Opinion
CA 00-0035-CB-C.
December 5, 2000
REPORT AND RECOMMENDATION
The special report and answer filed by the defendants on May 3, 2000 (Docs. 15 16) were converted into a motion for summary judgment by order dated May 17, 2000 (Doc. 20). This motion is before the Court for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(d). Upon consideration of the summary judgment motion, with attachments, the complaint, and plaintiffs response to the defendants' motion for summary judgment, the undersigned recommends that summary judgment be granted in favor of the defendants.
A full-time magistrate judge may issue any preliminary orders and conduct any necessary evidentiary hearing or other appropriate proceeding and shall submit to a district judge a report containing proposed findings of fact and recommendations for the disposition of complaints filed by prisoners challenging the conditions of their confinement." SD ALA LR 72.1(d).
FINDINGS OF FACT
1. Plaintiff filed a civil rights complaint, pursuant to 42 U.S.C. § 1983, against numerous prison officials on January 13, 2000, alleging the violation of his constitutional rights to equal protection of the laws and access to the courts by these defendants. (Doc. 1) Specifically, Boglin alleged the following:
It is also clear, both from a broad reading of the complaint and Boglin's response to the defendants' summary judgment motion, that a claim is being made that the defendants have infringed upon plaintiffs First Amendment rights by blocking his access to his mother's telephone number at work.
I arrived at [F]ountain [C]orr. [C]enter on 11-5-99[.] I submitted my inmate phone list with one number to my mother[,] [Q]ueen [S]woope, (256) 637-6378[,] who is the clerk of the [C]ity of [N]orth [C]ourtland, [A]labama. [F]or years from the A.D.O.C. [I] have called this number directly to the city hall because my mother[,] who [is] the city clerk[,] has received permission from the mayor for me to call and she pays for the calls personally. I first spoke with [C]apt. Allen who called my mother who told him that [I] could put this number on my list[.] Warden Thomas said put it on my list, but Warden Ferrell told me he was denying it. . . . [W]hen [I] spoke to [W]arden [F]errell he told me that he wasn't going to permit me to call said number[;] he stated[,] "I'm not going to have you calling city [h]all revealing things about [my] institution[.]" [T]his came after he learned my family is elected officials that was instrumental in the establishing of the city in (1981). In fear that [I] would take legal actions my incoming Legal Mail was being intercepted and held for weeks[;] as a result[,] I could not appeal a ruling from a court (see: exhibit B-2 [-] envelopes that arrived at [F]ountain on 12-3-99 but was not given to me until 12-18-99 signed by [S]gt [S] January and issued by CO-I Lane). I received "LEGAL" from the town of North Courtland, but it was opened by the mail clerk A. Montgomery and delivered in regular mail.
The defendants [have] and are violating my Equal Protection [r]ights to be treated [e]qually to other inmates who [are] allowed to submit a phone list and call their families. I have been denied this because my family (my mother) is an elected city official and due to the constant violations that takes place at Fountain, I have been denied [a]ccess to communicate with my family by use of the telephone.
In an attempt to prevent me from addressing the courts[,] the defendants [have] conspired to hold my incoming legal mail [thereby,] [d]enying me proper [a]ccess to the court, a violation of the plaintiffs [r]ights.
( Id. at 5-5B) Attached to the complaint is the inmate phone list for Boglin dated November 19, 1999. ( See Doc. 1, Inmate Phone List) Listed thereon is the number 256-637-6378 and directly following that number is the word DENIED. ( Id.) It is clear that plaintiffs access to this number was denied by order of Deputy Warden Ferrell. ( See Id.)
2. Plaintiff also attached to his complaint a xeroxed copy of two envelopes apparently addressed to him from the United States District Court for the Northern District of Alabama. ( See Doc. 1, Exhibit B) Both envelopes appear to contain a postmark date of December 1, 1999 from Birmingham, Alabama and the following inscription by a prison official: "Rec 12/18/99 issued by Officer Lane[.] S.J, CO II[.]" ( Id.) Finally, Boglin attached to the complaint part of an order he received from the Circuit Court of Escambia County, Alabama. (Doc. 1, Exhibit C) This partial order reads, in pertinent part, as follows: "This matter comes before the Court on the petition for writ of habeas corpus filed by the petitioner. The Court, ex mero motu, finds that this case is due to be dismissed for failure to state a claim upon which relief can be granted. The claim does not involve a protected liberty interest and the loss suffered by the petitioner does not amount to a grievous loss of a substantive interest protected by the Federal Commission. It is therefore, ORDERED, ADJUDGED AND DECREED that the petition for writ of habeas corpus is dismissed." ( Id.)
3. In response to plaintiffs complaint, the Court has received the affidavits of all defendants, namely, Willie J. Thomas, Jerry L. Ferrell, Angelia Montgomery, and Walter Allen. (Doc. 16, Exhibits 1-4) Ferrell's affidavit reads, in relevant part, as follows:
Inmate Boglin submitted a telephone number [on his inmate telephone list]. When the number was entered into the inmate telephone computer, the computer indicated the number was already in the computer and was submitted by another inmate named Corey Orr. Since inmate Boglin and inmate Orr were not known to be related, the number was investigated and found to be the telephone number at North Courtland City Hall.
This defendant telephoned North Courtland City Hall and ultimately spoke with a gentleman identified as Fred James, Mayor of North Courtland. This defendant explained to Mayor James that inmate Corey Orr was making collect calls to City Hall and that inmate Vincent Boglin was requesting to place that same number on his calling list. Mayor James asked this defendant if the City Hall number could be blocked from the inmates['] phone list[s]. This defendant advised that it could. Mayor James requested this defendant to block or remove from all inmate phone lists the number to the North Courtland City Hall. This defendant advised plaintiff Boglin of said conversation with Mayor James.
This defendant has received no communication from Mayor James authorizing or requesting that said telephone number, that of North Courtland City Hall, be returned to the inmate phone data bank for inmate Boglin or any other inmate assigned to G. K. Fountain.
(Doc. 16, Exhibit 2; see also Doc. 16, Exhibit 4, Affidavit of Walter Allen (same)) The affidavit of Warden Willie J. Thomas makes clear that consistent with Fountain's inmate telephone system procedure, "the individual whose name appears on the phone bill may request that number be restricted from an inmate's phone list." (Doc. 16, Exhibit 1)
4. Administrative Regulation 431, dated November 27, 1995, governs inmate usage of prison telephone systems. ( See Administrative Regulation 431, Attached hereto as Exhibit "A")
INMATE PHONE SYSTEM
I. GENERAL
A. Purpose
To establish procedures for authorizing use of the institution's inmate telephones by inmates to maintain constructive family and community ties, and for controlling unauthorized use of the telephones by inmates. The DOC has a security interest in the use of telephones by inmates.
Inmate telephone usage is a privilege not a right which is given to inmates to promote good behavior. Telephone restrictions can result from numerous situations including disciplinaries and Inmate Behavior Citations.
II. RESPONSIBILITY
III. PROCEDURE
A. It is the responsibility of the Captain to establish a telephone schedule for the inmate's use depending on dorm/bed assignment/location.
B. The Warden will designate two employees to be the primary and secondary data input operator later referred to as the "Phone Officer".
1. The Warden's designees for the processing of telephone lists will check the Inmate Request Box daily and insure that the phone numbers are entered into the telephone computer on a daily basis.
C. The Receiving Unit at each institution will distribute the Inmate Telephone List form to each inmate when received into their facility.
D. It is the Inmate's responsibility to fully complete the form and deposit it into the Inmate Request Box located in the main hallway of each institution.
E. The Disciplinary/Inmate Behavior Citation Officer will provide a copy of the disciplinary/inmate citation behavior restrictions, or any other restrictions, to the Phone Officer on a daily basis to be entered into the computer.
F. The Commissioner or his designee will make any exceptions to this regulation that are necessary to carry out the phone operations at each facility.
A. Upon arrival at a facility every inmate, who intends to make a phone call to anyone, must deposit his/her completed telephone list into the Inmate Request Box located in the main hallway of the institution.
B. The Phone Officer will enter the telephone list into the telephone restrictor computer within 24 hours after the inmate is received at the institution during normal work week (Monday-Friday).
C. Each inmate's telephone list will be entered into the telephone restrictor computer by his/her AIS number which will be his/her Personal Identification Number (PIN) along with his/her name.
A. Inmates may change their phone lists once ever[y] six (6) months, at the time of their regular visiting/funds list change.
B. If an inmate's immediate family member moves prior to the six (6) month change, the inmate can submit a copy of the old phone bill and a copy of the new phone bill as documentation and the phone number for that particular person can be changed at that time by the Phone Officer.
Restriction of phone privileges will be posted daily in the computer by the Phone Officer and the expiration of restrictions will be removed daily.
A. Restrictions that expire on a weekend will be removed from the computer on the next working business day.
A. Any phone call, other than one involving attorney-client privilege, may be tape recorded and investigated to maintain institutional security.
B. Tape recorded conversations may be used as evidence at a disciplinary hearing or free-world court where there is a violation of a State or Federal law.
C. Any inmate who is heard on the monitoring system being abusive to the other party on the phone may have their call terminated immediately by the Warden's designee who monitors the calls. If this behavior continues, the phone number can be deleted from the inmate's phone list with the approval of the Warden.
D. 3-Way phone calls are prohibited on the inmate phone system. If it is determined by the phone officer thru monitoring a call that the inmate is involved in a 3-way call with an individual not on their approved phone list, the call will be terminated and the inmate is subject to disciplinary action.
The Phone Officer will delete the PIN number and phone list of any inmate who is transferred to another institution or released from the system within 24 hours of the departure.
A. The Captain will establish a telephone schedule to include the following:
1. Population: Telephones will operate from approximately 8:00 a.m. (after the dormitory passes inspection) until 10:00 p.m. Honor Dorm programs will be allowed extra hours as directed by the Captain.
2. Disciplinary Segregation: One (1) phone call to a family member is allowed immediately prior to the inmate's placement in disciplinary segregation. Except for emergencies, no other phone calls are authorized while confined in Disciplinary Segregation status.
3. Administrative Segregation: (A/Seg, LWOP, Close and Maximum) One (1) phone call per month or as directed by the Segregation Supervisor.
4. Protective Custody: Daily access when the area is clean, security of the inmate is assured, and the correctional staff has time to allow the inmate out of his cell to make the call.
5. Inmates who have been placed on restriction from citations, disciplinaries, or other reasons will have their phone list restricted to one minute until the restriction time is completed. This will allow them ample time to notify their families that they are alright and reduce the number of calls to the Administration.
B. Time limits based on institutional security levels are as follows:
1. Level I and II Facilities: No restrictions on their phones other than the 15 minute time limit per call. No phone list will be required.
2. Level III and IV Facilities: Allowed to have ten individuals on their phone list with 15 minute time frame per call.
3. Level V and VI Facilities: Limited to eight individual phone numbers on their list with 15 minute time frame per call.
4. Kilby's RCC Unit which consists of transient inmates will not operate under the PIN ID numbers. Kilby Correctional Facility's permanent party inmates will be restricted according to the institutional security level. (Level IV)
A phone located in a supervised area will be designated as the Inmate Emergency Phone. The inmate must submit a written request to the supervisor on duty to justify a special call.
A. Special calls will be approved for attorney calls, inmates who just arrived and who have not had their Phone List approved, and the returning of phone calls to their families who have verifiable emergencies.
( Id.) In addition, Fountain has a Standard Operating Procedure which regulates inmate access and use of telephone facilities. This SOP reads, in relevant part, as follows:
II. POLICY
A. The policies and procedures outlined in this S.O.P. apply to all inmates requesting the privilege to communicate by telephone.
1. In order to use the phones an inmate must first submit an Inmate Calling List. (Annex A). Inmates will be allowed to enter ten (10) telephone numbers on their list. Inmates transferred to Fountain Correctional Center from other institutions will be allowed to submit a calling list.
a. Inmates may not dial international area codes or 800 numbers.
b. Inmates may not have duplicate telephone numbers. This being the same number on more than one inmate[']s telephone calling list. Cases of family, inmates related to or married into the same family will be considered on an individual basis. Numbers found to be on more than one calling list will be blocked on all calling list[s] until an explanation is received and reviewed.
c. Inmates may change or add to their calling list every six (6) months ONLY by submitting a new telephone list.
d. Inmate requests to change telephone numbers on their list because of a person on their list moving or having their telephone number changed, must have old and new bill as verification per AR 431.
e. Inmates who attempt to place numbers on their list for inmates who have had their phone privileges suspended or so another inmate may have more than 10 numbers on his list, or for any other reason, are subject to disciplinary action.
f. Inmates will not be allowed to place a call and have the person they call connect them with a third party, (3-way calling).
g. Inmates making calls other than normally scheduled times, will have those numbers blocked. Inmates must see the Captain to have numbers reinstalled.
2. Inmates will be provided with reasonable and equitable access to telephones.
3. Inmate telephone calls will be monitored randomly where there is sufficient probable cause or information to believe the telephone privilege is being abused in a manner that is in violation of law or detrimental to the security of the institution, employees, or other inmates.
4. Telephone calls to attorneys or other legal representatives shall be permitted to any inmate upon request, as soon as reasonably possible.III. PROCEDURES A. General Population
1. There are five (5) telephones in dormitories 1, 2, 3, 4; dorm 8 has 4 phones for use by inmates in general population.
2. Inmates in general population may use these telephones daily during their off duty hours. The only exception would be attorney cases. All telephone calls will be made collect.
3. Inmates will not be allowed to use the telephone before 11 a.m. or after 11:00 p.m., unless an emergency occurs. The Shift Commander or his/her designee, must verify the emergency and allow the inmate access to the telephone.
a. All telephone calls will be limited to a maximum of fifteen (15) minutes. This time limit is regulated by computer and will terminate the call after fifteen (15) minutes.
b. The telephones are to be closely monitored by the Officer working the area where the telephones are located to insure they are not abused by the inmates.
c. Inmates who have had their telephone privileges suspended/revoked, by a citation or disciplinary hearing, will not be permitted to make a telephone call until this privilege has been restored.
d. If an inmate's language on the telephone becomes loud, abusive, profane or obnoxious, the dorm Officer will immediately order the inmate to hang up the telephone or the officer may terminate the call.
(Standard Operating Procedure Number 10-3, Attached Hereto as Exhibit "B")
5. G. K. Fountain Correctional Facility ("Fountain") is a Security Level 4 institution. (Department of Corrections Classification Manual, at 65, Attached Hereto as Exhibit "C") Because it is a Security Level 4 prison, an inmate confined there is allowed to place only ten individuals on his phone list. ( Compare AR 431, VIII.B.2. with ALABAMA DEPARTMENT OF CORRECTIONS INMATE ID/PIN DATABASE FORM, Attached Hereto as Exhibit "D") The database form instructs prisoners that they may make no changes to the list for six months from the date the form is completed and entered. ( Id.)
6. All of the named defendants have denied, in general terms, that they conspired together to hold or delay plaintiffs legal mail. (Doc. 16, Exhibits 1-4)
7. In response to the defendants' affidavits, Boglin, in non-affidavit form, simply claims that he has shown, through exhibits attached to the complaint, that his legal mail from federal court was withheld for roughly fifteen days and ultimately he "was denied appealability in such practice[;]" that he has shown by exhibit that he was denied telephone privileges and access to the "free world" by telephone; that this Court has not received "substantial legal confirmation" that the Mayor of North Courtland asked that plaintiff not be allowed to contact his mother at the North Courtland City Hall; and, finally, that the defendants have deprived him of his constitutional rights to equal protection of the laws by treating him differently from others similarly situated regarding access to the telephone upon his arrival at Fountain. ( See Doc. 26)
CONCLUSIONS OF LAW
1. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment."). The clear language of Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A complete failure of proof by the non-movant on an element essential to his case renders all facts immaterial, so the movant is entitled to judgment as a matter of law. Id. at 323, 106 S.Ct. at 2553; see Bennett v. Parker, 898 F.2d 1530, 1532 (11th Cir. 1990) ("Facts in dispute cease to be `material' facts when the plaintiff fails to establish a prima facie case."), cert. denied, 498 U.S. 1103, 111 S.Ct. 1003, 112 L.Ed.2d 1085 (1991).
The substantive law will identify which facts are material. 477 U.S. at 248, 106 S.Ct. at 2510. The Supreme Court concluded in Anderson "that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case." Id. at 255, 106 S.Ct. at 2514.
2. This Court must inquire "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict — whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512 (citation omitted) (emphasis in original). The party seeking summary judgment has the initial responsibility of informing the court of the basis for the motion and of establishing, based upon the discovery instruments outlined in Rule 56(c), that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. When the burden of proof at trial belongs to the nonmovant, as is the case here, the moving party need not "support its motion with affidavits or other similar materials negating the opponent's claim," id., but rather, "a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324, 106 S.Ct. at 2553. Once this initial demonstration is made, Rule 56(e) requires the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id., quoting Fed.R.Civ.P. 56(e).
Forbidding reliance upon pleadings precludes a party from "choos[ing] to wait until trial to develop claims or defenses relevant to the summary judgment motion." . . . This effectuates the purpose of summary judgment which "`is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" . . . Thus, "mere general allegations which do not reveal detailed and precise facts" will not prevent the award of summary judgment upon a court's determination that no genuine issue for trial exists.Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir.), cert. denied sub nom. Jones v. Resolution Trust Corp., 516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995). In other words, there is no genuine issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party[.]" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
3. In considering whether the defendants are entitled to summary judgment, the Magistrate Judge has viewed the facts in the light most favorable to the plaintiff. Belcher v. City of Foley, 30 F.3d 1390, 1392 (11th Cir. 1994). Therefore, what the undersigned has stated the facts to be in this opinion may not be the facts that would be established at trial. See id. at 1393 (citation omitted).
4. Boglin's primary claim is that defendants Thomas, Ferrell and Allen have deprived him of telephone privileges by not allowing him to maintain the telephone number for the North Courtland City Hall (i.e., 256-637-6378) on his inmate phone list thereby preventing him from calling his mother who is the North Courtland city clerk. The Eleventh Circuit held in Pope v. Hightower, 101 F.3d 1382, 1384-1385 (11th Cir. 1996), that the ten-person telephone calling list imposed at Donaldson Correctional Facility bore a reasonable relationship to legitimate penological objectives. Therefore, the undersigned finds that same ten-person limit imposed at Fountain likewise bears a reasonable relation to legitimate penological objectives for those same reasons outlined in Pope. While the ten-person limit is not the focus of Boglin's attack, the analysis in Pope certainly informs the decision on the issue raised by plaintiff, i.e., whether the restriction that a telephone number that appears on more than one inmate's list will be blocked until an explanation is explained and reviewed violates the First Amendment.
5. In Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987), the Supreme Court held that when a prison regulation impinges upon an inmate's constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. "The Turner Court identified several factors that serve to channel the reasonableness inquiry: (1) whether there is a `valid, rational connection' between the regulation and a legitimate governmental interest put forward to justify it; (2) whether there are alternative means of exercising the asserted constitutional right that remain open to the inmates; (3) whether and the extent to which accommodation of the asserted right will have an impact on prison staff, inmates, and the allocation of prison resources generally; and (4) whether the regulation represents an `exaggerated response' to prison concerns." Pope, 101 F.3d at 1384 (citations omitted).
6. Here, a valid connection exists between the restriction on two or more unrelated inmates calling the same number and the legitimate governmental objectives of reduction of criminal activity and institutional security. The connection "is valid and rational because it is not so remote as to render the prison telephone policy arbitrary or irrational." Pope, 101 F.3d at 1385 (citation omitted). More importantly, when Ferrell investigated the fact that Boglin placed on his telephone list the same number that inmate Corey Orr had on his telephone list, Fred James, Mayor of North Courtland, Alabama, requested that the telephone number for the North Courtland City Hall be blocked from access or otherwise be removed from all inmate phone lists. Therefore, in the undersigned's opinion, the defendants had no choice but to block all inmate access to this phone number.
Plaintiff makes no argument that he and Orr are in any way related nor does he explain why Orr would be calling his mother at her work number.
7. Second, alternative means of exercising the First Amendment right at stake remain open to Boglin as not only can plaintiff be visited by his mother and correspond with her freely but, in addition, it is clear that plaintiff can telephone his mother at home, as opposed to her place of work. To the extent plaintiff only provided his mother's work number and not her home number and was prevented for six months from adding additional numbers to his telephone list he has only himself to blame because he certainly could have supplied the prison with up to ten telephone numbers of relatives with whom he wished to communicate. In fact, the undersigned finds it very suspect that Boglin would subject his mother to the costs of collect calls made to her work number during the higher-rate daytime hours as opposed to the lower-rate nighttime hours.
8. Finally, this Court need not and, in fact, cannot reach the third and fourth factors outlined in Turner because there is nothing to decide since Mayor James asked that the city hall number be blocked and Boglin can call his mother at home. To think that Ferrell told plaintiff that he was blocking his access to his mother's work number so that he would not be able to reveal things about Fountain is simply asinine since plaintiff could reveal the same things in person, by mail or by phone to his mother at her home.
9. In light of the foregoing, the undersigned finds that the restriction on unrelated inmates calling the same number bears a reasonable relation to legitimate penological objectives. Therefore, plaintiffs First Amendment rights have not been infringed.
10. Plaintiff also claims that this restriction has resulted in an Equal Protection violation. The Equal Protection Clause provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. "The equal protection clause `is essentially a direction that all persons similarly situated should be treated alike.'" Spence v. Zimmerman, 873 F.2d 256, 261 (11th Cir. 1989), quoting City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). A disparate treatment claim requires establishing that similarly situated inmates were not similarly treated and that prison officials engaged in invidious discrimination based on race, religion, national origin, poverty, or some other constitutionally protected interest. See Thomas v. Georgia State Bd. of Pardons Paroles, 881 F.2d 1032, 1034 n. 3 (11th Cir. 1989) (in order to create a genuine issue for trial, plaintiff must show that parole decisions were made on the basis of race, poverty, or some other constitutionally invalid reason and that similarly situated inmates who are not members of the protected class received parole); Damiano v. Florida Parole Probation Comm'n, 785 F.2d 929, 932-933 (11th Cir. 1986) ("Appellant must, however, establish first that he is similarly situated with other prisoners who received disciplinary reports but did not have their PPRDs extended. Second, he must establish that appellee has engaged in invidious discrimination against him based on race, religion, national origin, poverty or some other constitutionally protected interest."). Boglin has failed to state a claim upon which relief can be granted because he has not alleged that the defendants treated him differently from similarly situated prisoners because of his race, religion, national origin, poverty, or other constitutionally-protected interest. Specifically, there are simply no allegations, much less any evidence, that the decision to block access to a number placed on two unrelated inmates' phone lists was made on the basis or race or some other constitutionally invalid reason and that similarly situated inmates who are not members of the protected class were allowed such telephone access.
11. Boglin's remaining claim is that the defendants conspired together to deprive him of his constitutional right of access to federal court on one occasion since he has been confined at Fountain. It is all too clear that prisoners have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977). "The right of access to the courts . . . is founded in the Due Process Clause and assures that no person shall be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights." Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974). The Supreme Court held in Bounds that the right of access to the courts "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." 430 U.S. at 828, 97 S.Ct. at 1498. Since Bounds, the Supreme Court in Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), "has clarified that prisoners' contentions of deprivations of access to courts must show actual injury as a `constitutional prerequisite.'" Wilson v. Blankenship, 163 F.3d 1284, 1290 (11th Cir. 1998), citing 518 U.S. at 351, 116 S.Ct. at 2180.
In Wolff, the Supreme Court extended the right of access recognized in Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), to civil rights actions arising under the Civil Rights Act of 1871. See Bounds, 430 U.S. at 823, 97 S.Ct. At 1495.
While Bounds guarantees the right of access to the courts under the Fourteenth Amendment, prisoners have no inherent or independent right of access to a law library or to legal assistance. See Lewis, 518 U.S. at 349-51, 116 S.Ct. at 2179-80. Instead, they must show actual injury in the pursuit of specific types of nonfrivolous cases: direct or collateral attacks on sentences and challenges to conditions of confinement. Id. at 355-57, 116 S.Ct. at 2182. "Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. at 355, 116 S.Ct. at 2182.
With respect to access-to-court claims, Lewis clarifies that a plaintiff first must show actual injury before seeking relief under Bounds. See Bass v. Singletary, 143 F.3d 1442, 1444 (11th Cir. 1998). This essential standing requirement means that prison officials' actions that allegedly violate an inmate's right of access to the courts must have impeded the inmate's pursuit of a non-frivolous, post-conviction claim or civil rights action. See id. at 1445. To prevail, a plaintiff must provide evidence of such deterence, such as a denial or dismissal of a direct appeal, habeas petition, or civil rights case that results from actions of prison officials. See id. at 1446. Therefore, in an access-to-courts claim, "a plaintiff cannot merely allege a denial of access to a law library or adequate attorney, even if the denial is systemic." Sabers v. Delano, 100 F.3d 82, 84 (8th Cir. 1996) (per curiam). Rather, a plaintiff must demonstrate that the lack of a law library or inadequate access to counsel hindered his "efforts to proceed with a legal claim in a criminal appeal, postconviction matter, or civil rights action seeking to vindicate basic constitutional rights." Id.Wilson, 163 F.3d at 1290-1291.
"In Lewis, examples of actual injury regarding prospective or existing litigation were missing filing deadlines or being prevented from presenting claims. See Lewis, 518 U.S. at 348, 116 S.Ct. at 2178." Wilson, supra, 163 F.3d at 1290 n. 10.
"In Lewis, examples of actual injury regarding prospective or existing litigation were missing filing deadlines or being prevented from presenting claims. See Lewis, 518 U.S. at 348, 116 S.Ct. at 2178." Wilson, supra, 163 F.3d at 1290 n. 10.
12. Boglin contends that the defendants conspired together to withhold legal mail sent to him from the United States District Court for the Northern District of Alabama for fifteen days and that this delay caused his inability to appeal a dispositive order. The evidence submitted by plaintiff in support of this claim actually belie his claim. What signals the death knell for plaintiffs access to courts claim is that the legal mail he received from the United States District Court for the Northern District of Alabama (Doc. 1, Exhibit B) did not contain the order he has attached as Exhibit C to his complaint since the face of that undated order establishes that it was issued not by the just mentioned federal district court but rather, by the Circuit Court of Escambia County, Alabama. Therefore, plaintiffs factual allegations and evidence simply do not establish that he was denied access to either the United States District Court for the Northern District of Alabama or the Escambia County Circuit Court due to any action or inaction on the part of the defendants. In addition, plaintiff has offered nothing in the way of evidence that he was denied the opportunity to appeal (by the relevant court) after explaining to the court the circumstances surrounding his inability to timely perfect an appeal. Finally, the copies of the two envelopes sent from the Northern District of Alabama, while appearing to contain a postmark date of December 1, 1999, do not reflect the name and address of the addressee. (Doc. 1, Exhibit B) Therefore, it is just as likely, if not more likely, that the legal mail sent by the Northern District of Alabama on December 1, 1999 was sent to Boglin at another institution first and did not catch up to him at Fountain until December 18, 1999 as opposed to being held by the defendants in the prison mail room for some fifteen or more days. This scenario is suggested not only due to the lack of an addressee's name and address on the envelope but also by plaintiffs statement that he arrived at Fountain on November 5, 1999 (Doc. 1, at 5) and his failure to establish that he notified the Northern District of Alabama of his change of address prior to December 1, 1999.
13. In light of the foregoing, the undersigned finds that Boglin has totally failed to establish that the defendants conspired to deprive him of his right to access to the courts since the facts he has presented do not show that the defendants' actions or inactions in any way impeded his pursuit of a non-frivolous, post-conviction claim or civil rights action.
CONCLUSION
The Magistrate Judge is of the opinion that plaintiffs constitutional rights were not violated in this cause and therefore, the defendants are entitled to summary judgment.
EXHIBIT A INMATE PHONE SYSTEM
I. GENERAL
A. Purpose
To establish procedures for authorizing use of the institution' s inmate telephones by Inmates to maintain constructive family and community ties, and for controlling unauthorized use of the telephones by inmates. The DOC has a security interest in the use of telephones by inmates.
Inmate telephone usage is a privilege not a right which is given to inmates to promote good behavior. Telephone restrictions can result from numerous situations including disciplinaries and Inmate Behavior Citations.
II. RESPONSIBILITY
III. PROCEDURE
A. It is the responsibility of the Captain to establish a telephone schedule for the inmates's use depending on dorm/bed assignment/location.
B. The Warden will designate two employees to be the primary and secondary data input operator later referred to as the "Phone Officer".
1. The Warden's designees for the processing of the telephone lists will check the Inmate Request Box daily and insure that the phone numbers are entered into the telephone computer on a daily basis.
C. The Receiving Unit at each institution will distribute the Inmate Telephone List form to each inmate when received into their facility.
D. It is the Inmate's responsibility to fully complete the form and deposit it into the Inmate Request Box located in the main hallway of each institution.
E. The Disciplinary/Inmate Behavior Citation Officer will provide a copy of the disciplinary/inmate citation behavior restrictions' or any other restrictions, to the Phone Officer on a daily basis to be entered into the computer.
F. The Commisioner or his designee will make any exceptions to this regulation that are necessary to carry out the phone operations at each facility.
A. Upon arrival at a facility every innate, who intends to make a phone call to anyone, must deposit his/her completed telephone list into the Inmate Request Box located in the main hallway of the institution.
B. The Phone Officer will enter the telephone list into the telephone restrictor computer within 24 hours after the innate is received at the institution during normal work week (Monday-Friday).
C. Each inmate's telephone list will be entered into the telephone restrictor computer by his/her AIS number which will be his/her personal Identification Number (PIN) along with his/her name.
A. Inmates may change their phone lists once ever six (6) months, at the time of their regular visiting/funds list change.
B. If an inmate's immediate family member moves prior to the six (6) month change, the inmate can submit a copy of the old phone bill and a copy of the new phone bill as documentation and the phone number for that particular person can be changed at that time by the Phone Officer.
Restriction of phone privileges will be posted daily in the computer by the Phone Officer and the expiration of restrictions will be removed daily.
A. Restrictions that expire on a weekend will be removed from the computer on the next working business day.
A. Any phone call, other than one involving attorney-client privilege, may be tape recorded and investigated to maintain institutional security.
B. Tape recorded conversations may be used as evidence at a disciplinary hearing or free-world court where there is a violation of a State of Federal law.
C. Any inmate who is heard on the monitoring system being abusive to the other party on the phone may have their call terminated immediately by the Warden's designee who monitors the calls. If this behavior continues, the phone number can be deleted from the inmate's phone list with the approval of the Warden.
D. 3-Way phone calls are prohibited on the inmate phone system. If it is determined by the phone officer thru monitoring a call that the inmate is involved in a 3-way call with an individual not on their approved phone list, the call will be terminated and the innate is subject to disciplinary action.
The Phone Officer will delete the PIN number and phone list of any innate who is transferred to another institution or released from the system within 24 hours of the departure.
A. The Captain will establish a telephone schedule to include the following:
1. Population: Telephones will operate from approximately 8:00 a.m. (after the dormitory passes inspection) until 10:00 p.m. Honor Dorm program will be allowed extra hours as directed by the Captain.
2. Disciplinary Segregation: One (1) phone call to a family member is allowed immediately prior to the inmate's placement in disciplinary segregation. Except for emergencies, no other phone calls are authorized while confined in Disciplinary Segregation status.
3. Administrative Segregation: (A/Seg, LWOP, Close and Maximum) One (1) phone call per month or as directed by the Segregation Supervisor.
4. Protective Custody: Daily access when the area is clean, security of the inmate is assured, and the correctional staff has time to allow the inmate out of his cell to make the call.
5. Inmates who have been placed on restriction from citations, disciplinaries, or other reasons will have their phone list restricted to one minute until the restriction time is completed. This will allow them ample time to notify their families that they are alright and reduce the number of calls to the Administration.
B. Time limits based on institutional security levels are as follows:
1. Level I and II Facilities: No restrictions on their phones other than the 15 minute time limit per call. No phone list will be required.
2. Level III and IV Facilities: Allowed to have ten individuals on their phone list with 15 minute time frame per call.
3. Level V and VI Facilities: Limited to eight individual phone numbers on their list with 15 minutes time frame per call.
4. Kilby's RCC Unit which consists of transient inmates will not operate under the PIN ID numbers. Kilby Correctional Facility' s permanent party inmates will be restricted according to the institutional security level. (Level IV)
IX. EMERGENCY PHONE CALLS
A phone located in a supervised area will be designated as the Inmate Emergency Phone. The inmate must submit a written request to the supervisor on duty to justify a special call.
A. Special calls will be approved for attorney calls, inmates who just arrived and who have not had their Phone List approved, and the returning of phone calls to their families who have verifiable emergencies.
Dr. Ron Jones, Commissioner
EXHIBIT B INMATE TELEPHONE FACILITIES
I. GENERAL
The purpose of this Standard Operating Procedure is to set forth policy and procedure governing inmate access to and use of telephones at G.K. Fountain Correctional Center.II. POLICY
A. The policies and procedures outlined in this S.O.P. apply to all inmates requesting the privilege to communicate by telephone.
1. In order to use the phones an inmate must first submit and Inmate Calling List. (Annex A). Inmates will be allowed to enter ten (10) telephone numbers on their list. Inmates transferred to Fountain Correctional Center from other institutions will be allowed to submit a calling list.
a. Inmate may not dial international area codes or 800 numbers
b. Inmates may not have duplicate telephone numbers. This being the same number on more than one inmates telephone calling list. Cases of family, inmates related to or married into the same family will be considered on an individual basis. Numbers found to be on more than one calling list will be blocked on all calling list until an explanation is received and reviewed.
c. Inmates may change or add to their calling list every six (6) months ONLY by submitting a new telephone list.
d. Inmate requests to change telephone numbers on their list because of a person on their list moving or having their telephone number changed. must have old and new bill as verification per AR 431.
e. Inmates who attempt to place numbers on their list for inmates who have had their phone privileges suspended or so another inmate may have more than 10 numbers on his list, or for any other reason, are subject to disciplinary action.
f. Inmates will not be allowed to place a call and have the person they call connect them with a third party, (3-way calling).
g. Inmates making calls other than normally scheduled times, will have those numbers blocked. Inmates must see the Captain to have numbers reinstalled.
2. Inmate's will be provided with reasonable and equitable access to telephones.
3. Inmate telephone calls will be monitored randomly where there is sufficient probable cause or information to believe the telephone privilege is being abused in a manner that is in violation of law or detrimental to the security of the institution, employees, or other inmates.
4. Telephone calls to attorneys or other legal representatives shall be permitted to any inmate upon request, as soon as reasonably possible.III. PROCEDURES A. General Population
1. There are five (5) telephones in dormitories 1, 2, 3, 4: dorm 8 has 4 phones for use by inmates in general population.
2. Inmates in general population may use these telephones daily during their off duty hours. The only exception would be attorney cases. All telephone calls will be made collect.
3. Inmates will not be allowed to use the telephone before 11 a.m. or after 11:00 p.m., unless an emergency occurs. The Shift Commander or his/her designee, must verify the emergency and allow the inmate access to the telephone.
a. All telephone calls will be limited to a maximum of fifteen (15) minutes. This time limit is regulated by computer and will terminate the call after fifteen (15) minutes.
b. The telephones are to be closely monitored by the Officer working the area where the telephones are located to insure they are not abused by the inmates.
c. Inmates who have had their telephone privileges suspended/revoked, by a citation or disciplinary hearing, will not be permitted to make a telephone call until this privilege has been restored.
d. If an inmate's language on the telephone becomes loud, abusive, profane or obnoxious, the dorm Officer will immediately order the inmate to hang up the telephone or the officer may terminate the call.B. Segregation-"Protective Custody"
1. Inmates housed in Segregation in "Protective Custody Status" will be permitted to make a phone call once per week and when authorized by the segregation commander providing these calls do not interfere with the daily work load of the Segregation Unit and the inmate's telephone privileges have not been revoked due to disciplinary action.
a. Segregation has four (4) telephones, one (1) on each tier.
2. Telephone calls will not be allowed during showering and feeding periods. Calls will be made in the front lobby on both sides of the segregation unit.C. Segregation-"Administrative Segregation"
1. Inmates housed in "Administrative Segregation Status" will be permitted to make one (1) telephone call per month unless his telephone privileges have been revoked due to disciplinary action. Requests will be approved by Segregation Commander and forwarded to the telephone operator to have telephone number turned on at specified time.
2. The procedures outlined in paragraph 6.2. above also apply to inmates in "Administrative Segregation Status."D. Segregation-"Disciplinary Segregation Status"
1. Inmates being processed for "Disciplinary Segregation Status" will be afforded the opportunity to make one (1) telephone call to a family member. Inmates telephone numbers will be blocked while in disciplinary segregation.
2. In other than verified emergencies and attorney calls. (approved by the Warden or his designee), inmates housed in "Disciplinary Segregation" will not be permitted to make telephone calls.
3. Telephone calls will not be allowed during showering and feeding periods. Calls will be made in the front lobby on 1 and 2 side of the segregation unit.
4. Abusive language directed toward a telephone operator or other parties by an inmate, will not be tolerated. This applies to all inmates housed in the segregation unit.
E. Inmate emergency phone is located in the shift commander's office. Use of this phone will be limited to the following and a request must be submitted for each call. All requests will be forwarded to the telephone operator after completion of calls.
1. Calls to attorney if telephone operator is not available.
2. New arrivals to contact a family member about new assignment and obtain information for phone and visiting list.
3. Verifiable emergency during times the telephones are turned off.
4. Telephone calls made on emergency phone will be compared with request slips by the telephone operator. Any call not justified and approved on a request slip, will be reported to the Captain.IV. REFERENCE:
Administrative Regulation 431
EXHIBIT C
III. DRAPER CORRECTIONAL FACILITY (SECURITY LEVEL 4)
A first offender institution for those individuals who do not meet, or no longer meet the criteria for placement at Frank Lee Youth Center. Inmates assigned to Draper Correctional Facility must be no higher than medium custody. Disciplinary segregation unit for central area to include chain gang disciplinary segregation.IV. FOUNTAIN CORRECTIONAL FACILITY (SECURITY LEVEL 4)
An institution for recidivists and first offenders not deemed appropriate for Frank Lee Youth Center or Draper Correctional Facility. Inmates in the general population should have a custody no higher than medium and have no more than two violent offense convictions. Fountain houses one of the ATU programs and also has the capability for chain gang disciplinary segregation.V. STATON CORRECTIONAL CENTER (SECURITY LEVEL 4)
An institution for inmates with multiple incarcerations who have shown an ability or capability to adjust to an institutional environment, who have a custody no more restrictive than medium. Staton houses:
A. Mentally retarded Inmates who have been assigned to the Exceptional Residents Dorm.
B. Staton has one of the ATU programs (200 beds)
VI. HOLMAN CORRECTIONAL FACILITY (SECURITY LEVEL 5)
Primarily for maximum, close and medium custody offenders who have demonstrated an inability to adjust to an institutional environment. Inmates in punitive segregation and those under the death sentence are also confined at this institution. Other, lower custody inmates may be confined at Holman Prison in order to provide for the effective operation of the institution. One of four facilities housing life without parole inmates.VII. KILBY CORRECTIONAL FACILITY (KCF-SECURITY LEVEL 4), (RSCC-SECURITY LEVEL 5)
Serves as the receiving institution for the system and as such primarily is for inmates in an intake and transit status. The
EXHIBIT D ALABAMA DEPARTMENT OF CORRECTIONS INMATE ID/PIN DATABASE FORM
FACILITY NAME:___________________________________________________INMATE NAME:_____________________________________________________
INMATE LOCATION:_________________________________________________
DATE FORM COMPLETED:_________________________________________
INMATE ID __ __ __ __ __ __ __ __ __ (9 ALPHA-NUMBERIC CHARACTERS) PIN __ __ __ __ __ __ __ __ __ (9 ALPHA-NUMBERIC CHARACTERS)
COMMENT:_________________________________________________________
ALLOWED TELEPHONE NUMBERS FULL NAME AND RELATIONSHIP TO YOU REQUIRED
1. _____-_____-_______ RELATIONSHIP______________________ 2. _____-_____-_______ RELATIONSHIP______________________ 3. _____-_____-_______ RELATIONSHIP______________________ 4. _____-_____-_______ RELATIONSHIP______________________ 5. _____-_____-_______ RELATIONSHIP______________________ 6. _____-_____-_______ RELATIONSHIP______________________ 7. _____-_____-_______ RELATIONSHIP______________________ 8. _____-_____-_______ RELATIONSHIP______________________ 9. _____-_____-_______ RELATIONSHIP______________________ 10._____-_____-_______ RELATIONSHIP______________________
DO NOT ALLOW OTHER INMATES TO PUT NUMBERS ON YOUR LIST, THESE NUMBERS WILL BE BLOCKED PERMANENTLY!!!! NO CHANGES MAY BE MADE TO THIS LIST FOR SIX MONTHS FROM DATE ENTERED