Robert R. Krilich, Sr. v. Federal Bureau of Prisons

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0357P (6th Cir.)
File Name: 03a0357p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ROBERT R. KRILICH, SR.,
Plaintiff-Appellant,
v.
FEDERAL BUREAU OF
PRISONS,
Defendant-Appellee.
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No. 02-5089
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 01-00391—Karl S. Forester, Chief District Judge.
Argued: September 17, 2003
Decided and Filed: October 7, 2003
Before: SUHRHEINRICH, COLE, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: James A. Earhart, Louisville, Kentucky, for
Appellant. Thomas Lee Gentry, ASSISTANT UNITED
STATES ATTORNEY, Lexington, Kentucky, for Appellee.
ON BRIEF: Michael R. Mazzoli, Scott C. Cox, COX &
2 Krilich v. Federal Bureau of Prisons No. 02-5089
1The PLRA provides, in relevant part, that “no action shall be
brought with respect to prison conditions under section 1983 of this title,
or any other Federal law, by a prisoner confined in any jail, prison or
other corre ctional facility until such administrative remedies as are
availab le are exhausted.”
218 U.S.C. §3 625 provides that 5 U .S.C. § §554, 555, and 701-706
(specified provisions of the APA) “do not apply to the making of any
determination, decision or order” under the provisions of 18 U.S.C.
§§ 362 1 et seq . The latter provisio ns de al with various BOP
responsibilities, including assignment, transfer and release of prisoners.
MAZZOLI, Louisville, Kentucky, for Appellant. Thomas
Lee Gentry, ASSISTANT UNITED STATES ATTORNEY,
Lexington, Kentucky, for Appellee.
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OPINION
_________________
ROGERS, Circuit Judge. Robert R. Krilich, Sr., is a
federal inmate currently incarcerated at the Federal Medical
Center in Lexington, Kentucky. Krilich appeals the judgment
of the district court dismissing his claims for failure to
exhaust administrative remedies as required under the Prison
Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C.
§1997e(a).1 Krilich also appeals the alternative ruling of the
district court dismissing his claim under the Administrative
Procedure Act (“APA”) for lack of jurisdiction under 18
U.S.C. § 3625.2 Because the PLRA requires Krilich to
exhaust his administrative remedies and he concedes that he
failed to do so, we affirm the ruling of the district court.
Although Krilich’s complaint asserted several claims
against the Federal Bureau of Prisons (“BOP”), he appeals
only the dismissal of two of those claims here. The first
arises from his confinement at the Federal Correctional
Institute (“FCI”) in Petersburg, Virginia. Krilich alleges that

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No. 02-5089 Krilich v. Federal Bureau of Prisons 3
prison officials at FCI-Petersburg monitored telephone
conversations with his attorney and opened his clearly marked
legal mail outside his presence, in violation of the
confidentiality of his attorney-client relationship and his
rights under the Fifth Amendment.
His second claim arises from the BOP’s “Electronic Drug
Detection Pilot Program,” initiated under BOP Operations
Memorandum No. 027-98 (5267). While Krilich was
incarcerated at FCI-Petersburg, his wife was denied the
opportunity to visit him because she tested positive for the
presence of drugs when tested by the BOP’s new drug
detection equipment for the presence of narcotics. If a visitor
tested positive for the presence of narcotics, that visitor’s
visitation privileges were suspended. Mrs. Krilich went to
great lengths to have her privileges reinstated, including
submitting to a drug test at a local laboratory and volunteering
to submit to a strip search prior to entering the prison, but to
no avail. Krilich asserts on appeal that the BOP’s electronic
drug detection program is illegal because it was never
submitted for notice and comment as required under the APA.
Krilich filed internal grievances for each of his claims, but
his grievances were either untimely filed or not pursued
through all levels of the BOP grievance process. He concedes
that he failed to exhaust his administrative remedies. Instead,
Krilich argues that his Fifth Amendment claim is not subject
to the PLRA because it is not brought “with respect to prison
conditions.” Krilich argues that the confidentiality of the
attorney-client relationship transcends the conditions of time
and place. He asserts that the confidentiality of the attorney-
client relationship is inviolate at all times in all places and is
not a “prison condition” that the BOP can lawfully regulate.
According to Krilich, attorney-client confidentiality is out of
the scope of the BOP’s lawful authority and is, therefore, not
subject to the requirements of the PLRA. We disagree.
Krilich is correct that the confidentiality of the attorney-
client relationship is entitled to protection even where the
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client is a prisoner. See Sallier v. Brooks, No. 01-1269, 2003
WL 22143291, at *3 (6th Cir. Sept. 18, 2003) (“[W]e have
heightened concerns with allowing prison officials unfettered
discretion to open and read an inmate’s mail . . . especially
correspondence that impacts upon or has import for the
prisoner’s legal rights, the attorney-client privilege, or the
right of access to the courts.”). His argument that the BOP’s
attempts to intrude on that confidentiality are not “prison
conditions,” however, limits the meaning of those words
without any basis in logic or law. Prison intrusions on a
prisoner’s privacy, legitimate or not, are obviously prison
conditions.
Krilich goes on to argue that the district court erred when
it concluded that it lacked jurisdiction to consider his APA
challenge to the BOP’s electronic drug detection program
under 18 U.S.C. § 3625. We need not reach this issue
because, as discussed above, Krilich has not exhausted his
administrative remedies as required under the PLRA.
Krilich’s claim relating to his ability to receive visitors is a
claim made “with regard to prison conditions,” and the APA
falls within the broad sweep of claims subject to the
exhaustion requirements of the PLRA. 42 U.S.C. § 1997e(a)
(Supp. 2003) (providing that prisoner cannot bring an action
brought under §1983 “or any other federal law” regarding
prison conditions without exhausting administrative
remedies).
For the foregoing reasons, the judgment of the district court
is AFFIRMED.

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