Inmate can press claim that phone limits hurt right to stay in his kids’ lives

WASHINGTON – An inmate who claimed that the federal prison system’s 300-minute-a-month limit on phone calls infringed on his ability to be involved in his children’s lives should get a chance to present his case, an appeals court ruled.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said a lower court was wrong to dismiss Kenneth Daniel Tiedemann’s lawsuit for failing to name his new warden as a defendant after he was moved from one prison to another. The appeals court said Monday that the “whack-a-mole” approach relied on by the district court when it dismissed the case was wrong.

The court also rejected an argument from the Bureau of Prisons that Tiedemann’s conviction – on six counts of possession of child pornography – provided “relevant background” in the case and should be included.



The appeals court said Tiedemann should be allowed to amend his suit to name his current warden and present his claim that the phone limits violate his First and Fifth Amendment right to “familial association.” The court also said the Bureau of Prisons will need to show that there is a security reason for limiting inmates’ phone time and for refusing to grant Tiedemann’s request for an exception.

Attorneys for Tiedemann and for the U.S. Attorney’s Office did not immediately respond to requests for comment on the case. But a prison-rights advocate welcomed the appeals court decision to let Tiedemann have another day in court.

“I think there’s a tendency by the courts to just be somewhat dismissive and in this case, they were swatting at what they thought was a fly and instead he came back … and they recognized the error of the district court and reversed it,” said Donna Hamm, founder and executive director of Middle Ground Prison Reform in Arizona.

Hamm said that pressing a case “takes tenacity and probably a lot of homework in the law library” for inmates like Tiedemann, who originally filed his case on his own.

“Prisoners have an uphill battle no matter what,” Hamm said. “Some of the petitions that are submitted by prisoners are handwritten documents that are difficult to read with poor grammar.”

Tiedemann’s suit said he had unlimited phone time at the private prison facility where he was originally held, and that he spent “an average of 30-45 minutes a day” talking with his three children. That allowed him to play a significant role in their lives, including those of his two oldest sons for whom he was sole caretaker before his arrest.

But when he was transferred to federal prison, first in California and then in Tucson, he was subject to the systemwide 300-minutes-per-month rule, reducing his phone time with his kids to about 10 minutes a day. Tiedemann said that violated his constitutional right to familial association by limiting his ability to parent his children.

Inmates can request additional time from their wardens, but Tiedemann’s request was turned down at both federal prisons. In each case, he appealed to the regional director of the bureau, who agreed with the wardens that Tiedemann had not proved “good cause” for the extra time.

Tiedemann then filed suit, while he was being held in the U.S. Penitentiary in Tucson. Shortly after that, he was transferred to a new prison and alerted the court to that fact, but did not hear back from the court until after his case had been dismissed.

The district court said that Tiedemann’s claim was moot because the wardens he named no longer had authority over him, and it rejected his request to amend his suit, saying he had had “ample time to file an amended complaint” but failed to do so.

The lower court also said Tiedemann could not sue the Bureau of Prisons’ regional director, since only the wardens have the authority to grant exceptions to the phone-time limits.

While the appeals court agreed that the former wardens could no longer be targets of the suit, it said the district court erred when it refused to let him add his current warden as a defendant. It also said that the regional director can be named in the suit, since she oversees a systemwide policy on phone time.

“A prison transfer does not defeat jurisdiction where a prisoner’s injury stems from a systemwide policy,” said U.S. District Judge Jed Rakoff, who joined the circuit judges for the case and wrote the opinion.

Rakoff also said the bureau’s request that courts consider Tiedemann’s convictions for possession of child pornography did not bear on the matters at issue in his case – whether he should get more phone time with his children.

“There has been no suggestion that defendants based any part of their decision to deny Tiedemann additional phone time on … a concern that he should not be communicating with his children,” Rakoff wrote. “The undisputed record confirms that Tiedemann continues to have significant contact with his children – including up to 300 minutes per month of phone time.”

Hamm said that courts have ruled in the past the telephone time is a privilege, not a right, and that they can be curtailed as long as a prisoner has another means of communicating with the outside world, typically by writing. But the appeals court noted that Tiedemann’s children live too far away to visit in person and that their “reading and writing skills are unknown.”

“The court seems to be saying here that he does have a constitutional right to the familial contact and communication in his specific case because he’s arguing that it’s with his children,” Hamm said. “They seem to be taking a more expansive view if they rule in his favor.”

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