Darrell Debrew v. Atwood, et al

Filing

OPINION filed [1560119] (Pages: 25) for the Court by Judge Ginsburg. [12-5361]

USCA Case #12-5361

Document #1560119

Filed: 06/30/2015

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 7, 2015

Decided June 30, 2015
No. 12-5361

DARRELL JAMES DEBREW,
APPELLANT
v.
MICHAEL ATWOOD, BUREAU OF PRISONS TRUST FUND
MANAGER, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00650)

Michael J. Satin argued the cause for the amicus curiae in
support of appellant. Anthony F. Shelley, appointed by the
court, and Timothy P. O=Toole and Michael N. Khalil were
with him on the briefs.
Darrell J. DeBrew, pro se, filed the brief for appellant.
Kenneth A. Adebonojo, Assistant U.S. Attorney, argued
the cause for appellees. With him on the brief were Ronald C.
Machen, Jr., U.S. Attorney at the time the brief was filed, and
R. Craig Lawrence, Assistant U.S. Attorney.

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Before: ROGERS and GRIFFITH, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
GINSBURG, Senior Circuit Judge: Darrell James DeBrew,
an inmate at a federal prison, alleges both that the Bureau of
Prisons (BoP) failed adequately to respond to his requests for
records under the Freedom of Information Act (FOIA) and
that several policies adopted by the BoP violate the
Constitution of the United States. The district court granted
summary judgment in favor of the BoP on DeBrew’s FOIA
claims and dismissed his constitutional claims.
We
summarily affirmed the district court’s disposition of some of
DeBrew’s claims and appointed an amicus curiae to brief and
argue the six claims that remained. DeBrew v. Atwood, No.
12-5361, 2014 WL 590663 (D.C. Cir. Jan. 28, 2014). For the
reasons that follow, we affirm in part and vacate in part the
judgment of the district court and remand the case to that
court for further proceedings consistent with this opinion.
I. Analysis
Before us are three claims the BoP violated the disclosure
requirements of the FOIA and three claims that policies of the
BoP violate the Constitution.
A. FOIA Claims
DeBrew contends the BoP failed to conduct an adequate
search in response to his requests for (1) records concerning
“Code 408” on the BoP’s list of prohibited acts, which forbids
an inmate from “[c]onducting a business,” 28 C.F.R.

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§ 541.13 (2007); (2) transcripts of his telephone
conversations; and (3) records concerning the “DNA Act.”
1.

Code 408

In 2007 DeBrew filed a request under the FOIA for “All
documentation for making Conducting a Business (408) a
prohibited act.” In response to his request, the BoP released a
“program statement,” which is available to prison staff,
inmates, and the public, that summarizes the policy. DeBrew
appealed to the Office of Information and Privacy (OIP) of
the Department of Justice, which determined the BoP had
conducted an adequate search.
DeBrew argues the BoP’s response was inadequate
because he did not receive records generated by the agency in
the course of deciding to adopt the rule prohibiting an inmate
from conducting a business. The BoP moved for summary
judgment and submitted the declaration of an employee
describing DeBrew’s request and the program statement
released in response to the request. The district court denied
the motion for summary judgment because “the BoP’s
declarant only states the result of the search — a program
statement regarding the inmate discipline — without offering
a description of either the agency’s interpretation of the
request or the method by which staff conducted the search.”
DeBrew v. Atwood, 847 F. Supp. 2d 95, 102 (D.D.C. 2012).
The BoP then filed a renewed motion for summary judgment
accompanied by supplemental declarations of the same
employee. The third supplemental declaration explains
DeBrew’s request was assigned to two employees of the BoP
and describes why they were chosen to conduct the search.


The current list of prohibited acts designates “[c]onducting a
business” as Code 334. 28 C.F.R. § 541.3.

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One of the employees concluded the only relevant document
was the program statement previously released to DeBrew,
and the other employee located 24 additional documents, all
of which had been published in the Federal Register. Based
upon the third supplemental declaration, the district court
“conclude[d] that the agency’s searches for records
responsive to plaintiff’s request for information about Code
408 were reasonable under the circumstances” and granted
summary judgment for the BoP. DeBrew v. Atwood, 889 F.
Supp. 2d 42, 46 (D.D.C. 2012).
In order to obtain a summary judgment “the agency must
show beyond material doubt … that it has conducted a search
reasonably calculated to uncover all relevant documents.”
Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983).
“The issue is not whether any further documents might
conceivably exist but rather whether the government’s search
for responsive documents was adequate.” Perry v. Block, 684
F.2d 121, 128 (D.C. Cir. 1982); see Students Against
Genocide v. Dep’t of State, 257 F.3d 828, 838 (D.C. Cir.
2001) (“Summary judgment may be based on affidavit, if the
declaration sets forth sufficiently detailed information for a
court to determine if the search was adequate” (internal
quotation marks omitted)).
As the amicus points out, the BoP’s third supplemental
declaration is not sufficiently detailed to support a summary
judgment because it does not disclose the search terms used
by the BoP and the type of search performed. “A reasonably
detailed affidavit, setting forth the search terms and the type
of search performed … is necessary to afford a FOIA
requester an opportunity to challenge the adequacy of the
search and to allow the district court to determine if the search
was adequate in order to grant summary judgment.” Oglesby
v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990); see also

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Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007)
(explaining a declaration is insufficient to allow us to
determine the adequacy of a search if it “merely identifies the
three directorates that were responsible for finding responsive
documents without identifying the terms searched or
explaining how the search was conducted” (internal quotation
marks and alterations omitted)).
Because we cannot determine whether the BoP conducted
an adequate search based upon the declarations in the record,
we vacate the judgment of the district court on this claim and
remand the case to the district court for further proceedings.
“On remand, the district court may order [the BOP] to submit
a reasonably detailed affidavit upon which the reasonableness
of its search can be judged.” Oglesby, 920 F.2d at 68.
2.

Telephone conversations

In 2007 DeBrew filed a request under the FOIA for
“copies of all [his] telephone records up to the present starting
from November 1994.” The BoP released a list of the
telephone numbers DeBrew had called from prison. DeBrew
appealed to the OIP and explained that, in addition to the call
logs, he wanted recordings of his telephone conversations.
The OIP replied the BoP no longer had recordings of
DeBrew’s conversations. The district court entered summary
judgment for the BoP on the ground that “an agency does not
violate the FOIA by failing to produce records which had
been destroyed.” DeBrew, 847 F. Supp. 2d at 102.
DeBrew argues the BoP did not conduct an adequate
search for recordings of his telephone conversations. “The
FOIA provides a claimant with a remedy only against an
agency that has ‘improperly withheld’ a record.” SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991)

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(quoting 5 U.S.C. § 552(a)(4)(B)). “If the agency is no longer
in possession of the document, for a reason that is not itself
suspect, then the agency is not improperly withholding that
document and the court will not order the agency to take
further action in order to produce it.” Id.; see also Kissinger
v. Reporters Comm. for Freedom of the Press, 445 U.S. 136,
152 (1980) (“The [FOIA] does not obligate agencies to create
or retain documents; it only obligates them to provide access
to those which it in fact has created and retained”). DeBrew
believes the BoP has recordings of his telephone
conversations because such recordings are used to investigate
and prosecute inmates and because the BoP has previously
released transcripts of another inmate’s conversations. See,
e.g., Smith v. DOJ, 251 F.3d 1047, 1048 (D.C. Cir. 2001).
Although the BoP monitors inmates’ telephone calls, see 28
C.F.R. § 540.102, we do not think it is “suspect” that the
agency says it did not retain recordings of DeBrew’s
conversations, SafeCard Servs., 926 F.2d at 1201. DeBrew
has not pointed to any evidence showing the BoP has a policy
or practice of retaining indefinitely the recordings of an
inmate’s telephone calls if the recordings are not being used
in an investigation or prosecution. In the absence of such
evidence, the BoP is entitled to summary judgment. See id. at
1200 (“Agency affidavits are accorded a presumption of good
faith, which cannot be rebutted by purely speculative claims
about the existence and discoverability of other documents”
(internal quotation marks omitted)).
We agree with the district court that the BoP did not
violate the disclosure requirements of the FOIA by failing to
produce recordings of DeBrew’s telephone conversations
because the agency is not obligated, nor is it able, to disclose
a record it does not have. We therefore affirm the district
court’s judgment in favor of the BoP on this claim.

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3.

DNA Act

In 2008 DeBrew filed a request under the FOIA for “All
memos concerning [the] DNA Act,” referring to the DNA
Analysis Backlog Elimination Act of 2000, Pub. L. No. 106546, 114 Stat. 2726. The BoP informed DeBrew his request
did not adequately describe a document and advised him
either to submit a more precise request or to resubmit his
request if he disagreed with the agency’s determination.
According to the declaration of a BoP employee, DeBrew
“has not followed-up with the Bureau concerning this request
and the Bureau’s response.” There is no evidence in the
record that DeBrew resubmitted his request to the BoP or
appealed its determination to the OIP. The district court
granted summary judgment for the BoP because DeBrew
“failed to exhaust his administrative remedies with respect to
his request for information about the DNA Act prior to filing
this lawsuit.” DeBrew, 847 F. Supp. 2d at 104. On appeal,
DeBrew argues first that the BoP failed to conduct an
adequate search — which he asserts “trumps” the defendants’
contention that he did not exhaust the administrative remedies
available to him — and second that the BoP failed to notify
him of his right to appeal its interpretation of his request.
As the district court held, DeBrew’s failure to exhaust his
administrative remedies precludes the courts from reviewing
whether the BoP conducted an adequate search. See Wilbur v.
CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). Requiring DeBrew
to follow up with the BoP before filing suit is consistent with,
indeed essential to, accomplishing the “purposes of
exhaustion” by “preventing premature interference with
agency processes.” Hidalgo v. FBI, 344 F.3d 1256, 1259
(D.C. Cir. 2003) (quotation marks omitted). The BoP invited
DeBrew either to submit a revised request that more precisely
described the documents he seeks or to resubmit his request.

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A requester who is dissatisfied with the BoP’s determination
may also appeal to the OIP. See 28 C.F.R. § 513.66. Rather
than pursue any of these options, however, DeBrew filed suit.
We have observed before that “permitting [a plaintiff] to
pursue judicial review without benefit of prior OIP
consideration would undercut the purposes of exhaustion.”
Hidalgo, 344 F.3d at 1259 (quotation marks omitted).
Furthermore, because the FOIA provides for an administrative
appeal, “the FOIA’s administrative scheme favors treating
failure to exhaust as a bar to judicial review.” Id.
Because DeBrew did not exhaust the administrative
remedies available to him before filing suit, we affirm the
judgment of the district court with respect to his claim that the
BoP did not conduct an adequate search in response to his
request for records about the “DNA Act.”
B. Constitutional Claims
DeBrew asserts the BoP and several of its officials
violated the Constitution of the United States by (1) retaining
interest earned on money in inmates’ deposit accounts, (2)
charging prices that are “too high” for items from the prison
commissary and for telephone calls, and (3) prohibiting
inmates from conducting a business.
The individual
defendants are the current and former directors and trust fund
managers of the BoP, all of whom DeBrew has sued in both
their official and their personal capacities.
DeBrew’s
complaint requests declaratory and injunctive relief and
money damages in connection with each constitutional claim.
On the same day he filed his complaint, DeBrew filed a
motion to certify a class and to appoint counsel to represent
the class. The defendants moved to dismiss DeBrew’s

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constitutional claims, and DeBrew opposed the motion and
asked the court for permission to amend his complaint. The
district court dismissed the claims and denied DeBrew’s
motion for leave to file an amended complaint. Before
considering DeBrew’s constitutional claims, we must address
the threshold defense of sovereign immunity raised by the
defendants.
1.

Sovereign Immunity

As the defendants point out, it is well established that
“[a]bsent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.” FDIC v. Meyer, 510
U.S. 471, 475 (1994). In § 702 of the Administrative
Procedure Act, the Congress waived sovereign immunity with
respect to certain actions:
An action in a court of the United States seeking relief
other than money damages and stating a claim that an
agency or an officer or employee thereof acted or failed
to act in an official capacity or under color of legal
authority shall not be dismissed nor relief therein be
denied on the ground that it is against the United States or
that the United States is an indispensable party.
5 U.S.C. § 702. We have “repeatedly” and “expressly” held
this “waiver of sovereign immunity applies to any suit
whether under the APA or not” because “[t]here is nothing in
… § 702 that restricts its waiver to suits brought under the
APA.” Trudeau v. FTC, 456 F.3d 178, 186 (D.C. Cir. 2006)
(internal quotation marks omitted).
The defendants assert DeBrew cannot rely upon § 702
because he “explicitly stated in his complaint and his
proposed amended complaint that he was alleging a Bivens

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claim for money damages … and is now arguing for the first
time that he sought injunctive relief under the APA.”
Appellees’ Br. at 25–26. We find this assertion baffling: As
DeBrew and the amicus point out, DeBrew plainly demanded
declaratory and injunctive relief from the BoP and the
individual defendants in their official capacities. He styled
his complaint a “Suit for Declaratory and Injunctive Relief &
Class Action” and specifically requested that relief in
connection with each constitutional claim. In his opposition
to the defendants’ motion to dismiss, DeBrew quoted § 702
and correctly explained that the “[w]aiver of Sovereign
Immunity for equitable relief is established under the
Administrative Procedure Act.”
DeBrew also requested money damages but, as his
complaint and briefs explain, he seeks damages only from the
individual defendants and only in their personal capacities.
See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 397 (1971). We address DeBrew’s
Bivens claims below. For now, we hold sovereign immunity
does not bar DeBrew’s claims for declaratory and injunctive
relief against the BoP and the individual defendants in their
official capacities.
2.

Constitutional claims
a. Retention of interest

DeBrew claims the BoP and its officials violated the
Takings and Due Process Clauses of the Fifth Amendment to
the Constitution of the United States by retaining interest
earned on money in inmates’ deposit accounts.
The defendants argue DeBrew lacks Article III standing
to pursue this claim because he has not alleged he suffered an

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injury in fact.
We think DeBrew clearly asserts he
experienced a “concrete and particularized” harm. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). As
DeBrew’s brief explains, the BoP provides each inmate with
an account into which he or others may deposit money. See
28 C.F.R. § 506.1. We know DeBrew has such an account
because he filed a copy of his account statement in support of
his motion to proceed in forma pauperis. DeBrew alleges the
BoP invests the money held by inmates in their deposit
accounts and retains the interest, and he contends this practice
violates the Fifth Amendment because the inmates have a
property interest in the interest earned on their money. In
other words, DeBrew claims the defendants took money that
belongs to him, which is a “concrete and particularized”
injury. The cases relied upon by the defendants — such as
those describing the principle of “taxpayer standing” — are
inapposite because they involve plaintiffs who raised
generalized grievances about the way the government spent
money it had lawfully obtained, rather than plaintiffs who
alleged the government unlawfully took their money. See,
e.g., Hein v. Freedom From Religion Found., Inc., 551 U.S.
587, 599 (2007) (holding plaintiffs do not have standing to
assert “their claim … that, having paid lawfully collected
taxes into the Federal Treasury at some point, they have a
continuing, legally cognizable interest in ensuring that those
funds are not used by the Government in a way that violates
the Constitution”).
The defendants next argue DeBrew failed to exhaust the
administrative remedies available to him before he filed suit,
as required by the Prison Litigation Reform Act (PLRA), 42
U.S.C. § 1997e(a). See Jones v. Bock, 549 U.S. 199, 211
(2007) (“There is no question that exhaustion is mandatory
under the PLRA and that unexhausted claims cannot be

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brought in court”). The district court dismissed the claim on
this ground. DeBrew, 847 F. Supp. 2d at 108–10.
The BoP has established a four-part process for resolving
an inmate’s grievance. First, the inmate must “present an
issue of concern informally to staff.” 28 C.F.R. § 542.13(a).
Second, if the issue is not resolved informally, then the inmate
may submit to the Warden “a formal written Administrative
Remedy Request.” Id. § 542.14(a). Third, “An inmate who is
not satisfied with the Warden’s response may submit an
Appeal” to the Regional Director “within 20 calendar days of
the date the Warden signed the response.” Id. § 542.15(a).
The inmate must attach a copy of the form he submitted to the
Warden and a copy of the Warden’s response.
Id.
§ 542.15(b)(1). Fourth, “An inmate who is not satisfied with
the Regional Director’s response may submit an Appeal … to
the General Counsel within 30 calendar days of the date the
Regional Director signed the response.” Id. § 542.15(a). The
inmate must attach a copy of the forms he submitted to the
Warden and the Regional Director and a copy of their
responses. Id. § 542.15(b)(1).
DeBrew completed the first three steps in this four-part
process by presenting to prison staff, the Warden, and the
Regional Director his contention that the defendants
unlawfully retained interest earned on money in inmates’
deposit accounts. According to the BoP, the Regional
Director denied his request for an administrative remedy on
September 7, 2007. It is unclear, however, whether DeBrew
received the Regional Director’s response. DeBrew had filed
several unrelated requests for an administrative remedy, four
of which were denied by the Regional Director on September
7, 2007. On September 15, 2007 DeBrew received at FPC
Petersburg, where he was incarcerated at the time, two letters
from the Regional Director. Prudently, however, he did not

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open the letters because he was scheduled to move to FPC
Butner the next day, his possessions had already been packed,
and he knew he would not be allowed to carry the letters on
the bus to Butner. Instead, DeBrew asked a corrections
officer to place the two unopened letters from the Regional
Director back into the prison mail system so they would be
forwarded to his new address at Butner.
According to DeBrew, the two letters from the Regional
Director never arrived at Butner. On October 2, 2007
DeBrew informed the Administrative Remedy Clerk at Butner
that the letters had not been forwarded to him. The Clerk
replied that the responses were “being routed from the
Region” and would be delivered to DeBrew when they
arrived. On October 4, 2007 DeBrew sent a letter to the
mailroom at Petersburg inquiring about the letters from the
Regional Director, but he did not receive a reply.
On October 22, 2007 DeBrew filed an appeal with the
General Counsel even though he had not received the
Regional Director’s response. The General Counsel rejected
DeBrew’s appeal for two reasons. First, the appeal was
untimely because it was not received by the General Counsel
within 30 days after the Regional Director had signed his
response on September 7, 2007. See 28 C.F.R. § 542.15(a).
In this regard, the General Counsel directed DeBrew to supply
“staff verification on BoP letterhead documenting that the
untimely filing of th[e] appeal was not [his] fault.” Second,
the appeal was defective because DeBrew did not attach a
copy of the Regional Director’s response.
See id.
§ 542.15(b)(1).
On December 10, 2007 DeBrew filed another appeal to
the General Counsel explaining he had not received the
Regional Director’s response. He argued his first appeal was

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timely under a BoP rule providing “[i]f the inmate does not
receive a response within the time allotted for reply, including
extension, the inmate may consider the absence of a response
to be a denial at that level.” 28 C.F.R. § 542.18. The
Regional Director had previously informed DeBrew it would
issue a response by October 9, 2007. He therefore regarded
the absence of a response from the Regional Director by
October 9 as a denial, and he timely filed his appeal to the
General Counsel on October 22.
Although DeBrew
acknowledged it would be “impossible for staff to verify that
[he] didn’t receive a response” from the Regional Director, in
order to demonstrate he had not been receiving his mail in a
timely manner after he moved to Butner, he attached a letter
from his Correctional Counselor explaining it had taken 16
days for the General Counsel’s previous response to reach
him. The General Counsel again rejected his appeal, this time
solely on the ground that DeBrew had failed to attach a copy
of the Regional Director’s response; the General Counsel did
not again maintain DeBrew’s appeal was untimely.
In January 2008 DeBrew requested a copy of the
Regional Director’s response from an official at Butner and
an official at the BoP’s Regional Office but neither one
provided the document. On February 7, 2008 DeBrew filed a
third appeal to the General Counsel describing his efforts to
locate the Regional Director’s response.
The General
Counsel again rejected the appeal solely because DeBrew did
not attach a copy of that response.
The district court concluded DeBrew failed to exhaust the
administrative remedies available to him both because his
appeal to the General Counsel was untimely and because he
did not attach a copy of the Regional Director’s response.
DeBrew, 847 F. Supp. 2d at 109. We disagree with the
district court’s conclusion that DeBrew’s appeal to the

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General Counsel was untimely. Although the General
Counsel rejected DeBrew’s first appeal for that reason, he did
not rely upon that ground in rejecting DeBrew’s second and
third appeals. A BoP rule requires the General Counsel to
provide the reason for rejecting an appeal. See 28 C.F.R.
§ 542.17(b). Because the General Counsel did not reject
DeBrew’s second and third appeals on the ground they were
untimely, we must infer he either agreed with DeBrew’s
argument that the appeal was timely or decided to accept the
appeal even though he thought it was late. See 28 C.F.R.
§ 542.15(a) (“When the inmate demonstrates a valid reason
for delay, these time limits [for filing an appeal] may be
extended”).
The General Counsel rejected all three of DeBrew’s
appeals because he did not attach the Regional Director’s
response. The PLRA requires “proper exhaustion,” which
means an inmate must “compl[y] with an agency’s deadlines
and other critical procedural rules.” Woodford v. Ngo, 548
U.S. 81, 91 (2006). The statute, however, requires an inmate
to exhaust only “such administrative remedies as are
available” before filing suit. 42 U.S.C. § 1997e(a); see Malik
v. District of Columbia, 574 F.3d 781, 785 (D.C. Cir. 2009).
In other words, the PLRA does not bar an inmate from suing
before he exhausts an administrative remedy if that remedy is
not actually “available” to him. An administrative remedy is
actually “available” to an inmate only if it is “present or ready
for immediate use,” “accessible,” or “obtainable.” MerriamWebster’s Collegiate Dictionary 84 (11th ed. 2004); see also
Brown v. Croak, 312 F.3d 109, 113 (3d Cir. 2002) (holding a
remedy is “available” under the PLRA when it is “‘capable of
use; at hand’” (quoting Webster’s II, New Riverside Univ.
Dictionary 141 (1994)); accord Miller v. Norris, 247 F.3d
736, 740 (8th Cir. 2001).

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As the amicus contends, appeal to the General Counsel
clearly was not “available” to DeBrew because he could not
obtain a copy of the Regional Director’s response. It is
impossible to know even whether DeBrew received the
Regional Director’s response to this claim because the
Regional Director denied all four of his appeals on September
7, 2007, but DeBrew received only two letters from the
Regional Director. Even if one of those letters was the
response to this claim, as we have seen, DeBrew reasonably
relied upon the prison mail system to forward it to his new
address at Butner. A BoP regulation requires a prison official
to forward mail to an inmate’s new address for 30 days after
he is transferred, but that did not happen in this case. See 28
C.F.R. § 540.25(f). When DeBrew had not timely received
the Regional Director’s response at Butner, he dutifully
attempted to obtain a copy by contacting officials at
Petersburg, at Butner, and at the Regional Office. DeBrew
informed these officials they would find a copy of the
response in the Administrative Remedy Index. A BoP
regulation provides “[i]nmates … may request access to
Administrative Remedy indexes and responses …. Each
institution shall make available its index, and the indexes of
its regional office and the Central Office.” 28 C.F.R.
§ 542.19. Yet each of the officials he contacted failed to send
DeBrew a copy of the Regional Director’s response from the
Administrative Remedy Index. For example, when DeBrew
asked his Correctional Counselor at Butner for the document,
she advised him “to write to the Regional Office” even
though, according to the BoP’s regulation, “[e]ach institution
shall make available … the index of its regional office.” Id.
At oral argument the defendants asserted DeBrew should
have asked his Correctional Counselor for a “staff
certification” explaining to the General Counsel that he could
not obtain a copy of the Regional Director’s response. The

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defendants have not, however, identified any regulation,
“program statement,” or other document that would have
advised DeBrew to take this step. Furthermore, the record
shows DeBrew conferred with a Correctional Counselor at
Butner on at least two occasions. On the first occasion, he
gave DeBrew a letter explaining it took 16 days for DeBrew
to receive the General Counsel’s letter rejecting his first
appeal.
On the second occasion, DeBrew asked a
Correctional Counselor to retrieve a copy of the Regional
Director’s response from the Administrative Remedy Index,
which she failed to do. The defendants suggest no other way
in which DeBrew could have complied with the General
Counsel’s requirement that he attach the Regional Director’s
response in order to perfect his appeal. Under these
circumstances, the remedy of an appeal to the General
Counsel simply was not “available” to DeBrew. See Risher v.
Lappin, 639 F.3d 236, 240 (6th Cir. 2011) (holding the
plaintiff exhausted all “available” administrative remedies
because “[t]he Bureau’s failure to deliver the Regional
Director’s response to [the plaintiff] … prevented him from
submitting that response” with his appeal to the General
Counsel); Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004)
(“If prison employees refuse to provide inmates with [the
required] forms when requested, it is difficult to understand
how the inmate has any available remedies”).
Finally, the defendants urge us to affirm the district
court’s order dismissing this claim on the alternative ground
that DeBrew does not have a property interest in the money
allegedly retained by the BoP. See Young v. Wall, 642 F.3d
49, 51 (1st Cir. 2011) (“Weighing in on an issue that has split
the circuits, we conclude that prison inmates lack a
constitutionally protected property right in interest not yet
paid” on the money held in their prison accounts); but see
Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1201 (9th

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Cir. 1998) (holding inmates “possess a constitutionally
cognizable property interest” in the interest earned on money
held in their prison accounts). Because the district court did
not reach this argument, “we will follow our usual (although
hardly universal) practice of declining to address arguments
unaddressed by the district court” and leave it to the district
court on remand to consider this issue in the first instance.
Pollack v. Hogan, 703 F.3d 117, 121 (D.C. Cir. 2012).
We believe DeBrew exhausted all the administrative
remedies “available” to him with respect to his claim that the
defendants unlawfully retained interest earned on money held
in inmates’ deposit accounts. We therefore vacate the district
court’s order insofar as it dismisses this claim and remand this
aspect of the case to the district court for further proceedings.
b.

Prices for commissary items and telephone calls

DeBrew’s second constitutional claim is that the
defendants violated the Eighth Amendment to the
Constitution of the United States by charging excessively high
prices for items sold by the prison commissary and for
telephone calls. The district court dismissed this claim as
well on the ground that DeBrew failed to exhaust the
administrative remedies available to him. DeBrew, 847 F.
Supp. 2d at 109. DeBrew’s efforts to exhaust this claim were
identical to his efforts to exhaust his claim that the BoP
unlawfully retained interest generated by the money deposited
in inmates’ accounts. For the reasons set forth in the previous
section, therefore, we conclude that appeal of this grievance
to the General Counsel was not “available” to DeBrew.
Unlike the claim discussed in the previous section,
however, this claim was dismissed by the district court also
on the alternative ground that DeBrew failed to “state a claim

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of constitutional significance.” DeBrew, 847 F. Supp. 2d at
111 (quotation marks omitted). We agree with the district
court’s decision to dismiss the claim on this ground.
DeBrew’s complaint alleges “[a]ll commissary items are
sold at the highest mark up possible which is the suggested
retail price” and the BoP charges “extraordinarily high rates”
for placing a telephone call. These allegations are insufficient
to state a plausible claim for relief under the Eighth
Amendment because that amendment does not guarantee the
right of an inmate to purchase a good or service at a particular
price. See Wilson v. Seiter, 501 U.S. 294, 298 (1991) (“The
Constitution … does not mandate comfortable prisons and
only those deprivations denying the minimal civilized
measure of life’s necessities are sufficiently grave to form the
basis of an Eighth Amendment violation” (internal quotation
marks and citations omitted)); see also French v. Butterworth,
614 F.2d 23, 25 (1st Cir. 1980) (“[T]here is simply no legal
basis for a demand that inmates be offered items for purchase
at or near cost”).
Therefore, we affirm the order of the district court
dismissing DeBrew’s claim that the prices charged for
commissary items and telephone calls are “too high.”
c.

Conducting a business

Third, DeBrew claims the BoP’s rule prohibiting an
inmate from conducting a business violates the First and Fifth
Amendments to the Constitution of the United States. The
rule, which is presently designated Code 334 on the BoP’s list
of prohibited acts, forbids an inmate from “[c]onducting a
business” or “conducting or directing an investment
transaction without staff authorization.” 28 C.F.R. § 541.3.
The district court did not explain why it dismissed this claim.

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The only argument advanced by the defendants is that
DeBrew failed to exhaust the administrative remedies
available to him before filing suit. Although we do not have
the benefit of the district court’s analysis, we think it clear
from the record that DeBrew exhausted the administrative
remedies available to him.
DeBrew has written and published several novels during
his time in prison. In 2009 a BoP official determined DeBrew
had violated Code 334 when he received in the mail a royalty
check from his publisher. The official returned the check to
the publisher rather than depositing it in DeBrew’s account.
DeBrew used the BoP’s four-part process for resolving an
inmate’s grievance to urge the agency to expunge the
“incident report” showing he had violated the rule. He
argued, among other things, that the rule prohibiting an
inmate from conducting a business “violates [the] First and
Fourteenth Amendment Rights of Inmates.” In his appeal to
the General Counsel, DeBrew devoted four paragraphs to
developing his argument that Code 334 is unconstitutional.
A declaration prepared by an employee of the BoP
acknowledges DeBrew raised the argument that the
“disciplinary action violates [the] First and Fourteenth
Amendments.”
The declarant nevertheless concludes
DeBrew did not avail himself of his administrative remedies
because the “issue was presented in light of the specific facts
of the inmate discipline action.” As we read this rather
cryptic statement, the declarant thinks DeBrew failed to
exhaust his claim that Code 334 is unconstitutional because
he presented it as an argument why he should not have been
punished for violating the rule rather than presenting it as a
separate grievance. The defendants rely upon this statement,
but they offer no support for the proposition that an inmate
cannot exhaust an argument that a BoP rule is

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unconstitutional by presenting the argument in response to a
determination that the inmate violated the rule. Nor can we
imagine any sensible reason for that proposition.
We vacate the district court’s order insofar as it dismisses
DeBrew’s claim that Code 334 is unconstitutional and remand
this aspect of the case to the district court for further
proceedings on this claim.
3.

Bivens liability, appointment of counsel, and class
certification

There are three additional issues we have yet to address
either in this opinion or in our earlier order granting in part
the defendants’ motion for summary affirmance. They are the
liability of the individual defendants in their personal
capacities, DeBrew’s motion to appoint counsel, and his
motion to certify a class, to which we now turn.
a.

Bivens liability

In addition to requesting equitable relief from the BoP
and the individual defendants in their official capacities,
DeBrew seeks to recover money damages from the individual
defendants in their personal capacities in connection with
each constitutional claim. The district court concluded
DeBrew failed to plead facts sufficient to state a claim for
relief against the individual defendants in their personal
capacities. DeBrew, 847 F. Supp. 2d at 106. As the district
court correctly observed, “Bivens claims cannot rest merely
on respondeat superior. The complaint must at least allege
that the defendant federal official was personally involved in
the illegal conduct.” Simpkins v. District of Columbia, 108
F.3d 366, 369 (D.C. Cir. 1997) (internal citation omitted).
DeBrew’s complaint lacks facts showing the individual

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defendants were personally
constitutional violations.

involved

in

the

alleged

We therefore affirm the district court’s dismissal of all
the claims against the individual defendants in their personal
capacities. We note, however, that DeBrew filed a motion for
leave to amend his complaint, which the district court denied
when it dismissed his constitutional claims.
DeBrew
contends his amended complaint includes factual allegations
showing the individual defendants were personally involved
in the unlawful conduct. If on remand the district court
allows DeBrew to file an amended complaint, then it should
consider whether that complaint includes sufficient factual
allegations to state a claim for relief against any of the
individual defendants in their personal capacities in
connection with the two constitutional claims we have
remanded for further proceedings.
b.

Appointment of counsel

On the day he filed his complaint, DeBrew also filed a
motion to appoint counsel. The district court never expressly
ruled on that motion, and DeBrew argues the court erred by
not considering the matter. We are unable to determine from
the record whether the district court overlooked the motion or
whether it intended implicitly to deny the motion when it
denied DeBrew’s request to proceed in forma pauperis.** On
The district court denied DeBrew’s motion to proceed in forma
pauperis because it determined he had “three strikes” for the
purpose of 28 U.S.C. § 1915(g), which makes a prisoner ineligible
to proceed in forma papueris if he has “on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under
**

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remand the district court should rule expressly on DeBrew’s
motion to appoint counsel before conducting further
proceedings in this case.
c.

Class certification

Finally, DeBrew contends the district court erred by
denying his motion for class certification. We review for an
abuse of discretion the decision to deny a request to certify a
class. See Garcia v. Johanns, 444 F.3d 625, 631 (D.C. Cir.
2006).
In order to represent a class, a plaintiff must show,
among other things, that he “will fairly and adequately protect
the interests of the class.” FED. R. CIV. P. 23(a)(4). The
district court did not abuse its discretion in concluding
DeBrew could not satisfy this requirement because a pro se
litigant who is not trained as a lawyer is simply not an
adequate class representative. See Fymbo v. State Farm Fire
& Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000) (holding a
pro se plaintiff is not an adequate class representative
“because the competence of a layman is clearly too limited to
allow him to risk the rights of others” (internal quotation
marks omitted)); Oxendine v. Williams, 509 F.2d 1405, 1407
(4th Cir. 1975) (holding it was “plain error” for the district
court to allow an “imprisoned litigant who is unassisted by
counsel to represent his fellow inmates in a class action”); see
also Georgiades v. Martin-Trigona, 729 F.2d 831, 834 (D.C.
imminent danger of serious physical injury.” Some circuit courts
have held a prisoner who is ineligible to proceed in forma pauperis
under 28 U.S.C. § 1915(g) is therefore also ineligible to obtain
appointed counsel under 28 U.S.C. § 1915(e)(1). See, e.g.,
Brightwell v. Lehman, 637 F.3d 187, 192 & n.6 (3d Cir. 2011). We
leave to the district court to decide in the first instance whether it
may appoint counsel under § 1915(e)(1) or any other authority.

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Cir. 1984) (holding a person who “is not a member of the bar
of any court … may appear pro se but is not qualified to
appear in the District Court or in this court as counsel for
others”).
We affirm the district court’s order denying DeBrew’s
motion for class certification. If, however, the district court
appoints counsel or DeBrew retains an attorney, then the court
will in due course consider any renewed motion for class
certification.
II. Conclusion
As is evident from the facts recounted above, the BoP
could have simplified and expedited this protracted litigation
by complying with its own regulations. Although the General
Counsel of the agency was entitled to insist that DeBrew
attach to his appeals a copy of the Regional Director’s
responses, it was BoP officials who made that impossible by
failing to follow the agency’s regulations requiring them to
forward the responses to DeBrew at Butner and to retrieve a
copy from the Administrative Remedy Index.
Nor have counsel for the defendants helped their clients’
cause by advancing arguments that are flatly contradicted by
the record, such as the assertion that DeBrew failed to request
declaratory and injunctive relief in his complaint, Appellees’
Br. at 25–26; but see supra at 10, and that DeBrew “offers no
arguments” in response to the denial of his motion to certify a
class and has therefore “conceded that denial of class
certification was proper,” Appellees’ Br. at 18; but see
Appellant’s Br. at 8.

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The judgment of the district court is affirmed in part and
vacated in part and the case is remanded to that court for
further proceedings consistent with this opinion.
So ordered.

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