United States Court of Appeals
Fifth Circuit
F I L E D
June 8, 2004
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_________________________
No. 03-41365
SUMMARY CALENDAR
_________________________
BRANDON CREIGHTON SAMPLE,
Plaintiff - Appellant,
v.
HARRELL WATTS, National Inmate Appeals Administrator;
FEDERAL BUREAU OF PRISONS,
Defendants - Appellees.
______________________________________________________________________________
On Appeal from the United States District Court for the
Southern District of Texas
(C-02-CV-428)
______________________________________________________________________________
Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:1
In this appeal, we review the district court's decision to grant the motion for summary
judgment filed by Defendants - Appellees, Harrell Watts and the Federal Bureau of Prisons.
Plaintiff - Appellant, Brandon Sample, argues that the implementation by the Bureau of
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
-1-
Prisons of Program Statement 1351.05 prohibiting inmates from possessing copies of their
Presentence Report was either a change to existing Bureau of Prisons rule 28 C.F.R. § 513.44 or
a change to existing policy. According to Sample, the Bureau of Prisons should have complied
with the Administrative Procedure Act’s notice and comment requirements when the bureau
promulgated Program Statement 1351.05. According to Sample, because the Bureau of Prisons
failed to comply with the Administrative Procedures Act, Program Statement 1351.05 is invalid,
and the Bureau of Prisons must provide him with a copy of his Presentence Report in accordance
with 28 C.F.R. § 513.44.
We disagree. Contrary to Sample’s assertion, 28 C.F.R. § 513.44 does not state that
inmates must be provided with copies of their Presentence Reports, but instead addresses the fees
to be assessed for copies of disclosable documents requested by prisoners. 28 C.F.R. § 513.44.
Program Statement 1351.04 explains what documents are disclosable, and Program Statement
1351.05 further explains that Presentence Reports are disclosable, but may not be possessed by
inmates in the prison area. The Bureau of Prisons implemented this prohibition in response to an
emerging problem where inmates pressure other inmates for a copy of their Presentence Report to
learn if they are informants, gang members, or have financial resources. Thus, Program Statement
1351.05 did not contradict or alter an existing rule of longstanding policy or practice, and the
Adminstrative Procedures Act’s notice and comment requirements do not apply. See Shell
Offshore, Inc. v. Babbitt, 238 F.3d 622, 627-30 (5th Cir. 2001); Phillips Petroleum Co. v.
Johnson, 22 F.3d 616, 621 (5th Cir. 1994).
For the foregoing reasons, we affirm the district court’s decision. AFFIRMED.
-2-