Darrell Debrew v. Atwood

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. 106-

546, 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

13

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

15

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.” Merriam-

Webster’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

17

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

18

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

19

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.

20

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

21

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

22

defendants were personally involved in the alleged

constitutional violations.

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

23

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.

24

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.

25

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.