by David M. Reutter

On July 3, 2023, the U.S. Court of Appeals for the Ninth Circuit reversed a district court’s dismissal of a lawsuit challenging a federal Bureau of Prisons (BOP) policy that caps a prisoner’s phone calls at a total of 300 minutes per month.

The suit was filed in federal court for the District of Arizona by Kenneth Daniel Tiedemann. A father to three children and their sole caregiver prior to incarceration, he maintained close relationships with them from 2014 to 2016, while incarcerated at a privately-operated prison that allowed him to speak to them by phone “an average of 30-45 minutes a day” and “sometimes much longer,” he said.

After a 2017 transfer to the Federal Correctional Institution (FCI) in Mendota, California, Tiedemann’s phone calls were cut to just 10 minutes per day. The change to a BOP-operated prison subjected him to agency policy that limits prisoners to 300 minutes (5 hours) per month of phone time absent “good cause.” See: BOP Program Statement P5264.08: Inmate Telephone Regulations § 8(f) (2008).

The warden at FCI-Mendota denied Tiedemann’s request for an exception, a decision affirmed by BOP’s Regional Director. Tiedemann was then transferred to USP-Tucson in Arizona, where his request for more phone time was denied based upon the previous denial. Tidemann then filed his pro se complaint in 2017. Shortly thereafter, BOP took Tiedemann for a ride back to California and dropped him at FCI-Herlong.

At that point, Tiedemann moved for a temporary stay, since he might not have access to legal mail while in transit. Though his administrative remedies had been exhausted at USP-Tucson before filing suit, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e, he also filed a motion asking whether he again needed to exhaust remedies at the new prison, or whether he needed to amend his pleading or add new defendant BOP officials at FCI-Herlong.

Deciding that Tiedemann failed to state a substantive due process claim because he was not being treated differently from other prisoners, the district court dismissed the action, including a claim seeking monetary damages, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for lack of a proper named governmental defendant. The motions were further denied as moot. Tiedemann appealed.

The Ninth Circuit reversed, finding Tiedemann’s due process claim should not be treated as procedural but as a substantive claim “predicated on his fundamental liberty interest in a relationship with his children.” The case was remanded for the district court to liberally construe the complaint to allege claims supporting a freedom of association violation under the First Amendment and a substantive due process violation under the Fifth Amendment. See: Tiedemann v. Mitchell, 778 Fed. App’x 461 (9th Cir. 2019).

On remand, the district court found Tiedemann had stated those causes of action, but it again dismissed his case because he was not at a prison managed by either of the defendant wardens named in his suit, rendering his request for injunctive relief moot. He was also denied leave to amend his complaint to add BOP’s Regional Director as a defendant so as to press his Bivens claim for damages. Tiedemann again appealed.

Back at the Ninth Circuit, the lower court’s ruling was again reversed. The Court found it plain error not to let Tiedemann amend his complaint to name the BOP Regional Director as a defendant. “Since the latest dismissal, Tiedemann has been relocated twice more,” the Court wrote. Yet the regulation at issue applies system wide. BOP’s “parsimonious reading of Tiedmann’s complaint,” the Court noted, argued that the policy was not systemwide because Tiedemann was free to ask each Warden for more time. It rejected that argument and another that the Regional Director “lacks the authority to carry out any injunctive relief” the Court may grant.

The Court further denied BOP’s request to supplement the record with Tiedemann’s crime of conviction; that had nothing to do with the regulation at issue. But it agreed that claims against wardens at his prior prisons were moot as to injunctive relief and that Tiedemann stated a plausible claim.

Thus the district court’s order was partially reversed and the case remanded once more. At the Court, Tiedemann was represented by certified law students and supervising attorneys from the University of California at Berkeley School of Law. See: Tiedemann v. Blanckensee, 72 F.4th 1001 (9th Cir. 2023).

The case has now returned to the district court, where Tiedemann is once again proceeding pro se, and PLN will update developments as they are available. After seven years, time is running out to the exception he seeks before his children are grown. See: Tiedemann v. Mitchell, USDC (D. Ariz.), Case No. 4:17-cv-00597.  

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