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DLD-283                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 13-1860
                                  ___________

                                DAVID SOLAN,

                                              Appellant

                                        v.

   DONNA ZICKEFOOSE, WARDEN OF FCI FORT DIX, ANY SUCCESSOR
  WARDENS TO HER AT FCI FORT DIX AND/OR ANY WARDENS AT ANY
 OTHER FCF TO WHICH PLTF. MAY BE TRANSFERRED BY THE BOP WHILE
                    THIS LAWSUIT IS PENDING
               ____________________________________

                 On Appeal from the United States District Court
                           for the District of New Jersey
                         (D.C. Civil No. 1-11-cv-01895)
                 District Judge: Honorable Jerome B. Simandle
                  ____________________________________

      Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
      or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 June 13, 2013

           Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                          (Opinion filed: June 25, 2013)

                                   _________

                                   OPINION
                                   _________
PER CURIAM

       Pro se appellant David Solan appeals the District Court’s order granting summary

judgment to the defendant, Donna Zickefoose, the former warden of the prison where

Solan is being held. We have jurisdiction under 28 U.S.C. § 1291 and exercise a plenary

standard of review. See State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566 F.3d

86, 89 (3d Cir. 2009). For the reasons set forth below, we will summarily affirm the

District Court’s order.

       This case concerns the Trust Fund Limited Inmate Computer System

(TRULINCS), a Federal Bureau of Prisons (BOP) program designed to, among other

things, make a form of e-mail available to prisoners. See Federal Bureau of Prisons,

TRULINCS FAQs, http://www.bop.gov/inmate_programs/trulincs_faq.jsp (last visited

June 10, 2013). While TRULINCS was made available at all BOP facilities on February

2, 2011, see id., BOP Program Statement 5265.13 permits the warden to “limit or deny

the privilege of a particular inmate.” As relevant here, Program Statement 5265.13

provides that “[i]nmates are excluded from electronic messaging when it is determined

that their use would threaten the safety, security, or orderly running of the institution or

the protection of the public and staff.” As an example, the Program Statement explains

that “an inmate with a personal history or special skills or knowledge of using

computers/email/Internet or other communication methods as a conduit for committing

illegal activities will be excluded.” Id.

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       Warden Zickefoose has barred Solan from using TRULINCS e-mail. In a written

statement, Warden Zickefoose justified her decision on two grounds: (1) Solan has

significant pre-incarceration computer expertise; and (2) Solan was punished at his

previous prison for misusing the computer system to tamper with other inmates’ legal

work. After challenging Warden Zickefoose’s decision, without success, through the

administrative system, he filed a complaint in the District Court. He claimed, pursuant to

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971), that Warden Zickefoose violated his rights under the First Amendment, the Due

Process Clause, and the Equal Protection Clause by excluding him from the e-mail

system, and that the relevant Program Statement violates the Administrative Procedure

Act (APA). The District Court concluded that Warden Zickefoose was entitled to

qualified immunity on the constitutional claims and granted summary judgment to her on

all claims, and Solan appealed to this Court.

       We will affirm the District Court’s judgment. As to Solan’s First Amendment

claim,1 we agree that prisoners maintain a First Amendment “right to communicate with

family and friends,” and that e-mail can be a means of exercising this right. Valdez v.

Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002). Thus, the critical question is whether

the prison’s decision to exclude Solan from using e-mail “is reasonably related to


1
 The first prong of the qualified-immunity analysis is “whether the official’s conduct
violated a constitutional or federal right,” Ray v. Twp. of Warren, 626 F.3d 170, 174 (3d
Cir. 2010), and because this prong is dispositive in this case, we do not reach the second
prong.
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legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). In making

the “reasonableness” inquiry, we consider (1) “whether there is a valid, rational

connection between the prison regulation and the legitimate interest put forth to justify

it”; (2) “whether inmates have an alternative means of exercising the right”; (3) “the

burden on prison resources that would be imposed by accommodating the right”; and (4)

“whether there are alternatives to the regulation that fully accommodate the inmate’s

rights at de minimis cost to valid penological objectives.” Fontroy v. Beard, 559 F.3d

173, 177-78 (3d Cir. 2009) (internal quotation marks omitted). Throughout the analysis,

“[w]e afford substantial deference to the DOC’s professional judgment.” Id. (internal

quotation marks omitted).

       Here, as the District Court concluded, Warden Zickefoose has asserted a valid

reason for her decision. Solan has both the knowledge (based on his history with

computers) and the apparent inclination (based on his previous prison misconduct) to use

e-mail for improper purposes, and thus threaten the privacy of other prisoners and

jeopardize the security of the prison. Warden Zickefoose’s response directly addresses

this danger, while also leaving Solan free to communicate with friends and family

through the phone, in-person visits, and the regular-mail system. Solan has not offered

any meaningful alternatives to this arrangement, and in light of the substantial deference

to which the prison’s judgments are entitled, see Cutter v. Wilkinson, 544 U.S. 709, 725




                                             4
n.13 (2005), we discern no error in the District Court’s order granting summary judgment

to Warden Zickefoose.2

       Solan fares no better on his due process claim. The protections of the Due Process

Clause are triggered only if there is a deprivation of a protected interest in life, liberty, or

property. See Mitchell v. Horn, 318 F.3d 523, 531 (3d Cir. 2003). We agree with the

District Court that Solan has not identified any property or liberty interest implicated by

Warden Zickefoose’s refusal to give him access to e-mail. See Beaulieu v. Ludeman,

690 F.3d 1017, 1047 (8th Cir. 2012); Valdez, 302 F.3d at 1045. Accordingly, Solan’s

procedural-due-process claim necessarily fails.

       Likewise, we agree with the District Court’s disposition of Solan’s equal

protection claim. Solan sought to present a “class of one” claim, which required him to

show “that []he has been intentionally treated differently from others similarly situated

and that there is no rational basis for the difference in treatment.” PG Publ’g Co. v.

Aichele, 705 F.3d 91, 114 (3d Cir. 2013) (internal quotation marks omitted). Here, Solan

has failed to identify any other prisoner who has computer expertise and has been

sanctioned for computer misuse while incarcerated who has nevertheless been permitted



2
 Solan acknowledges that he was disciplined in his previous prison, but claims that he
was innocent of the charges, raising the same arguments that were rejected in that
disciplinary proceeding. However, Solan has presented no evidence that Warden
Zickefoose’s reliance on this disciplinary action was pretextual, cf. Abu–Jamal v. Price,
154 F.3d 128, 134 (3d Cir. 1998), and under the deferential standard that we apply here,
we conclude that it was reasonable for Warden Zickefoose to accept the validity of this
citation. See generally DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000).
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to use prison e-mail; therefore, the District Court properly granted judgment to Warden

Zickefoose on this claim.

       Finally, we will affirm the District Court’s resolution of Solan’s claims under the

Administrative Procedure Act. As an initial matter, Solan cannot state a valid claim

concerning Warden Zickefoose’s application of Program Statement 5265.13 to his

circumstances. Program Statements are “internal agency guidelines,” rather than

“published regulations subject to the rigors of the Administrative Procedure Act,” Reno

v. Koray, 515 U.S. 50, 61 (1995) (internal quotation marks, alteration omitted), and thus

“do not create entitlements enforceable under the APA,” Robinson v. Sherrod, 631 F.3d

839, 842 (7th Cir. 2011). To the extent that Solan contends that Program Statement

5265.13 is contrary to the enabling statute, his claim likewise fails. Program Statements

are “entitled to some deference,” Reno, 515 U.S. at 61, and will be upheld unless they are

“inconsistent with the clear language of the statute,” Roussos v. Menifee, 122 F.3d 159,

164 (3d Cir. 1997). The enabling statute, 18 U.S.C. § 4042(a)(2), authorizes the BOP to

“provide for the safekeeping, care, and subsistence” of Federal prisoners. We conclude

that the Program Statement is entirely consistent with § 4042. See generally Bunn v.

Conley, 309 F.3d 1002, 1010 (7th Cir. 2002).3

       Accordingly, we will summarily affirm the District Court’s order. See 3d Cir.

L.A.R. 27.4; I.O.P. 10.6.


3
 We assume for purposes of this case that this statute is not so broad as to render the
Program Statement unreviewable. See 5 U.S.C. § 701(a)(2).
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