The opinion of the court was delivered by: CHARLES WEINER, Senior District Judge
MEMORANDUM OPINION AND ORDER
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
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
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)
Judgment is ENTERED in favor of all defendants and against
plaintiff Jamere Montgomery.
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