The opinion of the court was delivered by: R. Barclay Surrick, J.
Presently before the Court is Defendant Kaboni Savage's Motion for Relief from Special Administrative Measures (ECF No. 137). For the following reasons, Defendant's Motion will be denied consistent with this Memorandum.
Defendant Kaboni Savage is currently serving a 30-year sentence for his 2005 conviction for numerous offenses, including conspiracy to manufacture and distribute cocaine and crack cocaine, money laundering, and witness tampering. (Govt.'s Resp. 2, ECF No. 146; see also Sent'g Mem. 2, United States v. Savage, No. 04-269-01 (E.D. Pa. Mar. 15, 2006), ECF No. 823.) On April 8, 2009, a federal grand jury returned a 26-count superseding indictment charging Defendant with, inter alia, 11 counts of murder in aid of racketeering, all of which are eligible for the death penalty. (Govt.'s Resp. 1.) It is alleged that Defendant ordered several of these murders while incarcerated as a pretrial detainee at the Federal Detention Center ("FDC") in Philadelphia.
Because Defendant is accused of a capital crime, federal law grants him protections beyond those ordinarily given to criminal defendants. Courts are required under 18 U.S.C. § 3005 to appoint two attorneys to represent Defendant, at least one of whom is required to be "learned in the law applicable to capital cases." These attorneys are required by statute to have "free access to the accused at all reasonable hours." Id. § 3005. Defendant is also entitled to advanced notice from the government that it intends to seek the death penalty and advanced notice of the factors that the government will present as justifying a sentence of death if Defendant is convicted. Id. § 3593(a)(1)-(2). Defense counsel must be given an opportunity to present evidence and argument to the Capital Review Committee of the Department of Justice before the government can seek the death penalty. See United States Attorneys' Manual § 9-10.150 (June 7, 2001) ("No final decision to seek the death penalty shall be made if defense counsel has not been afforded an opportunity to present evidence and argument in mitigation.").
Since Defendant's 2005 conviction, he has been incarcerated at three different facilities: the United States Penitentiary in Atlanta; the maximum security unit ("ADMAX") at the United States Penitentiary in Florence, Colorado; and, currently, the Metropolitan Corrections Center ("MCC") in Manhattan, New York. (Govt.'s Resp. 3.) Defendant was housed in the general population at the United States Penitentiary in Atlanta from April 2006 to February 2007. (Def.'s Mot. 3, ECF No. 137.) Because the Government believed that Defendant posed a threat to others even while incarcerated, the Attorney General authorized the imposition of Special Administrative Measures ("SAMs") in February 2007 to restrict Defendant's movements and communications. (Id. at 4.) The Attorney General has reauthorized the SAMs annually. (Govt.'s Resp. 3.)
MCC is a SAMs facility that does not allow contact visits between inmates and their attorneys. (Id.) Defendant is subject to severe restrictions as an inmate at MCC. He is not permitted recreation time, his ability to receive visitors is highly restricted, he has limited access to newspapers and other publications and is not permitted to receive literature from outside sources, and his access to the law library and computer is restricted. (Def.'s Mot. 5-6.) After Defendant complained about the inability to have contact visits with his attorneys, government counsel, defense counsel, and representatives of the Bureau of Prisons ("BOP") discussed the matter and agreed to have Defendant transported from MCC in New York to FDC in Philadelphia once per month for contact visits with his attorneys. (Govt.'s Resp. 4.) Defendant now asks this Court to order that the SAMs be lifted. Defendant complains that correspondence that is clearly marked as "legal mail" is being opened outside of his presence, that the two days of contact visits per month that were arranged for Defendant are "grossly inadequate," that he has insufficient access to a computer or law library, and that he is unable to focus on trial preparation when "the immediate dehumanizing conditions of [his] confinement are at issue." (Def.'s Mot. 9-10.) Defendant asks that we strike the SAMs in their entirety. (Id. at 18.)
The government objects to the lifting of the SAMs, arguing that Defendant had failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA") and that, in any event, the SAMs do not violate Defendant's constitutional rights. A hearing was held on September 30, 2010, for the purpose of determining whether Defendant is barred from seeking removal of the SAMs due to a failure to exhaust his administrative remedies. The matter is now ripe for disposition.
The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The PLRA was enacted "to reduce the quantity and improve the quality of prisoner suits" and to "afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter v. Nussle, 534 U.S. 516, 524-25 (2002). The PLRA's "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Id. at 532.
To exhaust his administrative remedies in the federal prison system, an inmate must follow a multi-step grievance procedure established by the BOP. The inmate must "first present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy." 28 C.F.R. § 542.13. If informal action fails to resolve the issue, the prisoner must submit a formal written complaint to the warden on a BP-9 form within 20 days of the date on which the situation giving rise to the inmate's complaint occurs. Id. § 542.14. If the inmate is dissatisfied with the resolution of his written complaint, he must appeal the decision to the Regional Director "within 20 calendar days of the date the Warden signed the response." Id. § 542.15. Finally, "[a]n inmate who is not satisfied with the Regional Director's response may submit an Appeal on the appropriate form (BP-11) to the General Counsel within 30 calendar days of the date the Regional Director signed the response." Id.
Defendant claims that he has exhausted his administrative remedies, noting that he has "continuously objected to the imposition of SAMs restrictions on him at both ADX and MCCNew York both informally, and through the Federal Bureau of Prisons' Administrative Remedy Program." (Def.'s Mot. 6.) A review of the exhibits that Defendant has attached to his Motion, reveals that although Defendant did complain about the SAMs, he has not completed all of the steps required for exhaustion since his arrival at MCC. (See generally Def.'s Mot. Ex. E.) Defendant also claims that he has received no explanation linking the SAMs to his behavior. However, Defendant's own submissions show otherwise. (See id. at 10 ("[T]he SAM was imposed because of the gravity of your instant offense, including conspiracy to manufacture and distribute cocaine, money laundering, threatening witnesses, and threatening to retaliate against witnesses. While in general population, you continued to threaten to kill federal agents, prison officials, witnesses and their families, as well as other hostile activity. The basis for the imposition of a SAM on you was directly related to your behavior and the substantial risk your communications or contacts with other persons pose.").) Defendant claims that exhaustion of his administrative remedies is not required because the BOP has no authority to rescind or to modify the SAMs in any event. (Def.'s Mot. 6.) This, too, is contradicted by the BOP's response to Defendant's appeal. (See Def.'s Mot. Ex. E at 10 ("[U]nit staff have influence as to how the restrictions are applied, and can affect [sic] appropriate modifications provided such approval would not jeopardize security concerns.").)
Finally, Defendant argues that he need not exhaust administrative remedies before bringing a motion to remove the SAMs because his motion is not an "action" to which the PLRA's exhaustion requirement applies. (Def.'s Mot. 6-7.) Defendant points to the PLRA, which states that "[n]o action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added). Defendant argues that since he has simply filed a motion in his underlying criminal case and has not filed a federal action or a lawsuit, the PLRA's exhaustion requirement does not apply.
The Third Circuit has not yet addressed the question of whether a motion to remove SAMs that is brought in the inmate's criminal case must comply with the PLRA's exhaustion requirement. The case law in other circuits is mixed. For ...