Yesterday, I published the text of the final ruling in Kimberlin v. Judges of 4CCA which referred to that suit as frivolous. Much of what The Dread Pro-Se Kimberlin files fall into that category. Consider Kimberlin v. Dept. of Justice. TDPK filed the lawsuit shortly after being returned to prison when his parole was revoked. He sued the Bureau of Prisons because he couldn’t have an electric guitar. Here are some quotes from the decision of District Court for the District of Columbia.
Brett Kimberlin and Darrell Rice, prison inmates, challenge the constitutionality of the Bureau of Prisons’ (“BOP”) ban on electric or electronic instruments in federal prisons, except those used in connection with religious activities, and the Zimmer Amendment, section 611 of Pub.L. No. 104-208, 110 Stat. 3009 (“the Amendment”), which bans federal funding for electric or electronic instruments in federal prisons but does not by its terms create a religious use exception. Claims 1 and 2 of plaintiffs’ complaint allege that BOP violated the Administrative Procedures Act, 5 U.S.C. § 706 (1996)(“APA”). Claim 3 alleges that BOP interferes with their First Amendment right to expression through music and music writing. Finally, Claim 4 alleges that BOP’s policy deprives plaintiffs of their First and Fifth Amendment rights.
Plaintiffs argue that to require them to express themselves musically on an acoustic instrument would be akin to requiring rap musicians to sing ballads, or Muslim prisoners to attend Catholic religious services. Plaintiffs insist that they cannot perform their music on acoustic instruments.
The trial court found that the law and the prison regulations were constitutional. This was another case TDPK lost.
Of course, he appealed, and this is what the Court of Appeals for DC ruled:
[W]e conclude that the challenged BOP regulations prohibiting prisoner possession or use of electric and electronic musical instruments do not violate the APA or the Constitution. Accordingly, the judgment of the district court is Affirmed.
The purpose of TDPK’s suit wasn’t to have access to a necessity. He was suing for access to something that was nice to have, for a luxury item. Prison isn’t supposed to be a place for easy living. Furthermore, the BOP’s regulation did not prohibit playing music, it simply limited the types of instruments available. As the District Court noted,
Here, the policy seeks to deter crime by making prison harsher. This goal is unrelated to the suppression of musical expression. BOP did not seek to suppress musical expression per se. Rather, it sought to make prisons harsher by prohibiting luxury items, including electrical and electronic instruments.
Brett Kimberlin does not pick his battles well. That’s one of the reasons why he’s a loser.