The opinion of the court was delivered by: Harold A. Baker United States District Judge
This cause is before the court for consideration of the defendants' motion for summary judgment [d/e 36].
The pro se plaintiff filed this complaint pursuant to Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) claiming his constitutional rights were violated at the Federal Correctional Institution in Pekin, Illinois. The plaintiff has the following surviving claims: Defendants Warden J.C. Zuercher, Lieutenant Troy Fardel and Officer John Doe(s) violated the plaintiff's First Amendment Freedom of Association and Fifth Amendment Due Process rights when they used ion spectrometry to repeatedly deny the plaintiff visitation. September 22, 2008 Merit Review Order.
The Bureau of Prisons (herein BOP) implemented an Ion Spectrometry Program on February 24, 2005. The Program Statement says its purpose is to limit the amount of illegal substances entering federal prisons in a "minimally intrusive method for screening people." (Def. Facts, Ex. B, p. 2)
The Program Statement includes appointing and training managers and operators, scheduled maintenance, equipment settings and specific testing procedures. (Def. Facts, Ex. B) The test is performed by waiving a hand held device over an individual's hands, pant pockets, waist area, pants cuff and personal identification. The operators are instructed to conduct tests randomly and based on reasonable suspicion.
The Program Statement directs that if a person tests positive for the presence of narcotics, the operator is to immediately retest the individual to confirm the results. If the test is still positive, the individual is prohibited from visiting for 48 hours. The program then increases the number of days a person is prohibited from visiting for subsequent positive test results: second positive- 30 days; third positive- 90 days; and fourth positive- 180 days.(Def. Facts, Ex. B, p. 16) Operators are required to explain the test results and consequences to the visitor and inform them how to appeal.
The BOP Employee Services Manger states that Jerome Zuercher was the Warden at FCI Pekin from December 10, 2006 to October 26, 2008.
Troy Fardel say he has been employed at FCI Pekin as a lieutenant for 10 years. Fardel says he had no direct involvement in any decision to deny visitors to the plaintiff on April 24, 2006; June 9, 2006 and September 8, 2006, because he did not work at FCI Pekin on these days. (Def. Facts, Fardel Aff, p. 1)
Fardel says on March 13, 2006 and October 23, 2006, he worked from 4:00 p.m. to 12:00 a.m. Since visitation ended on these days at 3:00 p.m, Fardel says he was not involved in any decision to deny visitation. Fardel says it is possible he may have been on duty when the plaintiff was denied visitation on March 12, 2006; March 31, 2006; April 21, 2006; October 13, 2006 and October 23, 2006. On April 10, 2008, BOP suspended the use of the ion spectrometry device at Pekin Correctional Center.
The plaintiff says in his deposition that he entered FCI Pekin in January of 2006. The plaintiff was incarcerated due to a drug offense. The plaintiff says his mother visited him at least once a month and had already visited him at FCI Pekin a couple of times before she first tested positive on March 31, 2006. Two other individuals who traveled with the plaintiff's mother from Rockford, Illinois, were still allowed to see the plaintiff. (Def. Fact, Ex. A, p. 18-19).
After the plaintiff's mother first tested positive, she wrote a letter to the Office of Inspector General complaining that she had been denied visitation. On April 21, 2006, she was again denied visitation after a positive test result. The plaintiff believes his mother was informed of how she could appeal the decision. (Def. Fact, Ex. A, p. 30) His mother then received a letter from Warden Veach in response to her complaints about the Ion Spectrometer explaining the use of the device.
On June 9, 2006, the plaintiff's mother was denied visitation again after she tested positive for the presence of an illegal substance. On that day, other family members were allowed to ...