CHRIS DEHMER, Plaintiff, vs. BUREAU OF PRISONS, et al., Defendants.

07-1218

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS, DANVILLE DIVISION

September 22, 2008, Decided
September 22, 2008, E-Filed

MERIT REVIEW ORDER # 2

The plaintiff, a federal prisoner, has filed an amended complaint. The court conducted a merit review of the plaintiff's original complaint and found the plaintiff had failed to state a claim upon which relief could be granted. However, the court gave the plaintiff time to amend his pleading. See November 5, 2007 Court Order. The plaintiff has complied.

The court is required by 28 U.S.C. §1915A to "screen" the plaintiff's amended complaint, and through such process to identify and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally insufficient if it "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §1915A.

The plaintiff has filed this lawsuit pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). The plaintiff claims his First Amendment Freedom of Association and Fifth Amendment Due Process rights have been violated at the Federal Correctional Institution [*2] in Pekin, Illinois. The plaintiff also claims the Bureau of Prisons has violated the Administrative Procedures Act, (APA), 5 U.S.C. §701. The plaintiff has named two specific defendants, Warden J.C. Zuercher and Lieutenant Terry Fardel, as well as an unspecified number of John Doe Correctional Officers.

The plaintiff says the Bureau of Prisons has enacted a program which calls for the use of ionspectrometry devices to screen visitors to the prison. Ionspectrometry detects the presence of microscopic traces of illegal drugs on persons and their clothing. Manning v. Wells, 2007 U.S. Dist. LEXIS 28451, 2007 WL 1140422 at 2, FN 1(D.S.C April 17, 2007). The plaintiff says if the visitor has a positive test result, the visitation is denied. The individual may return after a specified period, but if they test positive again, they are denied visitation for an even longer period of time.

The plaintiff says the Bureau of Prisons claims the ionspectrometry devices have a 1% margin or error, but the plaintiff says there is no basis for this claim. The plaintiff alleges that casual contact with currency, prescription drugs and a gasoline can register as a positive result for illicit drugs.

The plaintiff has outlined numerous [*3] dates when family members were denied visitation. For instance, the plaintiff says his mother, who is on a number of medications, has tested positive on four occasions and has been denied visitation a total of 304 days. His father, a former air traffic controller, tested positive on three occasions and has been denied visitation a total of 124 days. The mother of his son has tested positive on three occasions and has been denied visitation a total of 124 days. Another family friend has tested positive on two occasions. The plaintiff says these individuals were not allowed to visit the plaintiff and were not allowed any other testing method or search to determine if they were in fact in possession of any illicit narcotics.

The plaintiff says he has asked for the names of the officers who used the ion spectrometer on his potential visitors, but he has been refused this information. These are the John Doe defendants. The plaintiff says he complained about the problem to Defendants Fardell and the Warden. He also told them about the numerous prescription medications his mother was taking, but the defendants refused to investigate or take any action.

The plaintiff is asking for nominal and [*4] punitive damages as well as injunctive relief allowing him visitation.

As the court has noted, inmates do not have an absolute First Amendment right to visitation. Caraballo-Sandoval v. R.E. Honsted, 35 F.3d 521, 525 (C.A. 11 1994). Any regulation or policy limiting visitation is valid as long as it is reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). While its likely the defendants will be able to argue a legitimate penological interest, the court will allow the claim to proceed until the record can be more fully developed.

There is also no due process right to unfettered visitation. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460-61, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989); Mayo v. Lane, 867 F.2d 374, 379 (8th Cir. 1989). "Restrictions on prison access do not independently violate the due process clause." Smith v. Farley, 1995 U.S. App. LEXIS 8626, 1995 WL 216896 at 2 (7th Cir. April 11, 1995). However, the court will also allow this claim to proceed until a more fully developed record can be presented.

The plaintiff has failed to state a claim pursuant to the Administrative Procedures Act. The APA governs rule making and adjudication procedures of federal agencies and the Bureau of [*5] Prisons is considered such an agency. Custard v. U.S., 2006 U.S. Dist. LEXIS 38108, 2006 WL 1599210 at 2 (S.D. Ill. June 9, 2006); Bunn v Conley, 309 F.3d 1002, 1009(7th Cir. 2002). However, some statute outside the APA must trigger the procedures of the APA. see United States v. Florida East Coast Ry., 410 U.S. 224, 93 S. Ct. 810, 35 L. Ed. 2d 223 (1973); 5 U.S.C. §554(a).

The court notes that the plaintiff's original complaint stated that Federal Bureau of Prisons Program Statement 5522.01 dealt with the use of Ion Spectrometry to scan visitors to federal prisons. However, program statements are "internal agency guidelines" that are not "subject to the rigors of the [APA], including public notice and comment." Jacks v Crabtree, 114 F.3d 983, 985 FN.1 (9th Cir. 1997); Durham v Lappin, 2006 U.S. Dist. LEXIS 72783, 2006 WL 2724091 (D.Colo. Sept. 21, 2006). The plaintiff does not allege that the program statement at issue adopted the APA procedures. Therefore, the court must dismiss any APA claims.

IT IS THEREFORE ORDERED THAT:

1) The plaintiff's motion to amend his complaint is granted. [d/e 7]. The clerk of the court is directed to file the plaintiff's Amended Complaint.

2) Pursuant to its merit review of the amended complaint under 28 U.S.C. Section 1915A, the court finds that [*6] the plaintiff states the following federal claims:

The repeated denials of the plaintiff's visitation within the Federal Correctional Institution in Pekin Illinois violated the plaintiff's First Amendment Freedom of Association and Fifth Amendment Due Process rights.

3) All other claims based on federal law, other than those set forth in paragraph (2) above, are dismissed for failure to state a claim pursuant to 28 U.S.C. Section 1915A.

4) This case shall proceed solely on those federal claims identified in paragraph two above. Any claims not set forth in paragraph two above shall not be included in the case, except in the court's discretion on motion by a party for good cause shown, or by leave of court pursuant to Federal Rule of Civil Procedure 15.

5) A Prisoner Scheduling Order shall be entered directing service and setting a Rule 16 conference date.

6) A copy of this Case Management Order shall be served with the Complaint and Scheduling Order.

7) The defendants shall file an answer within the time prescribed by Local Rule. A motion to dismiss is not an answer. The answer must be considered a responsive pleading under Federal Rule of Civil Procedure 15(a) and should include all defenses [*7] appropriate under the Federal Rules. The answer and subsequent pleadings shall be to the issues and claims stated in this Case Management Order.

8) The plaintiff must identify the names and work addresses of his Doe defendants in order to effect service on them. If the plaintiff does not know the name of a defendant, he must discover it by filing a discovery request upon the known defendants after they have appeared, or, if those defendants do not provide an answer, a motion to compel with the court. Failure to timely identify and serve the Doe defendants will result in their dismissal from the case. See Fed. R. Civ. Proc. 4(m).

Entered this 22nd Day of September, 2008.

/s/ Harold A. Baker

HAROLD A. BAKER

UNITED STATES DISTRICT JUDGE

CHRIS DEHMER, Plaintiff, vs. BUREAU OF PRISONS, et al., Defendants.

07-1218

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS

November 5, 2007, Decided
November 5, 2007, E-Filed

ORDER

This cause is before the court for a merit review of the plaintiff's claims. The court is required by 28 U.S.C. § 1915A to "screen" the plaintiff's complaint, and through such process to identify and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally insufficient if it "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §1915A.

The plaintiff, a federal prisoner, has filed this lawsuit pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). The plaintiff claims his First Amendment freedom of association and Fifth Amendment due process rights have been violated at the Federal Correctional Institution in Pekin, Illinois. The plaintiff has named five defendants including the Bureau of Prisons, Attorney General Alberto Gonzales, Federal Bureau of Prisons Director Harley Lappin, Warden J.C. Zuercher and Inspector General Glen Fine. The plaintiff says he is suing the defendants [*2] in their individual and official capacities.

The plaintiff says the Bureau of Prisons has enacted a program which calls for the use of ionspectrometry devices 1 to screen visitors to the prison. If the visitor receives a positive test result, the visitation will be denied. The Bureau claims the ionspectrometry devices have "less than a 1% rate of false positive results." (Comp, p. 4).

FOOTNOTES

1 Ionspectrometry detects the presence of microscopic traces of illegal drugs on persons and their clothing. Manning v. Wells, 2007 U.S. Dist. LEXIS 28451, 2007 WL 1140422 at 2, FN 1(D.S.C April 17, 2007)


The plaintiff says this claim is untrue and "[c]asual contact with contaminated currency, perfume, prescription drugs, Robitussin, diet pills, migraine medications, anti-depressants and gasoline will cause a false positive result." (Comp, p. 4) The plaintiff states no basis for this allegation, but does say on various occasions from February of 2006 until the present he has been denied visitation with family members who have tested positive on the device. It is unclear how often this occurred. The plaintiff does not claim he was denied all visitation during this time period.

The court notes that Federal Bureau of Prisons Program Statement [*3] 5522.01 deals with the use of Ion Spectrometry to scan visitors to federal prisons.

The possession and use of illegal substances by prison inmates seriously jeopardizes the Bureau's mission. The ion spectrometry device program is a minimally intrusive method for scanning people, their belongs, mail and packages for the presence of illegal substances. Fed. Bur. of Prisons, Program Statement P5522.01, p.1

The program allows for random testing or testing based on a reasonable suspicion. Any visitor testing positive is given the option to take a second test and if the individual still tests positive, they are denied entry but may file an appeal. An individual testing positive may return to visit an inmate at a later time as long as they submit to the Ion Spectrometry Test.

The plaintiff says the Bureau of Prisons screening program is unconstitutional. The plaintiff says Defendant Attorney General Alberto Gonzales violated his constitutional rights "through the enactment and enforcement of 28 C.F.R. §511." (Comp., p.5) The plaintiff is apparently referring to the statutes governing the general management of the Bureau of Prisons and which allow prison officials to search visitors. The plaintiff [*4] says the Federal Bureau of Prisons, Director Harley Lappin and Inspector General Glen Fine violated his constitutional rights by the enactment and enforcement of "Bureau of Prisons Statement P5520.01." (Comp., p. 6) Finally, the plaintiff says Warden Zuercher violated his First and Fifth Amendment rights when he complained about the use of Ion Spectrometry and the denial of his visitors and the warden failed to correct the problem. The plaintiff is asking for nominal damages and punitive damages. The plaintiff is also asking for the court to issue an injunction allowing his friends and family to visit him.

There are several problems with the plaintiff's lawsuit. First, this court lacks subject matter jurisdiction over the plaintiff's claims against the Bureau of Prisons or the other defendants in their official capacities. Section 1983 allows a civil action for damages for violation of a constitutional right. Bivens, 403 U.S. at 395-96. However, a suit against a federal agency or federal official in his or her official capacity is actually a claim against the United States. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). The doctrine of sovereign immunity shields the [*5] United States from such suits unless it has given its consent to waive this immunity. F.D.I.C. v Meyer, 510 U.S. 471, 477-78, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994). Therefore, the court lacks jurisdiction over the plaintiff's claim against the Bureau of Prisons and any official capacity claims. Those claims must be dismissed.

Second, it appears the plaintiff is claiming the policy of searching visitors at prisons and the use of Ion Spectrometry to search visitors at prisons is unconstitutional on its face. As to the plaintiff's First Amendment claim, inmates do not have an absolute right to visitation. Caraballo-Sandoval v. R.E. Honsted, 35 F.3d 521, 525 (C.A. 11 1994). Any regulation or policy limiting visitation is valid as long as it is reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). The stated purpose of using the Ion Spectrometer to scan visitors to federal prisons is to cut down on the availability and use of illegal substances by inmates. The "unauthorized use of narcotics is a problem that plagues virtually every penal and detention center in the country." Block v Rutherford, 468 U.S. 576, 588-89, 104 S. Ct. 3227, 82 L. Ed. 2d 438 (1984). The court finds the articulated concerns constitute a [*6] legitimate penological objective.

There is also no due process right to unfettered visitation. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460-61, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989); Mayo v. Lane, 867 F.2d 374, 379 (8th Cir. 1989). "Restrictions on prison access do not independently violate the due process clause." Smith v. Farley, 1995 U.S. App. LEXIS 8626, 1995 WL 216896 at 2 (7th Cir. April 11, 1995). In addition, the Bureau of Prisons' visiting regulations do not create a protected liberty interest in visitation. Caraballo-Sandoval v. Honsted, 35 F.2d 521 (11th Cir. 1994).

"Federal courts have traditionally been reluctant to interfere in the problems of prison administration." Manning v. Wells, 2007 U.S. Dist. LEXIS 28451, 2007 WL 1140422 at 5(D.S.C. April 17, 2007). "Decisions as to which security protocols to subject inmate visitors to are exactly the sort of decisions which courts should defer to prison administrators." Id. The plaintiff has failed to state a claim that the prison regulations and policies governing the use of an Ion Spectometer to scan potential visitors is unconstitutional on its face. The court will therefore dismiss these claims and any claims against Defendants Gonzales, Lappin and Fine.

However, it is possible that the plaintiff [*7] may be able to claim that the way the scanning procedure has been used to prevent the plaintiff from receiving visitors at the Federal Correctional Institution in Pekin violates his constitutional rights. Unfortunately, the plaintiff's complaint does not provide Defendant Zuercher with the proper notice of his claims. The plaintiff's complaint simply says he did not receive visitors on various occasions from February 6, 2006 until the present. It is not clear when the plaintiff was denied visitation, how often he was denied visitation or why he was denied visitation. The Seventh Circuit has consistently noted that "the essential function of a complaint under the civil rules?is to put the defendant on notice of the plaintiff's claim." Ross Brothers Construction Co., Inc, v. International Steel Services, Inc., 283 F.3d 867 (7th Cir. 2002) quoting Davis v. Ruby Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001).

In addition, the plaintiff must be sure to name defendants from the Pekin institution that were directly involved in either denying his visitation or refusing to respond to his specific complaints. To be liable for a constitutional violation, a supervisory defendant need not [*8] have directly participated in the deprivation of rights, but he or she must have been personally involved in the deprivation. Sanville v McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). "A defendant will be deemed to have sufficient personal responsibility if he directed the conduct causing the constitutional violation, or it occurred with his knowledge or consent." Id. For instance, it is doubtful Defendants Gonzales, Lappin or Fine had any direct involvement in how visitors are screened in Pekin or what visitors are allowed to see the plaintiff.

Since the plaintiff is proceeding pro se, the court will allow the plaintiff an opportunity to file an amended complaint. The proposed amended complaint must stand complete on its own without reference to the original complaint. The plaintiff must clearly state each defendant. In addition, the plaintiff's amended complaint should specify how the use of the Ion Spectometer specifically limited his visitation. For instance, when was the plaintiff denied visitation and why he was denied visitation.

IT IS THEREFORE ORDERED THAT:

1) The plaintiff has failed to state a claim pursuant to Fed. R. Civ. Proc. 12(b)(6) and 28 U.S.C. Section 1915A against [*9] Defendants the Bureau of Prisons, Attorney General Alberto Gonzales, Federal Bureau of Prisons Director Harley Lappin, and Inspector General Glen Fine. The clerk of the court is directed to dismiss these defendants.

2) It is possible the plaintiff may have a claim against Defendant Warden J.C. Zuercher. However, the plaintiff's complaint does not provide the proper notice to the defendant under Rule 8 of the Federal Rules of Civil Procedure. The plaintiff's complaint is therefore dismissed.

3) The plaintiff must file an amended complaint within twenty-one days of this order. The amended complaint must comply with all the requirements of this order. If the plaintiff fails to follow this order, his case will be dismissed.

ENTERED this 5th day of November, 2007.

/s/ Harold A. Baker

HAROLD A. BAKER

UNITED STATES DISTRICT JUDGE