Akers v. Watts

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) MONTGOMERY CARL AKERS, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-0140 (EGS) ) HARRELL WATTS, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiff, a federal prisoner, brings this civil rights action against various officials,

employees and agents of the Federal Bureau of Prisons (“BOP”), the Federal Bureau of

Investigation (“FBI”), the United States Attorney’s Office for the District of Kansas, and the

United States Marshals Service (“USMS”) in their individual capacities under Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and under 42 U.S.C.

§§ 1983 and 1985(3).1 This matter is before the Court on the federal defendants’ motion to

dismiss, and for the reasons discussed below, the motion will be granted.

I. BACKGROUND

A. Plaintiff’s Criminal History

Plaintiff has a history of committing crimes while incarcerated. Notwithstanding his

conviction on fourteen counts of bank fraud, one count of making, uttering and possession a

1 A separate motion to dismiss has been filed on behalf of the defendants employed by the Corrections Corporation of America [Dkt. #99].

1 counterfeit security, and one count of failure to appear, he continued his criminal activities

“[w]hile serving a 105-month sentence at the federal penitentiary in Leavenworth, Kansas.”

United States v. Akers, 261 Fed. Appx. 110, 111 (10th Cir. 2008). The Tenth Circuit summarizes

his activities as follows:

[Plaintiff] placed an advertisement for a pen pal in a magazine. Anita Jenkins answered the ad and began corresponding with [plaintiff] in writing and on the telephone. [Plaintiff] convinced Jenkins he had been falsely accused, told her he had a trust fund account and asked her to help him re-start a business he had prior to his incarceration. Jenkins agreed to help him. [Plaintiff] sent her a power of attorney and had her purchase computer software which would allow her to create checks. He also had her open accounts at Fidelity Brokerage Services (Fidelity) and First Union Bank.

After these accounts were opened, [plaintiff] directed Jenkins to create two checks in the amounts of $35,000 and $25,000 and deposit them into the Fidelity account. He provided her the routing and account numbers. She believed the money was coming from his trust fund account. [Plaintiff] then directed Jenkins to wire $58,000 from the Fidelity account to the First Union Bank account. Jenkins later created a third check for $35,000 and deposited it into the Fidelity account. Jenkins also created checks or initiated wire transfers totaling $57,000 from the First Union Bank account to various individuals. Jenkins did not learn she was creating worthless checks and engaging in fraudulent activity until she was contacted by law enforcement officers. As a result of the above scheme, Fidelity and Bank of America (which negotiates Fidelity’s financial transactions) suffered actual losses of $22,236.77 and $20,000, respectively. [Plaintiff] was subsequently indicted with five counts of wire fraud.

Id. The indictment did not deter plaintiff’s criminal activities:

While the indictment was pending, [plaintiff] was housed at the Corrections Corporation of America (CCA) in Leavenworth, Kansas, where he met fellow inmate Donald Mixan. [Plaintiff] told Mixan he was wealthy and showed him paperwork indicating he had an account containing over $7 million. Although he initially believed [plaintiff], Mixan soon realized it was a scam. Nevertheless, Mixan agreed to help [plaintiff] because it was “[e]asy money.” Once Mixan was released, [plaintiff] had him purchase check-writing software and apply for credit cards. [Plaintiff] directed Mixan to use the credit cards for his living expenses; the cards’ balances were paid from accounts which had no money in them.

[Plaintiff] instructed Mixan to send two checks totaling $150,000 to an attorney

2 [plaintiff] wanted to retain. These checks were intercepted by law enforcement officers. Because the attorney never received the checks, Mixan personally delivered a third check for $100,000 to him. Two more checks, in the amounts of $25,000 and $2,700, were sent to [plaintiff]’s alleged wife and Mixan’s landlord, respectively. All five checks were drawn on a U.S. Bank account that Mixan opened for [plaintiff] over the Internet with a $400 counterfeit check. Mixan also created a check for $2,500 using an account number he found in a dumpster. This check was deposited, at [plaintiff’s] direction, into one of [plaintiff’s] bank accounts. [Plaintiff] further directed Mixan to create a $117,000 check and deposit it into another one of [plaintiff’s] bank accounts. Fortunately, the banks involved in this scheme were able to avoid incurring financial loss by freezing the accounts or intercepting, dishonoring or returning the checks to the payee. However, the scheme did result in an actual loss of $2,037.21 to various businesses.

Id. at 112 (internal citation omitted). “The government filed a superseding indictment against

Akers which, in addition to the five counts of wire fraud alleged in the original indictment,

included a conspiracy to commit bank fraud count related to [plaintiff’s] activities with Mixan,

who was named as a co-defendant.” Id. Plaintiff pled guilty to one count of wire fraud, id., and

while awaiting sentencing, his criminal activities continued:

This time plaintiff preyed on Tony Casanova, who suffers from multiple sclerosis. [Plaintiff] and Casanova became pen pals through Casanova's church. Casanova opened a bank account for [plaintiff] and applied for a credit card for him. [Plaintiff] also sent Casanova his telephone bills, promising to reimburse him. At [plaintiff’s] direction, Casanova responded to a newspaper advertisement seeking investors for a casino boat. The person who placed the advertisement referred [plaintiff] to Nick Voulgaris. [Plaintiff] convinced Voulgaris he was wrongly convicted and was wealthy. Although the casino deal fell through, [plaintiff] succeeded in recruiting Voulgaris to help him start a business. At [plaintiff’s] direction, Voulgaris created various checks totaling over $1 million and expended numerous hours on starting the business. Voulgaris also spent over $8,000 of his own money. In the end, Casanova’s son contacted law enforcement personnel, who pulled the plug on [plaintiff’s] scam.

This did not stop [plaintiff], however. He proceeded to dupe Cheryl Navarrette, a former cellmate’s daughter. Based on [plaintiff’s] promise of employment and financial security, Navarrette purchased check-writing software and her husband quit his job. Fortunately, Navarrette could not get the software to work and no fraudulent checks were produced. However, Navarrette and her family suffered financially.

3 Id. at 112-13.

Plaintiff is serving a sentence of 327 months’ imprisonment, Mem. of P. & A. in Supp. of

Defs.’ Mot. to Dismiss (“Defs.’ Mem.”), Ex. A (Public Information Inmate Data) at 4, and

currently is incarcerated at the BOP’s Administrative Maximum facility in Florence, Colorado

(“ADX”).

B. Mail Restrictions

The sentencing court was “appalled[,] disappointed and outraged” with the Department

of Justice’s failure to prevent [plaintiff] from continuing his criminal conduct while

incarcerated,” United States v. Akers, 261 Fed. Appx. at 114 n.2, and made the following

recommendations to the BOP:

(1) That [plaintiff] be placed in segregated confinement; (2) that [plaintiff] have no incoming or outgoing mail correspondence with anyone except his attorney of record (meaning: an attorney who has actually entered an appearance in the case), and that any legal mail be scrutinized in his presence; (3) that [plaintiff] have no telephone privileges whatsoever; (4) that the [BOP] take whatever steps are necessary to prevent [plaintiff] from engaging in any further fraudulent schemes while in custody.

Defs.’ Mem., Ex. B (excerpt of criminal judgment).

In February 2007, the Warden of the ADX “placed [plaintiff] on restricted general

correspondence [status] pursuant to 28 C.F.R. § 540.15” because plaintiff’s “use of the mail to

conduct fraudulent business activity pose[d] a threat to security and good order of the institution

and protection of the public.” Defs.’ Mem., Ex. C (Memorandum to plaintiff from R. Wiley

dated February 26, 2007). Plaintiff’s “general correspondence (incoming/outgoing) [was]

limited to/from verifiable family members only (spouse, mother, father, children, and siblings),”

id. (Notice of Inmate Restrictions effective February 21, 2007). His restricted general

correspondence status ended on March 23, 2009. See Pl.’s Resp. to Fed. Defs.’ Combined Mot.

4 to Dismiss (“Pl.’s Opp’n”), Ex. 33 (Memorandum from R. Wiley dated March 23, 2009).

C. Allegations of Plaintiff’s Amended Complaint

According to plaintiff, defendants “willfully entered into a . . . conspiracy to violate [his]

constitutional rights . . . by frustrating and restricting his communication with the outside world,

without notice or due process, in order to destroy his family, social, business, . . . professional

and religious ties to the community.” Am. Compl. at 2.

Plaintiff had been incarcerated at a correctional facility operated by Corrections

Corporation of America (“CCA”) in Leavenworth, Kansas, from July 2004 through December 5,

2005. Am. Compl. at 3. During that time, CCA staff “began confiscating [plaintiff’s] social and

legal mail . . . and eavesdropping on [his] legal phone calls to his attorneys” without justification,

id. at 3-4, under orders from FBI Special Agent James Keszei, id. at 5. In addition, confiscated

mail and personal property were forwarded to Deputy United States Marshals Michael Shute and

Christopher Johnson, id. at 6, and transferred to FBI Headquarters in Washington, D.C., id. at 7.

Special Agent Keszei’s actions, taken with the assistance of Kim I. Martin, Assistant United

States Attorney for the District of Kansas, “worked to insure that the plaintiff’s financial,

marital, family, social communications would be destroyed based upon false accusations of

criminal misconduct.” Id. at 7-8. Subsequently, while detained at the Federal Transfer Center in

Oklahoma City, Oklahoma (“FTC Oklahoma City”) from December 5, 2006 to February 8,

2007, unidentified mailroom officers confiscated his mail. Id. at 3.

Leslie Smith, of the BOP’s Counter-Terrorism Division, with the approval of BOP

Central Office staff, allegedly was responsible for plaintiff’s classification as a “terrorist,” id. at

5 5, assignment of a “maximum management variable,” and his designation to ADX, id. at 4-5.2

Upon his arrival at ADX, on February 8, 2007, he was “unofficially restricted from

communicating with the outside world,” id. at 2, through mail restrictions, see id. at 14-15.

Specifically, plaintiff alleged that Ron Wiley, Christopher Synsvoll, Dianna T. Crist, Michelle

Bond, Wendy Heim and Rick Martinez, all BOP staff members at ADX, confiscated and opened

both incoming and outgoing social and legal mail, see id. at 10-12, and conferred with “their

unknown handlers of the F.B.I. Counter-Terrorism D.C. office by phone, mail, e-mail

communication,” id. at 12. Further, Michael Nalley, the BOP’s North Central Regional Director,

denied plaintiff’s inmate grievance arising from these actions, thereby acknowledging and

approving of this unlawful conduct. Id. at 12-13. At the final stage of the inmate grievance

process, Harrell Watts, National Appeals Coordinator for the BOP, too, acknowledged and

approved the ADX staff members’ actions with respect to his mail, thus violating plaintiff’s

rights under the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the United States

Constitution. Id. at 13-15.

As a result of the federal defendants’ actions, plaintiff allegedly is unable to “access his

financial accounts located and held by E-Trade Financial,” id. at 8, and to maintain contact with

2 The BOP assigns a management variable when an inmate’s “placement has been made and/or maintained at an institution level inconsistent with the inmate’s security score — a score which may not completely/accurately reflect his or her security needs.” BOP Program Statement 5100.08, Inmate Security Designation and Custody Classification (9/12/2006), ch. 2 p. 3. An inmate’s security level “identifies the institution type required to house [him] based on [his] histor[y], institutional adjustment, and Public Safety Factor[] as well as the physical security of the institution to include mobile patrols, gun towers, perimeter barriers, housing, detection devices, inmate-to-staff ratio, and internal security.” Id., ch. 2 p. 5. Plaintiff considers himself a “low security” inmate, Am. Compl. at 5, and objects to his designation to ADX, a maximum security facility.

6 his family, id. at 9. He demands an award of monetary damages, id. at 17-20, and injunctive

relief, id. at 20-22, among other relief.

II. DISCUSSION

A. Personal Jurisdiction3

“A District of Columbia court may exercise personal jurisdiction over a person domiciled

in, organized under the laws of, or maintaining [a] principal place of business in, the District of

Columbia as to any claim for relief.” D.C. Code § 13-422. It is the plaintiff’s burden to make a

prima facie showing that the Court has personal jurisdiction over the defendants. See First

Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1378-79 (D.C. Cir. 1988); Walton v. Bureau

of Prisons, 533 F. Supp. 2d 107, 112 (D.D.C. 2008). Moreover, the “[p]laintiff must allege

specific facts on which personal jurisdiction can be based; [he] cannot rely on conclusory

allegations.” Moore v. Motz, 437 F. Supp. 2d 88, 91 (D.D.C. 2006) (citations omitted). Absent

allegations that the defendants either reside or maintain a principal place of business in the

District of Columbia, the Court engages in a two-part inquiry to determine whether it may

exercise personal jurisdiction over non-resident defendants.

The Court first must determine whether personal jurisdiction may be exercised under the

District of Columbia’s long-arm statute. See GTE New Media Servs., Inc. v. Bell South Corp.,

199 F.3d 1343, 1347 (D.C. Cir. 2000); see also Ibrahim v. District of Columbia, 357 F. Supp. 2d

187, 192-93 (D.D.C. 2004) (determining in a § 1983 suit whether under District of Columbia

long-arm statute personal jurisdiction exists over defendants outside the forum in which the

3 For purposes of this discussion, the Court presumes without deciding that the federal defendants, each sued in his or her individual capacity, have been served with process.

7 underlying suit was commenced under District of Columbia long-arm statute). The long-arm

statute allows the Court to exercise personal jurisdiction over a non-resident defendant with

regard to a claim arising from the defendant’s conduct in:

(1) transacting business in the District of Columbia; (2) contracting to supply services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; [or] (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia[.]

D.C. Code § 13-423(a).4

Second, the Court must determine whether the exercise of personal jurisdiction satisfies

due process requirements. See, e.g., Morris v. U.S. Prob. Serv., No. 09-0799, 2010 WL

2802661, at *2 (D.D.C. July 16, 2010) (citations omitted). This portion of the analysis turns on

whether a defendant’s “minimum contacts” with the District of Columbia establish that “the

maintenance of the suit does not offend traditional notions of fair play and substantial justice.”

Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted).

These minimum contacts must arise from “some act by which the defendant purposefully avails

[himself] of the privilege of conducting activities with the forum state, thus invoking the benefits

and protections of its laws.” Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cty., 480

U.S. 102, 109 (1988) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)).

The federal defendants argue that, with the exception of Harrell Watts, the Court lacks

4 The alternative bases set forth under the long-arm statute are inapplicable.

8 personal jurisdiction over them. See Defs.’ Mem. at 10-14. According to the complaint,

defendant Nalley, the BOP’s North Central Regional Director, maintains an office in Kansas

City, Kansas, as do FBI Special Agent Keszei, Assistant United States Attorney Martin, and

Deputy United States Marshals Shute, Johnson, and Franklin. Defendants Wiley, Synsvoll,

Crist, Bond, Martinez, and Heim are BOP staff members at ADX, and the unidentified mailroom

officers work at FTC Oklahoma City and ADX. Nothing in the complaint suggests that these

defendants either reside or maintain a principal place of business in the District of Columbia.

Plaintiff argues that these individuals’ actions occurred in conjunction with BOP, FBI

and USMS personnel working from offices in the District of Columbia, and that they “routinely

and persistently violated the plaintiff’s civil rights for the purposes of the D.C. Code ‘long arm

statute.’” Pl.’s Opp’n at 4-5. These assertions alone are not sufficient.

Plaintiff does not allege specific facts showing that these defendants transact any

business or contract to supply services in the District of Columbia. Although persistent conduct

undertaken in a person’s individual capacity may constitute transacting business for purposes of

the long-arm statute, see Pollack v. Meese, 737 F. Supp. 663, 666 (D.D.C. 1990), the complaint

sets forth no allegations that these defendants have any personal connection with the District of

Columbia other than their federal employment. The mere fact that they are federal government

employees, affiliated with agencies headquartered or maintaining offices in this district, does not

render them subject to suit in their individual capacities in the District of Columbia. Id. at 666

(concluding that the Court had no basis for asserting personal jurisdiction over the warden of a

BOP facility in Springfield, Missouri because he “surely does not transact any business in the

District of Columbia”); see Ali v. District of Columbia, 278 F.3d 1, 7 (D.C. Cir. 2002)

9 (dismissing claims of District of Columbia offender housed under contract in a Virginia facility

against Virginia officials in their individual capacities over whom this district court lacked

personal jurisdiction); cf. FC Inv. Group LC v. IFX Markets, Ltd., 479 F. Supp. 2d 30, 39

(D.D.C. 2007) (concluding that “defendant’s ‘regular’ phone calls into the District of Columbia

from elsewhere do not constitute ‘transacting business’ in the District of Columbia”), aff’d, 529

F.3d 1087 (D.C. Cir. 2008).

Plaintiff is no more successful in establishing that these defendants caused any tortious

injury in the District of Columbia. The actual injuries of which plaintiff complains occurred in

Oklahoma City, Oklahoma, Kansas City, Kansas, and Florence, Colorado. Regardless of

whether these defendants acted in or outside of the District of Columbia, plaintiff suffered no

injury here. The amended complaint is devoid of factual allegations supporting the exercise of

personal jurisdiction over these defendants based on their purposeful or repeated contacts with

this forum, and there is no showing that these defendants could reasonably anticipate being haled

into court here. For these reasons, the Court concludes that it lacks personal jurisdiction over

defendants Nalley, Keszei, Martin, Shute, Johnson, Franklin, Wiley, Synsvoll, Crist, Bond,

Martinez, Heim and the unidentified mailroom officers work at FTC Oklahoma City and ADX.

B. Venue

“Courts in this jurisdiction must examine challenges to . . . venue carefully to guard

against the danger that a plaintiff might manufacture venue in the District of Columbia.”

Cameron v. Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993). In a civil action where the Court’s

jurisdiction is not based solely on diversity of citizenship, such as this case, venue is proper in

“(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2)

10 a judicial district in which a substantial part of the events or omissions giving rise to the claim

occurred . . . or (3) a judicial district in which any defendant may be found, if there is no district

in which the action may otherwise be brought.” 28 U.S.C. § 1391(b). Venue is not proper in

this district under any of the provisions of 28 U.S.C. § 1391(b): defendants do not all reside in

the District of Columbia, no substantial part of the events giving rise to plaintiff’s claim took

place here, and this is not a case in which no other district is available.

In a case filed in a jurisdiction in which venue is improper, the Court, must either dismiss

the case or, in the interest of justice, transfer the action to any other district where it could have

been brought. 28 U.S.C. § 1406(a). The decision to transfer an action on this ground is left to

the discretion of the Court. See Novak-Canzeri v. Saud, 864 F. Supp. 203, 207 (D.D.C. 1993).

As the Court will address below, plaintiff’s claims against the federal defendants are not

meritorious, and it is not in the interest of justice to transfer this action elsewhere.

C. Liability Under a Respondeat Superior Theory

Defendants Watts and Nalley argue that the only theory under which they can be sued is

a respondeat superior theory, by which they as supervisors would be deemed liable in their

individual capacities for the unlawful actions of their subordinates. Defs.’ Mem. at 16. No such

theory applies with respect to a constitutional claim against a federal employee in his individual

capacity under Bivens, which provides a plaintiff “an implied private action for damages against

federal officers alleged to have violated [his] constitutional rights.” Corr. Servs. Corp. v.

Malesko, 534 U.S. 61, 66 (2001). Critical to a Bivens claim is an allegation “that the defendant

federal official was personally involved in the illegal conduct.” Simpkins v. District of Columbia

Gov’t, 108 F.3d 366, 369 (D.C. Cir. 1997).

11 According to plaintiff, Watts and Nally acknowledged and approved the alleged unlawful

actions of BOP staff at FTC Oklahoma City and ADX. Plaintiff neither pleads nor otherwise

establishes that Watts or Nally personally took part in confiscating plaintiff’s mail or otherwise

causing him injury. Their supervisory roles do not render them personally liable for the alleged

wrongful acts of the other BOP employees. See Monell v. New York City Dep’t of Soc. Servs.,

436 U.S. 658, 691 (1978) (holding that respondeat superior liability cannot form the basis of

liability for a § 1983 claim); Cameron, 983 F.2d at 258 (concluding that a complaint naming the

Attorney General and the BOP Director as defendants based on theory of respondeat superior,

without allegations specifying their involvement in the case, does not state a claim against them

under Bivens); Epps v. United States Attorney General, 575 F. Supp. 2d 232, 239 (D.D.C. 2008)

(citing Marshall v. Reno, 915 F. Supp. 426, 429-30 (D.D.C. 1996)) (“A superior official cannot

be held liable under Section 1983 or Bivens for the constitutional torts of employees under him

or her; the common law theory of respondeat superior does not pertain to the federal government

in this context.”).

E. Qualified Immunity

“[G]overnment officials performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). “Qualified immunity balances two important interests – the need to

hold public officials accountable when they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they perform their duties reasonably.”

Pearson v. Callahan, 129 S. Ct. 808, 815 (2009). This protection is afforded to government

12 officials whether their “error is a mistake of law, a mistake of fact, or a mistake based on mixed

questions of law and fact.” Id. (citations and internal quotation marks omitted). “[A]ll but the

plainly incompetent or those who knowingly violate the law” may enjoy the protection of

qualified immunity. Malley v. Briggs, 475 U.S. 335, 341 (1986). Because qualified immunity is

“an immunity from suit rather than a mere defense to liability, . . . it is effectively lost if a case is

erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in

original). Accordingly, courts must “resolv[e] immunity questions at the earliest possible stage

in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a two-step analysis

for resolving government officials’ qualified immunity claims. First, the Court decides “whether

the facts that a plaintiff has alleged or shown make out a violation of a constitutional right.” Id.

at 201. If the plaintiff accomplishes this first task, the Court then decides whether the right at

issue was clearly established at the time of the defendant’s alleged misconduct. Id. The

sequence of this analysis no longer is mandatory, and now the courts may “exercise their sound

discretion in deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.” Pearson, 129 S. Ct.

at 818.

The Court now addresses plaintiff’s contentions and concludes that he fails to allege the

violation of a constitutional right with respect to his security classification, designation to ADX,

and the alleged interference with incoming and outgoing mail.

1. Security Classification and Designation to ADX

13 The federal defendants argue that plaintiff’s claims arising from his transfer and

designation to ADX and the assignment of a management variable lack merit because a federal

prisoner has no protected liberty interest in these matters. Defs.’ Mem. at 19-21. Plaintiff

maintains that prison officials “must put the prisoner on notice of what historical events will be

used to demonstrate his fulfillment of the predicate concerns for his classification and placement

in a ‘supermax’ facility and the corresponding restrictions on his liberty prior to innacting [sic]

restrictive conditions of confinement that qualify as ‘special administrative measures’” under

applicable BOP regulations. Pl.’s Opp’n at 17. He alleges that “he was classified as a terrorist

and assigned to the ADX ‘supermax’ facility without due process,” id. at 18, based in part on

“erroneous information that was constructively amended by the U.S. Probation Officer to reflect

finding(s) of criminal conduct that was neither found guilty or [sic] plead guilty to in any court

of law or B.O.P. administrative proceedings,” id. at 19.

Plaintiff’s assertions do not overcome case law holding that a prisoner has no

constitutionally protected interest in his place of confinement or security classification. See

Olim v. Wakinekona, 461 U.S. 238, 245 (1983) (holding that a prisoner has no constitutionally

protected interest in the place of his confinement); Meachum v. Fano, 427 U.S. 215, 225 (1976)

(finding that prisoner’s liberty interest is not implicated by his transfer from a medium to a

maximum security institution); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (noting that prison

officials’ exercise of discretion to assign a security classification to an inmate does not implicate

an inmate’s liberty interest); Cardoso v. Calbone, 490 F.3d 1194, 1198 (10th Cir. 2007)

(affirming district court’s ruling that a “reduction in [plaintiff’s] classification level does not

implicate a liberty interest”); Gross v. Holder, No. 10-0194, 2010 WL 2179173, at *2 (D.D.C.

14 June 1, 2010) (noting that an inmate has no due process liberty interest in obtaining or

maintaining a particular security classification or in his designation to a particular correctional

facility); James v. Reno, 39 F. Supp. 2d 37, 40 (D.D.C. 1999) (holding that a prisoner has no

liberty interest in his security classification or place of confinement); see Perez v. Fed. Bureau of

Prisons, 229 Fed. Appx. 55, 58 (3d Cir. 2007) (finding that BOP did not violate inmate’s

Fourteenth Amendment due process rights by assigning a public safety factor resulting in

restrictions on his telephone privileges).

2. Mail Restrictions

Insofar as plaintiff alleges violations of rights protected by the First, Fourth, Fifth and

Sixth Amendments to the United States Constitution, his claims fail.5

First Amendment

“There is no iron curtain drawn between the Constitution and the prisoners of this

country,” Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974), and “[i]nmates clearly retain

protections afforded by the First Amendment.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348

(1987). Plaintiff’s First Amendment challenges pertain both to his right to freedom of speech

and his right to access to the courts.

A prison regulation infringing on an inmate’s right to free speech is valid if it is

reasonably related to a legitimate penological interest, see Turner v. Safley, 482 U.S. 78, 89

(1987); Spitsyn v. Morgan, 160 Fed. Appx. 593, 594-95 (9th Cir. 2005) (vacating district court’s

judgment on the pleadings where a state prisoner alleged that prison officials violated his

5 The Fourteenth Amendment does not apply to federal government, see Bolling v. Sharpe, 397 U.S. 497, 499 (1954), and therefore plaintiff’s complaint fails to state a claim under the Fourteenth Amendment with respect to the mail restrictions.

15 constitutional rights by withholding his mail “because restrictions on prisoners’ mail may

implicate the First Amendment in the absence of a reasonable relationship to legitimate

penological interests”). Deference should be given to prison administrators’ decisions,

especially when those decisions deal with issues of prison safety and security. See Turner, 482

U.S. at 89; see also Cotner v. Knight, 61 F.3d 915 (10th Cir. 1995) (table) (“[T]he rights of

prisoners to correspond with people outside of the prison must be weighed against the intractable

problems of prison safety and security, areas in which prison officials are far better equipped to

deal with than the judiciary.”).

BOP regulations authorize a warden to place an inmate on restricted general

correspondence status “based on misconduct or as a matter of classification.” 28 C.F.R. §

540.15(a). Among the determining factors is an inmate’s “[h]aving committed an offense

involving the mail.” 28 C.F.R. § 540.15(a)(5). If the general correspondence restriction is not

based on an incident report, the Warden must advise the inmate in writing of the reasons for the

restriction, give the inmate an opportunity to respond, and notify the inmate of his decision and

the reasons therefore. 28 C.F.R. § 540.15(c)(2). If a general correspondence restriction is

imposed, the inmate may correspond with his spouse (including a common-law spouse if such a

relationship previously had been established in a state which recognizes such common-law

relationships), mother, father, children and siblings, unless these family members were involved

in a violation of correspondence regulations or would be a threat to the security and good order

of the institution.6 See BOP Program Statement 5265.11, Correspondence (7/9/99) at 14.

6 Plaintiff contends that the BOP has not allowed him to correspond with Grayzna Schulz, the woman he married in September 2003 while incarcerated. Pl.’s Opp’n at 21-23. It (continued...)

16 Plaintiff had initiated fraudulent schemes from prison on more than one occasion, and he

had used the mail in furtherance of these efforts. Although Warden Riley’s decision to restrict

plaintiff’s correspondence to immediate family members implicated plaintiff’s First Amendment

rights, the decision furthered a legitimate penological interest by limiting his ability to

manipulate or swindle others. For these same reasons, the federal defendants exercise of

discretion to follow the sentencing judge’s recommendations prior to imposition of the general

correspondence restriction, these acts, too, furthered a legitimate penological interest. Hill v.

United States, No. 1:08cv1, 2010 WL 3210971, at *5 (N.D. W. Va. July 1, 2010) (Magistrate

Judge’s Amended Report and Recommendation that individual corrections officers did not

unconstitutionally interfere with an inmate’s right to communicate with his doctor by directing

the doctor to send her letters to the plaintiff through the prison medical center for security

reasons); see Thornburgh v. Abbott , 490 U.S. 401, 415-19 (1989) (finding that policy allowing

prison officials to reject incoming mail deemed detrimental to security does not violate First

Amendment); Koop v. Rolfs, 129 F.3d 126 (9th Cir. 1997) (table) (dismissing state prisoner’s

claim that prison officials violated his First Amendment rights by reading incoming personal

mail); Olmstead v. Horner, No. 08-cv-438, 2008 WL 4104007, at *5 (W.D. Wis. Sept. 3, 2008)

(upholding restriction on inmate’s sending or receiving mail to or from his criminal co-defendant

as reasonably related to valid correctional goals, and to his ex-wife at her request); cf. Samford v.

Dretke, 562 F.3d 674, 680 (5th Cir. 2009) (per curiam) (upholding enforcement of “negative

6 (...continued) appears that Warden Wiley denied plaintiff’s request to correspond with her because plaintiff “attempted to utilize Grayzna Schulz to defraud others as well as her.” Id., Ex. 18 (Response to Inmate Request to Staff Member dated June 12, 2008).

17 mail list” and removal of plaintiff’s sons from approved visitors list).

An inmate has a First Amendment right of access to the courts that is adequate, effective,

and meaningful. See Bounds v. Smith, 430 U.S. 817, 821-22 (1977); Ex parte Hull, 312 U.S.

546, 549 (1941). It is not enough for an inmate to state in a conclusory fashion that he was

denied access to the courts; rather, he also must allege actual injuries as a result of the denial by

claiming that an actionable claim was rejected, lost, or prevented from being filed. See Lewis v.

Casey, 518 U.S. 343, 356 (1996) (stating that an inmate alleging violation of Bounds must show

actual injury, without which he has no standing to raise the claim). Here, plaintiff does not

allege that he suffered actual prejudice or injury either as a result of the general correspondence

restriction or stemming from the BOP’s prior alleged interference with incoming and outgoing

mail.

Fourth Amendment

Plaintiff alleges a violation of his Fourth Amendment right to be free from unlawful

search or seizure of his mail. However, “[a] right of privacy in traditional Fourth Amendment

terms is fundamentally incompatible with the close and continual surveillance of inmates and

their cells required to ensure institutional and internal order.” Hudson v. Palmer, 468 U.S. 517,

527-28 (1994). And in plaintiff’s case,“restrictions based upon plaintiff’s correspondence

following his repeated efforts to initiate new fraudulent schemes while incarcerated did not

violate the Fourth Amendment because plaintiff had no reasonable expectation of privacy in his

non-legal mail.” Akers v. Shute, No. 08-3106-SAC, 2010 WL 934616, at *2 (D. Kan. Mar. 11,

2010).

Fifth Amendment

18 Plaintiff received written notice of the general correspondence restriction, and this notice

informed plaintiff of his right to “respond to [his] being placed on restricted general

correspondence (orally or written),” of the Warden’s duty to respond in writing, and the

plaintiff’s right to “seek formal review . . . through the Bureau’s Administrative Remedy

Program.” Defs.’ Mem., Ex. C. Plaintiff was afforded notice of his restricted general

correspondence status, an opportunity to respond, and the right to pursue an inmate grievance if

he disagreed with the Warden’s final decision. It cannot be said that plaintiff was denied notice

and an opportunity to be heard before the Warden imposed the mail restriction pursuant to 28

C.F.R. § 540.15.

Sixth Amendment

Although correspondence with counsel in a criminal matter implicates the Sixth

Amendment right to counsel, the right is not without limits. See, e.g., Wolf v. McDonnell, 418

U.S. 539, 556 (1974) (“[T]he fact that prisoners retain rights under the Due Process Clause in no

way implies that these rights are not subject to restrictions imposed by the nature of the regime

to which they have been lawfully committed.”); see also McMaster v. Pung, 984 F.2d 948, 952

(8th Cir. 1993) (finding that, because inmate “was being disciplined for his intimate contact with

his female attorney,” neither a ban on contact visits with the attorney nor inspection of legal mail

from the attorney violated his right to counsel). Here, plaintiff does not allege that the restriction

prejudiced or injured him with respect to criminal proceedings.

Plaintiff cannot establish that the federal defendants violated a right protected by the

First, Fourth, Fifth or Sixth Amendment to United States Constitution, and, therefore, these

defendants are entitled to qualified immunity. See Wickner v. McComb, No. 09-1220, 2010 WL

19 3385079, at *11 (D. Minn. July 27, 2010) (prison staff who seized from plaintiff’s cell certain

mail, which he used to hide or smuggle contraband, did not violate plaintiff’s First Amendment

right and therefore were entitled to qualified immunity); Ray v. Metts, No. 4:04-23048, 2009 WL

2983008, at *11 (D.S.C. Sept. 14, 2009) (prison officials who enforced policy “adopted to

prevent contraband, such as weapons and drugs, from being brought into the [facility] through

the mail” are entitled to qualified immunity).

F. Plaintiff’s In Forma Pauperis Status

A prisoner may not proceed in forma pauperis if, while incarcerated, he has filed at least

three prior cases that were dismissed as frivolous, malicious, or for failure to state a claim. 28

U.S.C. § 1915(g). In December 2008, this Court determined that plaintiff had not yet

accumulated “three strikes” for purposes of 28 U.S.C. § 1915(g). Akers v. Watts, 589 F. Supp.

2d 12, 15-16 (D.D.C. 2008). Defendants indicate that plaintiff since has accumulated an

additional “strike” such that plaintiff should “be denied in forma pauperis status in this

jurisdiction going forward.” Mem. of P. & A. in Support of Defs.’ Mot. to Dismiss at 1 n.1. The

Court concurs.

Because plaintiff has accumulated more than “three strikes,” see Akers v. Watts, 589 F.

Supp. 2d at 14 (identifying two strikes); Akers v. Poisson, No. 9-54-P-S, 2009 WL 1375167, at

*1 (D. Me. May 15, 2009) (affirming the Magistrate Judge’s Recommended Decision and

dismissing complaint with prejudice for failure to state a claim for which relief can be granted);

Akers v. Keszei, No. 08-cv-334-JL, 2009 WL 1026449, at *1 (D.N.H. Apr. 15, 2009) (approving

the Magistrate Judge’s Report and Recommendation to “dismiss[] the action in its entirety as it

has failed to state any claim upon which relief might be granted”); Akers v. Crow, No. 09-3037-

20 RDR, 2009 WL 512335, at *3 (D. Kan. Mar. 2, 2009) (dismissing the complaint “as frivolous

and as stating no claim for relief”), he is not eligible to proceed in forma pauperis in the future,

absent a showing that he“is under imminent danger of serious physical injury” at the time he

files a new civil action. 28 U.S.C. § 1915(g).

III. CONCLUSION

Plaintiff cannot state cognizable claims with respect to the assignment of a management

variable, his transfer or designation to ADX, his restricted general correspondence status, or any

other alleged interference with incoming or outgoing mail. It matters not whether he adequately

states a conspiracy claim, whether his claims are barred as untimely or under Heck v. Humphrey,

512 U.S. 477 (1994), whether he exhausted his available administrative remedies prior to the

filing of this action, or whether the relief he demands is permissible under the prevailing law.7

The Court will grant the federal defendants’ motion to dismiss. An Order accompanies this

Memorandum Opinion.

Signed: EMMET G. SULLIVAN United States District Court

Dated: September 24, 2010

7 The federal defendants argue that the doctrine of sovereign immunity bars plaintiff’s claims against them in their official capacities and against federal government agencies themselves. See Defs.’ Mem. at 8-9. Plaintiff does not bring this action against the individual defendants in their official capacities, see Pl.’s Opp’n at 3, and the argument does not apply to this case.