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September 2, 2004.


The opinion of the court was delivered by: CHARLES WEINER, Senior District Judge


Plaintiff Jamere Montgomery brought this Bivens action against several Bureau of Prisons officials asserting his right of access to the courts was violated when his telephone privileges were revoked. Presently before the court is the defendants' motion to dismiss or in the alternative for summary judgment. We previously notified the parties that we intended to treat the motion as one for summary judgment. For the reasons which follow, the motion is granted.

The summary judgment record shows that Montgomery was housed at the Federal Detention Center in Philadelphia ("FDC") as a pre-trial detainee. Defendant William Smith filed an incident report when he discovered that Montgomery had attempted to place two telephone calls to a family member on April 8, 2003 and April 10, 2003. At the time Montgomery was under a one year suspension of his telephone privileges, due to prior disciplinary problems. The Unit Disciplinary Committee ("UDC") conducted a hearing on the violation on April 14, 2003. Defendant Thomas Fisher was the hearing officer; defendant Kevin Stremmel participated as a member of the UDC. Montgomery admitted to the charge. Based on the admission and Smith's report, the UDC found Montgomery guilty of the violation. It imposed a two year loss of telephone privileges based in part on the fact that this was a repeat offense.

  Montgomery appealed the decision to defendant Warden Chandler. Chandler denied the appeal. Montgomery then appealed to defendant BOP Regional Director M.E. Ray. Ray also denied Montgomery's appeal, finding his conduct violated BOP policy. Finally, Montgomery appealed to the BOP Central Office, which also found his conduct violated BOP policy.

  The initial one-year suspension of Montgomery's phone privileges was the subject of an earlier Bivens suit, which was dismissed by the court for failure to state a claim. As we stated on that occasion, Normally, we cannot grant relief to parties for 1) restricted or barred telephone privileges where no actual injury has occurred, Peterkin v. Jeffes, 855 F.2d 1021, 1041 (3d Cir. 1988); nor 2) de minimus-level retaliation by prison officials against any inmate behavior which is not constitutionally protected, Smith v. Mensinger, 293 F.3d 641, 652-53 (3d Cir. 2002). However, we can grant relief to an inmate who claims that prison officials retaliated against his or her constitutionally-protected actions. Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000).

  Our Court of Appeals has explained that "government actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right." Id. Prisoners must satisfy two requirements to establish a claim for retaliation. First, the conduct against which defendants retaliated must have been constitutionally protected. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Second, the prisoner must show is that "he suffered some `adverse action' at the hands of the prison officials." Id. (citing Allah, 229 F.3d at 225). The action must be "sufficient to deter a person of ordinary firmness from exercising his First Amendment rights." Allah, 229 F.3d at 225.

  Montgomery v. Ray, C.A. No. 02-8374 (September 29, 2003) Slip op. at 13-14.

  Here, as with Montgomery's first complaint, he admitted the charge before the UDC. To the extent his current complaint is based upon (1) the allegation that prison officials filed a false incident report, (2) the fact that he was found guilty of the charge, or (3) that the appeals process affirmed the conviction, we find Montgomery cannot state a claim as a matter of law. Additionally, to the extent Montgomery's complaint is premised on the punishment imposed, he also fails to state a claim. His two year restriction was permitted by the BOP regulations and was imposed because he was a repeat offender.

  Montgomery alleges he was sanctioned to intimidate him and hinder his access to his criminal trial attorney. In order to survive a summary judgment motion, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, and must produce more than a "mere scintilla" of evidence to demonstrate a genuine issue of material fact and avoid summary judgment. See Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1373 (3d Cir. 1992). We find that Montgomery has failed to come forward with evidence to demonstrate that he was hindered in communicating with his attorney. As we discussed in his prior lawsuit, the BOP did not prevent Montgomery from using alternative means of contacting counsel, most notably through the mails. Neither did the phone restriction prevent counsel from visiting with Montgomery at the prison, when and if necessary. Finally, we note the telephone sanction did not prevent Montgomery from accessing the courts to file his current lawsuit. Accordingly, we find Montgomery has failed to demonstrate that he suffered any adverse action arising from the telephone restriction punishment. ORDER

  The motion of M.E. Ray, Ernest V. Chandler, Daniel S. Kullick, Stephanie Christopher, Thomas Fischer, Kevin Stremmel and William Smith to dismiss or in the alternative for summary judgment (#21) is GRANTED.

  Judgment is ENTERED in favor of all defendants and against plaintiff Jamere Montgomery.



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