                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-13-2009

Jamalud-din Almahdi v. Thomas Ridge
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1572




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                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 08-1572
                                    ___________

                            JAMALUD-DIN ALMAHDI,
                                            Appellant

                               v.
JOHN ASHCROFT; BUR PRISONS; DEPARTMENT OF HOMELAND SECURITY;
    LYONS; TONY MALOCU; THOMAS RIDGE; GABE SCALA; THOMAS
                      SLODYSKO; S.A. YATES

                     ____________________________________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                          (D.C. Civil Action No. 03-00432)
                         District Judge: William J. Caldwell
                    ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 9, 2009
        Before: SCIRICA, Chief Judge, CHAGARES and WEIS, Circuit Judges
                        (Opinion filed: February 13, 2009)

                                    ___________

                                     OPINION
                                    ___________

PER CURIAM.

             Pro se appellant Jamalud-din Almahdi appeals from the District Court’s

February 13, 2008 order granting the defendants’ motion for summary judgment. For the

                                          1
foregoing reasons, we will affirm.

              Almahdi, who was incarcerated at a federal prison when he commenced this

lawsuit,1 filed a civil rights complaint in the Middle District of Pennsylvania against

several government officials and prison employees. The District Court granted the

defendants’ first motion for summary judgment on May 24, 2006. On appeal, we

affirmed in part and vacated in part, remanding for the District Court to consider

Almahdi’s claim that certain restrictions on his telephone usage violated the First

Amendment. See Almahdi v. Ridge, 201 F. App’x 865 (3d Cir. 2006). On remand, the

defendants filed a second motion for summary judgment, which the District Court granted

on February 14, 2008.

              Almahdi claims that, on May 1, 2003, after he was released from

administrative detention in an unrelated matter, defendant Lyons informed him that he

was restricted to one telephone call per month. He filed a grievance regarding this

restriction that was denied at all levels. The reason given for the restriction was that his

“prior criminal conduct by use of a communication device warrants monitoring of your

telephone privileges.” 2 Then, on July 9th and on August 9th, prison warden Yates



              1
                             Almahdi was released on parole in March 2007.
              2
                             While Almahdi was incarcerated he incurred incident reports
for telephone abuse in August 2001 and in February 2003. The February 2003 incident
resulted in a ninety-day loss of telephone privileges, as authorized by a disciplinary
hearing officer. After careful review of the record, we have concluded that Almahdi does
not challenge the constitutionality of the ninety-day restriction.

                                              2
approved restrictions that limited Almahdi’s telephone usage to one call per month. The

July and August restrictions arose from an investigation into potential telephone abuse.3

              The District Court granted summary judgment in favor of defendant Lyons

after finding that he was not involved in issuing or implementing any of the telephone

restrictions, as is required for liability under 42 U.S.C. § 1983. The District Court then

concluded that the telephone restrictions did not violate the First Amendment because

Almahdi did not produce evidence that he was completely denied access to telephone

calls or that the Bureau of Prisons (“BOP”) curtailed other means of communication.

              Almahdi timely appealed.

                                             II.

              We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary

review over the District Court’s order granting summary judgment. See Podobnik v. U.S.

Postal Service, 409 F.3d 584, 589 (3d Cir. 2005).

              As is relevant here, then controlling BOP Program Statement 5264.07


              3
                              We note that the majority of Almahdi’s brief to this Court
does not concern telephone restrictions or argue that the restrictions violate his First
Amendment rights. Rather, he concentrates on whether the defendants violated prison
procedures by placing him in administrative detention during times of heightened national
security and in their implementation of the telephone restrictions. We already determined
that listing Almahdi on the national watch list (which resulted in the administrative
detention) did not violate his constitutional due process rights. We also found that a
limitation on Almahdi’s telephone privileges is not the type of atypical or extreme
hardship that is required for a valid due process claim, and that Almahdi does not have a
liberty interest in the prison procedures for restricting telephone access. Almahdi, 201 F.
App’x at 869. We will not revisit these issues.

                                              3
authorized the prison warden to restrict an inmate’s telephone use to one telephone call

per month as was necessary to ensure security or discipline, or to protect the public. See

also 28 C.F.R. § 540.100(a). In addition, prisons are authorized to restrict telephone use

as a disciplinary sanction, and during investigations. Id.; 28 C.F.R. § 541. The

regulations also state that the “[w]arden shall permit an inmate who has not been

restricted from telephone use as a result of a specific institutional disciplinary sanction to

make at least one telephone call each month.” 28 C.F.R. § 540.100(b). According to

Almahdi, he was restricted to one telephone call per month from May 1, 2003 through at

least August 2003.4

              Almahdi asserts that restricting his telephone access in this manner violated

his constitutional rights. The constitutional right at issue has been described as the right

to communicate with people outside prison walls, and “a telephone provides a means of

exercising this right.” Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002).

However, prisoners “ha[ve] no right to unlimited telephone use,” and reasonable

restrictions on telephone privileges do not violate their First Amendment rights. See, e.g.,

Washington v. Reno, 35 F.3d 1093, 1099-1100 (6th Cir. 1994). Rather, a prisoner’s right


              4
                            After a careful review of the record, we do not agree with the
District Court’s conclusion that the May 1st restriction was merely the delayed
implementation of the ninety-day prohibition on telephone usage that arose from
Almahdi’s February 2003 telephone infraction. This conclusion is not, however, material
to our decision because Almahdi does not challenge the ninety-day restriction, and
because, as explained above, the May 1st restriction did not violate Almahdi’s First
Amendment rights.

                                               4
to telephone access is “subject to rational limitations in the face of legitimate security

interests of the penal institution.” Strandberg v. City of Helena, 791 F.2d 744, 747 (9th

Cir. 1986).

              Thus, we must determine whether the telephone restriction violated

Almahdi’s right to communicate with people outside prison walls. Despite Almahdi’s

statement to the contrary, regulations limiting telephone use by inmates have been

routinely sustained as reasonable. See, e.g., Pope v. Hightower, 101 F.3d 1382, 1384-85

(11th Cir. 1996). Moreover, in this case, the telephone restrictions were implemented

because Almahdi was under investigation for telephone abuse, and he had already

committed two telephone-related infractions. Under these facts, we cannot conclude that

the restrictions were an unreasonable method of furthering the penological interests in

maintaining security and discipline. Moreover, Almahdi makes no assertion—and there

is no evidence—that he lacked alternative means of communicating with persons outside

the prison. See Valdez, 302 F.3d at 1049. Accordingly, the telephone restrictions did not

violate the First Amendment.

              For the foregoing reasons, we will affirm the District Court’s February 14,

2008 order granting summary judgment.
