Perez v. Fed Bur Prisons , 229 F. App'x 55 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-11-2007
Perez v. Fed Bur Prisons
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3983
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CLD-154 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-3983
________________
MIKE PEREZ,
Appellant
v.
FEDERAL BUREAU OF PRISONS
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 06-cv-02080)
District Judge: Honorable Robert B. Kugler
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
March 15, 2007
BEFORE: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES
(Filed: April 11, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Mike Perez, a pro se prisoner who is confined at the Federal Correctional Center in
Fort Dix, New Jersey, appeals from the District Court’s dismissal of his complaint for
failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A. Because this
appeal does not present a substantial question, we will summarily affirm the District
Court’s ruling. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.1
In 1997, Perez was sentenced to 360 months in prison for conspiracy to distribute
cocaine, distribution of cocaine, unlawful use of a telephone, money laundering, and
aiding and abetting. In December 2005, the Federal Bureau of Prisons (“BOP”) restricted
Perez’s telephone privileges to one social telephone call per week after assigning him the
Serious Telephone Abuse public safety factor (“PSF”). The BOP assigned the PSF based
on Perez’s Pre-Sentence Report, which indicated that he was categorized as a
leader/organizer of a conspiracy that utilized the telephone to further criminal activity.
See Program Statement 5100.07, Ch.7, p. 6. 2 After the BOP denied Perez’s requests for
administrative remedy, he filed a complaint in the District of New Jersey asserting that
1
We have jurisdiction under 28 U.S.C. § 1291, and our review is plenary. Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).
2
The PSF allows prison administrators to restrict telephone use in accordance with
the Telephone Regulations for Inmates Program Statement, which states that telephone
privileges are “a supplemental means of maintaining community and family ties . . .
however . . . , inmate telephone use is subject to those limitations which the Warden
determines are necessary to ensure the security or good order, including discipline, of the
institution or to protect the public.” Program Statement 5264.07; 28 C.F.R. § 540.100.
2
the BOP violated his constitutional rights by imposing the PSF and telephone restriction
based on his underlying conviction and Pre-Sentence Report. Perez also asserted that the
telephone restriction constitutes an additional punishment which the BOP has no
authority to impose and makes it difficult for him to maintain relationships with his
family and friends.
The District Court analyzed Perez’s claims under the Double Jeopardy Clause of
the Fifth Amendment, the Eighth Amendment, and the First Amendment, and concluded
that the complaint did not state a claim for violation of his federal rights. Although we
also assess Perez’s complaint under the Due Process Clause, we agree with the District
Court that the allegations in Perez’s complaint cannot support a federal claim.
As the District Court concluded, the acts that Perez complains about do not trigger
the Double Jeopardy Clause of the Fifth Amendment, which protects people from, among
other things, multiple criminal punishments for the same offense. Hudson v. United
States, 522 U.S. 93, 98-99 (1997). Changes in conditions of incarceration—such as
alteration of an inmate’s security classification and consequent loss of privileges—are not
additional punishments for the original offense in part because the sentence is not being
increased beyond that originally imposed. See Stiver v. Meko, 130 F.3d 574, 578-79 (3d
Cir. 1997). Therefore, Perez’s allegations are insufficient to maintain a claim under the
Double Jeopardy Clause.
We also agree with the District Court that Perez cannot maintain a viable claim
against the BOP for violating the Eighth Amendment’s protection against cruel and
3
unusual punishment. “It is clear that a prisoner’s claim under the eighth amendment must
establish more egregious conduct than that adequate to support a common law tort.”
Williams v. Mussomelli, 722 F.2d 1130, 1133 (3d Cir. 1983). Accordingly, prison
conditions constitute a violation of the Eighth Amendment when they “involve the
wanton and unnecessary infliction of pain [or are] grossly disproportionate to the severity
of the crime warranting imprisonment.” Peterkin v. Jeffes, 855 F.2d 1021, 1023 (3d Cir.
1988). An altered security classification that allows limits on telephone privileges
certainly does not rise to this level. See Inmates of Occoquan v. Barry, 844 F.2d 828, 836
(D.C. Cir. 1988) (“[T]he ‘deprivations’ that trigger Eighth Amendment scrutiny are
deprivations of essential human needs,” such as concern over physical safety, and
deprivation of food, medical care, or sanitation.). We agree, therefore, that Perez cannot
maintain a claim under the Eighth Amendment.
With respect to the First Amendment, we agree with the District Court that Perez’s
allegations cannot support a claim that the BOP violated his right to free speech.
Prisoners “ha[ve] no right to unlimited telephone use,” and reasonable restrictions on
telephone privileges do not violate their First Amendment rights. See, e.g., Washington
v. Reno, 35 F.3d 1093, 1099-1100 (6th Cir. 1994); Benzel v. Grammer, 869 F.2d 1105,
1108 (8th Cir. 1989); Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986).
Rather, a prisoner’s right to telephone access is “subject to rational limitations in the face
of legitimate security interests of the penal institution.” Strandberg, 791 F.2d at 747.
Assigning the Serious Telephone Abuse PSF—which leads to the restriction of social
4
telephone calls to one per week—to prisoners who have a history of using the telephone
to conduct criminal activity is clearly reasonable because it relates to the legitimate
penological goal of public and institutional safety by decreasing the possibility that high-
risk prisoners will use prison telephones to orchestrate crimes. Thus, Perez cannot
succeed on a claim that the prison violated his First Amendment rights.3
Liberally construed, Perez’s complaint includes a claim that the BOP violated his
Fourteenth Amendment due process rights by assigning him the PSF. To succeed on a
due process claim, Perez must demonstrate that he was deprived of a liberty interest
without due process. See Bd. of Regents v. Roth, 408 U.S. 564, 569-71 (1972). The Due
Process Clause does not, however, subject an inmate’s treatment by prison authorities to
judicial oversight as long as the degree of confinement or conditions to which the inmate
is subject are within the sentence imposed and do not otherwise violate the Constitution.
Fraise v. Terhune, 283 F.3d 506, 522 (3d Cir. 2002). Because changes in security
classifications and limits on telephone usage are ordinary incidents of prison confinement,
Perez’s allegations do not implicate a liberty interest protected by the Due Process
Clause. Asquith v. Dep’t of Corrections, 186 F.3d 407, 410 (3d Cir. 1999); see also
Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976). Moreover, even if an inmate was being
disciplined for an institutional infraction, the prison regulation only requires the BOP to
3
Furthermore, although Perez claims that the restriction makes it difficult for him to
maintain relationships with his family and friends, the telephone limitation apparently
does not affect his ability to communicate with people outside the prison through letter
writing and visitation.
5
allow the inmate to make one telephone call per month. See 28 C.F.R. § 540.100(b). As
such, limiting Perez’s social telephone calls to one per week certainly cannot be construed
to deprive Perez of a liberty interest. Accordingly, Perez cannot succeed on a claim for a
violation of his due process rights.
For the reasons stated, we conclude that the District Court correctly dismissed
Perez’s complaint and that his appeal presents no substantial question. Accordingly, we
will summarily affirm the District Court’s Order. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P.
10.6.
6