                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-27-2006

Almahdi v. Secretary Homeland
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3120




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                                                   NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                 NO. 04-3120
                              ________________

                         JAMALUD-DIN ALMAHDI,

                                       Appellant

                                        v.

             THOMAS RIDGE, SECRETARY OF DEPARTMENT
              OF HOMELAND SECURITY; JOHN ASHCROFT;
                DEPARTMENT OF HOMELAND SECURITY;
               GABE SCALA; TONY MALOCU; S. A. YATES;
               LYONS; SLODYSKO; BUREAU OF PRISONS
                 ____________________________________

                On Appeal From the United States District Court
                    For the Middle District of Pennsylvania
                          (D.C. Civ. No. 03-cv-00432)
                District Judge: Honorable William W. Caldwell
                _______________________________________

                   Submitted Under Third Circuit LAR 34.1(a)
                               October 25, 2006

      Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES.

                           (Filed: October 27, 2006)
                          _______________________

                                 OPINION
                          _______________________

PER CURIAM

    Jamalud-din Almahdi is serving a sentence of imprisonment at FCI-Allenwood for
a parole violation. His presumptive parole date is March 29, 1997. Almahdi sued the

Department of Homeland Security (“DHS”), the Federal Bureau of Prisons (“BOP”), and

officials associated with both institutions and the Federal Bureau of Investigation. He

claimed that his constitutional rights were violated when DHS arbitrarily placed his name

on a watch list, and when officials at FCI-Allenwood placed him in administrative

detention at times of elevated national security because his name was on the list.

Specifically, he alleged that he was placed in segregation for over two months in late

2001, for nearly a month in early 2003, and for another six weeks in mid-2003. Second

Amended Complaint, 5-6. He asked the District Court for an award of money damages

against all Defendants, and he specifically asked that DHS be ordered to remove his name

from the watch list. See id. at 12-13. In his complaint, Almahdi also stated that,

apparently as a result of the prison’s security concerns about him, his telephone privileges

were reduced to once a month. Id. at 8.

       Defendants immediately moved for summary judgment, arguing primarily that

Almahdi had not administratively exhausted his claim about the watch list with prison

officials. See Summary Judgment Brief, 2 n.2 (noting that they would file another motion

to address the merits if the exhaustion defense were unsuccessful), 7-12. As to Almahdi’s

claim about his reduced telephone privileges, Defendants argued that prisoners have no

constitutional right to use a telephone.

       The District Court dismissed Almahdi’s claim about the watch list for failure to



                                             2
exhaust his administrative remedies. It held that Almahdi had waived most of the claim

concerning phone privileges, and it denied the remainder of that claim on the merits.

Almahdi appeals.

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

over the District Court’s order granting summary judgment. See Podobnick v. U.S. Postal

Service, 409 F.3d 584, 589 (3d Cir. 2005). We will affirm in part and vacate in part.

       We previously dismissed Almahdi’s appeal insofar as it relates to his claim that

prison officials improperly placed him in special housing at times of high national

security. See Almahdi v. Sec’y of Dep’t of Homeland Sec., No. 04-3120 (order entered

January 18, 2006). As we explained then, we agree with the District Court that Almahdi

did not exhaust that claim. See 42 U.S.C. § 1997e(a).

       We do not agree, however, with the District Court’s implicit determination that

Almahdi was obligated to exhaust his claim insofar as he alleged that his constitutional

rights were violated when DHS improperly placed his name on a watch list.

Section 1997e(a) requires exhaustion of claims concerning “prison conditions,” and

courts have taken a broad view of that term. See, e.g., Porter v. Nussle, 534 U.S. 516,

532 (2002) (holding that the exhaustion requirement of § 1997e(a) “applies to all inmate

suits about prison life”). To interpret the phrase, we have considered its definition in 18

U.S.C. § 3626(g)(2), another section of the Prison Litigation Reform Act (“PLRA”).

See Booth v. Churner, 206 F.3d 289, 294 (3d Cir. 2000), aff’d 532 U.S. 731 (2001).



                                              3
       In pertinent part, § 3626 defines the term “civil action with respect to prison

conditions” as “any civil proceeding arising under Federal law with respect to the

conditions of confinement or the effects of actions by government officials on the lives of

persons confined in prison.” 18 U.S.C. § 3626(g)(2). We have concluded that complaints

about “conditions of confinement” include “complaints such as those regarding cell

overcrowding, poor prison construction, inadequate medical facilities, and incomplete law

libraries.” Booth, 206 F.3d at 295. More generally, we have explained that “actions

arising under this clause relate to the environment in which prisoners live, the physical

conditions of that environment, and the nature of the services provided therein.” Id. We

have read the phrase referring to civil actions about “the effects of actions by government

officials on the lives of persons confined in prison” to mean complaints “ranging from

excessive force actions . . . to actions ‘with respect to’ a prison official’s decision not to

make basic repairs in the prison, or intentionally to deny a prisoner food, heating, or

medical attention.” Id.

       Almahdi’s claim that DHS improperly placed his name on a national watch list is

certainly not a claim about a condition of his confinement. And his claim is not a civil

action about the effect of actions by governments officials on the lives of persons

confined in prison, either. As we concluded previously and iterated above, to the extent

that Almahdi complains about the effects of the addition of his name to the watch list by

DHS on his experience in prison (including his relegation to segregation or the



                                               4
deprivation of his telephone privileges), Almahdi must exhaust his claims through the

proper administrative channels. However, his separate and more fundamental claim that

DHS improperly placed his name on a national watch list, a designation that affects him

temporally and figuratively beyond his term of imprisonment, need not be exhausted

administratively. Cf. Treesh v. Taft, 122 F. Supp. 2d 887, 891 (S.D. Ohio 2000) (holding

that prisoners were not obligated to exhaust their claims because they challenged actions

whose effect came after their term of imprisonment had ended). Furthermore, although

like the examples cited in Booth, the inclusion of Almahdi’s name on the watch list

“makes [his] life worse,” unlike the examples in Booth, the action is not one taken by

prison officials. 206 F.3d at 295. The placement of Almahdi’s name on watch list

occurred outside the prison gates. Accordingly, Almahdi is not obligated to exhaust his

claim through the prison grievance process.1



   1
    We note that requiring Almahdi to seek relief in the prison grievance system would
not advance the general policies of the doctrine of administrative exhaustion or the more
specific policy underlying the PLRA exhaustion requirement. To wit, it would not allow
the prison to “‘correct its own mistakes with respect to the programs it administers,’” or
“promote efficiency” through settlement at the administrative level. Woodford v. Ngo,
126 S. Ct. 2378, 2384-85 (2006). It also would not further the goal of reducing
“unwarranted federal-court interference with the administration of prisons” by affording
“corrections officials time and opportunity to address complaints internally before
allowing the initiation of a federal case.” Id. The policies are not forwarded because
Almahdi claims that another agency, not the prison, made a mistake when it placed his
name on a watch list. Therefore, any mistake could not have been corrected by the prison
alone and any judicial correction would not interfere with the administration of the prison.
While we acknowledge Appellees’ argument that the BOP may be able to help an inmate
pursue a claim like Almahdi’s because of interagency data-sharing, see Appellees’ brief at
28, n.13, there is no evidence that this is a task that the BOP ordinarily undertakes. Also,

                                               5
       In entering judgment in favor of Defendants for Almahdi’s failure to exhaust, the

District Court conflated Almahdi’s claim based on DHS’s alleged error in adding his

name to a watch list with his claim based on prison officials’ actions taken in response to

his name on the watch list. While we separate the claims, we will affirm the District

Court’s judgment in favor of Defendants because Almahdi failed to state a claim upon

which relief can be granted. See Erie Telecomms. v. Erie, 853 F.2d 1084, 1089 (3d Cir.

1988) (holding that an appellate court may affirm on an alternative basis supported by the

record).

       Under the circumstances of this case, the listing of Almahdi’s name on a watch list

violated no constitutional right. Without more, the imposition of a stigma or an injury to

one’s reputation is not sufficient to state a claim for a due process violation. See Paul v.

Davis, 424 U.S. 693, 709, 712 (1976); Robb v. City of Philadelphia, 733 F.2d 286, 294 (3d

Cir. 1984). A plaintiff must allege a stigma plus a deprivation of a liberty or property

interest protected by the Due Process Clause. See Paul, 424 U.S. at 712. Almahdi

alleged his constitutional rights were violated when his name was arbitrarily placed on a

watch list by DHS, causing officials at FCI-Allenwood to place him in administrative

detention and downgrade his telephone privileges whenever the nation’s security level

was heightened. Even assuming that Almahdi suffers a stigma because his name is on the




we agree with Almahdi that an agency outside the prison is the ultimate decision-maker,
see Appellant’s brief at 4.

                                              6
watch list, he does not state a claim because he does not suffer a concomitant deprivation

of a liberty or property right.

       Almahdi’s three transfers to segregated confinement and the limitations imposed

on his use of the telephone did not violate his due process rights. Almahdi has no

protected liberty interest in retaining his custody status. See Meachum v. Fano, 427 U.S.

215, 224 (1996). State-created interests are generally limited to freedom from restraint

that imposes “atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Transfers,

resulting in approximately six months of segregated confinement, or limitations on

telephone privileges, are not examples of such atypical or significant hardship. See Smith

v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (holding that seven months’ disciplinary

confinement “does not, on its own, violate a protected liberty interest as defined in

Sandin”); Fraise v. Terhune, 283 F.3d 506, 522-23 (3d Cir. 2002); Griffin v. Vaughn, 112

F.3d 703. 706 (3d Cir. 1997). Furthermore, although Almahdi appears to contend that

prison officials may not have abided by all pertinent regulations in changing his custody

status and limiting his telephone usage, he has no independent liberty interest in the

prison procedures themselves. See Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983).

       In addition to the claims described above, Almahdi presented an independent and

fully exhausted claim based on the reduction of his telephone privileges. The District

Court read Almahdi’s opposition to the Government’s motion for summary judgment as



                                             7
narrowing his claim about his reduced telephone privileges to a claim concerning only

whether Almahdi was entitled to written (not oral) notice of the reduced privileges. See

District Court Memorandum, 10. We do not read Almahdi’s response to the motion for

summary judgment as so dramatically narrowing his claim, however. To be sure,

Almahdi did mention the notice he received of the reduced privileges, see Summary

Judgment Opposition, 10, but he did so only in the context of arguing that the reduction in

phone privileges was entirely irregular and unconstitutional. See id. at 4-11. On appeal,

Almahdi continues to assert that his constitutional rights have been violated by the

restriction on his phone usage. See Appellant’s brief, 8-11. Because the District Court

misconstrued Almahdi’s claim, and because the current record presents no alternative

basis to affirm, we will vacate the judgment in favor of Defendants on this claim. On

remand, the District Court may wish to evaluate Almahdi’s claim under the First

Amendment.2



   2
    The First Amendment doctrine relevant to Almahdi’s claim has been summarized
elsewhere as follows:

       The Supreme Court has recognized that ‘prison walls do not form a barrier
       separating prison inmates from the protections of the Constitution,’ Turner
       v. Safley, 482 U.S. [78] at 84 [(1987)] . . ., nor do they bar free citizens from
       exercising their own constitutional rights by reaching out to those on the
       ‘inside,’ id., at 94-99 . . .” Thornburgh v. Abbott, 490 U.S. 401, 407, 104
       L. Ed. 2d 459, 109 S. Ct. 1874 (1989). In fact, federal court opinions have
       previously held that persons incarcerated in penal institutions retain their
       First Amendment rights to communicate with family and friends, Morgan v.
       LaVallee, 526 F.2d 221, 225 (2d Cir. 1975), and have recognized that “there
       is no legitimate governmental purpose to be attained by not allowing

                                              8
       In sum, the District Court’s judgment will be affirmed in part and vacated in part.

We remand this matter to the District Court for further proceedings consistent with this

opinion.




       reasonable access to the telephone, and . . . such use is protected by the
       First Amendment.” Johnson v. Galli, 596 F. Supp. 135, 138 (D. Nev. 1984).

       Nevertheless, an inmate “has no right to unlimited telephone use.” Benzel v.
       Grammar, 869 F.2d 1105, 1108 (8th Cir.), cert. denied, 493 U.S. 895, 107
       L. Ed. 2d 194, 110 S. Ct. 244 (1989), citing Lopez v. Reyes, 692 F.2d 15, 17
       (5th Cir. 1982). Instead, a prisoner's right 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).
       “The exact nature of telephone service to be provided to inmates is generally
       to be determined by prison administrators, subject to court scrutiny for
       unreasonable restrictions.” Fillmore v. Ordonez, 829 F. Supp. 1544, 1563-64
       (D. Kan. 1993), aff'd, 17 F.3d 1436 (10th Cir. 1994), and citing Feeley v.
       Sampson, 570 F.2d 364, 374 (1st Cir. 1978), and Jeffries v. Reed, 631 F.
       Supp. 1212, 1219 (E.D. Wash. 1986).

Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994). Under these standards,
Almahdi states a claim under the First Amendment. See also Haines v. Kerner, 404 U.S.
519, 520 (1972). However, it remains to be seen whether Almahdi will be entitled to
judgment on his claim after further discovery. We note that in addition to claiming that
prisoners have no constitutional right to telephone use, Defendants presented evidence in
the District Court that Defendant Malocu, an FBI agent, administered a polygraph
examination in which he asked Almahdi whether he had any involvement in, or prior
knowledge of, the 9/11/01 terrorist attacks. See Summary Judgment Brief, Attachment
#4, R.37. Malocu averred that Almahdi’s responses indicated deception. See id.
Almahdi disputed Malocu’s account, claiming that he was completely cleared of having
any involvement or knowledge and that any deception related to a question about a
hypothetical event. See Summary Judgment Opposition, 4 & Declaration, 2, ¶¶ 7-8.
