IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

DAVID SOLAN,

Plaintiff,

v.

DONNA ZICKEFOOSE, Warden of FCI 

Fort Dix, 

Defendant.

HONORABLE JEROME B. SIMANDLE

Civil No. 11-1895(JBS)

OPINION

APPEARANCES:

David Solan

Reg. No. 15985-018

FCI Fort Dix

P.O. Box 2000

Fort Dix, NJ 08640

Plaintiff Pro Se

Paul J. Fishman, United States Attorney

By: Mark Christopher Orlowski, Assistant United States Attorney

970 Broad Street

Suite 700

Newark, NJ 07101

Attorney for Defendant United States of America

SIMANDLE, Chief Judge:

I. INTRODUCTION

This matter is before the Court on the motion of Defendant, 

Warden Donna Zickefoose, for summary judgment. [Docket Item 30.] 

Plaintiff David Solan, an inmate confined at the Federal 

Correctional Institute at Fort Dix, alleges his civil rights 

were violated when he was prohibited from using the TRULINCS 

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electronic messaging system while incarcerated. Plaintiff's 

Complaint alleges that Defendant caused a violation of 

Plaintiff's constitutional rights under the First, Fifth, and 

Fourteenth Amendments to the United States Constitution and of 

the Administrative Procedure Act, and is brought pursuant to 

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388

(1971). Defendant Zickefoose now moves for summary judgment, 

arguing that she is entitled to qualified immunity, that no 

clearly established right has been violated, and that she 

therefore cannot be found liable under a Bivens claim. The Court 

agrees with Defendant that she is entitled to qualified immunity 

because there was no clearly established right of an inmate to 

use the e-mail function of TRULINCS and therefore the Court will 

grant Defendant's motion.

II. BACKGROUND

A. Facts

Plaintiff David Solan (“Plaintiff”) is a prisoner currently 

confined at FCI-Fort Dix. The Complaint alleges that from June 

23, 2010 to the present, Plaintiff has been permitted access to

the Trust Fund Limited Inmate Computer System (“TRULINCS”),1 but 

not the e-mail function of TRULINCS. See Am. Compl. at ¶ 4. 

 1 TRULINCS is a Bureau of Prisons program designed to provide 

inmates with limited computer access, including the capability 

to send and receive electronic messages, without having access 

to the internet.

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Plaintiff was originally excluded from using the electronic 

messaging component of TRULINCS when he was incarcerated at Fort 

Dix. Id. at ¶ 5. Then, on August 24, 2010, Special 

Investigative Services Officer (“SIS”) Lt. Marticiello rescinded 

the exclusion and granted Plaintiff access to the e-mail 

function. Id. Thereafter, on August 27, 2010, Warden Zickefoose

overrode the rescission and excluded Plaintiff from the e-mail 

function in accordance with Program Statement 5265.13.2 Id. at 

¶¶ 5, 6. The exclusion from the e-mail function continues to 

the present. 

Defendant cited Plaintiff’s computer expertise and his 

misuse of another Bureau of Prisons (“BOP”) computer system in 

2006 as her reason for denying Plaintiff e-mail access. The 

prior misuse of a computer specifically refers to an incident 

that occurred in USP Canaan, where Plaintiff’s infraction was 

described as “[r]efusing an Order, Code 307, for misuse of the 

electronic law library.” Id. at ¶ 16. However, the infraction 

actually issued was Code 319, use of equipment contrary to 

instructions. Id. The Amended Complaint alleges that 

Plaintiff’s infraction while incarcerated at USP Canaan was 

 2 PS 5265.13, Section 3 provides “Inmates are excluded from 

electronic messaging when it is determined that their use would 

threaten the safety, security, or orderly running of the 

institution or the protection of the public and staff.”

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wrongfully described and a “crude setup bearing no relation to 

any wrongful activities.” Id. at ¶ 18.

Plaintiff alleges that the restriction of his e-mail 

privileges violates his due process rights, the Equal Protection 

Clause, the First Amendment, and the Administrative Procedure 

Act. He seeks monetary damages and an order requiring Defendant 

to grant him access to TRULINCS electronic messaging system.

B. Procedural History

Plaintiff originally brought his claims pursuant to 28 

U.S.C. § 2241. [Docket Item 1.] However, this Court dismissed 

said action for lack of jurisdiction and ordered that the 

instant civil action be opened. [Docket Items 2,3.]; See 11-679 

Solan v. Zickefoose., Civil No. 11-679 (JBS). Then, Plaintiff 

filed an amended complaint seeking “monetary damages, awards, 

and reimbursement of legal cost as well as declaratory and 

injunctive relief.” (Am. Compl. at 1.);[Docket Item 6.]

Plaintiff alleges that he exhausted his administrative remedies 

and Defendant does not dispute this. Defendant then filed a 

motion for summary judgment [Docket Item 30], which Plaintiff 

opposes [Docket Items 39 & 40], to which Defendant has replied. 

[Docket Item 41].

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III. DISCUSSION

A. Standard of Review

Summary judgment is appropriate when the record shows that 

there is no "genuine dispute as to any material fact" and that 

"the movant is entitled to judgment as a matter of law." Fed. R. 

Civ. P. 56(a). In establishing whether there is a disputed issue 

of material fact, the Court must view the evidence in the light 

most favorable to the nonmoving party. "The nonmoving party's 

evidence 'is to be believed, and all justifiable inferences are 

to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 

U.S. 541, 552 (1999) (quoting Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 255 (1986)).

A dispute is "genuine" if "the evidence is such that a 

reasonable jury could return a verdict for the non-moving 

party." See Anderson, 477 U.S. 242, 248 (1986). A fact is 

"material" only if it might affect the outcome of the suit under 

the applicable rule of law. Id. Disputes over irrelevant or 

unnecessary facts will not preclude a grant of summary judgment. 

Id.

Summary judgment will not be denied based on mere 

allegations or denials in the pleadings; instead, some evidence 

must be produced to support a material fact. Fed. R. Civ. P. 

56(c)(1)(A); United States v. Premises Known as 717 S. Woodward 

Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir. 1993). The 

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nonmoving party must "do more than simply show that there is 

some metaphysical doubt as to the material facts." Matsushita 

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).

Rule 56 mandates the entry of summary judgment, after 

adequate time for discovery and upon motion, against a party who 

fails to make a showing sufficient to establish the existence of 

an element essential to that party's case, and on which that 

party will bear the burden of proof at trial. In such a 

situation, there can be "no genuine issue as to any material 

fact," since a complete failure of proof concerning an essential 

element of the nonmoving party's case necessarily renders all 

other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). Local Civil Rule 56.1 imposes additional

requirements on parties in summary judgment motions, mandating 

they “set[] forth material facts as to which there does not 

exist a genuine issue,” L. Civ. R. 56.1(a), which the parties

have accomplished.

B. Qualified Immunity

Defendant argues that she is entitled to qualified immunity 

from Plaintiff’s claims because there has been no constitutional 

violation. Additionally, Defendant asserts that access to 

TRULINCS electronic messaging is not a clearly established 

right. Plaintiff counters that qualified immunity is not 

appropriate because the First, Fifth and Eighth Amendments, and 

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“the right of a federal inmate to TRULINCS email under the 

Program Statement were so clearly established in prior 

jurisprudence.” (Pl.[‘s] Opp’n To Def.[‘s] Mot. Summ. J. at 6 

(“Pl.[‘s] Opp’n”))

A defendant is protected by qualified immunity if he or she 

is a public officer or employee who "made a reasonable mistake 

about the legal constraints" on their actions. Curley v. Klem, 

499 F.3d 199, 206-07 (3d Cir. 2007) (internal quotations and 

citations omitted). A mistake is not reasonable when it amounts 

to the violation of a "clearly established" right, such that "it 

would be clear to a reasonable officer that his conduct was 

unlawful in the situation he confronted." Curley, 499 F.3d at 

207 (internal quotations and citations omitted). 

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court 

described the two-step inquiry courts undertake in determining 

whether a governmental officer is entitled to qualified 

immunity. First, the Court must address whether "the officer's 

conduct violated a constitutional right." Id. at 201. As the 

Court of Appeals noted in Curley v. Klem, 499 F.3d 199, 208 (3d 

Cir. 2007), this is "not a question of immunity at all, but is 

instead the underlying question of whether there is even a wrong 

to be addressed in an analysis of immunity." Curley, 499 F.3d at 

207. If the Court determines that there was no constitutional 

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violation, "there is no necessity for further inquiries 

concerning qualified immunity." Saucier, 533 U.S. at 201.

The question here is whether access to TRULINCS e-mail 

system was a clearly established right of constitutional 

dimension. The policy relating to the TRULINCS electronic 

messaging was installed in February 2009. There are no cases 

from the District of New Jersey that reference TRULINCS. 

However, a few other district courts have dealt with similar 

issues. In Sofsky v. Lappin, 2010 WL 3789322 (D.Mass. September 

27, 2010), the court held that since plaintiff did not allege 

that he could not communicate to the public through other means, 

he did not establish denial of a fundamental constitutional 

right. In addition, one court held that a change in procedure 

for addressing outgoing mail did not present a significant 

hardship on a prisoner and did not constrain plaintiff’s ability 

to communicate. Russell v. Whitehead, 2010 WL 2367370 (D.Md. 

June 09, 2010). These cases include a comparison of the issue 

of inmate e-mail access to other communication methods.

The Plaintiff has provided no case law or statutory 

authority to the contrary. Accordingly, as discussed in more 

detail below, Defendant is entitled to qualified immunity

because Plaintiff has not established a violation of a 

constitutional right.

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C. There are No Constitutional Violations 

The Plaintiff's complaint alleges constitutional claims 

against a federal official and therefore must proceed in a 

Bivens action. Bivens v. Six Unknown Named Agents of Fed. 

Bureau of Narcotics, 403 U.S. 388 (1971). Bivens is the federal 

equivalent of a 42 U.S.C. § 1983 action against state actors and 

is a judicially created cause of action to address civil rights 

violations by federal officials. Brown v. Phillip Morris Inc., 

250 F.3d 789, 800 (3d Cir. 2001).

In this case, Plaintiff alleges three different 

constitutional violations arising from Defendant’s rescission of 

Plaintiff’s TRULINCS electronic messaging access; specifically, 

Plaintiff maintains his First, Fifth, and Fourteenth Amendment 

rights have been violated. The Court will discuss each alleged 

constitutional violation separately. 

1. First Amendment

Plaintiff claims that a “total email ban on a prisoner also 

represents a severe physical limitation placed on his freedom of 

speech” and that his First Amendment rights as a prisoner are 

guaranteed by Pell v. Procunier, 417 U.S. 817, 822 (1974). (Am. 

Compl. at 16-17.) Further, Plaintiff argues that the 

restriction of his e-mail “serve[s] no legitimate correctional 

system purpose.” (Am. Compl. at ¶ 43.)

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The Defendant argues the policy promulgated by the BOP 

states that e-mail access is a privilege, not a right, and the 

Warden may restrict the access of any inmate to the TRULINCS 

system. Moreover, Defendant argues that Plaintiff’s computer 

knowledge and prior violation of BOP code regarding computer use 

were justification for imposing the ban. Finally, Defendant 

argues that “Plaintiff still has access to send and receive 

correspondence through regular mail, and is able to communicate 

on the telephone,” and therefore his ability to communicate is 

minimally effected. (Mot. Summ. J. at 12.)

The First Amendment to the U.S. Constitution provides, 

inter alia, that "Congress shall make no law . . . abridging the 

freedom of speech. . . .” U.S. Const. amend. I. "Convicted 

prisoners do not forfeit all constitutional protections by 

reason of their conviction and confinement in prison," Bell v. 

Wolfish, 441 U.S. 520, 545 (1979). However, the Supreme Court 

has also required that prison officials "be accorded wideranging deference in the adoption and execution of policies and 

practices that in their judgment are needed to preserve internal 

order and discipline and to maintain institutional security." 

Id. at 547. 

Since Plaintiff has not challenged the BOP Program 

Statement 5265.13, entitled “Trust Fund Limited Inmate Computer 

Systems (TRULINCS) – Electronic Messaging” which provides in 

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part, “an inmate with a personal history or special skills of 

knowledge of using computers/email/Internet or other 

communication methods as a conduit for committing illegal 

activities will be excluded,” the Court will not conduct the 

analysis from Procunier v. Martinez, 416 U.S. 396 (1974), which 

analyzes the policy itself. Here, the Defendant has provided 

her reasons for restricting Plaintiff’s access to TRULINCS 

electronic messaging, which comply with the aforementioned 

policy statement. Plaintiff’s familiarity with computers 

preceding his incarceration and his prior abuse of the prison 

system’s computers, namely his tampering with other inmates’ 

legal information, are more than sufficient reasons for 

Defendant to revoke Plaintiff’s privileges. Moreover, the 

Defendant’s restriction removed only a small fraction of 

Plaintiff’s communication with the external world, and served a 

safety interest for the institution in protecting the privacy of 

other prisoners and reducing conflict among prisoners. 

Consequently, Defendant’s actions did not violate a clearly 

established right and Defendant is entitled to qualified 

immunity with regard to Plaintiff’s First Amendment Claims.

2. Due Process 

Next, Plaintiff argues that the BOP’s transition to e-mail 

as an additional communication method, and the uniqueness of email messaging, “translates into a newly-created, substantial 

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liberty interest in a prisoner’s access to [e-mail].” (Am. 

Compl. at ¶ 14.) Further, Plaintiff claims that an e-mail 

restriction creates a “significant hardship on the inmate in 

relation to the ordinary incidents of prison life.” (Am. Compl.

at. ¶ 36 citing Sandin v. Conner, 515 U.S. 472, 484 (1995). 

Similarly, the Plaintiff cites Asquith v. DOC, 186 F.3d 407 (3d. 

Cir. 1999), which interprets Sandin, as support that e-mail 

access has become an “ordinary incidents of prison life.” (Am. 

Compl. at ¶ 37.) See also Asquith, 186 F.3d 407 (holding that 

Plaintiff did not have a liberty interest in remaining in a 

halfway house).

In response, Defendant argues that no liberty interest 

exists in electronic messaging and that no significant hardship 

is presented in relation to ordinary prison life. Moreover, 

Defendant posits that she personally considered Plaintiff’s 

circumstances before imposing any restriction. (Mot. Summ. J.

at 13.)

A liberty interest protected by the Due Process Clause may 

arise from two sources: the Due Process Clause or state law. See 

Hewitt v. Helms, 459 U.S. 460 (1983); Asquith v. Department of 

Corrections, 186 F.3d 407, 409 (3d Cir. 1999). In order to 

establish a Due Process claim, an individual must show that he 

or she was deprived of a constitutionally protected property or 

liberty interest. Daniels v. Williams, 474 U.S. 327, 330 

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(1986). A liberty interest is an essential prerequisite to a 

Due Process claim. An additional requirement is imposed on 

prisoners to show “an atypical and significant hardship on the 

inmate in relation to ordinary incidents of prison life.” See

Sandin v Conner, 515 U.S. 472, 483 (1995). 

Here, Plaintiff has failed to demonstrate that there is a 

protected liberty interest and is not entitled to due process. 

There is no atypical and significant hardship as required by 

Sandin. E-mail messaging does not become a protected liberty 

interest when other communication methods remain available. As 

stated immediately below subsection III.B., there is no clear 

case law providing an entitlement to electronic messaging for 

inmates. In fact, the case law from various districts, 

including Rueb, 2011 WL 839320 at 6 (stating there is no first 

amendment right to e-mail) and Sofsky, 2010 WL 3789322 at 1 

(holding that because Plaintiff did not allege he could not 

communicate with the public through other methods, there was no 

denial of a constitutional right), indicates the opposite is 

more likely to be true.

Though Plaintiff alleges that the uniqueness of electronic 

messaging makes it the most effective method of communication, 

he does not allege he is otherwise constrained from 

communicating externally. With other means of communication 

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available, including the telephone, mail, and visitation rights, 

there is no significant hardship placed on Plaintiff. 

Finally, Defendant operated within the BOP Policy Guideline 

in restricting Plaintiff’s access to TRULINCS electronic 

messaging by making the decision based on his individual 

history. While Plaintiff disputes the validity of his computer 

violation at USP Canaan, he does not dispute that he was issued 

a violation. The Defendant’s decision to exclude Plaintiff from 

TRULINCS e-mail system was based on the fact that Plaintiff was 

issued a violation of computer policy, not whether it was 

legitimate or not. Defendant cannot reasonably be expected to 

assess the validity of past infractions issued by the staff of 

other prisons. 

Since the policy itself is not at issue, the Defendant gave

Plaintiff due process by following the correct procedure as 

outlined in Program Statement 5265.13. Plaintiff’s due process 

claim is therefore denied.

3. Plaintiff’s Equal Protection Claim is Denied

Plaintiff brings a “class of one” claim in accordance with 

Village of Willowbrook v. Olech, which provides for “a class of 

one claim where the plaintiff alleges that she has been 

intentionally treated differently from others similarly situated 

and that there is no rational basis for the difference in the 

treatment.” 528 U.S. 562, 564 (2000). Likewise, Plaintiff feels 

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that the Defendant’s reasoning for excluding him from TRULINCS 

e-mail system is irrational and not “rationally related to a 

government interest.” (Am. Compl. at ¶¶ 38, 39.)

Defendant argues that this claim is without merit, as 

Plaintiff failed to aver he has been treated differently than 

similarly situated inmates. (Mot. Summ. J. at 16.) 

Specifically, Defendant states that Plaintiff has not alleged 

that any other similarly situated inmates have been treated 

differently. Finally, Defendant states that her rationale was 

provided to Plaintiff and is consistent with the BOP Policy 

Statement covering TRULINCS electronic messaging.

To prove a lack of rational basis, a plaintiff must negate 

every conceivable rational basis for his differential treatment. 

See Board of Trustees v. Garrett, 531 U.S. 356, 367, 121 S. Ct. 

955, 148 L. Ed. 2d 866 (2001) ("[T]he burden is upon the 

challenging party to negative any reasonably conceivable state 

of facts that could provide a rational basis for the 

classification."); Ramsgate Court Townhome Ass'n v. West Chester 

Borough, 313 F.3d 157, 160 (3d Cir. 2002). Even with class of 

one claims, like all Equal Protection claims, the burden falls 

on a plaintiff to negate all other rational explanations for the 

state actor’s action. 

Plaintiff has failed to negate all conceivable reasons why 

Defendant restricted his e-mail access for the purpose of 

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institutional safety. One conceivable reason was that Defendant 

was concerned Plaintiff would invade fellow inmates’ privacy and 

create animosity and unrest in the prison population. The 

Plaintiff has put forth no evidence to negate this.

In addition, Plaintiff has not established that similarly 

situated inmates were treated differently. In fact, Plaintiff 

compares his situation to that of only one other inmate, Jeffrey 

Payne. Plaintiff alleges that Mr. Payne was incarcerated for 

distribution of child pornography and used computers to 

facilitate these acts. However, the case of Mr. Payne is 

distinguishable because he, even if convicted as alleged by 

Plaintiff, has not been punished by the BOP for acting in 

violation of the computer policy. 

Finally, in Plaintiff’s opposition to Defendant’s motion 

for summary judgment, he cites numerous cases where limitations 

on plaintiffs’ internet access were held unconstitutional. 

However, all of those plaintiffs were on supervised release and 

therefore are not similarly situated to Plaintiff, who is in BOP 

custody. Therefore, because Plaintiff has not met the no 

conceivable basis requirement and has failed to distinguish

himself from similarly situated inmates, there is no equal 

protection violation.

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D. Administrative Procedure Act Claims

Plaintiff seeks judicial review of Defendant’s decision to 

rescind Plaintiff’s access to TRULINCS electronic messaging,

arguing that the decision is an abuse of discretion and a “clear 

error of judgment.” (Am. Compl. at ¶ 43.) Additionally, 

Plaintiff states that the decision was not based on “a 

consideration of relevant factors.” (Am. Compl. at ¶ 42 citing 

Bowman Trans., Inc. v. Arkansas-Best Freight System, Inc., 419 

U.S. 281, 285 (1974)(internal citations omitted).) On a 

separate note, Plaintiff claims that since BOP Policy Statement 

5265.13 is the only PS that deals with email access, a notice 

and comment period should be provided. Ultimately, Plaintiff 

argues that Defendant’s decisions should be overruled pursuant 

to the Administrative Procedure Act, 5 U.S.C. §§ 701-706 

(“APA”). 

Defendant asserts that her decision “was not arbitrary, 

capricious or unreasonable.” (Mot. Summ. J. at 19.) In addition, 

Defendant states that Congress has not directly spoken to this 

issue and therefore this court should defer to the BOP’s, 

interpretation and the Defendant’s judgment, since they have 

more expertise. Id. at 21. Finally, Defendant contends that 

her decision “was in conformity with guidance provided by the 

Program Statement.” Id. at 22.

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"Abuse of discretion" is the standard of review under the 

APA, which requires a reviewing court to "hold unlawful and set 

aside agency action, findings, and conclusions found to be . . . 

arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law." 5 U.S.C. § 706(2)(A). A reviewing court 

must find that the actual choice made by the agency was neither 

arbitrary nor capricious. See C.K. v. N.J. Dep't of Health & 

Human Services, 92 F.3d 171, 182 (3d Cir. 1996); see also 

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414, 

(1971) ("agency action must be set aside if the action was 

'arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law' ...."), overruled on other grounds, 

Califano v. Sanders, 430 U.S. 99, 97 (1977) (quoting 5 U.S.C. § 

706(2)(A)). "[T]he agency must examine the relevant data and 

articulate a satisfactory explanation for its action including a 

rational connection between the facts found and the choice 

made." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm 

Mutual Auto. Ins., 463 U.S. 29, 43 (1983) (citation and internal 

quotation marks omitted); accord Bowman Transp., Inc. v. 

Arkansas-Best Freight System, 419 U.S. 281, 285 (1974).

To make this finding that agency action was not arbitrary 

or capricious, or an abuse of discretion, a court must review 

the administrative record that was before the agency, and "must 

consider whether the decision was based on a consideration of 

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the relevant factors and whether there has been a clear error of 

judgment. . . . The Court is not empowered to substitute its 

judgment for that of the agency." Overton Park, 401 U.S. at 416. 

Reversal of agency action is warranted "[i]f the record before 

the agency does not support the agency action, if the agency has 

not considered all relevant factors, or if [the court] simply 

cannot evaluate the challenged agency action on the basis of the 

record before [it]." C.K., 92 F.3d at 184 (quoting Florida Power 

& Light Co. v. Lorion, 470 U.S. 729, 744, 105 S. Ct. 1598, 84 L. 

Ed. 2d 643 (1985)).

The Court must first determine “whether Congress has 

directly spoken to the precise question at issue.” Chevron v. 

Natural Res. Def. Council, 467 U.S. 837, 842 (1984). If 

Congress has expressed a clear intent, that matter is concluded. 

Id. However, if Congress has not directly spoken to the issue, 

a reviewing court must defer to a “permissible construction of 

the statute” by the agency, rather than substituting its own 

judgment. Id. at 483.

Here, BOP authority to implement communications systems 

arises from 18 U.S.C. § 4042, which states the BOP is to provide 

for the “safekeeping, care, and subsistence” of all federal 

inmates. 18 U.S.C. § 4042(a)(2). The Program Statement that 

directs TRULINCS was created by the BOP pursuant to their 

authority under § 4042. Further, this Program Statement 

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includes interpretations of what the BOP deems as conduct that 

jeopardizes communication privileges. Since the statute 

delegating the BOP their authority makes no mention of prison 

communication systems, Congress has not directly spoken to the 

issue. Next, the Court must determine whether the BOP’s 

decision was arbitrary or capricious.

Defendant’s decision to rescind Plaintiff’s access to 

TRULINCS electronic messaging was not arbitrary, capricious, or 

unreasonable. Two reasons are cited by Defendant for banning 

Plaintiff from TRULINCS electronic messaging: (1) Plaintiff’s 

expertise with computers and (2) Plaintiff’s prior disciplinary 

action concerning misuse of a BOP computer. (Moran Declaration 

at 6-7.) Since Defendant based her decision on criterion 

contained within the Program Statement, her decision was not an 

abuse of discretion. Moreover, because the restriction placed 

on Plaintiff was in the interest of prisoner safety, it is

accordance with the goals of § 4042. In this instance, the 

Court will defer to the BOP’s interpretation. Therefore, 

Plaintiff’s claim under the APA is dismissed.

IV. CONCLUSION

For the reasons set forth above, Defendant’s motion for 

summary judgment will be granted.

 s/ Jerome B. Simandle

Jerome B. Simandle

Chief U.S. District Judge

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