ." Memorandum in Opposition at 16 n. 5. The present situation involves a statutory waiver of sovereign immunity; that waiver specifies precisely in which courts venue is proper; and the venue provision must therefore be strictly construed. The Court will not conclude that venue is appropriate in this District on the assault and battery charges, since in essence the plaintiff is relying only on the presence here of alleged conspirators and on implications arising from claimed foreseeability.
For these reasons, the motion to dismiss will be denied with respect to the FTCA false imprisonment claim but granted with respect to the assault and battery claim.
Claims Under the Omnibus Crime Control and Safe Streets Act
Kimberlin finally claims that prison officials monitored his use of the telephone, and that this monitoring violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C. § 2511. The Title III claim names Director Quinlan and the Bureau of Prisons as defendants. While the government argues to the contrary, it is established that Title III applies to prisons and prison inmates. United States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987); Campiti v. Walonis, 611 F.2d 387, 392 (1st Cir. 1979); compare United States v. Paul, 614 F.2d 115, 117 (6th Cir. 1980).
The government also contends that Kimberlin consented to the monitoring of his phone calls by using prison phones, see Amen, 831 F.2d at 378; Paul, 614 F.2d at 117; 18 U.S.C. § 2511(2)(c), and that the monitoring was valid under the statute because it was performed by a "law enforcement officer in the ordinary course of his duties." 18 U.S.C. § 2510(5)(a).
Consent may be implied, the government argues, from the fact that Kimberlin had constructive notice of the monitoring, because the Code of Federal Regulations authorizes telephone monitoring in prisons. 28 C.F.R. § 540.101. But that same regulation requires the warden to "provide notice to the inmate of the potential for monitoring." Under the circumstances of this case, the Court will not infer consent unless it can be shown that the warden gave notice to Kimberlin, alone or in conjunction with others, that the monitoring system was in place. Accordingly, before the Court would be justified in dismissing this claim, there would have to be a factual record on the notice question. Similarly, a factual record will have to be made on the issue of whether the monitoring of Kimberlin's calls occurred in the "ordinary course" of law enforcement duties. Paul, 614 F.2d at 117.
The motion to dismiss with respect to the Title III claim will therefore be denied, but that denial will be without prejudice to the filing of a motion for summary judgment upon the development of a further factual record.
ORDER - August 6, 1991, Filed
In accordance with the opinion issued this 6th day of August 1991, it is
ORDERED That the motion to dismiss or for summary judgment on plaintiff's First Amendment claims be and it is hereby denied, and it is further,
ORDERED That the motion to dismiss or for summary judgment on plaintiff's Fifth Amendment claims be and it is hereby granted, and it is further,
ORDERED That the motion to dismiss plaintiff's Federal Tort Claims Act (FTCA) claim for false imprisonment be and it is hereby denied, and it is further
ORDERED That the motion to dismiss plaintiff's FTCA claim for assault and battery be and it is hereby granted, and it is further
ORDERED That the motion to dismiss plaintiff's claim under the Omnibus Crime Control and Safe Streets Act be and it is hereby denied without prejudice, and it is further
ORDERED That this Court's June 14, 1991 protective order preventing depositions of defendants Quinlan and Miller be and it is hereby dissolved.