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March 3, 2003


The opinion of the court was delivered by: Sullivan, District Judge.


Defendants Michael J. Quinlan, the former Director of the Bureau of Prisons ("BOP"), and Loye M. Miller, the former Chief of Public Affairs for the Department of Justice, move for summary judgment on plaintiff's claims against them in their individual capacities. Plaintiff, Brett Kimberlin, filed this lawsuit in 1990 against defendant Quinlan in his individual and official capacities, defendant Miller in his individual capacity, and the United States of America. Plaintiff contends, inter alia, that defendants violated his First Amendment rights. In 1998, this Court dismissed all claims against the United States of America and against defendant Quinlan in his official capacity.

The narrow issue presented to this Court in considering defendants' motion for summary judgment is whether plaintiff has presented sufficient evidence to establish a dispute as to the defendants' role in, and motivation for, the cancellation of plaintiff's interviews with the press and his placement in administrative detention. The Court finds that the factual record presented by the parties is riddled with genuine issues of material fact, precluding entry of summary judgment for defendants.

I. Background

A. Factual Background

Although the underlying facts of this case have been outlined numerous times by both the District Court and the Court of Appeals, the facts are key to this Court's analysis and, thus, the Court will add to the existing descriptions of the events engendering this litigation. Because plaintiff here must show that, when reasonable inferences are drawn in his favor, the record would support a finding that the defendants acted with improper motive, the Court pays particular attention to the factual record, which plaintiff contends supports his claims. In late October 1988, in the days leading up to the 1988 presidential election, plaintiff Brett Kimberlin, a federal prison inmate incarcerated at the Federal Correctional Institution at El Reno, Oklahoma, began informing members of the press that he had sold marijuana to then Republican vice-presidential candidate, Dan Quayle, during the 1970s. See Totenberg Decl. at ¶¶ 2-3.

Nina Totenberg of National Public Radio learned of Mr. Kimberlin's allegations "about 2 weeks before the election," and the following week, "other news organizations learned about Kimberlin." Id. There was interest from journalists in the plaintiff's allegations and plaintiff spoke with the reporters over the telephone, an activity which did not require prison approval.

On November 3, 1988, five days before the presidential election, NBC News requested permission from the prison to interview Mr. Kimberlin in person and on camera. Copeland Dep. at 28-29. This was the first time that a news organization had asked a government official for permission to interview Mr. Kimberlin.

NBC's request was relayed to the Director of BOP in Washington, D.C., defendant J. Michael Quinlan, as well as to at least one of his superiors. NBC was initially refused permission to interview Mr. Kimberlin until after the election. Pl.'s Ex. 4 at 2. In response, the network threatened to broadcast plaintiff's allegations unless permitted to conduct the interview. Defendant Quinlan later wrote the Associate Attorney General:

The NBC staff member attempting to set up the interview explicitly told Bureau staff that if they were not granted prompt access to Kimberlin, the network would run a story with the additional twist that the Bureau was preventing the interview until after the election to protect the Quayle candidacy.


Deputy Associate Attorney General Copeland testified at his deposition that, after the NBC request for an interview, plaintiff was to be placed in administrative detention. He described his recollection of a report that he received from defendant Quinlan or one of his immediate subordinates, who claimed to have received information from the warden at plaintiff's institution. He stated:

Well, see, my recollection was that that may have been part of the initial report. This guy made these allegations, NBC has got them, they want to follow up, but under our rules he's violated our procedures and therefore we've put him in administrative detention. . . . That was the action they were about to take with respect to him.

Copeland Dep. at 51-52, 56. Plaintiff argues that it is a reasonable inference from Mr. Copeland's statements to conclude that NBC's demand was one of the reasons for plaintiff's subsequent placement in administrative detention. While Mr. Quinlan ultimately allowed the NBC interview to proceed, that decision was in part motivated by his assessment that "Kimberlin's fundamental lack of credibility" made broadcast of his allegations before the election unlikely." Pl.'s Ex. 4 at 2. Yet, Mr. Quinlan's superior, then-Associate Attorney General Frank Keating, acknowledged that an inmate's credibility should be irrelevant to any decision to permit press access. See Pl.'s Ex. 7, at 25 (Keating Dep.). While NBC ultimately did not air the interview with plaintiff, a local Oklahoma newspaper printed a front-page story on November 4, 1988. The story was titled "Quayle Probe Comes to El Reno," and reported the nature of Mr. Kimberlin's allegations, and that he had been interviewed by NBC. Pl.'s Ex. 10.

Following news of the NBC interview, numerous reporters contacted the prison. Local prison officials determined that a single interview session, which they called a "group interview," would best accommodate the press and be consistent with prison management needs. Pl.'s Ex. 6, at 144-46 (Hershberger Dep.). The Acting Warden, Greg Hershberger, determined that "the easiest way for the institution to resolve the situation was to have everybody come in, talk to this guy; get it over with; get him out of our hair and get them out of our hair than to have to be piecemealing it one at a time over a period of several days or weeks. That's why I made the decision." Id. at 144. The prison scheduled this group interview for 7:00 p.m. on November 4, 1988, the Friday before the Tuesday election.

Mr. Kimberlin's telephone conversations on November 4 were intercepted and recorded. In these conversations, he revealed that he intended to tell the press of his own allegations regarding the vice-presidential candidate, as well as of the existence of a "DEA file in Washington on Quayle." Defs.' Ex. 32, at 18-19 (transcript of plaintiff's conversation with an investigative journalist named Cody Shearer).

Mr. Miller, however, denies this conversation. Rather, he states that Mr. Goodin noted that the closer to the Tuesday election that the story were to break, the more attention it was likely to receive. See Pl.'s Ex. 19 at 4. Mr. Goodin testified that Mr. Miller agreed to keep the Bush-Quayle Campaign apprised of plaintiff's activities. Further, he testified that Mr. Miller explained that "he was receiving his status reports from the Bureau of Prisons" and that he "was going through a chain of command on it as well." Pl.'s Ex. 11 at 91.

Mr. Miller admits that publication of Mr. Kimberlin's allegations prior to the election would have resulted in a sensational news story. See Pl.'s Ex. 18 at 15, 70 (Miller Dep.). At least in part because of the political sensitivity of the impending press conference, Mr. Miller promptly alerted the Executive Assistant to Attorney General Thornburgh of plaintiff's plan to have a press conference. Id. at 63. Mr. Miller also called BOP. Pl.'s Ex. 19 at 1. The Bush-Quayle campaign also contacted BOP headquarters.

Director Quinlan personally cancelled plaintiff's press conference within an hour or two of learning of it. Plaintiff contends that Director Quinlan cancelled the conference after receiving telephone calls from Mr. Miller and the Bush-Quayle campaign. According to Mr. Goodin, Director Quinlan promptly notified him and the Quayle Campaign that the press conference had been canceled. Pl.'s Ex. 11 at 78-79.

Director Quinlan states that he cancelled the press conference because it violated an unwritten BOP "policy." Pl.'s Ex. 20 at 2. However, plaintiff contends that no such policy existed at the time of the events in question. Indeed, Mr. Miller informed Mr. Goodin that it was within plaintiff's rights to have such a conference. Plaintiff relies on testimony from other BOP officials acknowledging that no policy prohibited inmate press conferences. See, e.g., Pl.'s Ex. 23 at 17 (Martin Dep.); Pl.'s Ex. ¶ at 152-55 (Hershberger Dep.).

A few hours after Mr. Quinlan cancelled the press conference, Mr. Kimberlin was locked into an isolated detention cell commonly known among staff and inmates as "the hole." See Pl.'s Ex. 26 at ¶¶ 6, 10 (Kimberlin Decl.); Pl.'s Ex. 6 at 90 (Hershberger Dep.). Mr. Quinlan personally ordered plaintiff's confinement. See Pl.'s Ex. 8 at 102 (Quinlan Dep.); Pl.'s Ex. 16 at 2. During his deposition, Mr. Quinlan stated that he issued the order for plaintiff's detention because he was concerned for plaintiff's "safety." Pl.'s Ex. 8 at 101. Mr. Quinlan made a late-night phone call from his hotel in Chicago to prison officials, in which he instructed that Mr. Kimberlin be locked in administrative detention. Id. at 101-02. Following Mr. Quinlan's phone call, prison officials ordered plaintiff into administrative detention at approximately 11:00 p.m. Central Time. Def.'s Ex. 19 at 56-59 (Benefiel Dep.). While defendants argue that Mr. Quinlan "made no inquiries to anyone . . . as to what Kimberlin would say to the press" before ordering his confinement, Mr. Quinlan has acknowledged that he knew the contents of plaintiff's allegations regarding candidate Quayle prior to the NBC interview held at the prison that morning. See Pl.'s Ex. 8 at 93-94.

Mr. Quinlan's stated belief that plaintiff was in danger stems from a phone call that plaintiff argues was made to Mr. Quinlan by Mr. Miller. Mr. Quinlan claims that his confinement order rested solely on information that he received that Mr. Kimberlin perceived he was in some danger.

Ms. Totenberg testified:

What I remember very specifically is that — is [Miller] trying to tell me I was the basis for the Department of Justice believing that Mr. Kimberlin's life was in danger from fellow inmates and I told him that was a goddamn lie, I believe. And if that was the re[e]d he was leaning on, he ...

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