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Searcy v. United States

November 9, 2009

EDGAR SEARCY, PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James Robertson United States District Judge

MEMORANDUM OPINION

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.*fn1

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).*fn2 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 ...


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