Prison Phone Justice

Case 1:06-cv-00715-PLF

Document 22

Filed 11/15/2006

Page 1 of 14

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF THE DISTRICT OF COLUMBIA
BRANDON C. SAMPLE,

§

and

§

BERNARD SHAW,

§

v.

§

FEDERAL BUREAU OF PRISONS,

§

and

§

U.S. DEPARTMENT OF STATE.

§

RECEIVED
NOV -92006
-.92006

AMENDED COMPLAINT

!1WICYMAYER
!1WICY MAYER WHITTINGTON C! ERK

Introduction

U.S. DISTRICT COURT' -'. .

1.

This case raises numerous issues of first impression for

the

Court

Procedures

under
Act

the U.S.

("APA") ,

Constitution,
the

Freedom

the Administrative
of

I'nformation
I·nformation

Act

("FOIA"), the Privacy ACy
Ac.y ("PA"), and the Paperwork Reduction
Act

("PRA").

Plaintiffs

seek various forms of declaratory

and injunctive relief. l

Jurisdiction and Venue
2.

Jurisdiction is proper under 28 U.S.C. § 1331.

appropriate
Columbia.

in
See

the

District

Court

for

the

Venue is

District

of

28 U.S.C. § 139l(e).
1391(e).

Parties
3.

Plaintiff Brandon Sample's mailing address is Brandon

1
Prior to the filing of the amended complaint, the
plaintiffs attempted to informally resolve the matters that
Opposing counsel,
now form the basis of Counts 10-13.
however, refused to respond to any of the plaintiff's
letters.

Case 1:06-cv-00715-PLF

Sample

#33949-037,

South,

Jesup,

GA

Document 22

Federal
31599.

Filed 11/15/2006

Satellite Low,
Mr.

Sample's

Page 2 of 14

2680 Highway 301

telephone

number

is

912-427-0870.
4.

Plaintiff Bernard Shaw's mailing address is Bernard Shaw

#59469-004,

P.O.

BOX

26020,· Beaumont,

TX

77720-6020.

Mr.

Shaw's telephone number is 409-'727-8172.
409~727-8172.
5.

Defendant

Federal

Bureau

of

Prison's

("BOP")

mailing

address is 320 First St. N.W., Washington, DC 20534.

6.

Defendant

Department")

U.S.
u.S.

Department

mailing

address

of

is

("State

State's

2201

C

Street,

N.W.,

Washington, DC 20520.
Exhaustion of Administrative Remedies
7.

The

plaintiffs

have

exhausted

all

of

their available

administrative remedies using the BOP's administrative remedy
program.
Count One 2

8.

The

BOP

international

allows
telephone

inmates
calls

Inmate Telephone System II
ITS

II

are

subject

to

to

domestic

and

approved numbers over its

("ITS. II").

to monitoring

make

and

All calls over the
recorded.

with

the

exception of 1-900 and 1-800 numbers, there are, ordinarily,
no restrictions on what numbers may be placed on an inmate's
approved telephone list.

Calls over the ITS II system are

limited to 15 minutes in duration and may be prepaid by the
inmate.

2

Plaintiff Shaw ]OlnS
JOlns Mr.
Four of the amended complaint.
2

Sample

in only Counts One -

Case 1:06-cv-00715-PLF

9.

When

inmate,

a

the

Document 22

prepaid

domestic

following

voice

Filed 11/15/2006

U. S.
prompt

call
is

is

Page 3 of 14

placed

by an

announced once the

called party answers:
This call is from a federal prison. This is a prepaid call.
You will not be charged for this call.
This call is from
(insert name of inmate calling). Hang up to decline the call
or to accept the call dial "5" now. To block future prepaid
calls from this person, dial "77."
The inmate and the called party will not be connected unless
the called party pushes

"5."

Once a

call

is

accepted,

a

voice prompt stating "this call is from a federal prison" is
intermittently announced during the call.
10.

Internation,l calls over the ITS II system are treated

differently than prepaid domestic U.S.
u.S. calls.
all international c.alls are direct dial.

For instance,

"Direct dial" means

the call rings straight through to the called party without
any voice prompt announcihg
any·
announcing that the call is from a federal
prison or requirement that the called party push "5" before
the

call

is

connected.

With

the

exception

of

different

calling rates, all other aspects of international calling are
identical

to

domestic

U. S.

prepaid calls

over

the

ITS

II

system.
11.

The

plaintiffs

prepaid calls

have

over the

attempted

ITS ,II
JI

to

make

domestic

system to Clerks of

u.S.
U.S.

Court,

businesses, and other called parties who utilize an automated
telephone

answering system

("ATAS").

ATAS I

S

are,

however,

incapable of pushing "5" to accept calls from the plaintiffs.
As

a

result,

the

plaintiffs

have

been

deprived

of

the

opportunity to communicate
u.S.
comm].lnicate telephonically with domestic U.S.
prepaid called parties who utilize an ATAS.
3

Case 1:06-cv-00715-PLF

12.

Document 22

Filed 11/15/2006

Page 4 of 14

The push "S"
"s" requirement for domestic U.S.
u.s. prepaid calls

violates the plaintiff's First Amendment rights.

There is no

legitimate penological interest in requiring prepaid domestic
U.S.

called

connected

parties

since

to

"S"
"s"

push

there

is

no

before

their

"s"
"S"

push

calls

are

requirement

for

international calls.
13.
U.S.

The first and "foremost" factor of Turner v. Safley, 482
78

(1987),

is that

"there must be a

valid,

rational

connection between the prison regulation and the legitimate
[and neutral]
it."

governmental

interest put forward to justify

Shaw v. Murphy, S32 U.S.
u.S. 223, 229-30 (2001).

Here, the

connection between the push "S"
"s" requirement and any asserted
goal is "arbitrary and irrational" in light of the disparity
between the push "S"
n S"
requirement for domestic U.S.
U. S.
calls,
the

prepaid

and the lack thereof for international calls.

"regulation

[Turner]

fails,

factors

[may]

irrespective
tilt in its

of

whether

favor.

Id.

the

Thus,
other

at 229-30

(alterations added).
14.

The plaintiffs request a

declaratory

judgment stating

that the push "S" requirement for domestic U.S.
u.S. prepaid calls
violates

their First Amendment rights.

Plaintiffs further

request appropriate injunctive relief.
lS.

In addition, the push "S"
"s" requirement for domestic U.S.
u.S.

prepaid calls violates the APA.
ITS system,
U.S.
u.S.

there was no push "S"
n Sn
requirement for domestic

prepaid'

implementation
'significant

calls.
of

the

departure

The

from

subsequent
"S"
"s"

push

creation

requirement 'represents

established
4

i.

Upon implementation of the

and

consistent

and
a
BOP

Case 1:06-cv-00715-PLF

Filed 11/15/2006

Page 5 of 14

Said change substantially affects the plaintiffs

practice.
and

Document 22

inmates

other

such

that

the

new

policy

is

a

new

substantive rule that the BOP was obliged, under the APA, to
submit for notice and comment rulemaking before its adoption.
Shell Offshore Inc.

v.

2001)

approval

(citing

with

Babbit,

238 F.3d 622,
Alaska

630 (5th Cir.

Professional

Hunter's

1999}).
Ass'n v. FAA, 177 F.3d 1030 (D.C. Cir. 1999».
16.

Plaintiffs request a declaratory judgment stating that

the

push

published

n

5n

requirement

with

notice

is

and

invalid

comment.

because

it

Further,

was

not

plaintiffs

request appropriate injunctive relief.
Count Two
17.

Over the past few years, the BOP has increased the cost

per minute for long distance u.S. domestic prepaid calls over
the ITS II system from 15¢ a minute, to .17¢ a minute, to 20¢
a

minute,

initial

and to 23¢ a minute,

rate of

the now current rate.

The

.15¢ a minute was, however, a substantive

rule under the APA first requiring notice and comment before
its adoption.

Since the initial rate of

.15¢ a minute was

invalidly adopted, .it
.i t follows that all subsequent changes to
that rate are also invalid.
18.

Alternatively,

assuming

the

.15¢

rate

was

properly

promulgated, the subsequent changes to that rate are invalid
because

they

established

represent
and

a

significant

consistent

BOP

departure

practice.

Said

from

an

changes

substantially affect the plaintiff's purse such that the new
rates are new substantive rules that the BOP was required to
submit for notice and comment before their adoption.
5

Shell,

Case 1:06-cv-00715-PLF

Document 22

Filed 11/15/2006

Page 6 of 14

238 F.3d at 630.
19.

Plaintiffs request a declaratory judgment stating that

the .15¢ rate, including all subsequent changes to that rate,
.are invalid for failing to comply with the APA' s notice and
comment rulemaking requirements.

Plaintiffs further request

appropriate injunctive relief.
20.

Should the

Court agree that the subsequent changes to

the

.15¢

are

rate

invalid,

plaintiffs

further

request

equitable relief in the form of return of all payment above
.15¢ rate for each prepaid long distance call made over the
ITS II system.

Plaintiffs contend that this requested relief

does not implicate the Court of Federal Claims jurisdiction
because the return of overpayment does not constitute "money
damages" consistent with Bowen v. Massachusetts, 487 U.S. 879
(1988).

However,

if

the

Court

concludes

otherwise,

plaintiffs expressly
e*pressly disclaim damages over $10,000 including
all damages that may accrue beyond this amount after filing
of

the

amended complaint and before final

judgment.

This

waiver is intended to preserve this Court's jurisdiction to
entertain the requested relief under the Little Tucker Act,
1346(a)(2),
1346(a) (2),

28 U.S.C.

§

320

265,

F.3d

damages

over

is necessary.

270-71

(D.C.

$10,000

to

Cir.

Waters v.

2003)

preserve

a

(party

Rumsfeld,
may

district

waive

court's

concurrent jurisdiction under the Little Tucker's Act).
Count Three
21.
years

Upon installation of the ITS II system, and for several
thereafter,

prepaid calls.

inmates

were

allowed

to

make

unlimited

Recently, though, the BOP has restricted all
6

Case 1:06-cv-00715-PLF

Document 22

Filed 11/15/2006

Page 7 of 14

inmates to 300 prepaid calling minutes per month.
the

only

exception

to

this

rule

is

during

Generally,

the months

of

November and December when inmates are given 400, instead of
300, calling minutes.
22.
are

The

300

and

invalid

400 minute per month calling. restrictions

because

promulgated with

they

are

substantive

rules

not

notice and comment in accordance with the

APA.
23.

Alternatively, the 300 and 400 minute per month calling

restrictions are invalid because they represent a significant
departure from the BOP I
unlimited
affects

prepaid

the

established practice of permitting

S

calling.

plaintiffs,

Said

their

departure

family,

substantially

friends,

and

other

members of the public such that the calling restrictions are
new substantive rules requiring notice and comment rulemaking
~hell,
~hell,

before their adoption.
24.

Plaintiffs request a

the

300

and

400

invalid because
comment

in

minute
they

declaratory
per

were

accordance

238 F.3d at 630.

month

not

with

judgment stating that

calling

restriction

promulgated with

the

APA.

notice

Plaintiffs

are
and

further

request appropriate injunctive relief.
Count Four
25.

For

over

20

years,

the selling price of items at BOP

commissaries was determined by taking the cost price of an
item,

divi
ding
dividing

nickel.
nickel,
BOP

it

(e.g.,

5

by
/

.08,

.08

then

= 6.25

rounding
rounded

the selling price is $ 6.30) .

changed

its

markup

formula
7

for

up
up

to

the

next

to

the

next

Recently, though, the
items

sold

at

its

Case 1:06-cv-00715-PLF

commissaries.

Document 22

Filed 11/15/2006

Page 8 of 14

Now, the selling price for items is determined

mUltiplying the cost price of an item by 1.3 (e. g., 5 x
by multiplying
1.3

= $ 6.50) .

The

requirement

to

round

up

to

the

next

highest nickel continues under the new markup formula.
26.

The

BOP's

change

in

markup

formula

has

caused

the

selling price to increase approximately 5% for all general
items

sold

in

the

BOP's

commissaries,

excluding

stamps,

religious items, and Special Purpose Orders.
27.

The BOP's new markup formula is invalid because it is a

significant departure from an established and long standing
consistent BOP practice.
the plaintiff's purse
substantive
adoption.

rule

Said change substantially affects

such that the new formula

requiring

notice

and

comment

is

a

new

before

its

Shell, 238 F.3d at 630.

28.

Plaintiffs request a declaratory judgment stating that

the

new

markup

promulgated

with

formula

is

invalid

notice

and

comment.

because

it

Plaintiffs

was

not

further

request appropriate injunctive relief.
29.

Should the Court agree that the new markup formula is

invalid

because

it

was

not

promulgated

with

notice

and

comment,

plaintiffs further request equitable relief in the

form of return of all payment above the prior markup formula
for each qualifying item purchased from the commissary.
with Count Two,
relief

does

jurisdiction.

not

As

the plaintiffs contend that this requested
implicate

the

Court

of

Federal

Claims

Should the Court disagree, however, plaintiffs

expressly disclaim damages over $10,000 in order to preserve
this Court's jurisdiction to entertain the requested relief
8

Case 1:06-cv-00715-PLF

under

the

Little

Document 22

Tucker Act,

Filed 11/15/2006

28

U.S.C.

Page 9 of 14

1346(a) (2),

§

if

necessary.
Count Five
30.

For over 20 years,

for

and

receive

the BOP permitted inmates to apply

"educational"

transfers

to

other

BOP

institutions in order to participate in educational programs
that may further their rehabilitation (e.g., culinary school,
college courses, etc ... ) but that are otherwise not available
at

their

current

place

of

incarceration.

Unfortunately,

"educational" transfers are no longer permitted.
31.

The

BOP's

prohibition

on

"educational"

transfers

is

invalid because it is a significant departure from the BOP's
established

and

transfers.

Said

longstanding
change

practice

or

substantially

permitting

affects

such

plaintiff

Sample such that the prohibition is a new substantive rule
requiring notice and comment rulemaking before its adoption.
Shell, 238 F.3d at 630.
Count Six
32.

Plaintiff Sample previously requested a copy of his Pre-

Sentence
FOIA.

Investigation

The

BOP

denied

Report

("PSI")

Sample's

from

request,

the

BOP

invoking

under

Program

Statement 1351.05 which prohibits inmate possession/retention
of PSIs.

Sample's appeal to the Department of Justice Office

of Information and Privacy ("OIP") was denied on the ground
that

FOIA' s

disclosure

mandate

is

satisfied

by the BOP's

pOlicy
policy of allowing inmates to review, but not possess, a copy
of their PSI.
9

Case 1:06-cv-00715-PLF

33.

Document 22

Filed 11/15/2006

In accordance with 5 U.S.C.

entitled

to

a

copy

of

his

Page 10 of 14

552(a) (3) (B),
552(a){3)

§

PSI.

Sample is

Accordingly,

Sample

respectfully requests an order directing the BOP to provide
him with a copy of his PSI.
Count Seven
34.

On

March

8,

2004,

Sample,

with

the

express

written

consent of inmate Richard Painter, requested under FOIA that
he be permitted to inspect, but not possess, a copy of Mr.
Painter'
Painter I sPSI.

The BOP has never acknowledged or responded

to Sample's request.
35.

Because

Sample's

the

statutory

request

has

time

expired,

period
Sample

for
is

responding

deemed

to

to

have

exhausted all of his available administrative remedies under
FOIA.
36.

552(a) (6) (C).
See 5 U.S.C. § 552(a)(6)(C).

Sample respectfully requests an order directing the BOP

to allow him to inspe.ct a copy of Mr. Painter's
Painter I s PSI.
Count Eight
37.

The

other

PRA,

44

things,

U.S.C.

that

§§

agencies

3501 et seq.,

requires,

among

subject to the Act shall not

conduct or sponsor the "collection of information" unless in
advance

of

the

adoption or revision of the collection of

information, the agency complies with the procedures outlined
44 U.S.C. § 3507(a)(1).
in 44.

38.

The BOP,

although subject to the PRA, does not comply

with any of its provisions.

For example, the BOP on a daily

basis engages in various "collections of information" without
regard

to

the

PRA.

Management

and

Budget

Furthermore,
("OMB")
10

there

control

are

no

numbers

Office

of

on any BOP

Case 1:06-cv-00715-PLF

Document 22

Filed 11/15/2006

Page 11 of 14

forms.
39.

Plaintiff

Sample

respectfully

requests

a

declaratory

judgment stating that the BOP is subject to the PRA and that
it is in noncompliance with all of its provisions.

Sample

further requests appropriate injunctive relief.
Count Nine
40.

On November 23, 2004, Sample submitted a FOIA request to

the BOP for a copy of the BOP's "most recent BOPDOCS cd-rom
disc,"

excluding

any

information

Limited Official Use Only."

"deemed

by

the

BOP

as

BOP denied Sample's request.

On

July 31, 2006, the OIP affirmed the BOP's denial.
41.
disc

The BOP's
BOP I S

refusal to provide Sample with the BOPDOCS

violates

5

relevant part,
person

under

U.S.C.

that:
this

§

552(a) (3) (B)

which provides,

in

"In making any record available to a

paragraph,

an agency

shall provide the

record in any form or format requested by the person if the
record is readily reproducible by the agency in that form or
format."
formaL"

5

U.S.C.

§

552(a)(3)(B)

(emphasis

added).

Accordingly, Sample respectfully requests an order directing
the BOP to provide him with a copy of the BOPDOCS disc.
Count Ten

42.
to

On September 6, 2005, Sample submitted a FOIA/PA request
the

State

concerning
United

his

States

Department

for

repatriation
in

1997.

copies

from

On

Dublin,

December

Department aCknowledged
acknowledged Sample request.
documents have been provided.

11

of

7,

all

documents

Ireland
2005,

to

the

the

State

To date, however, no

Case 1:06-cv-00715-PLF

43.
43,

Sample

Document 22

respectfully

Filed 11/15/2006

requests

an

order

Page 12 of 14

directing

the

State Department to provide him with the documents requested
above.
Count Eleven
44.

On March 20,

2006,

Sample submitted a FOIA request to

the BOP for copies of "all invoices, purchase orders, menus,
and

other

related

Passover meals

materials

concerning

the

purchase

of

for years 2004-2006 at FCl Beaumont (Low)."

In his request, Sample specified that this must include "all
documents

pertaining

ceremonial meal
when

provisions

for

the

Passover

and the eight days worth of meals."

responding

provide

to

records

to

Sample's

concerning:

request,

the

(1)

provisions

the

BOP

Yet,

failed

to

for

the

Passover ceremonial meal during 2004; and (2) the purchase of
the

"eight

days

worth

of

meals"

by

the

Food

Service

department at FCI Beaumont (Low).
45.

Also included in Sample's March 20, 2006, FOIA request

was a request for "all invoices, purchase orders, and other
related materials concerning the purchase of a sukkah by the
religious services department at FCI Beaumont (Low) in 2004
or

2005."

Nevertheless,

the

docul\lEmts responsive to this
docuT(lEmts

BOP

failed

request.

to

provide

any

Sample has appealed

the BOP's actions to the OlP; however, a response has yet to
be received.
46.

Sample respectfully requests the Court order production

the records mentioned above.

12

Case 1:06-cv-00715-PLF

Document 22

Filed 11/15/2006

Page 13 of 14

Count Twelve
47.

On August 9,

2006,

Sample submitted
sUbmitted a FOIA request to

the BOP for copies of several administrative remedy responses
"in the form or format of read-only electronic media (e.g.,
cd-rom, disc, etc ... )."

To date, the BOP has yet to respond

to Sample's request.
48.
to

Sample respectfully requests an order directing the BOP
provide

responses

him

"in

with

the

the

form

requested

or

format

of

administrative

remedy

read-only electronic

media."

Count Thirteen
49.

On August 10,

the

BOP

each

for

Regional

three years."

2006, Sample submitted a FOIA request to

"sanitized administrative remedy indexes
Office

and the Central Office for

from

the past

Further, in order to prevent the production of

unnecessary materials, Sample specifically limited the search
for

records

granted.

to

indexes

To date,

with

however,

grievances

that

have

been

the BOP has yet to respond to

Sample's request.
50.

Sample respectfully requests the Court order production

of the requested administrative remedy indexes.
Relief Requested
51.

In addition to the relief already specially requested,

plaintiffs respectfully request costs,

attorney's fees,

such other relief as the Court may see fit.

13

and

Case 1:06-cv-00715-PLF

Document 22

Filed 11/15/2006

Page 14 of 14

Respectfully submitted,

~(hL~
BRANDON SAMPLE #33949-037
Federal Satellite Low
2680 Highway 301 South
Jesup, Georgia 31599
(912) 427-0870

BERNARD SHAW # 59469-004
FCI Beaumont (Low)
P.O. BOX 26020
Beaumont, TX 77720-6020
(409) 727-8172

CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing
was
served this
was'served

rt'
rfi'

Bay of November , 2006, via first-class
'day

mail, on the following:
W. Mark Nebeker
Assistant U.S. Attorney
Civil Division
555 4th Street, N.W.
Washington, DC 20530

BRANDON SAMPLE

14