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KIMBERLIN v. U.S. DEPARTMENT OF JUSTICE
May 22, 2001
BRETT C. KIMBERLIN, ET AL. PLAINTIFFS,
UNITED STATES DEPARTMENT OF JUSTICE, ET AL. DEFENDANTS.
The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge.
MEMORANDUM OPINION AND ORDER
Brett Kimberlin and Darrell Rice, prison inmates, challenge the
constitutionality of the Bureau of Prisons' ("BOP") ban on electric or
electronic instruments in federal prisons, except those used in
connection with religious activities, and the Zimmer Amendment, section
611 of Pub.L. No. 104-208, 110 Stat. 3009 ("the Amendment"), which bans
federal funding for electric or electronic instruments in federal prisons
but does not by its terms create a religious use exception. Claims 1 and
2 of plaintiffs' complaint allege that BOP violated the Administrative
Procedures Act, 5 U.S.C. § 706 (1996) ("APA"). Claim 3 alleges that
BOP interferes with their First Amendment right to expression through
music and music writing. Finally, Claim 4 alleges that BOP's policy
deprives plaintiffs of their First and Fifth Amendment rights. Plaintiffs
seek declaratory and injunctive relief against BOP.
Pending before the Court are BOP's motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6), and plaintiffs' motion for summary judgment
pursuant to Fed.R.Civ.P. 56. Subsequent to the filing of these
pleadings, plaintiff filed an Amended Complaint adding an additional
plaintiff and updating and refining the original complaint which was filed
pro se. All the Claims asserted in the Amended Complaint have been
adequately addressed by the original pleadings, supplemental pleadings,
and oral arguments in this case; thus, no additional pleadings are
required. Upon careful consideration of those motions, the oppositions
thereto, relevant case law, and the arguments in Court, BOP's motion to
dismiss is GRANTED IN PART and DENIED IN PART. Plaintiffs' motion for
summary judgment is GRANTED IN PART and DENIED IN PART. This case is
The Zimmer Amendment was initially enacted as section 611 of the
Omnibus Budget Act of Fiscal Year 1997, which expired at the end of the
1997 fiscal year. The Amendment has been re-enacted in each subsequent
federal budget. The Amendment states that:
None of the funds made available in this Act shall be
used to provide the following amenities or personal
comforts in the Federal prison system:
(i) in cell television viewing except for prisoners
who are segregated from the general prison population
for their own safety;
(ii) The viewing of R, X, and NC-17 rated movies,
through whatever medium presented;
(iii)any instruction (live or through broadcasts) or
training equipment for boxing, wrestling, judo,
karate, or other martial art, or any bodybuilding or
weightlifting equipment of any sort;
(iv) possession of in-cell coffee pots, hot plates, or
(v) the use or possession of any electric or electronic
The Amendment's legislative history consists of this comment by
Representative Dick Zimmer introducing the Amendment on the floor of the
House of Representatives:
[T]his amendment deals with prison amenities. Prison
perks are bad public policy and a waste of taxpayer
dollars. My amendment is designed to start eliminating
them from Federal Prisons.
In some prisons, inmate amenities are better than what law-abiding
Americans have. Prisons should be places of detention and punishment;
prison perks undermine the concept of jails as a deterrence. They also
waste taxpayer money. . . .
[M]y amendment would help end this taxpayer abuse by prohibiting funds
from being spent in Federal prisons on luxuries such as martial arts
instruction, weight rooms, in-cell televisions, sexually explicit or
violent movies, and expensive electronic musical instruments. We must
make sure we are spending public funds wisely, not using them on
amenities that have little or no bearing on institutional security and
that far exceed basic standards of human dignity. . . .
[M]y amendment has won the support of the Law Enforcement Alliance of
America, the Nation's largest coalition of law enforcement officers,
crime victims, and concerned citizens. This is a reasonable amendment.
It does not provide for a return of the chain gang. It does provide for
a return to common sense. . . .
I urge my colleagues to support this amendment. Prison perks are bad
public policy and a waste of taxpayer dollars. My amendment is designed
to start eliminating them from Federal Prisons.
Earlier this year during consideration of the anti-crime component of
the Contract with America, this House accepted a no-frills prison
amendment I offered that requires the Attorney General to set specific
standards governing conditions in the Federal prison system that provide
the least amount of amenities and personal comforts consistent with
constitutional requirements and good order and discipline in the Federal
That amendment also requires the Bureau of Prisons to submit an annual
audit to Congress listing exactly how much is spent at each Federal
prison for basics and how much is spent on extras, perks, and amenities.
This requirement will allow Congress to get a handle on whether we are
spending taxpayers money on reasonable items to maintain and secure
prisoners, or whether money is being wasted on luxuries that many
law-abiding Americans cannot afford.
We must make sure we are spending public funds wisely-not using them on
amenities that have little bearing on institutional security.
BOP implements legislation through formal or informal rulemaking,
Program Statements, Operations Memoranda, and/or other memoranda.
According to BOP's Rules Administrator,
"[b]ecause the provisions of the Zimmer Amendment do
not allow the BOP any discretion in the provisioning
of specific amenities, there is not need to initiate
rulemaking under the [APA]. BOP accordingly could
proceed to advise . . . wardens how to implement the
legislation via internal memoranda."
BOP implemented the Amendment through Program Statements and Memorandum.
Thus, there are no BOP regulations pertaining to the Amendment.*fn1
BOP issued a Program Statement — Guidelines for Implementation of
the Amendment — on November 15, 1995. It states that "[p]rovisions
of the Zimmer Amendment relate only to the use of appropriated funds.
Given our understanding of the intent, however, the guidance provided
herein may very slightly from a literal reading of the amendment."
Specifically, referring to electrical instruments, it states:
Institutions which currently have electric guitars or
electronic instruments may retain these instruments.
No appropriated funds will be used to purchase new or
to repair existing equipment.
New institutions will not purchase electric or electronic
Trust Fund profits or inmate organization funds will not
be used to purchase or repair electric or electronic
equipment. Donations of these types ...
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