Matthews v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Alexander Otis Matthews
v. 	Civil No. 17-cv-108-SM
Warden, FCI-Berlin
REPORT AND RECOMMENDATION
Before the court for 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, and petition
addenda (Doc. Nos. 8, 10) asserting facts pertinent to
Matthews’s claims. 	The matter is before the court to determine
whether the petition and addenda state facially valid claims
that 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 petitions filed
under § 2241).
Background
Matthews was an inmate at the Federal Correctional
Institution in Berlin, New Hampshire (“FCI Berlin”) when he
filed this petition. 	He notified this court in October 2017
that he has been transferred to a Federal Bureau of Prisons
(“BOP”) facility in Pennsylvania. 	See Not. (Doc. No. 11).
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Matthews 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). 	As Matthews has proceeded
in forma pauperis in a number of civil cases he has filed, he
has incurred a number of filing fees in those matters which must
be paid in full, by deductions from his inmate account, pursuant
to the in forma pauperis provisions of the Prison Litigation
Reform Act (“PLRA”), codified at 28 U.S.C. § 1915(b).
Following the Supreme Court’s decision in Bruce v. Samuels,
136 S. Ct. 627 (2016), the BOP implemented the provisions of
§ 1915(b)(2) by withdrawing all but $10.00 of Matthews’s
available funds each month to pay his federal court filing fees.
See Pet., Matthews I, (ECF No. 1); see also Doc. No. 10, at 3.
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 states that two types of non-
meat substitutes have been available in the FCI Berlin
cafeteria: cottage cheese and soy patties. 	Matthews asserts
that he cannot eat cottage cheese because of a digestive
condition, and that the soy patties are expired and too hard to
eat. 	He further claims that at some meals at FCI Berlin, the
kitchen staff has not prepared any non-meat substitute. 	Because
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of a low balance in his inmate account, Matthews asserts he was
unable to buy food he wanted from the commissary at FCI Berlin,
so he missed meals or parts of meals six or seven times per
week.
Matthews further states that the lack of funds in his
inmate account made it difficult at FCI Berlin to pay for
stamps, email, phone calls, typing ribbon, and copies he needed
to maintain his state and federal court cases and to communicate
with his family. 	He asserts that FCI Berlin Camp Counselor S.
Seymour told Matthews that Matthews was not considered to be an
indigent inmate since his own conduct in filing cases resulted
in his lack of available funds, and that even if he had been
deemed indigent, he would receive only five free stamps per
month for personal mail and five per month for legal mail.
Claims
Construing Matthews’s initial filings here (Doc. Nos. 1, 8,
10) 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 and Fifth Amendment
right of access to the courts, as the BOP’s depletion of
his inmate account precludes Matthews from filing new cases
and maintaining cases he has filed.
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2. 	The PLRA, 28 U.S.C. § 1915(b)(2), as implemented
in his case, violates Matthews’s First Amendment rights to
family association, as the BOP’s depletion of his inmate
account precludes Matthews from making phone calls, sending
letters, and maintaining email contact, at a level
sufficient to maintain more than de minimis contact with
his family.
3. 	The PLRA, 28 U.S.C. § 1915(b)(2), as implemented
in his case, violates Matthews’s Eighth Amendment rights,
as the 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
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“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
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 reasons stated below.
II. 	Access to Courts
Claim 1 alleges that the depletion of Matthews’s inmate
account, resulting from the implementation of the PLRA, violates
his right of access to the courts. 	The PLRA filing fee
requirement has been found not to violate prisoners’ right of
access to the courts. 	See Blair 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); see also Bruce, 136 S.
Ct. at 633 (“The per-case approach [to assessing filing fees
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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.” (citation omitted)).
Furthermore, Matthews has not alleged facts to state a
claim 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). 	Matthews’s citation
to orders that have since been vacated in this case and in his
case against the FBI do not suggest that he has suffered actual
injury in those matters. 	See July 27, 2017 Order (Doc. No. 9)
(vacating dismissal); Matthews v. FBI, No. 1:15-cv-00569-RDM
(D.D.C. Jan. 30, 2018) (ECF No. 44) (vacating dismissal).
Matthews’s reference in Document No. 8 to three “non-frivolous”
civil rights actions he asserts he could not file since January
2016 includes a legal conclusion unsupported by any factual
assertions regarding the nature of those cases. 	Cf. Christopher
v. Harbury, 536 U.S. 403, 415 (2002) (“[T]he underlying cause of
action, whether anticipated or lost, is an element that must be
described in the complaint, just as much as allegations must
describe the official acts frustrating the litigation.”).
Stripped of such legal conclusions, Claim 1 fails to state a
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claim and should be dismissed.
III. Right of Association
Claim 2 asserts that the depletion of Matthews’s inmate
account to pay filing fees has rendered him unable to pay for
the letters, 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).
A plaintiff must make two showings to succeed on a
familial-association claim: “(1) that the defendants
intended to deprive him of his protected relationship, and
(2) that balancing the individual’s interest in the
protected familial relationship against the state’s
interests in its actions, defendants either unduly burdened
plaintiff’s protected relationship, or effected an
unwarranted intrusion into that relationship.” 	In
addition, “[t]he conduct or statement must be directed at
the familial relationship with knowledge that the
statements or conduct will adversely affect that
relationship.”
Leek v. Miller, 698 F. App’x 922, 927 (10th Cir. 2017)
(citations omitted) (emphasis in original).
Matthews has failed to plead any facts suggesting that any
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BOP officer who has depleted his inmate account either had the
knowledge that doing so would interfere with his familial
relations, or the intent to do so, and he failed to plead any
facts showing that the depletion of Matthews’s inmate account
was directed at Matthews’s familial relationship. 	Moreover, the
curtailment of email and telephone access resulting from BOP’s
depletion of Matthews’s inmate account does not violate his
First Amendment rights, to the extent that Matthews retains
substantial alternative means of exercising the right at issue.
See 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. 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
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1076 (8th Cir. 2012). 	While Matthews has alleged that at FCI
Berlin he was not given free stamps, Matthews does not allege
that the depletion of his inmate account had any impact on his
ability to receive family visitors at FCI Berlin, and he has
indicated that he could make some phone calls. 	Nothing suggests
that the $10.00 left per month in Matthews’s account could not
be prioritized as he wished. 	Accordingly, Claim 2 should be
dismissed.
IV. 	Eighth Amendment Violation
Claim 3 asserts that the implementation of the PLRA in
Matthews’s case, causing the depletion of his inmate account,
subjected Matthews to unconstitutional conditions of confinement
as he was unable to afford to buy such hygiene items as a comb
and deodorant, and specific food he says he needed to maintain a
meatless diet without skipping six or seven meals or parts of
meals per week at FCI Berlin. 	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 in the
petition indicates that the deprivations alleged by petitioner
are “extreme,” or that any BOP officials responsible for
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withdrawing filing fee payments from his inmate account acted
with deliberate indifference to his health or safety.
Accordingly, Claim 3 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
February 26, 2018
cc: 	Alexander Otis Matthews, pro se
Seth R. Aframe, Esq.
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