1 Based on submissions from the parties, it appears that the Plaintiff’s name is

actually Radhames Alonso.

1

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ALONSO RADHAMES, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-04-956

:

JOHN NASH, ET AL., :

: (Judge McClure)

Defendants :

MEMORANDUM AND ORDER

June 29, 2005

Background

This pro se civil rights action was initiated by Alonso Radhames, an inmate

presently confined at the Schuylkill Federal Correctional Institution, Minersville,

Pennsylvania (FCI-Schuylkill).1 Service of the complaint was previously ordered. 

Named as Defendants are Regional Director M. E. Ray and Inmate Appeals

Administrator Harrell Watts of the Federal Bureau of Prisons (BOP) and the

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following FCI-Schuylkill officials: Warden John Nash and the prison’s “Unit Team

(Counselor, Unit Manager, Case Manager for Unit 1A).” Record document no. 1,

p. 1.

Plaintiff states that following his arrival at FCI-Schuylkill, he was interviewed

by his Unit Team. As a result of that meeting, the Unit Team concluded that

Alonso would be restricted to “[o]ne (1) five minute phone call per month, as

arranged and monitored by your Complainant’s counselor.” Id. at p. (1). The

monthly phone call could only be placed to immediate family members. His

complaint indicates that the telephone restriction was based on the Unit Team’s

review of Plaintiff’s pre-sentence report wherein it was indicated that Alonso had

engaged in drug trafficking via the use of cellular telephones. It is alleged that

Defendants exceeded their authority and acted in an unconstitutional discriminatory

manner because the sentence imposed did not include any telephone restriction.

The only apparent relief requested by the complaint is restoration of Plaintiff’s

telephone privileges.

Following service of the complaint, Defendants filed a motion seeking

dismissal of the complaint. See Record document no. 20. Also pending is the

Plaintiff’s motion requesting compensatory damages. See Record document no.

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2 Pro se litigants are not permitted to recover attorney’s fees. See Kay v.

Ehrler, 499 U.S. 432 (1991).

3

25. Both motions are ripe for consideration.

Discussion

Motion to Amend

As previously noted, the Plaintiff’s complaint does not specifically set forth

what relief he is seeking. Following submission of Defendants’ motion to dismiss,

Alonso filed a motion (Record document no. 25) requesting that his complaint be

amended to include claims for declaratory and injunctive relief as well as requests

for compensatory, punitive and exemplary damages. 

Since it is well-settled that liberal treatment is to be afforded to pro se

pleadings, the Plaintiff’s motion will be granted with exception of his request for

attorney’s fees.2 The prayer for relief which is incorporated within Alonso’s

motion will be accepted.

Motion to Dismiss

Defendants argue that they are entitled to an entry of dismissal on the

grounds that: (1) Plaintiff’s claim is moot; (2) a constitutional violation did not

occur; (3) the claims against the Defendants in their official capacities is barred by

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the doctrine of sovereign immunity; (4) the Court lacks personal jurisdiction over

Defendants Watts and Unit Team; and (5) the assertions against Defendants Ray

and Watts are improperly premised on a theory of respondeat superior.

A court, in rendering a decision on a motion to dismiss, must accept the

veracity of the plaintiff's allegations. Scheuer v. Rhodes, 416 U.S. 232, 236

(1974); White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver,

82 F.3d 63, 65 (3d Cir. 1996), the Court of Appeals for the Third Circuit added

that when considering a motion to dismiss based on a failure to state a claim

argument, a court should "not inquire whether the plaintiffs will ultimately prevail,

only whether they are entitled to offer evidence to support their claims." "[A]

complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

"The test in reviewing a motion to dismiss for failure to state a claim is

whether, under any reasonable reading of the pleadings, plaintiff may be entitled to

relief." Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993) (citation

omitted). Additionally, a court must "accept as true the factual allegations in the

complaint and all reasonable inferences that can be drawn from them." Markowitz

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v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Independent Enters.,

Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1168 (3d Cir. 1997). 

Finally, it is additionally well-settled that pro se complaints should be liberally

construed. Haines v. Kerner, 404 U.S. 519, 520 (1972). This Court will now

discuss Defendants’ motion in light of the standards set forth above and Rule

12(b)(6) of the Federal Rules of Civil Procedure.

Mootness

Defendants’ initial argument contends that on July 16, 2004, the Plaintiff’s

telephone privileges were fully restored by Warden Nash. Consequently, the

Defendants seek dismissal of the complaint on the basis of mootness. Plaintiff’s

opposing brief acknowledges that his telephone privileges have been reinstated. 

See Record document no. 31, p. 2, n.1.

It is well recognized that the adjudicatory power of a federal court depends

upon "the continuing existence of a live and acute controversy." Steffel v.

Thompson, 415 U.S. 452, 459 (1974) (emphasis in original). "The rule in federal

cases is that an actual controversy must be extant at all stages of review, not

merely at the time the complaint is filed." Id. at n.10 (citations omitted). "Past

exposure to illegal conduct is insufficient to sustain a present case or controversy

regarding injunctive relief if unaccompanied by continuing, present adverse

effects." Rosenberg v. Meese, 622 F. Supp. 1451, 1462 (S.D.N.Y. 1985) (citing

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O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)).

Furthermore, "[a]bsent class certification, an inmate's claim for injunctive

and declaratory relief in a section 1983 action fails to present a case or controversy

once the inmate has been transferred." Wahl v. McIver, 773 F.2d 1169, 1173

(11th Cir. 1985) (citation omitted); see also Carter v. Thompson, 808 F. Supp.

1548, 1555 (M.D. Fla. 1992). Since it is undisputed that the Plaintiff’s telephone

privileges have been fully restored, his requests for declaratory and injunctive relief

are moot under the standards set forth in Rosenberg and Wahl.

Failure to State a Claim

It is undisputed that Plaintiff arrived at FCI-Schuylkill on April 28, 2003. On

May 14, 2003, Warden Nash approved the Unit Team’s recommendation “to

impose a one fifteen-minute telephone call per month restriction upon Alonso.” 

Record document no. 23, p. 5. Thereafter, on December 8, 2003, the Plaintiff’s

telephone privileges were increased to two (2) monthly fifteen minute telephone

calls. As previously noted, it is undisputed that full telephone privileges were

reinstated to the Plaintiff on July 16, 2004.

In their second argument, Defendants maintain that the complaint does not

set forth a viable constitutional claim because the telephone restriction did cause an

atypical and significant hardship as contemplated under Sandin v. Conner, 515

U.S. 472, 484 (1995).

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A plaintiff, in order to state an actionable civil rights claim, must plead two

essential elements: (1) that the conduct complained of was committed by a person

acting under color of law, and (2) that said conduct deprived the plaintiff of a

right, privilege, or immunity secured by the Constitution or laws of the United

States. Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995);

Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990). 

The Court of Appeals for the Fifth Circuit in Lopez v. Reyes, 692 F.2d 15,

17 (5th Cir. 1983), recognized that prisoners enjoy no right to unlimited telephone

use. See also Benzel v. Grammar, 869 F.2d 1105, 1110 (8th Cir. 1989)(a prison

policy which denied phone privileges to inmates housed in administrative detention

did not violate the Constitution since the policy furthered internal security and

rehabilitation concerns); von Vital v. Dragovich, Civil No. 99-1669, slip op. at 3

(M.D. Pa. Dec. 23, 1999)(Conaboy, J.)(an inmate should reasonably expect that

his placement in administrative detention would cause curtailment of telephone

privileges). 

The Court of Appeals for the Third Circuit previously established that in

order to assert a viable claim of telephone deprivation, an inmate must make some

showing of prejudice or actual injury. Peterkin v. Jeffes, 855 F.2d 1021, 1041 (3d

Cir. 1989). More recent decisions have concluded that where an inmate has

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available, alternative means of communicating with the outside world, i.e., mail

privileges, a § 1983 action alleging improper denial of telephone access was

subject to dismissal. Acosta v. McGrady, 1999 WL 158471 *7 (E.D. Pa. 1999)(a

prisoner has a constitutional right to use a telephone only if no other reasonable

means of communication are available ); Pittsley v. Ricks, No. 96-CV-0372, 2000

WL 362023 *5 (N.D. N.Y. March 31, 2000); Ingalls v. Florio, 968 F. Supp. 193,

203 (D.N.J. 1997).

Alonso’s complaint indicates that because he is “functionally illiterate” he is

unable to contact family and friends through alternative means. Record document

no. 1, p. 8. However, this is not a case where a prisoner was prohibited from any

telephone use. On the contrary, between May 14, 2003 and December 8, 2003,

Plaintiff was afforded one fifteen minute call each month. From December 8, 2003

to July 16, 2004 the inmate was afforded two fifteen minute calls each month. 

Thereafter, he was provided with full telephone privileges.

It is additionally noted that during the course of the present litigation Alonso

has submitted numerous motions, briefs and other pleadings clearly demonstrating

his ability to engage in written communication and afford postage. Pursuant to the

above discussion, Plaintiff was not precluded from all forms of communication

with the outside world as contemplated under Acosta.

With respect to the Peterkin requirement of alleging actual injury, Alonso

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generally contends that the phone restrictions interfered with his ability to maintain

family ties. However, as noted above, Plaintiff was afforded limited telephone use

and has demonstrated his ability to send out written communications and afford

postage. Based on an application of the standards announced in Acosta and

Peterkin, the fourteen (14) month long restrictions limiting the Plaintiff’s telephone

calls per month do not rise to the level of a constitutional violation. Therefore, the

Plaintiff’s remaining requests for monetary damages are likewise subject to

dismissal. Consequently,

IT IS HEREBY ORDERED THAT:

1. Plaintiff’s motion to amend his complaint (Record

document no. 25) is granted.

2. The Plaintiff’s incorporated prayer for relief is accepted.

3. Defendants’ motion to dismiss (Record document no.

20) is granted.

4. The Clerk of Court is directed to close the case.

5. Any appeal from this Order will be deemed frivolous,

without probable cause and not taken in good faith.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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