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September 2, 2005.

FEDERAL BUREAU OF PRISONS, et al., Defendants.

The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge



On December 30, 2003, Plaintiff, Keith Jennings, an inmate presently confined in the Allenwood United States Penitentiary, White Deer, Pennsylvania, ("USP-Allenwood"), filed the above captioned action pursuant to the Federal Tort Claims Act ("FTCA"), Bivens vs. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), 42 U.S.C. §§ 1983, 1985 et seq., and Pennsylvania state law. He alleges that defendants retaliated against him for filing a Federal Tort Action against United States Marshals in the United States District Court for the Northern District of New York*fn1 by restricting his telephone privileges. He names as defendants, the United States; the Federal Bureau of Prisons ("BOP); BOP Director Harvey Lappins; Assistant U.S. Attorney John Katko; Assistant U.S. Attorney Charles Roberts; Former Warden Jake Mendez; Warden Michael V. Pugh; Special Investigative Agent J. Feeney; BOP Regional Director M.E. Ray; and Unit Manager Noone.

  By Order dated February 12, 2004, this action was dismissed, without prejudice, for plaintiff's failure to pay the filing fee. (Doc. No. 9). On February 18, 2004, plaintiff filed a motion for reconsideration of the Court's February 12, 2004, Order. (Doc. No. 10). On March 8, 2004, plaintiff's motion for reconsideration was granted and his case was reopened. (Doc. No. 12). By Order dated March 17, 2004, the Court dismissed plaintiff's FTCA claims against the individual defendants and the Federal Bureau of Prisons, dismissed the respondeat superior claims contained in Count VII of the complaint, and directed that plaintiff's action be served on the defendants. (Doc. No. 17).

  On July 23, 2004, Jennings filed an amended complaint in which he sought to add the Director of the United States Marshals Service and unknown U.S. Marshals as defendants to his action. (Doc. No. 28). He also sought to add new claims regarding these defendants. Id.

  On December 2, 2004, defendants filed a motion to dismiss the claims raised in plaintiff's original complaint and his amended complaint. (Doc. No. 42). On February 22, 2005, Jennings filed a motion to voluntarily dismiss his amended complaint and only proceed on those claims, and against those defendants, named in his original complaint. (Doc. No. 53). The Court will grant this motion.

  Presently before the Court is defendants' motion to dismiss plaintiff's original complaint. This motion is fully briefed and is ripe for disposition. For the reasons set forth below, the Court will grant the defendants' motion to dismiss. Statement of Facts*fn2

  On March 17, 1999, Jennings was convicted of the following: (1) engaging as a supervisor or manager in a continuing criminal enterprise (CCE), in violation of 18 U.S.C. §§ 841(a)(1), 846 and 853; (2) multiple counts of conspiring to distribute and possession with intent to distribute cocaine, cocaine base and marijuana in violation of 18 U.S.C. § 841(a)(1); and (3) conspiracy to commit money laundering in violation of 18 U.S.C. § 841(a)(1); and (3) conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i). (Doc. No. 4 Affidavit of John M. Katko, Assistant United States Attorney, attached as exhibit). Defendant, John Katko, was the Assistant United States Attorney for the Northern District of New York, who prosecuted Jennings. Id.

  After Jennings was convicted, and while he was awaiting sentencing, defendant Katko was advised by members of the United States Marshals Service and other federal agents that Jennings had repeatedly threatened to kill Katko. Id. The United States Attorney's Office also received information that Jennings had made plans to escape. Based on these threats, the United States Marshals Service arranged for Jennings to be transferred from the Onondaga Count Justice Center in Syracuse, pending sentencing, to the Federal Correctional Institution, Ray Brook, New York, a more secure facility. Id.

  On March 20, 2000, Jennings was sentenced to life imprisonment. Id. He was then committed to the custody of the Bureau or Prisons.

  By Memorandum dated February 12, 2001, Jennings was notified by Special Investigative Agent, J. Feeney, that his telephone usage was limited to one telephone call per day. (Doc. No. 4, Exhibit 1). On February 13, 2001, Jennings submitted an Informal Resolution Form with his Unit Manager, challenging the limited usage of the telephone and "requesting a copy of the date and time that this miss used (sic) telephone conversation take place, also a copy of the receiving party with a coy of [plaintiff's] phone list." (Doc. No. 4, Ex. 2). Plaintiff's unit manager responded that:
"the Special Investigative Agent informed you of the reason why you were placed on limited telephone privileges. This is a result of you using the telephone to further criminal activity. You may present any documentation on your behalf to the SIA for further review of your current telephone restriction."
(Doc. No. 4, Ex. 2).
  On February 14, 2001, plaintiff filed a Request for Administrative Remedy with the Warden, challenging the telephone restriction. (Doc. No. 4, Ex. 3). In a response dated March 8, 2001, Warden Mendez informed Jennings of the following:
"Due to the fact you used the telephone or phone like communicating devices to conduct narcotic trafficking extensively in the commission of your offense, you have been placed on a telephone monitoring status. On February 17, 2001, you received a memorandum stating you are authorized to conduct one telephone call per day.
This decision is based on information obtained through your Presentence Investigation and not a review of a pre-recorded telephone conversation conducted within the United States Penitentiary (USP), Allenwood. Therefore, your request to receive a copy, date and time of the specific conversation where you misused the telephone is not maintained by staff at USP-Allenwood. With respect to your request for a copy of your telephone list, you may contact your Unit Counselor and request his through use of an Inmate Request to Staff Member Form, `Cop-Out'.
Accordingly, your Request for Administrative Remedy has been denied. If you are not satisfied with this response, you may appeal to the Regional Director within 20 calendar days of this response."
(Doc. No. 4, Ex. 4). On March 11, 2001, Jennings filed a Regional Administrative Remedy Appeal to the Regional Director. (Doc. No. 4, Ex. 5). In a response dated April 11, 2001, the Regional Director denied Jennings' appeal, finding that:
Program Statement 5264.07, Telephone Regulations for Inmates, and the implementing regulation at 28 C.F.R. § 540.100, authorize the Warden to make those limitations to inmates telephone use as "are necessary to ensure the security or good order, including discipline, of the institution or to protect the public." The Program Statement also provides that "the Warden shall permit an inmate who has not been restricted from telephone use as the result of a specific institutional disciplinary sanction to make at least one telephone call each month." Records indicate your current offense is Continuing Criminal Enterprise, Possession with Intent to Distribute Cocaine and Cocaine Base and Money Laundering. Your records further reveal you conducted financial transactions by means of wire transfers and used wire communications to conceal the trafficking of drugs. Based on this type of offense, you have been appropriately limited to one social telephone call per day. Ths limitation assists staff in maintaining the security and good order of the institution and to protect the public.
A review of the notification memorandum you received from the SIA revealed the wording on the notification is inaccurate. The Warden properly advised you that the telephone limitation was a result of your current offense and information obtained in your Pre-sentence Investigative report, not as a result of prison telephone abuse. You will receive the correct notification regarding your telephone limitation. Accordingly, your appeal is denied.
(Doc. No. 4, Ex. 7). On April 19, 2001, Jennings filed a Central Office Administrative Remedy Appeal to the General Counsel. (Doc. No. 4, Ex. 8). In a response dated June 19, 2001, Jennings' appeal was denied. (Doc. No. 4, Ex. 9).

  Jennings then attempted a second challenge to the telephone restriction, claiming that the restriction was unlawful because it was issued by a Special Investigative Agent and that according to 28 C.F.R. § 546.100, the Warden is the only authority to suspend/restrict telephone privileges. (Doc. No. 4, Exs. 10-12). In a June 22, 2001, response to his Request for Administrative Remedy, Warden Mendez, upheld the restriction, but granted plaintiff's Request for Administrative Remedy, in part, to the extent that the only authority to suspend/restrict an inmate's telephone use is the Warden. (Doc. No. 4, Ex. 13). Thus, Jennings' Request for Administrative Remedy was granted to the extent that a new memo was to be issued to reflect the Warden's authorization to restrict Jennings' telephone privileges. Id. On June 21, 2002, the Warden issued a memorandum limiting Jennings' telephone use to 120 minutes per month. (Doc. No. 4, Ex. 14). On October 25, 2002, Jennings again attempted to challenge the telephone restriction, claiming that it was based on a 1999 Memorandum that stated that plaintiff made three way phone calls to make threats against an Assistant United States Attorney while incarcerated at the Onondaga County Justice, Center, Syracuse, New York. (Doc. No. 4, Ex. 22). On November 1, 2002, Jennings' Unit Manager responded to Jennings that there was "no disclosure information in [his] central file pertaining to [his] making a 3 way telephone call to make threats against a AUSA." (Doc. No. 4, Ex. 22).

  On November 1, 2002, plaintiff filed a Request for Administrative Remedy, seeking to have the 1999 Memorandum removed from his file, and his telephone privileges reinstated. (Doc. No. 4, Ex. 24). Finding justification for the phone restriction, independent of the 1999 Memorandum, plaintiff's Request for ...

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