Kenneth Tiedemann v. Barbara Von Blanckensee ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH DANIEL TIEDEMANN,
No. 21-15073
Plaintiff-Appellant,
D.C. No. 4:17-
v. cv-00597-CKJ
BARBARA VON BLANCKENSEE;
GENE BEASLEY; SCOTT YOUNG, OPINION
Defendants-Appellees,
and
MARY M. MITCHELL, Regional
Director; J. T. SHARTLE, Warden;
RAFAEL ZUNIGA,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted April 12, 2023
San Francisco, California
Filed July 3, 2023
2 TIEDEMANN V. VON BLANCKENSEE
Before: Sidney R. Thomas and Holly A. Thomas, Circuit
Judges, and Jed S. Rakoff, * District Judge.
Opinion by Judge Rakoff
SUMMARY **
Prisoner Civil Rights / Familial Association / Bivens
The panel affirmed in part and reversed in part the
district court’s dismissal of an action brought by Daniel
Tiedemann, a federal prisoner, challenging the 300-minute-
per-month cap on his phone calls applied by the federal
Bureau of Prisons (“BOP”), and remanded.
Tiedemann argued that BOP, by applying the policy to
him without exemption, unconstitutionally infringed on his
First and Fifth Amendment rights to familial association
with his three children. Although the district court found
that Tiedemann stated plausible First and Fifth Amendment
claims, it dismissed his claims as moot after BOP moved
Tiedemann between facilities, since his complaint did not
name the new facility’s warden.
Although the panel agreed with the district court that
Tiedemann’s claims for injunctive relief were moot as to his
two previous wardens who were no longer in a position to
*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TIEDEMANN V. VON BLANCKENSEE 3
grant Tiedemann relief at his present facility, one
defendant—BOP’s regional director for the Western
Region—still plausibly had authority to redress his claimed
injury by directing his current warden to offer him more
phone time. And even if that were not the case, the district
court clearly erred by offering Tiedemann no opportunity to
amend his complaint to name his current warden, since
amendment would have resolved the sole stated ground for
dismissal. Accordingly, the panel affirmed the district
court’s dismissal of Tiedeman’s claim for injunctive relief as
to his two former wardens, reversed the district court’s
dismissal of Tiedemann’s claim for injunctive relief as to the
Regional Director defendant, and held that Tiedemann
should be given leave to amend his complaint to add his
current warden as a co-defendant.
The panel next declined to affirm the district court’s
dismissal on the alternative ground that Tiedemann failed to
state a claim. The Government did not here dispute that its
policy limiting incarcerated persons’ phone time at least
implicates their First and Fifth Amendment interests in free
association with family and others. The constitutionality of
BOP’s policy as applied to Tiedemann, therefore, depended
on whether it was reasonably related to legitimate
penological objectives. While this standard is deferential to
BOP, it also requires factual determinations ill-suited to
resolution on the pleadings. Thus, the panel held that
Tiedemann plausibly alleged a claim that survived the
pleading stage.
The panel affirmed the district court’s dismissal of
Tiedemann’s claim for money damages under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), because, as Tiedemann acknowledged,
4 TIEDEMANN V. VON BLANCKENSEE
his Bivens claim was correctly dismissed pursuant to binding
Ninth Circuit and Supreme Court precedent.
COUNSEL
Sarah Dupree (argued) and Rachel Smith (argued), Certified
Law Students; William Fernholz and Jamie Crook,
Supervising Attorneys; UC Berkeley School of Law;
Berkeley, California; for Plaintiff-Appellant.
Terry M. Crist III, Assistant United States Attorney;
Christina M. Cabanillas, Deputy Appellate Chief; Gary M.
Restaino, United States Attorney, District of Arizona;
United States Attorney’s Office; Tucson, Arizona; Denise A.
Faulk, Assistant United States Attorney; United States
Attorney’s Office; Phoenix, Arizona; for Defendants-
Appellees.
OPINION
Rakoff, District Judge:
Appellant Kenneth Daniel Tiedemann, a federal
prisoner, challenges the 300-minute-per-month cap on his
phone calls applied by the federal Bureau of Prisons
(“BOP”). Tiedemann argues that BOP, by applying the
policy to him without exemption, unconstitutionally
infringes on his First and Fifth Amendment rights to familial
association with his three children.
TIEDEMANN V. VON BLANCKENSEE 5
Although the district court found that Tiedemann stated
plausible First and Fifth Amendment claims, it dismissed his
claims as moot after BOP moved Tiedemann between
facilities, since his complaint did not name the new facility’s
warden. We hold that this was error. Tiedemann’s complaint
named as a defendant the regional director, who plausibly
has authority to redress his claimed injury by directing his
current warden to offer him more phone time. And even if
that were not the case, the district court clearly erred by
offering Tiedemann no opportunity to amend his complaint
to name his current warden, since amendment would have
resolved the sole stated ground for dismissal.
The Government alternatively invites us to affirm the
district court’s dismissal on the ground that Tiedemann
failed to state a claim. We decline. The Government does not
here dispute that its policy limiting incarcerated persons’
phone time at least implicates their First and Fifth
Amendment interests in free association with family and
others. Accordingly, the constitutionality of BOP’s policy as
applied to Tiedemann depends on whether it is reasonably
related to legitimate penological objectives. See Turner v.
Safley, 482 U.S. 78, 89–91 (1987). While this standard is
deferential to BOP, it also requires factual determinations ill-
suited to resolution on the pleadings, and Tiedemann’s
complaint renders it plausible that BOP’s phone policy fails
this deferential test. We therefore reverse the district court’s
dismissal of Tiedemann’s suit for injunctive relief. 1
1
We do, however, affirm the district court’s dismissal of Tiedemann’s
claim for money damages under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Tiedemann
acknowledged both in his reply brief and at oral argument that his Bivens
6 TIEDEMANN V. VON BLANCKENSEE
I. BACKGROUND
In late 2017, Tiedemann sued his then-warden at United
States Penitentiary, Tucson (“USP Tucson”), his former
warden at Federal Correctional Institution (“FCI”) Mendota,
and the BOP regional director for the Western Region,
alleging that BOP’s application of its 300-minute per month
cap on phone calls violated Tiedemann’s Fifth Amendment
rights to substantive due process and equal protection, and
seeking both injunctive relief and a Bivens damages remedy.
Tiedemann filed an amended pro se complaint in early 2018,
in which he explained that he is a father of three children and
that, prior to his incarceration, he was the sole caretaker for
his two oldest sons. He alleged that he has remained close
with his children while behind bars. When initially
incarcerated at a privately run facility from 2014 through
2016, Tiedemann spoke with his children on the phone for
“an average of 30-45 minutes a day” and “sometimes much
longer,” which enabled him to continue to play a significant
role in their lives as they grew up.
When transferred in 2017 to a BOP facility, however,
Tiedemann became subject to BOP policy that limits all
prisoners to 300 minutes (5 hours) per month of phone time
absent “good cause.” U.S. Dep’t of Just., Fed. Bureau of
Prisons, Program Statement P5264.08: Inmate Telephone
Regulations § 8(f) (2008) (“Telephone Regulations”). 2
Tiedemann alleges that this limit of about 10 minutes per day
“interfered with [his] daily communication with his
children” and thereby damaged his ability to parent and his
claim was correctly dismissed pursuant to binding Ninth Circuit and
Supreme Court precedent, and we agree.
2
For the purposes of this summary, we accept Tiedemann’s well-pleaded
allegations as true.
TIEDEMANN V. VON BLANCKENSEE 7
children’s mental health and academic success. He
accordingly requested his warden at FCI Mendota to give
him more phone time; when the request was denied,
Tiedemann appealed that denial to the regional director, who
approved the warden’s decision because Tiedemann failed
to show “good cause.” Tiedemann was then transferred from
FCI Mendota to USP Tucson, where he once again requested
more phone time. But the new warden rejected his request as
a duplicate of Tiedemann’s previously-denied request at FCI
Mendota.
Tiedemann sued in federal district court, seeking both
injunctive relief and a Bivens damages remedy. He alleged
that BOP’s application of its 300-minute cap and its failure
to make any exception in his case unconstitutionally
infringed his substantive due process right to a parent-child
relationship and denied him equal protection. Shortly after
filing suit, Tiedemann was transferred to a third facility, FCI
Herlong, at which point he submitted a pro se motion for a
temporary stay of the litigation on the ground that he might
not have access to legal mail while in transit. Tiedemann
noted that he would update the court with his new address
once he was placed at a new facility, which he ultimately did.
The district court initially issued a screening order
dismissing the case with prejudice for failure to state a claim
and denying as moot Tiedemann’s motion to stay the
proceedings. The district court concluded that Tiedemann
failed to state an equal protection claim because he had not
alleged that he was intentionally treated differently from
others who were similarly situated, and that he had failed to
state a due process claim under the standards governing
prisoners’ procedural due process claims. The district court
likewise concluded that Tiedemann could not pursue a
Bivens damages claim because his claims arose in a new
8 TIEDEMANN V. VON BLANCKENSEE
context and special factors counseled against extending
Bivens. See Ziglar v. Abassi, 582 U.S. 120, 135 (2017)).
Tiedemann, who was then in transit between facilities, did
not receive the dismissal order for several months after the
district court issued it. Before receiving the dismissal order,
Tiedemann filed a “motion for information,” asking
whether, in light of his transfer, he would need to once again
exhaust administrative remedies at the new facility, which
“would result in further amendments with new defendants.”
The motion explicitly asked whether it was “necessary to
constantly be adding new defendants,” or whether the case
could proceed as it was. The district court, as part of its
dismissal order, denied as moot this motion for information.
Tiedemann appealed the screening order, and a prior
panel of this Court reversed in part in an unpublished
opinion. Tiedemann v. Mitchell, 778 Fed. App’x 461 (9th
Cir. 2019). The panel affirmed the district court’s dismissal
of the equal protection claim but reversed dismissal of the
due process claim because the district court had
misunderstood it as sounding in procedural due process,
when in fact “Tiedemann alleged a substantive due process
claim predicated on his fundamental liberty interest in a
relationship with his children.” Id. at 461. This Court also
encouraged the district court on remand “to consider
whether, liberally construing the operative complaint,
Tiedemann alleged a First Amendment freedom of
association claim.” Id. at 462. Our Court did not address the
sufficiency of Tiedemann’s claims, instead “remand[ing] for
the district court to consider in the first instance whether the
allegations ‘are sufficient to warrant ordering [defendants]
to file an answer.’” Id. at 461–62 (quotations omitted). We
also did not address the merits of Tiedemann’s claim for
damages under Bivens, instead stating that “Tiedemann may
TIEDEMANN V. VON BLANCKENSEE 9
appeal [the dismissal of his Bivens claim] upon the district
court’s entry of judgment on his claims for injunctive relief.”
Id. at 462.
On remand, the district court found that Tiedemann
stated both Fifth Amendment substantive due process and
First Amendment freedom of association claims for
injunctive relief and accordingly ordered defendants to
answer. Defendants (Tiedemann’s former wardens at FCI
Mendota and USP Tucson and the regional director
responsible for both facilities, as well as Tiedemann’s new
facility at FCI Herlong) then moved to dismiss pursuant to
Fed. R. Civ. P. 12(b)(1) and 12(b)(6). They argued that
Tiedemann no longer had standing to pursue injunctive relief
because he had not named his new warden at FCI Herlong
and because BOP policy vested discretion to allow upward
departures from the 300-minute cap in prison wardens,
rather than in the regional director. Defendants also argued
that Tiedemann failed to state plausible Fifth and First
Amendment claims.
The district court granted the motion to dismiss under
Fed. R. Civ. P. 12(b)(1), concluding that Tiedemann lacked
standing to pursue injunctive relief against the previously
named defendants. The court reasoned that Tiedemann’s
former wardens could not grant him any further phone time,
and that because BOP policy vested discretion to grant
additional phone time in BOP wardens, rather than in the
regional director, an injunction against the regional director
would also be ineffective. The district judge also denied
Tiedemann’s request to file an amended complaint naming
Tiedemann’s current warden at FCI Herlong, reasoning that
the case “has been pending for nearly 3 years” and that
“[p]laintiff has had ample time to file an amended complaint
and to add parties” but had failed to do so. The court declined
10 TIEDEMANN V. VON BLANCKENSEE
to address defendants’ Rule 12(b)(6) argument. Tiedemann
moved for reconsideration, arguing that the 300-minute cap
was the result of a system-wide policy and that he was still
subject to it at FCI Herlong. The district court denied the
motion for reconsideration and re-docketed it as a notice of
appeal.
Following the latest dismissal, Tiedemann has been
relocated twice more. He contends he remains at a
significant distance from his sons and subject to the 300-
minute cap. Appellant Letter at 1 (Dkt. 17).
II. JURISDICTION AND STANDARD OF
REVIEW
We have jurisdiction under 28 U.S.C. § 1291. We review
the district court’s dismissal for lack of subject matter
jurisdiction de novo, taking plausible factual allegations as
true and drawing reasonable inferences in Tiedemann’s
favor. Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013).
Pro se complaints “must be held to less stringent standards
than formal pleadings drafted by lawyers,” Hebbe v. Pliler,
627 F.3d 338, 342 (9th Cir. 2010) (internal quotation marks
omitted), “especially when they are civil rights claims by
inmates.” Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th
Cir. 2013). Denials of leave to amend are reviewed for abuse
of discretion. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
2000) (en banc). We may affirm the district court’s
dismissal “based on any ground supported by the record.”
Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116,
1121 (9th Cir. 2008).
TIEDEMANN V. VON BLANCKENSEE 11
III. ANALYSIS
A. Defendants’ Motion to Supplement the
Record
Before turning to the merits of Tiedemann’s appeal, we
first address defendants’ motion to supplement the record to
include Tiedemann’s judgment of conviction. Defs. Mot. to
Take Judicial Notice (Dkt. 35). Defendants argue that the
statute under which Tiedemann was convicted provides
“relevant background that contextualizes [Tiedemann’s]
claims and provides additional detail.” We disagree.
Courts may of course “‘take notice of proceedings in
other courts, both within and without the federal judicial
system, if those proceedings have a direct relation to matters
at issue.’” Kipp v. Davis, 971 F.3d 939, 945 n.2 (9th Cir.
2020) (citation omitted). But defendants fail to specify how
the statute of Tiedemann’s conviction bears on the “matters
at issue” in his appeal. There has been no suggestion that
defendants based any part of their decision to deny
Tiedemann additional phone time on of a concern that he
should not be communicating with his children, nor did the
district court base any part of its analysis on such reasoning.
And any such suggestion would be implausible, since the
undisputed record confirms that Tiedemann continues to
have significant contact with his children—including up to
300 minutes per month of phone time. Because defendants
fail to articulate any connection between Tiedemann’s
statute of conviction and the merits of his appeal, we
conclude that defendants’ motion to supplement the record
should be denied. See Cuellar v. Joyce, 596 F.3d 505, 512
(9th Cir. 2010) (denying a motion for judicial notice where
“the materials contained therein are not relevant to the
disposition of this appeal”).
12 TIEDEMANN V. VON BLANCKENSEE
B. Whether Tiedemann’s claim was moot
because he has not named his current warden
Although the district court dismissed Tiedemann’s
complaint for failing to allege standing, the parties’ briefing
and argument focus on mootness, not standing. We agree
that mootness provides the relevant framework, because the
Government argues that BOP’s post-filing decision to
transfer Tiedemann between facilities rendered the named
defendants incapable of addressing any alleged injury. See
West Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587, 2607
(2022) (“It is the doctrine of mootness, not standing, that
addresses whether an intervening circumstance has deprived
the plaintiff of a personal stake in the outcome of the
lawsuit.” (cleaned up)).
This distinction matters in two ways. First, while it was
Tiedemann’s burden to allege a concrete actual or impending
injury redressable by defendants in order to establish
standing, it is now defendants’ burden “to establish that a
once-live case has become moot.” Id. Second, mootness
involves in certain respects a more flexible inquiry than
standing. For instance, while a party initiating a suit based
on prospective harm must show such harm is “certainly
impending,” there are nonetheless “circumstances in which
the prospect that a defendant will engage in (or resume)
harmful conduct may be too speculative to support standing,
but not too speculative to overcome mootness.” Friends of
the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 170 (2000).
We agree with the district court that Tiedemann’s claims
are moot as to his two previous wardens at FCI Mendota and
USP Tucson, who are no longer in a position to grant
Tiedemann relief at his present facility. However, we
TIEDEMANN V. VON BLANCKENSEE 13
conclude that one defendant—BOP’s regional director 3 for
the Western Region, a region that includes each BOP facility
at which Tiedemann has been housed—has not met her
burden to show that Tiedemann’s claim is moot.
Tiedemann’s asserted injury springs from BOP’s system-
wide policy of capping prisoners’ phone time at 300 minutes
per month. Tiedemann’s complaint plausibly suggests that
the regional director has authority to offer him relief from
that policy, and the regional director has failed to produce
any convincing evidence that she in fact lacks such authority.
And though Tiedemann’s claims are clearly moot as to his
former wardens, we also hold that the district court plainly
erred by not offering Tiedemann the opportunity to amend
his complaint to name his current warden.
1. Tiedemann’s injury is caused by a system-
wide policy
Defendants argue that because any individual warden
could potentially grant Tiedemann an exemption from
BOP’s systemwide 300-minute-per-month cap on prisoners’
phone time, Tiedemann’s claim for injunctive relief becomes
moot each time Tiedemann receives a new warden when he
is moved between facilities. Here, that would mean
Tiedemann’s claim became moot when he was moved from
USP Tucson (his second BOP facility, after FCI Mendota)
to FCI Herlong. But it would also mean that even if
Tiedemann had revived his claim by naming his warden at
3
At the time when Tiedemann filed suit, this named defendant was Mary
Mitchell. Mitchell has since been replaced as Regional Director for the
Western Region by Melissa Rios-Marques. See Bureau of Prisons,
Agency Leadership, https://www.bop.gov/about/agency/leadership.jsp
(last visited June 12, 2023). On remand, the current regional director
should be substituted as a defendant. See Heiss, 271 F.3d at 897 n.8.
14 TIEDEMANN V. VON BLANCKENSEE
FCI Herlong, it would nonetheless have become moot again
when he was subsequently transferred from FCI Herlong to
FCI Victorville. And if Tiedemann once again amended his
complaint or brought a new suit to name the Victorville
warden, his claim would once again have been mooted when
he was transferred to FCI Lompoc.
Fortunately, our cases do not require this “whack-a-
mole” approach to mootness. While a prisoner’s transfer will
naturally moot claims for prospective relief “as to conditions
at [a former] particular facility,” a prison transfer does not
defeat jurisdiction where a prisoner’s injury stems from a
system-wide policy. Nelson v. Heiss, 271 F.3d 891, 897 (9th
Cir. 2001). For instance, in Dilley v. Gunn, 64 F.3d 1365 (9th
Cir. 1995), we held that a prisoner’s challenge to a high-
security prison’s policies restricting access to its law library
became moot following the prisoner’s transfer “to a lower-
level security institution,” in part because the change in the
prisoner’s security designation made it very unlikely he
would be transferred back to the original facility with
restricted library access. Id. at 1367–69. By contrast, we
have held that where a prisoner challenges a policy that
applies across multiple institutions and has named at least
one defendant capable of providing relief across those
institutions, a prison transfer will not moot a case. See
Walker v. Beard, 789 F.3d 1125, 1132 (9th Cir. 2015)
(rejecting mootness where an imprisoned plaintiff
challenged his classification “under the Housing Policy” as
eligible to be housed with prisoners of other races, because
“the Housing Policy . . . by its terms, regulates the housing
of inmates throughout the California prison system, not just
in [the plaintiff’s] original prison.”); Nelson, 271 F.3d at 897(rejecting mootness argument where the prisoner asserted a
TIEDEMANN V. VON BLANCKENSEE 15
claim against the director of California’s prisons who “set
policy for the whole California prison system”).
Defendants have not met their burden of showing that
Tiedemann was only subject to the phone cap at his past
facility. Indeed, defendants concede that BOP policy
generally limits all prisoners across BOP facilities to 300
minutes of phone time per month. Telephone Regulations
§ 8(f). They emphasize, however, that individual wardens
may grant extra time “for good cause,” id., and argue that
because Tiedemann’s complaint refers to the decisions by
the FCI Mendota and USP Tucson wardens to deny
Tiedemann’s request for extra phone time, Tiedemann’s suit
does not challenge any systemwide policy.
This parsimonious reading of Tiedemann’s complaint
cannot be reconciled with our usual practice of liberally
construing pro se complaints—“especially” civil rights
claims brought by prisoners. Blaisdell, 729 F.3d at 1241.
Tiedemann alleged that, following the denial of his initial
request for a “good cause” accommodation by the warden at
FCI Mendota and the BOP regional director, he made a
subsequent request at USP Tucson. Tiedemann alleges that
request was “rejected as a duplicate of what he filed at FCI
Mendota.” This allegation plausibly suggests that each BOP
warden is not in fact exercising independent discretion with
respect to whether to grant Tiedemann a good cause
exemption.
Equally important, defendants’ argument misapprehends
how Tiedemann’s asserted injury—which consists of
defendants’ alleged “interference [with] and severing of
Tiedemann’s parent-child relationship”—springs from
defendants’ alleged conduct. The injury began when
Tiedemann was transferred from a private prison to BOP
16 TIEDEMANN V. VON BLANCKENSEE
custody and first became subject to BOP’s “long-standing
policy of limiting telephone time to 300 minutes [per]
month.” While this injury could certainly be redressed by an
individual warden granting Tiedemann a “good cause”
accommodation to the general policy, it results from the
systemwide 300-minute cap. Tiedemann is thus totally
unlike prisoners whose claims challenged conditions
specific to one facility from which they have been moved
and to which they were unlikely to be returned. Cf. Dilley,
64 F.3d at 1369. Rather, like the plaintiffs in Walker and
Nelson, Tiedemann’s injury springs from a policy that
follows him across facilities. Walker, 789 F.3d at 1132;
Nelson, 271 F.3d at 893–97.
2. Tiedemann has plausibly alleged that the
Regional Director may offer him relief from
BOP’s system-wide policy
That leaves the question whether any named defendant
can provide Tiedemann the relief he seeks. To be sure, two
of the three named defendants—Shartle and Zuniga,
Tiedemann’s former wardens at USP Tucson and FCI
Mendota—can no longer grant Tiedemann any effective
relief, so Tiedemann’s claims against them were correctly
dismissed as moot. However, Tiedemann named a third
defendant—Mary Mitchell, BOP’s then-regional director for
the Western Region—who allegedly approved the FCI
Mendota warden’s decision to deny Tiedemann any good
cause accommodation. Tiedemann alleges that the Regional
Director has “unjustly imping[ed] on Tiedemann’s liberty
interest” by applying the 300-minute cap to him without
exemption. It therefore stands to reason that the Regional
Director responsible for overseeing every BOP facility in
which Tiedemann has been housed can, for the purposes of
mootness, remedy Tiedemann’s injury.
TIEDEMANN V. VON BLANCKENSEE 17
Somewhat startlingly, defendants dispute this,
representing that the Western Regional Director “lacks the
authority to carry out any injunctive relief that the district
court could have ordered in response to the amended
complaint.” Defendants stake this claim on a negative
inference drawn from a trio of authorities: first, the BOP
policy statement that sets forth the 300-minute cap as well as
wardens’ authority to grant “good cause” exemptions from
that cap; second, BOP’s administrative grievance
regulations; and third, a BOP program statement that
describes various BOP officials’ responsibilities relating to
internal controls and accreditations. The inference works
like this: BOP’s telephone regulations set forth a general
300-minute-per-month phone cap but also permit wardens to
grant good cause exceptions to that cap. Telephone
Regulations § 8.f. BOP’s administrative grievance
regulations, meanwhile, empower prisoners to appeal
adverse decisions by wardens (including, as relevant here,
those denying additional telephone time) to the relevant
regional director. 28 C.F.R. §§ 542.10, 542.15(a). A regional
director may properly review a warden’s denial of a good
cause exemption, id., as Tiedemann alleges happened here.
However, since neither the telephone regulations nor the
grievance regulations explicitly authorize the Regional
Director to grant extra phone time except following an
appeal from a warden’s denial of a good cause exemption,
any authority to do so must come from elsewhere. Since a
program statement submitted by defendants that apparently
outlines various BOP officials’ authorities does not
explicitly vest any such power in the Regional Director, the
Regional Director, defendants represent, lacks any authority
to effectuate relief. Bureau of Prisons, Program Statement
1210.23: Management Control and Program Review
18 TIEDEMANN V. VON BLANCKENSEE
Manual, Program Statement § (8)(d) (2002),
https://www.bop.gov/policy/progstat/1210_023.pdf
(“Management Program Statement”).
This argument requires us to assume that the Regional
Director lacks general supervisory authority over wardens
within the director’s region outside any authority explicitly
defined in the telephone or grievance regulations or the
Management Program Statement. We decline to do so on the
record before us. Assuming we may properly take judicial
notice of the Management Program Statement at the
pleading stage, the document on its face neither exhaustively
catalogues nor implicitly limits the power of BOP officials
to supervise their subordinates (and neither do the telephone
or grievance regulations). Rather, it describes different
officials’ responsibilities with respect to a required annual
review and certification process. Management Control
Program Statement § 8. For example, with respect to the
BOP director, the document merely requires the “Director
[to] submit[] an assurance statement to the Attorney General
at the end of each fiscal year certifying that programs are
operating effectively and in accordance with applicable law,
and that systems of internal control are adequate to protect
resources.” Id. § 8.a. It defies common sense to infer from
this quite sparse description of the BOP Director’s
responsibilities that the Director lacks any power to
supervise subordinates not expressly otherwise delegated. 4
4
Indeed, such an extreme level of insulation of each subordinate officer’s
decisions from a superior officer’s review up the entire BOP hierarchy
might well raise constitutional concerns. Cf. Seila Law LLC v. Consumer
Fin. Prot. Bureau., 140 S. Ct. 2183, 2197–2208 (2020) (discussing
constitutional limits on the insulation of lower-level officials from
presidential control and direction).
TIEDEMANN V. VON BLANCKENSEE 19
Moreover, while Tiedemann’s complaint suffices in our
view to plausibly establish that the BOP Regional Director
could direct wardens within her region to grant Tiedemann
extra phone time, we note that were we to look beyond
Tiedemann’s complaint to BOP’s own materials—as
defendants urge us to—BOP’s website identifies the
Regional Director for the Western Region as responsible for
“oversee[ing] the operations of 19 facilities, including four
detention centers, three high security penitentiaries, and
three correctional complexes,” and “responsible for the
oversight and management of more than 4,600 employees,
and the custody and care of approximately 20,300 inmates.”
Bureau of Prisons, About Our Agency: Regional Director for
the Western Region,
https://www.bop.gov/about/agency/bio_wxr.jsp (last visited
June 12, 2023). The suggestion that the Regional Director
holds the above-listed authority, but nevertheless lacks the
authority to direct Tiedemann’s current warden to offer
Tiedemann more phone minutes, is implausible.
Further, even if we were to read BOP’s regulations and
internal documents in the tortured manner defendants urge,
they sound in exhaustion, rather than in real limits on the
authority of the Regional Director. As a matter of BOP
policy, Tiedemann may be required to first petition his
warden (as Tiedemann alleges he has here done here with
respect to his wardens at both FCI Mendota and USP
Tucson) before seeking relief from the regional director. But
we decline defendants’ invitation to constitutionalize this
administrative exhaustion requirement by holding that an
official as to whom remedies have not been exhausted lacks
any authority to remedy Tiedemann’s injury. For these
reasons, while we affirm the district court’s dismissal of
Tiedemann’s claims as to his two past wardens as moot,
20 TIEDEMANN V. VON BLANCKENSEE
Tiedemann’s claim against the regional director may
proceed.
3. The District Court abused its discretion in
denying Tiedemann any opportunity to
amend
While we hold that Tiedemann’s claim may proceed
against the Regional Director, we also note that the district
court abused its discretion in denying Tiedemann the
opportunity to amend his complaint in order to proceed
against his current warden. “Leave to amend should be
granted if it appears at all possible that the plaintiff can
correct the defect.” Lopez, 203 F.3d at 1130 (cleaned up).
Here, the district court’s sole basis for dismissing
Tiedemann’s claims for injunctive relief was that his
complaint did not name his current warden, a problem that
would have been rectified by allowing Tiedemann leave to
amend the complaint to name that warden. While the district
court reasoned that Tiedemann should have amended earlier,
“delay, by itself, is insufficient to justify denial of leave to
amend.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183,
186 (9th Cir. 1987). Further, Tiedemann did not cause any
inordinate delay here, as he in fact filed a “motion for
information” shortly after his transfer out of USP Tucson in
which he asked whether he should exhaust administrative
remedies and add “new defendants” at his new facility. That
motion was never addressed on the merits, undermining the
suggestion that Tiedemann was responsible for any
inordinate delay.
Defendants speculate that amendment would be futile
because Tiedemann has not adduced evidence showing he
has exhausted administrative remedies at any of his new
facilities. However, “[b]ecause the failure to exhaust is an
TIEDEMANN V. VON BLANCKENSEE 21
affirmative defense that defendants must plead and prove,
the ultimate burden of proving that the inmate has not
exhausted his claims remains with the defendants.” Fordley
v. Lizarraga, 18 F.4th 344, 351 (9th Cir. 2021). And, here,
defendants have not established that Tiedemann has not
exhausted administrative remedies as to his current warden,
nor that he could not do so before filing any amended
complaint. See Akhtar v. Mesa, 698 F.3d 1202, 1210 (“If . .
. a plaintiff files an amended complaint adding new claims
based on conduct that occurred after the filing of the initial
complaint, the plaintiff need only show that the new claims
were exhausted before tendering the amended complaint to
the clerk for filing.”).
C. Tiedemann’s complaint suffices to state a
plausible claim
Defendants argue in the alternative that we should affirm
the dismissal of Tiedemann’s complaint because it fails to
state a claim. Although the district court did not address
defendants’ arguments on this score, we “may affirm based
on any ground supported by the record.” Johnson, 534 F.3d
at 1121. However, we do not agree that Tiedemann fails to
state a claim. Rather, construing his complaint liberally, we
think Tiedemann has plausibly alleged that BOP’s 300-
minute cap infringes Tiedemann’s First and Fifth
Amendment associational rights. While defendants may
ultimately prevail if they show that this infringement is
reasonably related to legitimate penological goals, we do not
think such a reasonable relationship necessarily follows
from either the pleadings or the judicially-noticeable BOP
policies that defendants have pointed to.
The parties are largely in agreement on the relevant
framework. Notably, Tiedemann argues—and defendants do
22 TIEDEMANN V. VON BLANCKENSEE
not appear to dispute—that BOP’s phone restrictions at least
implicate Tiedemann’s First and Fifth Amendment
associational rights. See Lee v. City of Los Angeles, 250 F.3d
668, 685–86 (9th Cir. 2001) (recognizing a right to familial
association grounded in both the First Amendment and the
Fourteenth Amendment’s due process clause). While some
rights are so “fundamentally inconsistent with incarceration”
that prisoners forfeit them entirely, Gerber v. Hickman, 291
F.3d 617, 620 (9th Cir. 2002), defendants do not argue that
this is true of the associational rights here at issue.
This is for good reason. “Prison walls do not form a
barrier separating prison inmates from the protections of the
Constitution,” and prisoners “retain[] those constitutional
rights that are not inconsistent with [their] status as []
prisoner[s] or with the legitimate penological objectives of
the corrections system.” Turner v. Safley, 482 U.S. 78, 84,
95 (1987) (quoting Pell v. Procunier, 417 U.S. 817, 822
(1974)). And though “[s]ome curtailment of th[e] freedom
[of association] must be expected in the prison context,” the
Supreme Court has never “impl[ied] that any right to
intimate association is altogether terminated by
incarceration . . . .” Overton v. Bazetta, 539 U.S. 126, 131
(2003). To the contrary, the Court has made clear that
prisoners retain some associational right to communications
with those outside prison, especially with family members.
For instance, the Court has previously held “facially invalid”
an “almost complete ban on [prisoners’] decision to marry,”
since the restriction was “not reasonably related to legitimate
penological objectives.” Turner, 482 U.S. at 99. In a case
that was later overturned in part as to its reasoning but not
its result, the Court likewise rejected broad content-based
restrictions on prisoners’ outgoing mail to non-prisoners.
Procunier v. Martinez, 416 U.S. 396, 415–16 (1974),
TIEDEMANN V. VON BLANCKENSEE 23
overruled in part by Thornburgh v. Abbott, 490 U.S. 401,
413–14 (1989). And while the Court has sustained
significant abridgments of prisoners’ associational rights, we
note that sustained policies have often contained exceptions
expressly privileging prisoners’ communications with
immediate family members. See Overton, 539 U.S. at 129–
30, 133 (sustaining a prohibition on visitation by children,
other than a prisoner’s immediate family members). 5
Of course, holding that prisoners retain associational
rights in their communications with family members on the
outside does not resolve the scope of those rights, nor the
extent to which prison policies may legitimately infringe
upon them. As to these questions, the parties largely agree
on the relevant standard, which requires sustaining BOP’s
phone policies if they are “reasonably related to legitimate
penological interests.” Turner, 482 U.S. at 89. This is a
deliberately deferential standard, meant to ensure that
“prison administrators and not the courts, are to make the
difficult judgments concerning institutional operations.” Id.(cleaned up). But as Turner itself made clear, it is also not a
blank check, and instead requires some assessment of the
actual relationship between the prison policy and the
penological interests asserted. Id. at 94–99.
5
We do not mean, in singling out communications with family members
for special solicitude, to imply that communications between prisoners
and non-family members are constitutionally unimportant. As noted
above, the Court has previously rejected broad content-based restrictions
on prisoners’ outgoing mail, including to non-family recipients.
Martinez, 416 U.S. at 415–16. And we note that in both recent and not-
so-recent periods, some critically important political and literary works
have consisted of correspondence from prisoners. See, e.g., Martin
Luther King Jr., Letter from Birmingham Jail, in Why We Can’t Wait 76
(1964); Thomas Moore, The Tower Works (Yale ed. 1980).
24 TIEDEMANN V. VON BLANCKENSEE
Specifically, in assessing whether a prison policy is in
fact reasonably related to legitimate penological interests,
the Supreme Court has identified four relevant factors courts
should consider: (1) whether there is “a valid, rational
connection between the prison regulation and the legitimate
governmental interest put forward to justify it,” (2) “whether
there are alternative means of exercising the right that
remain open to prison inmates,” (3) “the impact
accommodation of the asserted constitutional right will have
on guards and other inmates, and on the allocation of prison
resources generally,” and (4) the presence or “absence of
ready alternatives.” Id. at 89–90 (internal quotation marks
omitted); Overton, 539 U.S. at 132.
Because application of each Turner factor requires what
is ultimately a factual assessment, we have repeatedly
emphasized that courts should not rush to conduct a Turner
analysis “on a sparse factual record.” Shakur v. Schriro, 514
F.3d 878, 893 (9th Cir. 2008). In Shakur, we reversed a
district court’s premature entry of summary judgment in
favor of defendants with respect to a prisoner’s Free
Exercise and Equal Protection clause challenges to a prison’s
denial of a dietary accommodation. Id. at 885–88, 891–92.
In particular, we held that absent “evidence in the record
suggesting that [the prison] actually looked into providing
kosher meat to all Muslim prisoners,” and absent evidence
as to whether Muslim prisoners other than the plaintiff
would seek to also demand kosher meals if such meals were
provided to the plaintiff, a court could not adequately
determine how to evaluate the third Turner factor (“the
impact the accommodation . . . will have on guards and other
inmates, and on the allocation of prison resources
generally”). Id. at 886–87 (cleaned up). Similarly, we held
that “the district court failed to make adequate findings of
TIEDEMANN V. VON BLANCKENSEE 25
fact concerning the cost and availability of Halal meat,”
which prevented it from adequately analyzing the fourth
Turner factor (the presence or “absence of ready
alternatives”). Id. at 884, 887 (citations and internal
quotation marks omitted). Likewise, in Ward v. Walsh, 1
F.3d 873 (9th Cir. 1993), we reasoned that a reviewing court
could not evaluate the plausibility of a prisoner’s claim for
dietary accommodations until the district court made
“specific factual findings and . . . engage[d] in a careful
balancing of all the Turner factors.” Id. at 879. See also
Dunn v. Castro, 621 F.3d 1196, 1205 n.7 (9th Cir. 2010)
(emphasizing that we have “previously declined to render a
decision on whether a prisoner’s rights have been violated
under a challenged regulation in the absence of adequate
factual findings by the district court on the Turner elements”
and therefore “declin[ing] to render any decision on the
application of Turner to the facts at issue in this case” at the
pleading stage).
Here, too, we conclude that a full Turner analysis is not
possible at the pleading stage. For instance, defendants argue
that capping phone minutes at 300 per month and denying
Tiedemann an exception bears a rational relationship to
ensuring fairness of phone access among different prisoners
and avoiding the perception by some prisoners that others
are getting more phone time. But while fairness may require
equalizing phone time among prisoners at some level, it is
not obvious from the pleading stage that a 300-minute cap,
as opposed to some higher cap, is needed, especially in light
of Tiedemann’s allegations that he was allowed unlimited
time when he was housed at a privately run prison.
Defendants point out that “not all jails are the same,” such
that what was appropriate at one private facility may not be
appropriate across the board. See Crime Just. & Am., Inc. v.
26 TIEDEMANN V. VON BLANCKENSEE
Honea, 876 F.3d 966, 978 (9th Cir. 2017). But this point
arguably cuts against defendants, since BOP’s 300-minute
cap applies systemwide. We do not of course hold that the
300-minute cap is unrelated to legitimate penological
interests—just that we cannot resolve this Turner factor in
defendants’ favor at the pleading stage.
The problem is even more acute with respect to the
remaining Turner factors. For instance, while the
combination of 300 minutes of phone time plus visitation or
letter writing may provide an adequate “alternative means of
exercising” associational rights, there is essentially no
evidence in the record as to the viability of these alternative
means—either in general, or as regards Tiedemann and his
children, whom Tiedemann alleges live sufficiently far away
as to make visitation difficult and whose reading and writing
skills are unknown. Similarly, there is no evidence in the
record as to the impact of providing an exception to the
monthly cap on other prisoners or on guards, although the
fact that BOP’s policies expressly provide for “good cause”
exemptions at least suggests that any such impacts are in at
least some cases manageable. Absent factual findings on
these points, we do not see how we can conclusively resolve
the Turner analysis in defendants’ favor at the pleading
stage. As such, we decline to affirm the district court’s
dismissal on the grounds that Tiedemann’s complaint fails
to allege a claim.
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court in part and reverse in part. Specifically, we
affirm the district court’s dismissal of Tiedemann’s damages
claim under Bivens as well as his claim for injunctive relief
as to his two former wardens. However, we reverse the
TIEDEMANN V. VON BLANCKENSEE 27
district court’s dismissal of Tiedemann’s claim for
injunctive relief as to the Regional Director defendant and
hold that Tiedemann has plausibly alleged a claim as to that
defendant that survives the pleading stage. Finally, we hold
that Tiedemann should be given leave to amend his
complaint to add his current warden as a co-defendant.
REVERSED IN PART AND AFFIRMED IN PART.