Matthews v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Alexander Otis Matthews
v. 	Case No. 17-cv-108-SM
Warden, FCI-Berlin
REPORT AND RECOMMENDATION
Before the court for a preliminary review is pro se
petitioner Alexander Otis Matthews’s petition for writ of habeas
corpus (Doc. No. 1) pursuant to 28 U.S.C. § 2241. 	The matter is
before the court to determine whether the petition is facially
valid and may proceed. 	See Rule 4 of the Rules Governing
Section 2254 Cases (“§ 2254 Rules”); see also § 2254 Rule 1(b)
(authorizing court to apply § 2254 Rules to habeas corpus
petitions filed under § 2241).
Background
Matthews is an inmate at the Federal Correctional
Institution in Berlin, New Hampshire (“FCI Berlin”), who has
described himself as “a frequent filer in federal courts.” 	See
Pet., Matthews v. Warden, FCI Berlin, 16-cv-054-LM (“Matthews
I”), (ECF No. 1). 	Following Bruce v. Samuels, 136 S. Ct. 627
(2016), the Federal Bureau of Prisons (“BOP”) began implementing
the in forma pauperis provisions of the Prison Litigation Reform
Act (“PLRA”), in pertinent part, 28 U.S.C. § 1915(b)(2) in
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Matthews’s circumstances, by withdrawing essentially all of
Matthews’s available funds to pay his federal court filing fees.
See Pet., Matthews I, (ECF No. 1).
Matthews follows a modified meatless diet that he alleges
he cannot satisfy with the regular meals provided by BOP. 	While
in prison, he has eaten rice, beans, and mackerel that he
purchases from the commissary. 	He further asserts that BOP
offers two types of non-meat substitutes at each meal: 	cottage
cheese or soy patties. 	Matthews asserts that he cannot eat the
cottage cheese because of a digestive condition, and that the
soy patties are expired and too hard to eat. 	Because of the low
balance in his inmate account, Matthews asserts he has been
unable to buy food he wants from the commissary, so he
frequently misses meals. 	Matthews further states that the lack
of funds in his account makes it difficult to pay for email and
phone calls to his family, and that he has been refused free
copies of documents and has no means available to purchase
stamps, copies, and the typing ribbon he needs to maintain his
state and federal court cases. 	Matthews asserts that the
depletion of his account to pay for his filing fees in federal
cases violates his federal constitutional rights, has resulted
in a denial of humane conditions of his confinement at FCI
Berlin, and deprives him of his rights to access the court and
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contact his family.
Matthews filed a similar petition in 2016, which this court
dismissed as Matthews had failed to exhaust BOP remedies. 	See
May 31, 2016 Order, Matthews I (ECF No. 7), approving May 18,
2016 Report and Recommendation (“R&R”), Matthews I (ECF No. 5).
Matthews asserts here that prior to the initiation of this
action, he completed the process of exhausting his BOP remedies
on his claims. 	See Pet. (Doc. No. 1).
Claims
Construing the petition here (Doc. No. 1) liberally, and in
light of matters alleged in the petition in Matthews I (ECF No.
1), the court identifies Matthews’s claims as follows:
1. 	The PLRA, 28 U.S.C. § 1915(b)(2), as implemented
in his case, violates Matthews’s First Amendment rights to
petition the government for redress of grievances, as BOP’s
depletion of his inmate account retaliates against Matthews
for filing federal cases while incarcerated.
2. 	The PLRA, 28 U.S.C. § 1915(b)(2), as implemented
in his case, violates Matthews’s First and Fifth Amendment
right of access to the courts, as BOP’s depletion of his
inmate account precludes Matthews from filing new cases and
maintaining the cases he has filed.
3. 	The PLRA, 28 U.S.C. § 1915(b)(2), as implemented
in his case, violates Matthews’s First Amendment rights to
family association, as BOP’s depletion of his inmate
account precludes Matthews from making phone calls and
maintaining email contact, at a level sufficient to
maintain more than de minimis contact with his family.
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4. 	The PLRA, 28 U.S.C. § 1915(b)(2), as implemented
in his case, violates Matthews’s Eighth Amendment rights,
as BOP’s depletion of his inmate account precludes Matthews
from purchasing hygiene items and food from the prison
commissary.
Matthews requests the following relief: (1) an order declaring
28 U.S.C. § 1915(b)(2) to be unconstitutional and directing
Congress to amend it; and (2) an injunction restraining the BOP
from making any further withdrawals from Matthews’s inmate
account to pay court filing fees under the PLRA.
Discussion
I. 	Jurisdiction
Matthews’s petition is brought pursuant to 28 U.S.C.
§ 2241, which authorizes this court to review whether a person
is “in custody in violation of the Constitution or laws or
treaties of the United States.” 	Id. § 2241(c)(3). 	“Challenges
to the validity of any confinement or to particulars affecting
its duration are the province of habeas corpus,” Muhammad v.
Close, 540 U.S. 749, 750 (2004), while requests for relief
“turning on circumstances of confinement,” like Matthews’s
claims here, are more typically presented in civil rights
actions. 	Id.
The First Circuit has taken the position that certain
prison conditions challenges may be reviewed under § 2241. 	See
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United States v. DeLeon, 444 F.3d 41, 59 (1st Cir. 2006) (if
conditions of incarceration raise Eighth Amendment concerns,
habeas corpus is available (dictum)); Miller v. United States,
564 F.2d 103, 105 (1st Cir. 1977) (“Section 2241 provides a
remedy for a federal prisoner who contests the conditions of his
confinement.” (dictum)). 	Assuming that, following that line of
cases, this court could exercise jurisdiction under § 2241 over
Matthews’s claims, the court should nevertheless dismiss those
claims for failure to state a claim upon which relief can be
granted.
II. 	Retaliation
Claim 1 asserts that BOP’s withdrawal of funds from his
inmate trust account is undertaken in retaliation for his filing
of federal cases. 	To state a claim that Matthews has suffered
retaliation for engaging in protected conduct, Matthews must
show: (1) that he engaged in conduct protected by the First
Amendment; (2) that he suffered non-de minimis adverse action at
the hands of prison officials; and (3) that there was a causal
link between the exercise of his First Amendment rights and the
adverse action taken. 	See Hannon v. Beard, 645 F.3d 45, 48 (1st
Cir. 2011); Starr v. Dube, 334 F. App’x 341, 342 (1st Cir.
2009).
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Matthews’s retaliation claim fails as the causal element of
that claim is missing. 	Under the PLRA, the obligation to pay
the filing fee attaches when a prisoner “brings a civil action,”
28 U.S.C. § 1915(b)(1), not afterwards. 	The withdrawal of funds
to pay plaintiff’s filing fee obligations is a ministerial step
that implements that statutory requirement, as ordered by the
court in each case Matthews filed. 	Lacking any allegation
suggesting that the withdrawal of funds in his case was made
with the intent to retaliate against him, Matthews cannot show
that the 28 U.S.C. § 1915(b) as applied in his case, violated
his right not to suffer retaliation for First Amendment
activities. 	Accordingly, Claim 1 should be dismissed.
III. Access to Courts
Claim 2 alleges that the depletion of Matthews’s inmate
account, resulting from the implementation of the PLRA, violates
his right of access to the courts. 	Matthews has not alleged
facts suggesting that he has been actually injured in his
ability to pursue any nonfrivolous claim, in a post-conviction
proceeding or other civil rights matter that he had a right to
litigate. 	See Lewis v. Casey, 518 U.S. 343, 352, 354-55 (1996).
Furthermore, the PLRA filing fee requirement has been found not
to violate prisoners’ right of access to the courts. 	See Blair
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v. Thompson, No. 5:16-CV-P35-TBR, 2017 WL 525496, at *2, 2017
U.S. Dist. LEXIS 17401, at *5 (W.D. Ky. Feb. 7, 2017) (citing
cases), appeal docketed, No. 17-5294 (6th Cir. Mar. 14, 2017);
see also Bruce, 136 S. Ct. at 633 (“The per-case approach [to
assessing filing fees under the PLRA] more vigorously serves the
statutory objective of containing prisoner litigation, while the
safety-valve provision, [28 U.S.C. § 1915(b)(4)] ensures against
denial of access to federal courts.”). 	Accordingly, Claim 2
should be dismissed.
IV. 	Right of Association
Claim 3 asserts that the depletion of Matthews’s inmate
account to pay filing fees as required by the PLRA has rendered
him unable to pay for the phone calls and emails he needs to
maintain more than “negligible” contact with his family, in
violation of Matthews’s First Amendment right to familial
association. 	Matthews has framed this claim as a challenge to
the constitutionality of 28 U.S.C. § 1915(b).
“[F]reedom of association is among the rights least
compatible with incarceration,” and “[s]ome curtailment of that
freedom must be expected in the prison context.” 	Overton v.
Bazzetta, 539 U.S. 126, 131 (2003). 	Here, Matthews does not
allege that the depletion of his inmate account has had any
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impact on his ability to receive family visitors, and he has
pleaded facts indicating that he is able to make some phone
calls. 	Furthermore, Matthews cannot show that his ability to
correspond with his family by mail is restricted, as in Bruce v.
Samuels, the Court noted that BOP provides stamps to inmates for
that purpose:
[A]nswering [plaintiff’s] concern that the per-case
approach [to collecting fees under the PLRA] could
leave a prisoner without money for amenities, the
Government points out that prisons . . . must furnish
“ ‘paper and pen to draft legal documents' and ‘stamps
to mail them,’” . . . . 	Moreover, the Government
notes, the Federal Bureau of Prisons (BOP) “goes
beyond those requirements,” providing inmates
“articles necessary for maintaining personal hygiene,”
and free postage “not only for legal mailings but also
to enable the inmate to maintain community ties.”
136 S. Ct. at 632 (citations omitted). 	The curtailment of email
and telephone access resulting from BOP’s depletion of
Matthews’s inmate account does not violate his First Amendment
rights, as Matthews retains substantial alternative means of
exercising the right at issue. 	Cf. Riley v. O’Brien, No. 16-
11064-LTS, 2016 U.S. Dist. LEXIS 120039, at *23, 2016 WL
8679258, at *8 (D. Mass. Sep. 6, 2016) “prison regulations,
including restrictions on telephone access, do not infringe upon
a prisoner’s free speech rights if alternative means of
exercising that right exist”); Holloway v. Magness, No.
5:07CV00088 JLH-BD, 2011 WL 204891, at *10, 2011 U.S. Dist.
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LEXIS 6190, at *40 (E.D. Ark. Jan. 21, 2011) (“Although the
Court does not doubt that [prisoner plaintiffs] would engage in
more of the real-time, verbal communication afforded by
telephone technology if prices were lower, the hardship they
allege ‘is not a constitutionally significant curtailment of the
free speech and association guarantee, particularly given the
limited nature of that right in prison settings.’” (citation and
footnote omitted)), aff’d, 666 F.3d 1076 (8th Cir. 2012).
Accordingly, Claim 3 should be dismissed.
V. 	Eighth Amendment Violation
Claim 4 asserts that the implementation of the PLRA in
Matthews’s case, causing the depletion of his inmate account,
subjects Matthews to unconstitutional conditions of confinement
as he is unable to afford to buy such hygiene items as a comb
and deodorant, and specific food he says he needs to maintain a
meatless diet without skipping meals. 	An Eighth Amendment claim
challenging the conditions of a prisoner’s confinement has an
objective and subjective component. 	Wilson v. Seiter, 501 U.S.
294, 298 (1991). 	To satisfy the objective component of a prison
conditions claim, the deprivations alleged must be “extreme.”
Hudson v. McMillian, 503 U.S. 1, 9 (1992). 	Nothing alleged in
the petition indicates that the deprivations alleged by
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petitioner are “extreme,” or that any BOP officials implementing
the PLRA acted with deliberate indifference to his health or
safety, in depleting his inmate account in a manner limiting his
ability to buy certain commissary items. 	Cf. Riley, 2016 U.S.
Dist. LEXIS 120039, at *28, 2016 WL 8679258, at *9 (“Claims
concerning canteen prices do not have constitutional
implications because prisoners have no right to use of a prison
commissary.”). 	Accordingly, Claim 4 should be dismissed.
Conclusion
For the foregoing reasons, Matthews’s § 2241 petition (Doc.
No. 1) should be dismissed. 	Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The fourteen-day
period may be extended upon motion. 	Failure to file specific
written objections to the Report and Recommendation within the
specified time waives the right to appeal the district court’s
order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
May 25, 2017
cc: 	Alexander Otis Matthews, pro se
Seth R. Aframe, Esq.
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