                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-11-2007

Perez v. Fed Bur Prisons
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3983




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CLD-154                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                 NO. 06-3983
                              ________________

                                 MIKE PEREZ,

                                      Appellant

                                        v.

                     FEDERAL BUREAU OF PRISONS
                  ____________________________________

                 On Appeal From the United States District Court
                          For the District of New Jersey
                           (D.C. Civ. No. 06-cv-02080)
                   District Judge: Honorable Robert B. Kugler
                 _______________________________________


      Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or
        Summary Action Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                March 15, 2007

          BEFORE: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES


                             (Filed: April 11, 2007)


                          _______________________

                                  OPINION
                          _______________________
PER CURIAM


       Mike Perez, a pro se prisoner who is confined at the Federal Correctional Center in

Fort Dix, New Jersey, appeals from the District Court’s dismissal of his complaint for

failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A. Because this

appeal does not present a substantial question, we will summarily affirm the District

Court’s ruling. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.1

       In 1997, Perez was sentenced to 360 months in prison for conspiracy to distribute

cocaine, distribution of cocaine, unlawful use of a telephone, money laundering, and

aiding and abetting. In December 2005, the Federal Bureau of Prisons (“BOP”) restricted

Perez’s telephone privileges to one social telephone call per week after assigning him the

Serious Telephone Abuse public safety factor (“PSF”). The BOP assigned the PSF based

on Perez’s Pre-Sentence Report, which indicated that he was categorized as a

leader/organizer of a conspiracy that utilized the telephone to further criminal activity.

See Program Statement 5100.07, Ch.7, p. 6. 2 After the BOP denied Perez’s requests for

administrative remedy, he filed a complaint in the District of New Jersey asserting that


   1
       We have jurisdiction under 28 U.S.C. § 1291, and our review is plenary. Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).
   2
         The PSF allows prison administrators to restrict telephone use in accordance with
the Telephone Regulations for Inmates Program Statement, which states that telephone
privileges are “a supplemental means of maintaining community and family ties . . .
however . . . , inmate telephone use is subject to those limitations which the Warden
determines are necessary to ensure the security or good order, including discipline, of the
institution or to protect the public.” Program Statement 5264.07; 28 C.F.R. § 540.100.

                                              2
the BOP violated his constitutional rights by imposing the PSF and telephone restriction

based on his underlying conviction and Pre-Sentence Report. Perez also asserted that the

telephone restriction constitutes an additional punishment which the BOP has no

authority to impose and makes it difficult for him to maintain relationships with his

family and friends.

       The District Court analyzed Perez’s claims under the Double Jeopardy Clause of

the Fifth Amendment, the Eighth Amendment, and the First Amendment, and concluded

that the complaint did not state a claim for violation of his federal rights. Although we

also assess Perez’s complaint under the Due Process Clause, we agree with the District

Court that the allegations in Perez’s complaint cannot support a federal claim.

       As the District Court concluded, the acts that Perez complains about do not trigger

the Double Jeopardy Clause of the Fifth Amendment, which protects people from, among

other things, multiple criminal punishments for the same offense. Hudson v. United

States, 522 U.S. 93, 98-99 (1997). Changes in conditions of incarceration—such as

alteration of an inmate’s security classification and consequent loss of privileges—are not

additional punishments for the original offense in part because the sentence is not being

increased beyond that originally imposed. See Stiver v. Meko, 130 F.3d 574, 578-79 (3d

Cir. 1997). Therefore, Perez’s allegations are insufficient to maintain a claim under the

Double Jeopardy Clause.

       We also agree with the District Court that Perez cannot maintain a viable claim

against the BOP for violating the Eighth Amendment’s protection against cruel and

                                             3
unusual punishment. “It is clear that a prisoner’s claim under the eighth amendment must

establish more egregious conduct than that adequate to support a common law tort.”

Williams v. Mussomelli, 722 F.2d 1130, 1133 (3d Cir. 1983). Accordingly, prison

conditions constitute a violation of the Eighth Amendment when they “involve the

wanton and unnecessary infliction of pain [or are] grossly disproportionate to the severity

of the crime warranting imprisonment.” Peterkin v. Jeffes, 855 F.2d 1021, 1023 (3d Cir.

1988). An altered security classification that allows limits on telephone privileges

certainly does not rise to this level. See Inmates of Occoquan v. Barry, 844 F.2d 828, 836

(D.C. Cir. 1988) (“[T]he ‘deprivations’ that trigger Eighth Amendment scrutiny are

deprivations of essential human needs,” such as concern over physical safety, and

deprivation of food, medical care, or sanitation.). We agree, therefore, that Perez cannot

maintain a claim under the Eighth Amendment.

       With respect to the First Amendment, we agree with the District Court that Perez’s

allegations cannot support a claim that the BOP violated his right to free speech.

Prisoners “ha[ve] no right to unlimited telephone use,” and reasonable restrictions on

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

v. Reno, 35 F.3d 1093, 1099-1100 (6th Cir. 1994); Benzel v. Grammer, 869 F.2d 1105,

1108 (8th Cir. 1989); Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986).

Rather, a prisoner’s right to telephone access is “subject to rational limitations in the face

of legitimate security interests of the penal institution.” Strandberg, 791 F.2d at 747.

Assigning the Serious Telephone Abuse PSF—which leads to the restriction of social

                                              4
telephone calls to one per week—to prisoners who have a history of using the telephone

to conduct criminal activity is clearly reasonable because it relates to the legitimate

penological goal of public and institutional safety by decreasing the possibility that high-

risk prisoners will use prison telephones to orchestrate crimes. Thus, Perez cannot

succeed on a claim that the prison violated his First Amendment rights.3

       Liberally construed, Perez’s complaint includes a claim that the BOP violated his

Fourteenth Amendment due process rights by assigning him the PSF. To succeed on a

due process claim, Perez must demonstrate that he was deprived of a liberty interest

without due process. See Bd. of Regents v. Roth, 408 U.S. 564, 569-71 (1972). The Due

Process Clause does not, however, subject an inmate’s treatment by prison authorities to

judicial oversight as long as the degree of confinement or conditions to which the inmate

is subject are within the sentence imposed and do not otherwise violate the Constitution.

Fraise v. Terhune, 283 F.3d 506, 522 (3d Cir. 2002). Because changes in security

classifications and limits on telephone usage are ordinary incidents of prison confinement,

Perez’s allegations do not implicate a liberty interest protected by the Due Process

Clause. Asquith v. Dep’t of Corrections, 186 F.3d 407, 410 (3d Cir. 1999); see also

Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976). Moreover, even if an inmate was being

disciplined for an institutional infraction, the prison regulation only requires the BOP to


   3
       Furthermore, although Perez claims that the restriction makes it difficult for him to
maintain relationships with his family and friends, the telephone limitation apparently
does not affect his ability to communicate with people outside the prison through letter
writing and visitation.

                                              5
allow the inmate to make one telephone call per month. See 28 C.F.R. § 540.100(b). As

such, limiting Perez’s social telephone calls to one per week certainly cannot be construed

to deprive Perez of a liberty interest. Accordingly, Perez cannot succeed on a claim for a

violation of his due process rights.

        For the reasons stated, we conclude that the District Court correctly dismissed

Perez’s complaint and that his appeal presents no substantial question. Accordingly, we

will summarily affirm the District Court’s Order. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P.

10.6.




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