Krilich v. Fed Bur of Prisons ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Krilich v. Federal Bureau of Prisons No. 02-5089
ELECTRONIC CITATION: 2003 FED App. 0357P (6th Cir.)File Name: 03a0357p.06 MAZZOLI, Louisville, Kentucky, for Appellant. Thomas
Lee Gentry, ASSISTANT UNITED STATES ATTORNEY,
Lexington, Kentucky, for Appellee.
UNITED STATES COURT OF APPEALS
_________________
FOR THE SIXTH CIRCUIT
_________________ OPINION
_________________
ROBERT R. KRILICH , SR., X
- ROGERS, Circuit Judge. Robert R. Krilich, Sr., is a
Plaintiff-Appellant, federal inmate currently incarcerated at the Federal Medical
-
- No. 02-5089 Center in Lexington, Kentucky. Krilich appeals the judgment
v. - of the district court dismissing his claims for failure to
> exhaust administrative remedies as required under the Prison
, Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C.
FEDERAL BUREAU OF -
PRISONS, §1997e(a).1 Krilich also appeals the alternative ruling of the
- district court dismissing his claim under the Administrative
Defendant-Appellee. - Procedure Act (“APA”) for lack of jurisdiction under 18
- U.S.C. § 3625.2 Because the PLRA requires Krilich to
N exhaust his administrative remedies and he concedes that he
Appeal from the United States District Court failed to do so, we affirm the ruling of the district court.
for the Eastern District of Kentucky at Lexington.
No. 01-00391—Karl S. Forester, Chief District Judge. Although Krilich’s complaint asserted several claims
against the Federal Bureau of Prisons (“BOP”), he appeals
Argued: September 17, 2003 only the dismissal of two of those claims here. The first
arises from his confinement at the Federal Correctional
Decided and Filed: October 7, 2003 Institute (“FCI”) in Petersburg, Virginia. Krilich alleges that
Before: SUHRHEINRICH, COLE, and ROGERS, Circuit
Judges. 1
The PLRA provides, in relevant part, that “no 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 corre ctional facility until such administrative remedies as are
COUNSEL availab le are exhausted.”
ARGUED: James A. Earhart, Louisville, Kentucky, for 2
18 U.S.C. §3 625 provides that 5 U .S.C. § §554, 555, and 701-706
Appellant. Thomas Lee Gentry, ASSISTANT UNITED (specified provisions of the APA) “do not apply to the making of any
STATES ATTORNEY, Lexington, Kentucky, for Appellee. determination, decision or order” under the provisions of 18 U.S.C.
ON BRIEF: Michael R. Mazzoli, Scott C. Cox, COX & §§ 362 1 et seq . The latter provisio ns de al with various BOP
responsib ilities, including assignment, transfer and release of prison ers.
1
No. 02-5089 Krilich v. Federal Bureau of Prisons 3 4 Krilich v. Federal Bureau of Prisons No. 02-5089
prison officials at FCI-Petersburg monitored telephone client is a prisoner. See Sallier v. Brooks, No. 01-1269, 2003
conversations with his attorney and opened his clearly marked WL 22143291, at *3 (6th Cir. Sept. 18, 2003) (“[W]e have
legal mail outside his presence, in violation of the heightened concerns with allowing prison officials unfettered
confidentiality of his attorney-client relationship and his discretion to open and read an inmate’s mail . . . especially
rights under the Fifth Amendment. correspondence that impacts upon or has import for the
prisoner’s legal rights, the attorney-client privilege, or the
His second claim arises from the BOP’s “Electronic Drug right of access to the courts.”). His argument that the BOP’s
Detection Pilot Program,” initiated under BOP Operations attempts to intrude on that confidentiality are not “prison
Memorandum No. 027-98 (5267). While Krilich was conditions,” however, limits the meaning of those words
incarcerated at FCI-Petersburg, his wife was denied the without any basis in logic or law. Prison intrusions on a
opportunity to visit him because she tested positive for the prisoner’s privacy, legitimate or not, are obviously prison
presence of drugs when tested by the BOP’s new drug conditions.
detection equipment for the presence of narcotics. If a visitor
tested positive for the presence of narcotics, that visitor’s Krilich goes on to argue that the district court erred when
visitation privileges were suspended. Mrs. Krilich went to it concluded that it lacked jurisdiction to consider his APA
great lengths to have her privileges reinstated, including challenge to the BOP’s electronic drug detection program
submitting to a drug test at a local laboratory and volunteering under 18 U.S.C. § 3625. We need not reach this issue
to submit to a strip search prior to entering the prison, but to because, as discussed above, Krilich has not exhausted his
no avail. Krilich asserts on appeal that the BOP’s electronic administrative remedies as required under the PLRA.
drug detection program is illegal because it was never Krilich’s claim relating to his ability to receive visitors is a
submitted for notice and comment as required under the APA. claim made “with regard to prison conditions,” and the APA
falls within the broad sweep of claims subject to the
Krilich filed internal grievances for each of his claims, but exhaustion requirements of the PLRA. 42 U.S.C. § 1997e(a)
his grievances were either untimely filed or not pursued (Supp. 2003) (providing that prisoner cannot bring an action
through all levels of the BOP grievance process. He concedes brought under §1983 “or any other federal law” regarding
that he failed to exhaust his administrative remedies. Instead, prison conditions without exhausting administrative
Krilich argues that his Fifth Amendment claim is not subject remedies).
to the PLRA because it is not brought “with respect to prison
conditions.” Krilich argues that the confidentiality of the For the foregoing reasons, the judgment of the district court
attorney-client relationship transcends the conditions of time is AFFIRMED.
and place. He asserts that the confidentiality of the attorney-
client relationship is inviolate at all times in all places and is
not a “prison condition” that the BOP can lawfully regulate.
According to Krilich, attorney-client confidentiality is out of
the scope of the BOP’s lawful authority and is, therefore, not
subject to the requirements of the PLRA. We disagree.
Krilich is correct that the confidentiality of the attorney-
client relationship is entitled to protection even where the