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Banks v. Nicklin

September 26, 2007

FREDERICK BANKS PLAINTIFF
v.
NICKLIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Conner

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. 20.) For the reasons set forth below, the motion for summary judgment will be granted.

I. Statement of Facts

The allegations in Banks' complaint relate to events occurring between July 10 and 12, 2006 at FPC-Canaan. The gravamen of Banks' claims is that defendants denied him the constitutional right of access to the courts and retaliated against him. Specifically, Banks alleges that defendants "set out to purposely obstruct Banks' criminal and civil actions because of his class-based status in Pennsylvania as a African-American." (Doc. 1 at 1.) In addition, defendants allegedly "froze" his inmate account in retaliation for his lawsuits filed against FPC-Canaan officials, and in order to prevent him from filing additional lawsuits and acquiring stamps. (Doc. 1 at 2.) Further, defendants refused to accept an incoming package containing Banks' trial transcripts, allegedly in retaliation for Banks' pending lawsuits against FPC-Canaan officials. (Id.) Finally, Banks claims that he was placed in the Special Housing Unit ("SHU") on July 12, 2006, in retaliation for, and in order to, prevent him from "exercising his legal rights." (Id.)

The record shows that between May and August of 2006 Banks filed twenty-four (24) requests for administrative remedy from FPC-Canaan on various topics and to various levels, including both the Northeast Regional and Central Offices.*fn3

(Doc. 21-3 at 6-17.) None of those requests pertains to Banks' claims in the complaint.*fn4

A. Race-Based Equal Protection Claim

Banks' complaint contains only a conclusory statement in support of his claim that defendants hindered his access to the courts because of his race. That statement reads, "Defendants conspired to punish and inflict harm on Banks for filing grievances and lawsuits against [FPC-]Canaan and set out to purposely obstruct Banks' criminal and civil actions because of his class-based status in Pennsylvania as an African-American." (Doc. 1 at 1.) He provides no evidence of such treatment based on his race in his complaint. In his response to the instant motion, Banks simply reiterates this blanket claim with no supporting evidence.

B. "Frozen" Inmate Account

Banks claims that FPC-Canaan officials have denied him access to the courts by "freezing" his inmate account in retaliation for lawsuits he had filed against them, and in order to prevent him from filing additional lawsuits and purchasing stamps.

Attached to his complaint is a inmate request to staff form, filed by Banks and dated July 11, 2006, addressing this issue. (Doc. 1 at 4.) In the request form, Banks asks "why my account is frozen when my debt encumbrances have been paid . . . ." (Id.) Defendant Kuram responded the following day, informing Banks that he continues to have two debt obligations, one pursuant to the PLRA for payments of court filing fees, and the other pursuant to his BP-199s, or requests for withdrawal of inmate personal funds. (Id.)

Banks alleges that his inmate account was "frozen" at the direction of defendant Nicklin. (Doc. 5 at 1.) He claims to have knowledge of this directive as a result of a meeting he had with defendant Nicklin and others on July 12, 2006, to discuss his "frozen" account. (Doc. 1 at 1.) In response, defendants have submitted a declaration made under penalty of perjury of defendant Julie Nicklin. (Doc. 21-3 at 24-25.) Defendant Nicklin recalls having several conversations with Banks regarding his inmate account. (Id. at 24.) She explained that although she does not personally administer inmate accounts, she informed Banks that the debt encumbrances which he alleged "froze" his inmate account were actually withdrawals for payments of filing fees for the multiple lawsuits he has pending in various courts. (Id.) She also reminded Banks that he had previously authorized those withdrawals. (Id.)

Attached to her declaration is a copy of the transaction record from Banks' inmate account. A review of the account for the relevant time period indicates that funds were withdrawn for his PLRA obligations, debts owed to the government, postage, and commissary sales. (Id. at 27-29.) In addition, a payroll check was deposited during that time period. (Id. at 27.) The day after Banks filed the inmate request to staff form, funds were deducted for the purchase of postage stamps. (Id.) However, at the time Banks filed the present action, he stated that his inmate account "was never unfrozen." (Doc. 12 at 2.)

C. Rejection of Legal Mail

Banks also claims that defendants denied him the right of access to the courts when they rejected an incoming package containing legal materials in retaliation for lawsuits Banks had filed against him, and in order to prevent him from filing further lawsuits. He also claims that the package was rejected in order to prevent him from pursuing an appeal.

Defendants have submitted a declaration made under penalty of perjury of defendant Farley, which details the refusal of Banks' incoming package at issue in the complaint. (Id. at 20-21.) Defendant Farley recalls that the incoming package addressed to Banks did not arrive at FPC-Canaan with a package authorization form or a stamp indicating that it was legal mail.

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 23.) 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.)

Banks' package did not have a package authorization form or a stamp marking it as legal mail. Pursuant to BOP policy, it was refused and returned to the sender. (Id. at 20.) The package was not opened, nor were its contents inspected at any time prior to its refusal. (Id.)

In his response to the instant motion, Banks asserts that his counsel did complete a BP-331 form, but placed it inside the package rather than in plain view for FPC-Canaan staff inspection and approval. (Doc. 23 at 2.)

D. Placement in the SHU

Finally, Banks claims that defendants denied him the right of access to the courts by placing him in the SHU in retaliation for lawsuits Banks had filed against them. In support, Banks claims that on July 12, 2006, defendant Nicklin had a mental breakdown when she called him into a meeting, and subsequently placed him in administrative custody in the SHU. (Doc. 1 at 1-2.) Banks avers that defendant Nicklin informed him that he would be placed in administrative segregation pending an investigation of his allegations against FPC-Canaan staff. (Doc. 5 at 1.) He further alleges that defendant Lindsay approached him in the SHU, demanding Banks "stop screwing with staff." (Doc. 12 at 1.)

Defendant Nicklin addressed Banks' claim in her declaration, submitted as an exhibit to the instant motion. Nicklin asserts that Banks was placed in non- punitive administrative detention and later transferred to another institution for security reasons because Banks had informed FPC-Canaan staff that he had inappropriate personal information about defendant Lindsay and his family members. (Doc. 21-3 at 25.)

In his response to the instant motion, Banks counters that he did not have information on the warden, and that defendants' assertion "is a lie in two respects." (Doc. 23 at 2-3.) First, he claims defendants are lying in describing his placement in the SHU as non-punitive because he had a protected liberty interest in remaining at the prison camp rather than in the SHU and subsequently at another institution. Second, he claims defendants are lying because he did not speak with the warden until after he had been placed in the SHU.

II. Standard of Review

A. Motion to dismiss

Defendants have filed a motion which, in part, seeks dismissal of the complaint on the grounds that Banks' complaint fails to state a claim upon which relief can be granted, as provided by Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion, however, goes beyond a simple motion to dismiss under Rule 12(b)(6) because it is accompanied by evidentiary documents outside the pleadings contravening Banks' claims. Rule 12(b) provides, in pertinent part, as follows:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

FED. R. CIV. P. 12(b). The court will not exclude the evidentiary materials accompanying defendants' motion to dismiss because Banks also has been given a reasonable opportunity to present material relevant to the motion. Thus, defendants' motion to dismiss, or, in the alternative, ...


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