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Banks v. Multi-Million Dollar Mistakes of Julie Nicklin

September 20, 2007

FREDERICK BANKS PLAINTIFF
v.
THE MULTI-MILLION DOLLAR MISTAKES OF JULIE NICKLIN, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

MEMORANDUM

Presently before the court is a motion to dismiss the Bivens*fn1 -styled complaint of plaintiff Frederick Banks ("Banks"), or, in the alternative, for summary judgment, filed on behalf of several prison officials from the Federal Prison Camp at Canaan ("FPC-Canaan" or "USP-Canaan") in Waymart, Pennsylvania (collectively, "defendants").*fn2 (Doc. 15.) For the reasons set forth below, the motion for summary judgment will be granted.

I. Statement of Facts

Banks' complaint raises two issues surrounding events which allegedly occurred between April and August of 2006. (Doc. 1.) Initially, Banks claims that defendants have denied him the constitutional right of access to the courts. Banks also claims that defendants have denied him the constitutional right to freedom of religion.

In response to the complaint, defendants filed a motion to dismiss, or, in the alternative, for summary judgment, arguing in pertinent part that Banks has failed to exhaust his administrative remedies with respect to both issues. (Doc. 15.) Defendants' brief in support of the instant motion reflects that Banks filed twenty-four (24) requests for administrative remedy while incarcerated at FPC-Canaan on various topics and to various levels, including both the Northeast Regional and Central Offices.*fn3 (Doc. 16-2 at 7-21.)

A. Access to the Courts Claim

Banks claims that defendants are involved in a "civil conspiracy" to deny him his constitutional right of access to the courts. (Doc. 1 at 1.) He asserts that FPC-Canaan mailroom staff refused to accept incoming packages which contained transcripts of his trial necessary for the filing of an appeal. He further claims that, as part of the conspiracy, defendants "curtailed Banks' legal cases and lawsuits by not providing him with and obstructing Banks' administrative remedy process." (Id.) In support, he asserts that in order to prevent him from filing an appeal defendants placed him in administrative custody and rejected his administrative remedies.

Defendants submitted a declaration made under penalty of perjury of A. Farley, an inmate systems specialist at USP-Canaan, which details the refusal of Banks' incoming package at issue in the complaint. (Doc. 16-2 at 44-45.) Defendant Farley recalls that the incoming package addressed to Banks did not arrive at FCP-Canaan with a package authorization form or a stamp indicating that it was legal mail. (Id. at 44.)

The Bureau of Prisons ("BOP") Program Statement 5800.10, Mail Management Manual, at Chapter 3, page 9, provides that, "All incoming inmate property packages must be authorized in advance unless otherwise approved under another Bureau policy. An Authorization to Receive Package or Property, BP-331 (BP-S331) shall be used for this purpose." (Id. at 47.) While the policy provides that legal materials need not be pre-approved, they must be marked with words such as "Authorized by Bureau Policy," intending to alert mail room staff that the materials do not require prior approval. (Id.) The policy further provides that, "[a] package received without an appropriately completed BP-331, or without markings indicating authorized materials enclosed, is considered unauthorized and shall be returned to the sender." (Id.) Pursuant to this BOP policy, because Banks' package did not have a package authorization form or a stamp marking it as legal mail, it was refused and returned to the sender. (Id. at 45.) The package was not opened, nor were its contents inspected at any time prior to its refusal. (Id.)

In support of his contention here, Banks submitted, as an exhibit filed with his complaint, a copy of his administrative remedy, 421712-F1, filed on July 28, 2006, on a BP-229 form. (Doc. 2.) In that remedy, Banks complains of his detention status and a resulting inadequate access to legal materials necessary for filing an appeal. (Id. at 2.) The exhibit indicates that his remedy was rejected on July 31, 2006, for failing to attempt informal resolution prior to submitting the remedy. (Id. at 1.) The exhibit also contains a section of the USP-Canaan inmate handbook, highlighted by Banks, which states that "Appeals of . . . UDC actions are accomplished via submission of a BP-229 to the Warden. (See section regarding the Administrative Remedy Procedure for details regarding filing.)." (Id. at 3.) In a statement attached to the exhibit, Banks seemingly argues that by filing the BP-229 form, it was not necessary for him to follow the administrative remedy procedure, and therefore exhaustion was futile. However, there is nothing in the record indicating that Banks took any further action on this issue before filing the instant action.

B. Freedom of Religion Claim

In his second claim, Banks contends that defendants subjected him to retaliation for engaging in his right to religious freedom and practice. He states that when he requested religious writings relating to his religion, Thelema, as well as a plot of land on prison grounds on which to build a pyramid temple for the practice of Thelema, defendants responded by placing him in administrative custody and subsequently transferring him to another BOP institution.*fn4

The record reflects that Banks filed administrative remedies on this issue. On July 19, 2006, Banks filed remedy number 420485-F1, requesting the religious writings, access to land for religious purposes, and a new job. (Doc. 16-2 at 15.) This remedy was rejected on the same day, July 19, 2006. (Id.) In that rejection, Banks was advised that his request pertained to several unrelated issues, and that he must file a separate complaint for each unrelated issue.*fn5 (Id. at 4.)

On July 20, 2006, Banks re-filed the remedy 420485-F2, again requesting the religious writings, access to land for religious purposes, and a new job. (Id. at 16.) However, he further explained that his request for a new job was based on religious reasons. (Id. ...


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