Case 2:09-cv-00025-WTL-DML Document 1 Filed 01/21/09 Page 1 of 22 PageID #: 1

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA
Terre Haute Division

-,'rr....(..' ,"'" . , ,

RANDALL TODD ROYER, SEIFULLAH CHAPMAN, and SABRI BENKAHLA,
Plaintiffs,1
v.
B.R. JETT, PAUL McNULTY, UNKNOWN EMPLOYEES OF THE CORRECTIONAL PROGRAMS DIVISION OF THE FEDERAL BUREAU OF PRISONS, LES SMITH, T.R. HENRY, S. JULIAN, T. COLEMAN, and
 AGENT GRASS, individually
 and in their official capacities,

Defendants. 2

L ',

·

#, ''''I,

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Civil No.

··


Jury Trial Demanded

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2 : 09 -cv· 0011 WTL.DML

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CIVIL COMPLAINT AND PETITION FOR WRIT OF HABEAS CORPUS

Plaintiffs Randall Todd Royer, Seifullah Chapman, and Sabri

Benkahla, for their petition for writ of habeas corpus and their

complaint against B.R. Jett, Paul McNulty, unknown employees of

the Correctional Programs Division of the Federal Bureau of

Prisons ("BOP"), Les Smith, T.R. Henry, S. Julian, T. Coleman,

and Agent Grass, all€g~ as follows:

Jurisdiction and Venue
1. This Court has jurisdiction over this action under 28

1 This is a mixed complaint, containing both habeas claims and Bivens claims. Although the. individuals who brought this action are actually both "petitioners" and "plaintiffs," they are referred to herein as "plaintiffs" for convenience.
2 Inasmuch as Jett is the Warden having custody of Plaintiffs, he is sued in his official capacity for the habeas claims. He and the other defendants are sued individually for the Bivens claims. All defendants are sued under the APA in their official capacity.

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U.S.C. § 2241 and 28 U.S.C. § 1331. The matters in controversy arise under the U.S. Constitution and 5 U.S.C. § 701 et seq.
2. Venue properly lies in this district pursuant to 28 U.S.C. § 2241 and 28 U.S.C. § 1391(b)(2) because Plaintiffs are incarcerated in the Federal Correctional Institution in Terre Haute, Indiana ("FCI Terre Haute"), which is located within the Southern District of Indiana, and because events giving rise to this cause of action occurred in FCI Terre Haute.
Parties 3 3. Plaintiffs Royer, Chapman, and Benkahla are and were, at all times relevant hereto, prisoners in the custody of the BOP. Plaintiffs are currently incarcerated at FCI Terre Haute. 4. Defendant B.R. Jett is and was, at all times relevant hereto, Warden of FCI Terre Haute. Defendant directly supervises the Communications Management Unit ("CMU") at FCI Terre Haute, in which Plaintiffs are confined. He manages the day-to-day operations, and executes, and helps set, its policies. 5. Defendant Paul McNulty was, at all times relevant hereto, Deputy U.S. Attorney General. Defendant played a key role in the conception of the CMU, as well as in setting and executing its policies, and in selecting Plaintiffs for confinement in the CMU. 6. The unknown employees of the Correctional Programs Division of the BOP 4 help set and execute the policies of the CMU, and helped select Plaintiffs for confinement therein.
3 Except as otherwise noted, the actions of Defendants Jett, Henry, Julian Coleman, and Grass took place in Terre Haute, Indiana; the actions of Defendant~ ~cNulty.and the unknown employee~ of the . Correctional Programs Division took place In Washlngton, D.C.; and the actlons of Defendant Smith took place in West Virginia.
4 The names of the employees involved are unknown to Plaintiffs at this time,
but will be added after discovery.
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7. Defendant Les Smith was, at all times relevant hereto, an official with the Intelligence Section of the BOP. Defendant helps set and execute the policies of the CMU.
8. Defendant T.R. Henry was the first Unit Manager of the CMU. He helped set and execute the policies of the CMU.
9. Defendant S. Julian is the current Unit Manager of the CMU. Defendant helps set and execute the policies of the CMU.
10. Defendant T. Coleman is an Intelligence Research Specialist for the BOP and is currently assigned to the CMU. He helps set and execute the policies of the CMU.
11. Defendant Agent Grass is an agent of the Federal Bureau of Investigation assigned to the CMU. He assists Defendant Coleman in executing the policies of the CMU.
Previous Lawsuits by Plaintiffs 12. Plaintiffs have filed no other lawsuits dealing with the same facts involved in this action or otherwise relating to their imprisonment.
Exhaustion of Administrative Remedies 13. Plaintiffs have exhausted their available administrative remedies regarding the issues presented herein.
Facts 14. Plaintiff Royer was convicted in January 2004 in the Eastern District of Virginia and sentenced to twenty years imprisonment. 15. The BOP scored Plaintiff Royer as a medium security inmate and designated him in FCI Allenwood, a medium security prison located in White Deer, Pennsylvania. He was housed at FCI Allenwood from about August 2004 to December 2006, with some
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periods spent in various county jails. The BOP has since rescored Plaintiff as a low security inmate. He has had a clean conduct record for over three and a half years. In December 2006, he was transferred to FCI Terre Haute and confined in the CMU.
16. Plaintiff Chapman was convicted in February 2004 in the Eastern District of Virginia and sentenced, on remand, to sixtyfive years imprisonment.
17. The BOP scored Plaintiff Chapman as a low security inmate but applied a "management variable" to him because of sentence length. He was designated to USP Big Sandy, located in Big Sandy, Kentucky, and he arrived there in August 2004. In .May 2007 he was transferred to FCI Terre Haute and confined in the CMU.
18. Plaintiff Benkahla was convicted in the Eastern District of Virginia in February 2007 and sentenced to ten years of imprison­ ment.
19. The BOP scored Plaintiff Benkahla as a minimum security inmate. He has never received an incident report. In October 2007 he arrived at FCI Terre Haute and was confined in the CMU.
20. In a written memorandum, the federal district court judge who sentenced Plaintiff Benkahla stated:
Sabri Benkahla is not a terrorist. He does not share the same characteristics or the conduct of a terrorist, and in turn he does not share the same likelihood of recidivism, the difficulty of rehabilitation, or the need for incapacitation ... Defendant has not committed any other criminal acts and there is no reason to believe he would ever commit another crime after his release from imprison­ ment. Defendant has engaged in model citizenry, receiving a Master's Degree from The Johns Hopkins University, volunteering as a national elections officer in local, state, and national elections. It is clear that, in the case of the instant defendant, his likelihood of ever committing another crime is infinitesimal ...
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In fact, the Court received more letters on Defendant's behalf than any other defendant in twenty-five years, all attesting to his honor, integrity, moral character, opposition to extremism, and devotion to civic duty. 21. In a letter to Plaintiff Benkahla's sentencing judge,
Congressman James Moran of Virginia wrote in part: I have known the Benkahla family for close to twenty years. They are good citizens who care about this country, admire and constructively participate in the political process ... Always active in local politics ... he believed everyone had a civic duty to vote and spent considerable energies educating others on their voting rights ... It is my understanding that his interest in international relations stemmed from a desire to assist the United States Government in foreign affairs. To my knowledge, Mr. Ben Kahla has been an upstanding and productive member of society. 22. On April 3, 2006, pursuant to the Administrative
Procedures Act, the BOP announced a proposed new regulation
titled "Limited Communication for Terrorist Inmates." The
regulation would have instituted a regime of severe sanctions on inmates who, under the new policy, would be designated by the BOP
as "terrorists." The proposed regulations included limits on those inmates' telephone use, visitation, and use of the mail, relative to ordinary inmates in the federal system. The proposal drew
strong objections from a wide range of civil liberties groups and was never officially adopted.
23. In or about Summer or Fall of 2006, Defendant McNulty
initiated the creation of the CMU and helped formulate the guidelines and policies by which it would operate.
24. In or about Summer or Fall of 2006, Defendant McNulty and Defendants unknown employees of the Correctional Programs Division determined the extent to which the communications
ability of inmates confined to the CMU would be restricted
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relative to the communication ability of ordinary federal inmates; that CMU inmates would be confined in a housing unit sealed off from the rest of the prison and the resources ordinary inmates enjoy; and that CMU inmates would incur other restrictions to various conditions of their confinement.
25. In or about Summer or Fall of 2006, Defendant McNulty and Defendants unknown employees of the Correctional Programs Division determined that federal inmates would be confined to the CMU, and incur its attendant significant and atypical hardships, without a hearing, and with no meaningful opportunity to be released from the CMU for the duration of their sentence.
26. In or about Summer or Fall of 2006, Defendant McNulty and Defendants unknown employees of the Correctional Programs Division determined that inmates would be selected for confinement to the CMU on the basis of their religious, ideo­ logical, or political beliefs and ethnicity.
27. In or about Summer or Fall of 2006, Defendant McNulty, Defendants unknown employees of the Correctional Programs Division, Defendent Smith, Defendent Jett, and Defendent Henry determined that the CMU would be operated in a manner that exceeded or was unsupported by federal regulatory authority.
28. In or about Summer or Fall of 2006, Defendant McNulty and Defendants unknown employees of the Correctional Programs Division determined that the Department of Justice or BOP would not seek the adoption of new federal regulations that would provide regulatory authority for the operation of the CMU.
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29. In or about Summer or Fall of 2006, Defendant McNulty and Defendants unknown employees of the Correctional Programs Division selected Plaintiff.Royer and Plaintiff Chapman for confinement in the CMU, on the basis of their religious, ideo­ logical, or political beliefs, with the intent of imposing atypical, significant hardship upon Plaintiff Royer and Plaintiff Chapman, intending that they would not receive a hearing regarding their confinement in the CMU, and that they would be confined in the CMU for the duration of their sentence.
30. In or about Summer of 2007, Defendants unknown employees of the Correctional Programs Division selected Plaintiff Benkahla for confinement in the CMU, on the basis of his religious, ideo­ logical, or political beliefs, with the intent of imposing atypical, significant harship upon him, intending that he would not receive a hearing regarding his confinement in the CMU, and that he would be confined in the CMU for the duration of his sentence.
31. In November 2006, Defendants McNulty and Defendants unknown employees of the Correctional Programs Division directed Defendant Jett to prepare D-Unit, the former death row at FCI Terre Haute -- formally known as the Special Confinement Unit ("SCU") -- for the imminent arrival of the first inmates to be confined in the newly-christened CMU.
32. On December 11, 2006, the BOP transferred Plaintiff Royer and fifteen other prisoners -- all but two of them Muslims -- from facilities of various security levels around the country to FCI Tere Haute and confined them in the CMU.
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33 . On or about December 20, Defendant Henry completed drafting guidelines and policies for the operation of the CMU, described in more detail below. Defendant Henry backdated the document to November 30, 2006, and Defendant Jett signed it.
34 . Defendant Henry composed the guidelines and policies for the operation of the CMU on the basis of directives from Defendant McNulty, Defendant unknown employees of the Correctional Programs Division, and Defendant Jett, along with his own input.
3S . The CMU is completely sealed off from the rest of FCr Terre Haute; CMU inmates are not permitted to have any contact with non-CMU inmates, or to use the facilities or resources that other inmates do, aside from very restricted, rare medical appoint­ ments, with extraordinary measures taken to isolate the CMU inmates.
36 . In the CMU, outgoing and incoming inmate mail is electronically scanned and analyzed, a process which delays delivery by days, sometimes weeks. CMU inmates receive only one 1S-minute call per week, compared to 300 minutes of telephone time ordinary inmates receive. Visits in the CMU are for just two hours, just twice a month, on business days only, and are restricted to non-contact only; the general population -- and, as described more fully below, inmates in other types of restricted status -- receives weekly or biweekly all-day contact visits on weekends and holidays. Calls and visits must be conducted in English except by prior arrangement; speaking in another language without prior approval will result in termination of the call or visit and possible disciplinary action -- consequences not faced by ordinary inmates.
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37 . While inmates are allowed out of their cells, they are not permitted to leave the housing unit. Steel slats obscure the view from the windows. Recreation takes place in steel cages.
38 . The BOP issues Program Statements and Institutional Supplements purporting to interpret agency regulations promulgated pursuant to the Administrative Procedures Act and codified in the Code of Federal Regulations ("CFR").
39 . The Institutional Supplement composed by Defendant Henry with input from Defendant McNulty, Defendants unknown employees of the Correctional Programs Division, and Defendant Jett, and signed by Defendant Jett, referenced in ~~ 32-33, supra, and hereinafter the "CMU Institutional Supplement," states in part:
All national policies apply to the administration of D-Unit except as otherwise modified in this supplement as necessary to effect the unit's mission of increased monitoring of communications, and pursuant to the Warden's authority to make the necessary changes to protect the safety, security, and good order of the facility, and to protect the public. (emphasis supplied.) 40. Defendant Henry, Defendant Jett, and Defendants unknown employees of the Correctional Programs Division intended that the CMU Institutional Supplement would purport to be an interpretation of agency regulations contained in 28 C.F.R. § 541.10 et seq., titled "Inmate Discipline and Special Housing Units." This regul­ ation provides that inmates shall be placed in administrative housing only under certain conditions and only after certain procedures have been followed. One such procedure, but not the only procedure, is a hearing attended by the inmate to determine whether confinement in administrative housing is warranted. The
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regulation also provides that an inmate's confinement in administrative confinement shall not be of indefinite duration.
41. Defendant Jett has classified the CMU as a "control unit" in his response to Plaintiff Royer's administrative remedy -request. Subpart D of 28 C.F.R. Part 541 sets forth the BOP's regulations with respect to control units. The regulations provide, inter alia, that the BOP "shall. provide a hearing to an inmate recommended for placement in a control unit," and that staff must notify an inmate of his "projected duration of confinement in the control unit." The regulation further states that "[a]n inmate may not be considered [for confinement in a control unit] solely on the nature of the crime which resulted in that inmate's incarceration," that is, in BOP parlance, on the basis of his offense conduct.
42. Defendant McNulty and Defendants unnknown employees of the Correctional Programs Division did not comport with federal regulations governing administrative housing or control units when they recommended or approved the confinement in the CMU of Plaintiff Royer, Plaintiff Chapman, and Plaintiff Benkahla. Each plaintiff was notified that he was confined in the CMU solely on the basis of his offense conduct. None have received hearings to determine whether confinement in the CMU is appropriate. CMU staff, including Defendant Henry, have stated that Plaintiffs' confinement in the CMU is of indefinite duration.
43. While Defendant Jett has variously categorized the CMU as a control unit or a type of administrative detention unit, if
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it be determined that the CMU is neither of these, then it is some new type of special unit without a regulatory basis for its existence.
44. The BOP is subject to regulations that govern the amount and manner of communication provided to an inmate, as well as procedures that must be followed before an inmate's commun­ ication may be curtailed. Defendants Jett, Henry, Grass, Defendant Julian, and Defendant Coleman flout these regulations in their operation of the CMU. For example, an inmate's visit­ ation may be restricted only in connection with a violation of the disciplinary code. Also, Defendant Jett is required to establish visiting hours on weekends and holidays, whereas he permits visits for CMU inmates like the Plaintiffs only on weekdays, and not on holidays. Complicit in Defendant Jett's failure to implement these regulations are Defendant McNulty, Defendants unknown employees of the Correctional Programs Division, and Defendant Les Smith, inasmuch as these defendants establish procedures and issue directives to the others who implement them.
45. The BOP is subject to regulations that govern other aspects of confinement besides those related to due process or communication; Defendant Jett, Defendant Henry, and Defendant Julian flout these regulations as well. For example, Defendant Jett is required to provide a work assignment for each inmate, including the opportunity to work in Federal Prison Industries (FPI); there are not enough work assignments for each CMU inmate, and there are no FPI jobs at all. He is also required to provide vocational training and college credit courses,but he does not.
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46. Defendant Jett and. Defendant Henry have written in various letters to inmates and administrative remedy responses, using identical language:
Your communication by these methods [i.e., telephone use, written correspondence, and visiting] may be limited as necessary to allow effective monitoring. Your general conditions of confinement in this unit may also be restricted as necessary to provide greater management of your communications. 47. Except for brief periods of administrative or disciplinary detention, Plaintiff Royer was a member of the general inmate population from the time of his arrest in June 2003 to his December 2006 transfer to FCI Terre Haute and confine­ ment in the CMU, both in county jails and in FCI Allenwood. Plaintiff Chapman was likewise a member of the general population at USP Big Sandy; bhere, he was never placed in disciplinary or administrative detention. Plaintiff Benkahla was free on bond, and was designated to FCI Terre Haute when he was taken into custody. 48. When Plaintiff Royer and Plaintiff Chapman were removed from the general population and confined in the CMU, they suffered a significant change for the worse in their conditions of confine­ ment. When Plaintiff Behkahla was placed in the CMU, he became subjected to hardship that the ordinary inmates in the federal system are not subjected to. Indeed, the conditions of confinement in the CMU are in some respects equal to or harsher than those experienced by inmates in the most severe units and programs operated by the BOP: programs like the Special Housing Units (SHU); Special Administrative Measures (SAMs); the ADX, or Supermax facility in Colorado; and control units. The conditions of confine­
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ment described infra present Plaintiffs with atypical and significant hardship in relation to the ordinary incidents of prison life.
49. For example~ as noted, when it comes to the process by which inmates are placed in these programs and units, the SHU, control units, ADX, and SAMs are all governed by codified federal regulations. If, arguendo, the CMU is not a SHU or control unit, then there is no codified, non-arbitrary process of confining inmates in the CMU. Moreover, of all the harsh programs mentioned, only inmates in the CMU and SAMs are not afforded intitial or regular hearings to determine whether application .. of the program is warranted. Of these harsh measures, only the CMU and SAMs may be levied on an inmate on the basis of offense conduct alone. And of these harsh programs, only the CMU is intended to apply to an inmate for the entire duration of his sentence.
50. When it comes to communication, like all ordinary inmates, when Plaintiff Royer and Plaintiff Chapman were in the general population, they enjoyed contact visits with their wives and children, lasting all day long, on weekends and holidays; inmates in the SHU are afforded the exact same, as are SAMs inmates in the general population. Now, in the CMU, Plaintiffs are limited -- just like ADX and control unit inmates -- to noncontact visits. Inmates at ADX, however, are permitted thirty
hours of visits per month, to CMU tnmates' four hours per month. 5
5 Moreover, since Defendants have confined Plaintiffs at a much greater distance from their homes than the distance BOP policy recommends, their families travel many miles, and at exorbitant expense, to visit them.
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51. As for telephone use, SAMs and SHU inmates may use the telephone in the evening and on weekends; CMU inmates may use the phone only during business hours, making communication with employed family members and school-aged children difficult. SAMs is a flexible program and inmates subject to it may be permitted the same 300 minutes per month that most general population inmates have; CMU inmates are permitted only one fifteen minute call per week.
52. When Plaintiff Royer and Plaintiff Chapman were in the general population, they had the opportunity, like ordinary inmates, to work in the prison factory, to run outdoors on a track, to worship and make use of religious resources for several hours a week in a chapel, to learn a trade and earn a license, and to earn college credits; SAMs inmates in the general population have the same opportunities. Now that they are confined in the CMU, Plaintiffs -- just like inmates at ADX, the SHU, and control units -- have no such opportunities.
53. Defendants Coleman and Grass administer the restrictions on Plaintiffs' telephone use by ensuring that they use the telephone no more than 15 minutes per week during business hours. They do this at the direction of Defendant Jett, Defendant Smith, and Defendants unknown employees of the Correctional Programs Division.
54. Defendant Jett administers the restrictions on Plaintiffs' visitation by ensuring that they conduct visits only through glass, audible only through a telephone, only on business dRys, and for only four hours a month. He does this with the assistance of Defendant Coleman, Defendant Julian, Defendant Grass,
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and Henry, and at the direction of, and/or with the knowledge and
 acquiescence of, Defendants McNulty, unknown employees- of the
 Correctional Programs Division, and Smith.

55. Defendants Jett and unknown employees of the Correctional
 Programs Division are perpetuating Plaintiffs' confinement in the
 .CMU with its attendant restrictions by r~fusing to order Plaintiffs' release to the general population, by denying them a hearing, and by failing to set forth any criteria or steps they mig~t take to earn their discharge from the CMU. Defendants Smith, Coleman, and
Grass participate in Plaintiffs' continued confinement in the eMU
by failing to recommend their discharge from the unit, while their recommendation wbuld effectuate or tend to effectuate Plaintiffs' discharge from the unit and relief from its harsh, atypical, punitive restrictions.
56. Restricting Plaintiffs' telephone calls to one 15-minute call per week made only during business hours is not rationally related to the defendants' stated goal of monitoring their communication. There is no reason why their calls need to be restricted in order to monitor them. The BOP already records every call made by the inmates in its custody, and it live­ monitors a significant number of them. In fact, Plaintiff Chapman was permitted 300 min. per month in general population, under an arrangement wherein the calls were pre-arranged to facilitate live-monitoring by one BOP SIS Officer Tabari. No alleged harm arose from this arrangement necessitating a restriction of tele­ phone time.
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57. Preventing Plaintiffs from having physical contact with their families is not rationally related to the goal of communications monitoring. Preventing drugs and weapons from entering an institution is the usual purpose of disallowing contact visits. Plaintiffs Royer and Chapman received contact visits both in the county jail and in their respective BOP facilities for years, and Defendants have alleged no harm that resulted that would justify a need to disallow physical contact with their families.
58. With respect to contact visits, FCr Terre Haute staff have installed cameras and hypersensitive microphones throughout the CMU, including in areas which staff have advised would be suitable for contact visits should Defendants Jett, Smith, Coleman, Grass, and unknown employees of the Correctional Programs Division allow them and/or. recommend their allowance. FCr Terre Haute has the facilities to process visitors for contact visits. Staff would need no additional training, and no extra officers would be necessary since an officer must be present for the non­
 contact visits anyway; hence, staff would not be substantially
 affected.

59. Plaintiffs are willing to speak in english only during calls and visits, and schedule their calls ahead of time, aspart of an alternative to the harsh restrictions they now face.
60. Plaintiffs Chapman and Benkahla were determined not to pose harm to the community and released by federal judges pending
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trial. Defendants can point to no harm that resulted to the safety and security of the community stemming from the lack of restrictions on these Plaintiffs' communications while they were free on bond that would suggest or give rise to a government need to restrict their communications now.
61. Even if restricting the amount of Plaintiffs' calls and disallowing physical contact with their families is somehow rationally related to the goal of monitoring their communication, it is an exaggerated response to that concern.
62. Plaintiffs, like nearly all CMU inmates, are practicing Muslims, and the BOP, and individually Defendants unknown employees of the Correctional Programs Division, Defendant Paul McNulty, and Defendant Les Smith, consider their instant offenses to have been motivated by their religious and/or political beliefs. Those few CMU inmates who are not Muslims are allegedly affiliated with unpopular political or ideological causes.
63. There are thousands of inmates in the federal prison system who are religiously or politically "neutral," or whose crimes were impelled by traditional criminal motives, like vice or greed: inmates convicted of crimes like kidnaping, sex offenses, gang activity, organized crime, drug distribution, and murder. These inmates present a need for communication monitoring equal to or greater than Plaintiffs, yet they are not confined to the CMU, and they make telephone calls and have contact visits with their families like ordinary inmates.
64. There is no penalogical justification for the CMU inmate population's disproportionate ratio of religiously or ideologically affiliated inmates to inmates not so affiliated. Defendants are
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literally operating the United States' only political or ideo­ logical prison. Plaintiffs were not placed in the CMU and do not remain in the CMU because of their alleged criminal actions in themselves; rather, they were singled out on the basis of their perceived religious, ideological, and/or political beliefs.
65. The Code of Federal Regulations provides that: Bureau staff shall not discriminate against inmates on the basis of ... religion ... or political belief. This includes the making of administrative decisions and providing access to work, housing, and programs.
Count One: Habeas Claims 66. Respondent/Plaintiff Warden's confinement of Petitioners/ Plaintiffs is illegal and contrary to law, as: (a) the CMU was created, and its attendant harsh, punitive,
atypical conditions of confinement imposed, without statutory, regulatory, or policy authority, and without notice and opportunity for public comment, in violation of the Administrative Procedures Act; (b) Petitioners/Plaintiffs were not afforded due process with respect to their confinement to the CMU or the attendant harsh, punitive, atypical conditions of confinement, i.e., the restrictions on their communications and other liberties; (c) Petitioners'/Plaintiffs' confinement in the CMU and its attendant restrictions on their freedom of speech and/or freedom of association, does not bear a rational relation­ ship to a legitimate government interest, or it is an exaggerated response to such an interest;
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Cd) Petitioners'/Plaintiffs' confinement in the CMU and the attendant restrictions on their communication and other liberties, and the application upon them of harsh, punitive, atypical conditions of confinement, is discriminatory and based at least in significant part on their perceived religious and/or political beliefs.
Count Two: Violat~on of the APA Failure to Provide Notice
67. The creation of the CMU by Defendants McNulty, unknown employees of the Correctional Programs Division, and Henry, and their formulation of the CMU's policies and procedures, without providing notice and opportunity for public comment, was a violation of the Administrative Procedures Act.
Count Three: Violation of the APA Arbitrary and Capricious Action
68. Defendant McNulty and Defendant unknown employees of the Correctional Programs Division's actions in helping to select Plaintiffs for confinement in the CMU were arbitrary, capricious, an abuse of discretion, not in accordance with the law, and without observance of procedure required by law, all in violation of the Administrative Procedures Act.
69. The execution by all Defendants of the CMU's policies and procedures, and their failure to act to effectuate Plaintiffs' release from the CMU or the suspension of the CMU's policies and procedures, is arbitrary, capricious, an abuse of discretion, not in accordance with the law and without observance of procedure required by law, all in violation of the APA.
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Count Four: Conspiracy to Violate Civil Rights 70. The agreement, actions, and failures to act of all Defendants constitute an intentional, unlawful, unconstitutional conspiracy to deprive Plaintiffs of their constitutional rights to due process, freedom of speech, freedom of association, and equal protection under the law.
Count Five: Violation of Due Process 71. The actions and failures to act of Defendants McNulty, Jett, unknown employees of the Correctional Programs Division, Juli Smith, Coleman, Grass, and Henry, resulting in the initial and/or continuing confinement of Plaintiffs in the CMU and the restrictions on their telephone use, visitation, and other liberties, constitute a violation of the right to due process secured to Plaintiffs under the Fifth Amendment to the U.S. Constitution.
Count Six: Violation of Free Speech and Freedom of Association
72. The actions and failures to act of all Defendants resulting in the restrictions on Plaintiffs' telephone use and visitation constitute a violation of their freedom of speech and freedom of association secured to Plaintiffs under the First Amendment to the U.S. Constitution.
Count Seven: Violation of Equal Protection 73. The actions and failures to act of all defendants constitute intentional, unlawful, and unconstitutional discrimin­ ation against Plaintiffs in violation of their constitutional right to equal protection of the laws, secured to Plaintiffs by the Fifth Amendment to the U.S. Constitution.
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Request for Relief 74. Wherefore, Plaintiffs request that the Court (a) declare Plaintiffs' confinement in the CMU
unconstitutional and/or contrary to law; (b) declare the operation of the CMU unconstitutional and/or
contrary to law; (c) issue a writ of habeas corpus directing Respondent/
Defendant Jett to deliver Petitioners from the CMU to the general population of any facility at which their degree of communication would be equal to that of general population inmates, an~ in designating Plaintiffs, to adhere to BOP policy with respect to distance of the facility from Plaintiffs' homes and security level; (d) award money damages in Plaintiffs' favor, to punish Plaintiffs for their willful, wanton, grossly negligent conduct, to vindicate Plaintiffs' rights, and to compensate them for all fees and costs incurred in this action. (e) award such additional relief as the Court may deem proper.

Respectfull submitted,

~ Dated:

January, 2009

Dated:

January, 2009 21


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Dated:

January, 2009

SABRI BENKAHLA

I declare, under penalty of perjury, that the foregoing is true .and correc t.

-rJ:::j RANDALL TODD ROYER

~ Executed on

January, 2009

g Executed on

January, .. 2009

SABRI BENKAHLA

Executed on ~ January, 2009

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2. Although BOP designed the CMUs primarily for prisoners viewed as terrorists, Plaintiff Sabri Benkahla, a federal prisoner confined in the CMU at the Federal Correctional Institution in Terre Haute, Indiana (“FCI Terre Haute”), was found not guilty of providing support to the Taliban in 2004. The sentencing judge in the subsequent perjury trial that resulted in Mr. Benkahla’s current convictions stated that Mr. Benkahla, a first time offender, “is not a terrorist,” had “engaged in model citizenry,” posed no threat of recidivism, and had “demonstrate[ed] his dedication to his four-year-old son.” United States v. Benkahla, 501 F. Supp. 2d 748, 759-61 (E.D. Va. 2007). The Court “received more letters on [Mr. Benkahla’s] behalf than any other defendant in twenty-five years, all attesting to his honor, integrity, moral character, opposition to extremism, and devotion to civic duty,” id. at 760-61, including a letter from United States Representative James Moran which described Mr. Benkahla as “an upstanding and productive member of society.”
3. Nonetheless, as a CMU prisoner, Mr. Benkahla faces draconian restrictions on communications with friends and family has no interaction with non-CMU prisoners. Should he remain in the CMU, Mr. Benkahla will not be permitted to hug his son, now six years old, for the duration of his ten-year sentence.
4. BOP sends prisoners such as Mr. Benkahla to CMUs without a hearing and permits no review of ongoing placement in these units. Prisoners condemned to CMUs have little hope of ever getting out. Such unending confinement in stark isolation results from BOP’s decision to evade the strictures of the APA by devising new rules behind closed doors.
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JURISDICTION AND VENUE 5. The Court has jurisdiction over this action under 28 U.S.C. § 1331 (federal question jurisdiction) and 5 U.S.C. § 551 et seq. (Administrative Procedure Act). 6. Defendants’ creation of a CMU at FCI Terre Haute (“Terre Haute CMU”) and their adoption of an Institution Supplement establishing the Terre Haute CMU, as described below, constituted final agency action under the APA. 7. Venue in this Court is proper under 28 U.S.C. § 1391(e).
PARTIES 8. Plaintiff Sabri Benkahla is a United States citizen and a federal prisoner incarcerated at FCI Terre Haute. Mr. Benkahla is 34 years old. 9. Defendant BOP is a federal agency under the APA and is headquartered at 320 First St., NW, Washington, DC 20534. BOP created the Terre Haute CMU in which Mr. Benkahla is confined and issued the Terre Haute CMU Institution Supplement. BOP establishes regulations applicable to federal prisons and prisoners and creates and operates prison units in which prisoners are confined. See 18 U.S.C. § 4042. 10. Defendant Eric Holder is the Attorney General of the United States and the head of the United States Department of Justice. BOP is an agency of the United States Department of Justice. As such, Defendant Holder has ultimate authority over BOP decisions, including the decision to establish the Terre Haute CMU, the promulgation of BOP regulations, and the process of notice and comment rulemaking regarding BOP regulations. See 18 U.S.C. § 4042. Defendant Holder is sued in his official capacity. 11. Defendant Harley Lappin is, and has been at all times relevant to this case, Director of BOP. Defendant Lappin exercises authority over BOP determinations, including the
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decision to establish the Terre Haute CMU, the promulgation of BOP regulations, and the process of notice and comment rulemaking regarding BOP regulations. See 18 U.S.C. § 4041 & 4042. Defendant Lappin is sued in his official capacity.
12. Defendant Joyce K. Conley is, and has been since May 27, 2007, Assistant Director of BOP’s Correctional Programs Division. The Correctional Programs Division approves the designation of prisoners to CMUs. According to BOP’s website, Defendant Conley “directs all critical inmate management and program functions for the entire Bureau.” Defendant Conley is sued in her official capacity.
FACTS GIVING RISE TO THE CLAIMS FOR RELIEF I. The Two Prosecutions of Mr. Benkahla
13. Mr. Benkahla is a United States citizen, born and raised in Virginia. He attended a Catholic elementary school in Falls Church, Virginia and a public high school in Fairfax County, Virginia.
14. Mr. Benkahla graduated with honors from George Mason University with a major in International Relations and Comparative Religion. Following graduation, Mr. Benkahla worked for a civil rights organization and taught elementary school in Maryland. Mr. Benkahla has served as an election officer for local, state, and national elections.
15. Mr. Benkahla received a scholarship to study Islamic Law and Jurisprudence in Medina, Saudi Arabia, where he became engaged. On the night before his wedding, Mr. Benkahla was abducted at gunpoint by officers of the Saudi secret police, who forced him into a car.
16. While in Saudi Arabia, Mr. Benkahla was held incommunicado in an eight foot by eight foot concrete cell, while his dumbfounded family wondered why he failed to appear at his
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own wedding. Without any charge or explanation, Mr. Benkahla was held in solitary confinement and allowed virtually no human contact, other than interrogations. The bright lights in his cell were never turned off, resulting in sleep deprivation.
17. United States District Court Judge Leonie Brinkema would later describe these conditions as “a Kafkaesque situation.” United States v. Benkahla, No. 1:03-cr-00296, 1/23/2004 Tr. at 70 (E.D.Va.) .
18. After weeks of such confinement, an American consular officer informed Mr. Benkahla that he had been abducted and imprisoned at the behest of the FBI. On an airport tarmac, Saudi police handed Mr. Benkahla off to the FBI, and he was flown to the United States.
19. Now in the custody of his native country, Mr. Benkahla hoped for more humane treatment. Instead, while being flown by the FBI from Saudi Arabia to the United States, he was forced to wear opaque goggles with duct tape, shackled in a painful position, and left in a sealed pod for approximately seventeen hours.
20. Following a bench trial, Judge Brinkema found Mr. Benkahla not guilty of all charges against him (Supplying Services to the Taliban and Using a Firearm in Connection with a Crime of Violence). In an oral ruling on March 9, 2004, Judge Brinkema found that the government failed to prove that Mr. Benkahla had supplied or attempted to supply material support to the Taliban or that he had engaged in any kind of military action. United States v. Benkahla, No. 1:03-cr-00296-LMB, 3/9/2004 Tr. at 313 (E.D. Va.).
21. Having acquitted Mr. Benkahla of all charges, Judge Brinkema stated: “This case is now over in terms of trying it anyway.” Id. at 316.
22. In fact, the case was not over. Less than one month later, the government, unsatisfied with Mr. Benkahla’s acquittal, obtained an order summoning him to testify before a
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grand jury. The FBI questioned Mr. Benkahla in the following months, and he testified before a grand jury in the Eastern District of Virginia on August 26, 2004 and November 16, 2004.
23. Both the FBI agent who interrogated Mr. Benkahla and the Assistant United States Attorney who examined him questioned Mr. Benkahla about a trip to Pakistan in 1999 and allegations that he visited a jihad training camp during this trip. This same conduct had been the focus of the March 2004 trial that resulted in a verdict of not guilty.
24. On or about February 9, 2006, the government again indicted Mr. Benkahla, this time charging him with two counts of false declarations to the grand jury, false statements to the FBI, and obstruction of justice (a total of four counts). United States v. Benkahla, 1:06-cr00009-JCC (E.D. Va.). Most of the allegedly false statements to the grand jury and the FBI involved the same subject matter as the prior trial. Mr. Benkahla was not charged with any crimes of terrorism.
25. In the second trial, held before United States District Judge James C. Cacheris, the jury found Mr. Benkahla guilty of the offenses charged, although Judge Cacheris later vacated one of the counts for lack of evidence. As a result of the convictions at the second trial, Mr. Benkahla, who had no prior criminal history, faced a Sentencing Guidelines range of 33-41 months in prison (approximately three to three-and-one-half years).
26. The government, however, moved for an enhancement that would result in a sentencing range of 210 to 262 months (seventeen-and-one-half years to nearly twenty-two years). Although the Court found that Mr. Benkahla’s convictions in the second trial “neither directly ‘involved’ nor were ‘intended to promote’ a federal crime of terrorism,” the Court concluded that the enhancement applied because Mr. Benkahla’s statements had the effect of
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obstructing the investigation of crimes of terrorism committed by others. Benkahla, 507 F. Supp. 2d at 751, 757.
27. Judge Cacheris declared unequivocally that “Sabri Benkahla is not a terrorist.” Id. at 759. Judge Cacheris found that Mr. Benkahla had no intention of promoting terrorism through false statements but instead “may have been motivated out of a desire not to be seen as involved with illegal activities. He may have been concerned about potential hardship he might cause others. He may have been embarrassed of his own conduct. Nevertheless, the Court does not believe Defendant had the willful intent to promote an act of terrorism.” Id. at 760.
28. The Court granted Mr. Benkahla a downward departure to a term of imprisonment of 121 months (ten years and one month). Id. at 762.
29. Judge Cacheris found that Mr. Benkahla “has engaged in model citizenry, receiving a Master’s degree from The Johns Hopkins University, volunteering as a national elections officer in local, state, and national elections, and demonstrating his dedication to his four-year-old son. It is clear that, in the case of the instant defendant, his likelihood of ever committing another crime is infinitesimal.” Benkahla, 501 F. Supp. 2d at 759.
30. Judge Cacheris further described Mr. Benkahla as “an American citizen, born and raised in Northern Virginia. He attended a local high school and college, excelling at both, and received a Master’s degree at The Johns Hopkins University. He has a significant number of strong, positive relationships with friends, family, and the community.” Id. at 760.
31. Prior to sentencing, United States Congressman James Moran wrote a letter to Judge Cacheris. Congressman Moran stated:
I have known the Ben Kahla family for close to twenty years. They are a decent, hard working, and patriotic family. They are good citizens who care about this country, admire and constructively participate in the political process.
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Mr. Ben Kahla has been very engaged in civic activities since he was a young man at JEB Stuart High School …. Always active in local politics, Mr. Ben Kahla worked on local campaigns and also served as an election officer. He believed everyone had a civic duty to vote and spent considerable energies educating others on their voting rights. …. As a friend of the Ben Kahla family, I wish to submit for the record that I have experienced only positive interactions in the two decades I have known them. To my knowledge, Mr. Ben Kahla has been an upstanding and productive member of society. 32. A true and correct copy of Congressman Moran’s letter to Judge Cacheris is attached hereto as Exhibit A and incorporated by reference herein. 33. Mr. Benkahla is a classified as a minimum security prisoner. He has been in BOP custody for nearly two years and has never received a conduct report or been charged with any disciplinary violation. II. The Terre Haute CMU 34. BOP formally established the Terre Haute CMU through an Institution Supplement dated November 30, 2006 (“Terre Haute CMU Institution Supplement”). A true and correct copy of the Terre Haute CMU Institution Supplement is attached hereto as Exhibit B and incorporated by reference herein. 35. Upon information and belief, Defendants Lappin and Conley ordered or assented to the establishment of the Terre Haute CMU and the issuance of the Terre Haute CMU Institution Supplement, and Defendants Holder, Lappin, and Conley have ultimate authority over the ongoing existence and operation of the CMU. 36. Since October of 2007, Mr. Benkahla has been confined in the Terre Haute CMU.
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37. In October of 2007, BOP issued to Mr. Benkahla a “Notice to Inmate of Transfer To Communication Management Unit” (“CMU Transfer Notice”). A true and correct copy of the CMU Transfer Notice is attached as Exhibit C and incorporated by reference herein.
38. BOP gave Mr. Benkahla the notice after his transfer to the CMU had already occurred.
39. Although Mr. Benkahla’s status as a minimum security prisoner makes him eligible for far less restrictive conditions of confinement, Defendants severely limit his contact with the outside world because he is designated to the CMU. III. Conditions in the CMU
A. No Contact Visits 40. As a CMU prisoner, Mr. Benkahla is prevented from having any physical contact with visitors. Thus, when Mr. Benkahla’s son visits him in July of this year, Mr. Benkahla will not be allowed to hug his own son and will have to speak with him through a glass wall, using a telephone. 41. Likewise, Mr. Benkahla must speak to visitors, including his fiancée, mother, father, nephew, and all other family members through a telephone, while the visitors sit in a separate, partitioned room. 42. The Terre Haute CMU Institution Supplement states that all non-legal visits must be “conducted using non-contact facilities (i.e., secure partitioned rooms, telephone voice contact).” See Ex. B at 2. 43. By contrast, most BOP prisoners meet with visitors in a visiting room without a partition and are allowed to hug, kiss, and shake hands with visitors.
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44. BOP’s website states: “In most cases, handshakes, hugs, and kisses (in good taste) are allowed at the beginning and end of a visit.” See Visiting Room Procedures: General Information, available at www.bop.gov/inmate_locator/procedures.jsp.
45. BOP has published a separate Institution Supplement regarding visiting regulations for the Federal Correctional Complex in Terre Haute, Indiana (which includes FCI Terre Haute as well as the United States Penitentiary and Federal Prison Camp in Terre Haute) (“Institution Supplement – Visiting Regulations”). A true and correct copy of the Institution Supplement – Visiting Regulations is attached hereto as Exhibit D.
46. The Institution Supplement – Visiting Regulations states that visitors must hang their coats “prior to greeting and having physical contact with an inmate(s).” See Ex. D at 8 (emphasis added).
47. Thus, on information and belief, most non-CMU prisoners at FCI Terre Haute are allowed contact visits.
B. Limited Visits 48. The Terre Haute CMU Institution Supplement states that for CMU prisoners: “Ordinarily, visiting will be scheduled to occur on weekdays for two-hour periods.” See Ex. B at 3. 49. Similarly, the Institution Supplement – Visiting Regulations states: “There will be no CMU visiting scheduled for the weekends or holidays.” See Ex. D at 4. The Institution Supplement – Visiting Regulations further states that for CMU prisoners, “[v]isiting hours are 8:30 A.M. to 10:30 A.M. and 12:00 P.M. to 2:00 P.M.” See Ex. D at 4.
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50. Limiting CMU visits to these short hours on weekdays only makes it extremely difficult for Mr. Benkahla’s family to visit him in Indiana because most of his family lives in Virginia and works on weekdays.
51. Prisoners in the CMU are allowed only two visits a month for a maximum length of two hours each.
52. By contrast, non-CMU prisoners at FCI Terre Haute are typically allowed seven visits a month, and additional visits may be authorized. See Ex. D at 3.
C. Limited Telephone Calls 53. Mr. Benkahla and other prisoners in the CMU are allowed only one 15-minute non-legal telephone call per week. 54. Prisoners in the CMU are allowed non-legal telephone calls only from 8:30 a.m. to 2:30 p.m., Monday through Friday. 55. By contrast, BOP prisoners generally are allowed 300 minutes of outgoing telephone calls per month, assuming they have sufficient funds to make the calls. This limit is ordinarily increased to 400 minutes per month in November and December. 56. Because Mr. Benkahla is allowed only one 15-minute non-legal call per week to a single line, his family must gather together in order to speak with him. It is extremely difficult for Mr. Benkahla’s family to gather together from 8:30 a.m. to 2:30 p.m., Monday through Friday, because different family members work at different locations and children are in school. 57. The Terre Haute CMU Institution Supplement purports to authorize yet further limitation of CMU prisoners’ non-legal telephone calls to one three-minute call per month. See Ex. B at 2.
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D. Segregation 58. Prisoners in the CMU are segregated from other prisoners at FCI Terre Haute and not allowed to have contact with non-CMU prisoners. 59. The Terre Haute CMU Institution Supplement states that “[t]he CMU is a selfcontained general population housing unit where inmates reside, eat, and participate in all educational, recreational, religious, visiting, unit management, and work programming within the confines of D-unit,” i.e., within the CMU. Ex. B at 1. 60. It is oxymoronic to describe the CMU as a “self-contained general population unit,” Ex. B at 1, because placing prisoners in the self-contained unit by definition isolates them from the general population at FCI Terre Haute. 61. When a CMU prisoner needs specialized medical services to be provided in the “main health services units,” the Terre Haute CMU Institution Supplement requires “conditions which ensure D-Unit inmates’ lack of contact with non-D-Unit inmates.” Ex. B at 3. Thus, even on the rare occasions when prisoners are allowed to leave the CMU, they cannot have any contact with non-CMU prisoners. 62. By contrast, most federal prisoners have access to various group activities that include prisoners from other units. 63. Mr. Benkahla would like to participate in skills training programs and work opportunities that are not available to CMU prisoners. IV. Lack of Rulemaking Procedures 64. Generally speaking, BOP publishes three levels of rules and policy statements: (1) at the highest level, substantive regulations promulgated through notice and comment rulemaking and codified in the Code of Federal Regulations; (2) at the intermediate level,
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national Program Statements, issued without notice and comment rulemaking, which reproduce the rules contained in the Code of Federal Regulations and provide additional interpretation and commentary regarding national policies; and (3) at the lowest level, Institution Supplements, also issued without notice and comment rulemaking, which apply the policies contained in Program Statements to single facilities.
65. In this case, BOP evaded public scrutiny by issuing substantive rules, which require full notice and comment rulemaking, through mere Institution Supplements. This strategy enabled BOP to curtail public scrutiny, in violation of the APA.
A. Abandonment of Initial Rulemaking 66. Prior to issuing the Terre Haute CMU Institution Supplement, BOP began a notice and comment proceeding for a similar rule, also aimed at restricting the communications of suspected terrorists in BOP custody. BOP abandoned this rulemaking when faced with public criticism of the proposed rule. 67. Specifically, on April 3, 2006, BOP published in the Federal Register a Notice of Proposed Rulemaking entitled “Limited Communication for Terrorist Inmates,” 71 Fed. Reg. 16520 (Apr. 3, 2006) (“Notice of Proposed Rulemaking”). A true and correct copy of the Notice of Proposed Rulemaking is attached hereto as Exhibit E and incorporated by reference herein. 68. On June 2, 2006, comments on the proposed rule were filed by civil rights and civil liberties groups including the American Civil Liberties Union, the Center for National Security Studies, the Legal Aid Society, and the National Lawyers Guild. A true and correct copy of the comments is attached hereto as Exhibit F and incorporated by reference herein. The comments stated, inter alia, that “[t]he proposed regulation is poorly conceived, almost certainly unconstitutional, and entirely unnecessary.” See Ex. F, at 7.
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69. Just as the Terre Haute CMU Institution Supplement severely restricts communications, the proposed rule would have allowed for severe limitation of visitation and non-legal telephone calls. See Ex. E, 71 Fed. Reg. at 16524 (Proposed 28 C.F.R. §§ 540.203(a) & 540.204(a)(1)).
70. Following the submission of comments by the ACLU and other civil rights organizations, BOP abandoned the proposed rule.
71. To this day, BOP has not taken final action on the Notice of Proposed Rulemaking or finalized the proposed rule.
72. Instead, BOP simply issued the Terre Haute CMU Institution Supplement without notice and comment proceedings. BOP dated the Terre Haute CMU Institution Supplement November 30, 2006 – less than six months after comments criticizing the original proposed rule were submitted.
B. Failure To Comply with the APA 73. As detailed below, BOP did not engage in required notice and comment rulemaking when it issued the Terre Haute CMU Institution Supplement.
1. Notice and Comment Required 74. The Terre Haute CMU Institution Supplement contains rules as defined by the APA, i.e., agency statements of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency. See 5 U.S.C. § 551(4). 75. None of the circumstances that excuse notice and comment rulemaking apply here.
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76. First, the rules contained in the Terre Haute CMU Institution Supplement do not involve a military or foreign affairs function of the United States or a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. See 5 U.S.C. § 553(a) (1) & (2).
77. Second, the Terre Haute CMU Institution Supplement contains rules that are not interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice. See 5 U.S.C. § 553(b)(3)(A).
78. Third, the Terre Haute CMU Institution Supplement does not contain a finding that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. § 553(b)(3)(B).
2. Lack of Notice of Proposed Rulemaking 79. BOP and Defendants Lappin and Conley never published the Terre Haute CMU Institution Supplement as a proposed rule in the Federal Register. See 5 U.S.C. § 553(b). 80. Prior to issuing the Terre Haute CMU Institution Supplement, BOP and Defendants Lappin and Conley did not publish general notice of proposed rulemaking in the Federal Register. See 5 U.S.C. § 553(b). 81. Prior to issuing the Terre Haute CMU Institution Supplement, BOP and Defendants Lappin and Conley did not publish in the Federal Register: (1) a statement of the time, place, and nature of public rule making proceedings related to the establishment of CMUs; (2) reference to the legal authority under which a rule regarding CMUs was proposed; or (3) either the terms or substance of a proposed rule regarding CMUs or a description of the subjects and issues involved. See 5 U.S.C. § 553(b)(1)-(3).
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82. Prior to issuing the Terre Haute CMU Institution Supplement and establishing the Terre Haute CMU, BOP and Defendants Lappin and Conley did not name, personally serve, or otherwise give notice to all persons subject to the Terrre Haute Institution Supplement. See 5 U.S.C. § 553(b).
3. Failure To Request and Consider Public Comments 83. BOP and Defendants Lappin and Conley never sought public comment on the Terre Haute CMU Institution Supplement under the APA. See 5 U.S.C. § 553(c). 84. Prior to issuing the Terre Haute CMU Institution Supplement and establishing the Terre Haute CMU, BOP and Defendants Lappin and Conley did not give all interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments, as required by the APA. See 5 U.S.C. § 553(c). 85. Prior to issuing the Terre Haute CMU Institution Supplement and establishing the Terre Haute CMU, BOP and Defendants Lappin and Conley did not consider written data, views, or arguments presented by interested persons, as required by the APA. See 5 U.S.C. § 553(c).
4. Failure To Publish a Final Rule 86. BOP and Defendants Lappin and Conley never published the Terre Haute CMU Institution Supplement as a final rule in the Federal Register. See 5 U.S.C. §§ 553(d) & 552(a)(1). 87. The Terre Haute CMU Institution Supplement was not published in the Federal Register 30 days before its effective date. See 5 U.S.C. § 553(d). 88. None of the exceptions that could excuse failure to publish a final rule apply here. 89. First, the Terre Haute CMU Institution Supplement contained substantive rules that were not interpretative rules or statements of policy. See 5 U.S.C. § 553(d).
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90. Second, the Terre Haute CMU Institution Supplement did not grant or relieve an exemption or relieve a restriction. See 5 U.S.C. § 553(d)(1).
91. Third, the Terre Haute CMU Institution Supplement did not contain a finding of good cause not to apply the requirement of publication in the Federal Register. See 5 U.S.C. § 553(d)(3).
92. BOP later issued the Institution Supplement – Visiting Regulations (Ex. D). The Institution Supplement – Visiting Regulations reiterated rules contained in the Terre Haute CMU Institution Supplement but also was issued without notice and comment rulemaking.
C. Second CMU Established Without APA Procedures 93. Approximately fifteen months after issuing the Terre Haute CMU Institution Supplement, BOP then established another CMU at the United States Penitentiary in Marion Illinois (“USP Marion”). Defendant Conley issued a memorandum, dated March 5, 2008 (“Conley Memorandum”), which stated that the “need for CMU bed space has exceeded the capacity and a second CMU will be established at USP Marion, Illinois in the near future.” A true and correct copy of the Conley Memorandum, with redactions made by the government in releasing the document pursuant to a Freedom of Information Act request, is attached hereto as Exhibit G and incorporated by reference herein. 94. On March 20, 2008, approximately 15 months after the issuance of the Terre Haute CMU Institution Supplement, BOP issued an Institution Supplement establishing a second CMU at USP Marion (“Marion CMU Institution Supplement”). A true and correct copy of the Marion CMU Institution Supplement (without attachments) is attached hereto as Exhibit H and incorporated by reference herein.
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95. BOP and Defendants Lappin and Conley never published the Marion CMU Institution Supplement as a proposed rule in the Federal Register, never sought public comment on the Marion CMU Institution Supplement under the APA, and never published the Marion CMU Institution Supplement as a final rule in the Federal Register. V. No Regulatory Framework for CMUs
96. The issuance of the Institution Supplements marked a major change in BOP policy which required notice and comment rulemaking, for the Institution Supplements established an unprecedented type of unit and contained substantive rules.
97. Rather than promulgating the new rules through the proper channels, however, BOP attempted to shoehorn CMUs into various other preexisting regulations – including regulations regarding control units and administrative and disciplinary segregation. The Terre Haute CMU Institution Supplement in fact violates such regulations.
A. CMUs as Control Units 98. BOP’s Office of General Counsel has categorized the CMU as a Control Unit. When Mr. Benkahla filed a grievance complaining about his ongoing placement in the CMU, BOP classified his grievance as a complaint about “CONTROL UNIT PLACEMENT.” See infra ¶ 200; Ex. CC. This document was a response to an administrative appeal by Mr. Benkahla to BOP’s Central Office in Washington, D.C. Under 28 C.F.R. §§ 542.11 and 542.15, it is BOP’s Office of General Counsel that responds to such appeals. 99. Title 28 C.F.R. § 541.40(a) states: “In an effort to maintain a safe and orderly environment within its institutions, the Bureau of Prisons operates control unit programs intended to place into a separate unit those inmates who are unable to function in a less
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restrictive environment without being a threat to others or to the orderly operation of the institution.”
100. The Terre Haute CMU Institution Supplement states that CMU prisoners “reside, eat, and participate in all educational, recreational, religious, visiting, unit management, and work programming within the confines of D-Unit,” i.e., the CMU. See Ex. B at 1.
101. The Terre Haute CMU Institution Supplement further states: “The CMU is established to house inmates who, due to their current offense of conviction, offense conduct, or other verified information, require increased monitoring of communication between inmates and persons in the community in order to protect the safety, security, and orderly operation of Bureau facilities, and protect the public.” See Ex. B at 1.
102. Thus, under the terms used in the control unit regulations, the CMU is a “separate unit,” and prisoners are placed there based on the belief that “in a less restrictive environment” they would be “a threat to others or to the orderly operation of the institution.” 28 C.F.R. § 541.40(a).
103. The CMU is therefore a “control unit program” under 28 C.F.R. § 541.40(a). 104. Despite the status of CMUs as control units, the Terre Haute CMU Institution Supplement violates regulations applicable to control units. BOP could have amended such regulations through notice and comment rulemaking, but BOP instead issued the Institution Supplements without rulemaking procedures.
1. Lack of Hearing To Challenge CMU Placement 105. Existing control unit regulations give prisoners a right to a live hearing before being placed in a control unit. Specifically, 28 C.F.R. § 541.43(a) states that a “Hearing Administrator shall provide a hearing to an inmate recommended for placement in a control
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unit.” Section 541.43 further provides: (1) that a prisoner shall receive 24 hour advance notice of the hearing and the evidence against him or her, unless such evidence would likely endanger staff or others; (2) that a prisoner has the right to representation by a staff member; (3) that the prisoner has the right to be present throughout the hearing, except where institutional security or good order would be jeopardized; and (4) that the prisoner is entitled to present documentary evidence and to have witnesses appear, provided that calling witnesses would not jeopardize or threaten institutional security or individual safety, and further provided that the witnesses are available at the institution where the hearing is being conducted.
106. Title 28 C.F.R. § 541.45 provides for review of the hearing decision by an Executive Panel and appeal from the Executive Panel’s decision to the BOP Office of General Counsel.
107. In contrast to the hearing procedures described above, the Terre Haute CMU Institution Supplement states: “You may appeal your transfer to D-Unit, or any conditions of your confinement, through the Bureau’s Administrative Remedy Program, 28 C.F.R. §§ 542.10 through 542.19.” Ex. B at 5.
108. The Administrative Remedy Program described in 28 C.F.R. §§ 542.10 through 542.19 does not provide for a live hearing before a hearing administrator, 24 hour advance notice of the hearing and the evidence against the prisoner, representation of a prisoner by a staff member, the presentation of documentary evidence at a live hearing, testimony by witnesses at a hearing, or review of hearing decisions by an Executive Panel.
109. Mr. Benkahla has never been allowed to challenge his designation to the CMU through a live hearing.
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110. Mr. Benkahla has never been allowed to challenge his designation to the CMU
with representation by a staff member, by presenting documentary evidence at a hearing, or by
having witnesses appear.
111. Mr. Benkahka has never been allowed Executive Panel review of a hearing
decision regarding his placement in the CMU.
2. No Review of Ongoing Placement in the CMU
112. In addition to providing a hearing prior to placement in a control unit, federal
regulations also require BOP to provide regular review of a prisoner’s ongoing placement in a
control unit.
113. Title 28 C.F.R. § 541.49 provides:
(a) … Once every 30 days, the control unit team, comprised of the control unit manager and other members designated by the Warden (ordinarily to include the officer-in-charge or lieutenant, case manager, and education staff member assigned to the unit), shall meet with an inmate in the control unit. The inmate is required to attend the team meeting in order to be eligible for the previous month’s stay in the control unit to be credited towards the projected duration of confinement in that unit. The unit team shall make an assessment of the inmate’s progress within the unit and may make a recommendation as to readiness for release after considering the inmate’s:
(1) Unit status;
(2) Adjustment; and
(3) Readiness for release from the unit. (See § 541.50(a))
(b) The Warden shall serve as the review authority at the institutional level for unit team actions.
(c) An inmate may appeal the Warden's decision to the Executive Panel within five working days of receipt of that decision. The inmate will receive a response to this appeal at the inmate's next appearance before the Executive Panel.
(d) At least once every 60 to 90 days, the Executive Panel shall review the status of an inmate in a control unit to determine the inmate's readiness for release from
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the Unit. The Executive Panel shall consider those factors specified in § 541.50(a), along with any recommendations by the unit team and Warden. The decision of the Executive Panel is communicated to the inmate. Ordinarily, the inmate is interviewed in person at this review. If the inmate refuses to appear for this review, or if there is other reason for not having an in-person review, this will be documented. (e) An inmate may appeal a decision of the Executive Panel, through the Administrative Remedy Procedure, directly to the Office of General Counsel, Bureau of Prisons within 30 calendar days from the date of the Executive Panel's response. 114. The Terre Haute CMU Institution Supplement does not provide for review of prisoners’ placement in the CMU by a control unit team. 115. The Terre Haute CMU Institution Supplement does not provide for appeals regarding CMU placement by an Executive Panel or appeals from Executive Panel decisions. 116. Prisoners’ placement in the CMU is not reviewed every 30 days by a control unit team. 117. The only “team meetings” that Mr. Benkahla has been allowed to attend do not include any review of his placement in the CMU. Instead, these team meetings, which typically last 5-10 minutes, only involve discussion of matters such as funds in prisoner accounts and programs available to prisoners. Such team meetings occur only once every six months, not every 30 days. 118. When Mr. Benkahla has asked at these team meetings to be transferred out of the CMU, FCI Terre Haute officials have told him that, given the authority to do so, they would recommend his transfer but that they lack the power to make such a recommendation. 119. Mr. Benkahla has never been given an opportunity to appeal any recommendation as to his readiness for release from a control unit team to the Executive Panel, nor has he
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received notice of any decision or recommendation by the Executive Panel regarding his readiness for release from the CMU.
3. Lack of Notice of Projected Duration and Criteria for Release 120. Title 28 C.F.R. § 541.47 provides: Staff shall provide an inmate admitted to a control unit with: (a) Notice of the projected duration of the inmate’s confinement in a control unit; … (f) The criteria for release from the unit, and how those criteria specifically relate to this confinement period in the unit and any specific requirements in the inmate’s individual case. 121. By contrast, the Terre Haute CMU Institution Supplement does not contain any procedures for notifying CMU prisoners of the projected duration of CMU confinement or criteria for release. 122. The blank “Notice to Inmate of Transfer to Communication Management Unit,” which is included as Attachment A to the Terre Haute CMU Institution Supplement (Ex. B) does not include a space to state the projected duration of a prisoner’s confinement in the CMU. 123. Similarly, the CMU Transfer Notice issued to Mr. Benkahla does not state the projected duration of Mr. Benkahla’s confinement in the CMU. See Ex. C. 124. BOP has not provided Mr. Benkahla with notice of the projected duration of his confinement in the CMU. 125. BOP does not provide prisoners confined in the CMU with criteria for release from the CMU. 126. Upon information and belief, no prisoner has ever been transferred from the CMU to a unit with less restrictive conditions.
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4. CMU Designation Based Solely on Offense 127. Title 28 C.F.R. § 541.41(b) states: (b) The Warden shall consider the following factors in a recommendation for control unit placement. (1) Any incident during confinement in which the inmate has caused injury to other persons. (2) Any incident in which the inmate has expressed threats to the life or well-being of other persons. (3) Any incident involving possession by the inmate of deadly weapons or dangerous drugs. (4) Any incident in which the inmate is involved in a disruption of the orderly operation of a prison, jail or other correctional institution. (5) An escape from a correctional institution. (6) An escape attempt. Depending on the circumstances, an escape attempt, considered alone or together with an inmate's prior history, may warrant consideration for a control unit placement. (7) The nature of the offense for which committed. An inmate may not be considered solely on the nature of the crime which resulted in that inmate's incarceration; however, the nature of the crime may be considered in combination with other factor(s) as described in paragraph (b) of this section. (emphasis added.) 128. The Terre Haute CMU Institution Supplement states: “The CMU is established to house inmates who, due to their current offense of conviction, offense conduct, or other verified information, require increased monitoring of communication between inmates and persons in the community in order to protect the safety, security, and orderly operation of Bureau facilities, and protect the public.” See Ex. B at 1 (emphasis added.). 129. Thus, under the plain language of the Institution Supplement, a prisoner may be transferred to the CMU based solely on the current offense of conviction or offense conduct.
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130. The CMU Transfer Notice issued to Mr. Benkahla states that his transfer to the CMU was based on his “offense conduct.” See Ex. C.
131. The CMU Transfer Notice refers to none of the factors listed in 28 C.F.R. § 541.41(b) except “[t]he nature of the offense for which committed.”
132. The CMU transfer notice does not refer to: (1) any incident during confinement in which Mr. Benkahla has caused injury to other persons; (2) any incident in which Mr. Benkahla has expressed threats to the life or well-being of other persons; (3) any incident involving possession by Mr. Benkahla of deadly weapons or dangerous drugs; (4) any incident in which Mr. Benkahla was involved in a disruption of the orderly operation of a prison, jail or other correctional institution; (5) any escape from a correctional institution by Mr. Benkahla; or (6) any escape attempt by Mr. Benkahla. See Ex. C.
133. BOP has never found Mr. Benkahla to be involved in: (1) any incident during confinement in which he has caused injury to other persons; (2) any incident in which he has expressed threats to the life or well-being of other persons; (3) any incident involving possession of deadly weapons or dangerous drugs during confinement; (4) a disruption of the orderly operation of a prison, jail or other correctional institution; or (5) any escape from a correctional institution or any attempted escape.
134. The Terre Haute CMU Institution Supplement states that prisoners transferred to the CMU “will be provided a ‘NOTICE TO INMATE OF TRANSFER TO COMMUNICATION MANAGEMENT UNIT’ form indicating the reasons for their placement in the unit.”
135. The CMU transfer notice given to Mr. Benkahla (Ex. C) accurately states BOP’s reasons for transferring him to the CMU.
136. Mr. Benkahla was transferred to the CMU based solely on his criminal conviction.
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137. Upon information and belief, numerous other prisoners in the Terre Haute and Marion CMUs have received transfer notices which refer exclusively to their criminal convictions.
B. Administrative and Disciplinary Segregation 138. BOP has indicated that it issued the Terre Haute CMU Institution Supplement pursuant to regulations authorizing disciplinary segregation and administrative detention. This attempt to characterize the CMU as a form of administrative detention or disciplinary segregation does not withstand scrutiny. 139. Specifically, the Terre Haute CMU Institution Supplement displays the following notation on the upper right hand corner: “Number: THX-5270.07A.” See Ex. B at 1. The notation indicates that BOP purported to issue the Terre Haute CMU Institution Supplement pursuant to BOP Program Statement 5270.07, and the notation “THX” indicates that the Institution Supplement is specific to FCI Terre Haute. Similarly, the Marion CMU Institution Supplement bears the notation “NUMBER: MAR-5270.07A.” See Ex. H at 1. 140. Program Statement 5270.07 (www.bop.gov/policy/progstat/5270_007.pdf), is a set of policies issued by BOP pursuant to 28 C.F.R. §§ 541.10-.23. These federal regulations and Program Statement 5270.07 govern administrative detention and disciplinary segregation. 141. Despite this attempt to characterize CMU placement as a form of administrative detention or disciplinary segregation, the Terre Haute CMU Institution Supplement makes clear that placement in the CMU is not a form of administrative detention or disciplinary segregation. 142. Specifically, the Terre Haute CMU Institution Supplement states that CMU prisoners “will ordinarily be housed in double-bunked cells. Additionally, the unit contains a range of cells dedicated to segregated housing of those inmates in need of being placed in administrative detention or disciplinary segregation status. Cells #8-13 are designated as
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segregation housing for D-Unit inmates placed in administrative detention status or disciplinary segregation status.” See Ex. B at 3.
143. Thus, the Terre Haute CMU Institution Supplement makes it clear that CMU prisoners can be placed in administrative detention or disciplinary segregation in certain cells within the CMU but that designation to the CMU is independent of disciplinary segregation or administrative detention status.
144. Indeed, there are currently approximately 40 prisoners in the FCI Terre Haute CMU, but the Terre Haute CMU Institution Supplement states that only six CMU cells (Cells #813) can be used for administrative detention and disciplinary segregation.
145. The Terre Haute CMU Institution Supplement is also inconsistent with disciplinary segregation and administrative detention regulations in numerous respects, as detailed below.
1. Disciplinary Segregation 146. Placement in a CMU cannot be considered disciplinary segregation because disciplinary segregation results from conduct violations during a prisoner’s incarceration. See 28 C.F.R. §§ 541.20; Program Statement 5270.07, Ch. 9, at 2. 147. By contrast, under the Terre Haute CMU Institution Supplement, BOP can designate prisoners to the CMU solely on the basis of the current offense of conviction or offense conduct, regardless of whether a prisoner has engaged in conduct violations while incarcerated. See infra ¶¶ 128-37. 148. BOP designated Mr. Benkahla to the CMU even though he has never been found responsible for – or even been charged with – a conduct violation.
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149. Furthermore, even when a prisoner has been charged with a conduct violation, 28 C.F.R. §§ 541.10-.23 and Program Statement 5270.07 require extensive procedures, including an investigation, live hearings, and appeals, to authorize disciplinary segregation.
150. The Terre Haute CMU contains no such procedures, and Mr. Benkahla was designated to the CMU without the benefit of such procedures, including but not limited to the following: (1) the issuance of an incident report, see 28 C.F.R. §§ 541.14(a) & (b)(2); Program Statement 5270.07, Ch. 5, at 1-3; (2) an investigation of disciplinary charges, see 28 C.F.R. § 541.14(b); Program Statement 5270.07, Ch. 5, at 2-4; (3) an initial hearing before a Unit Discipline Committee (“UDC”), see 28 C.F.R. § 541.15; Program Statement 5270.07; Ch. 6, at 1-5; (4) a second hearing before a Discipline Hearing Officer (“DHO”), see 28 C.F.R. § 541.16.18; Program Statement 5270.07, Ch. 7; and (5) the right to appeal decisions of the UDC or DHO, see 28 C.F.R. § 541.19; Program Statement 5270.07, Ch. 8.
151. Prisoners in disciplinary segregation are also entitled to ongoing review of their placement through procedures including live hearings before a Segregation Review Official (“SRO”) every 30 days. See 28 C.F.R. § 541.20(c) & (d); Program Statement 5270.07, Ch. 9, at 2A.
152. The Terre Haute CMU Institution Supplement does not contemplate such reviews, see Ex. B at 5, and Mr. Benkhala has not had the opportunity to participate in such reviews.
2. Administrative Detention 153. Program Statement 5270.07 and the regulations it implements also govern administrative detention, see Program Statement 5270.07, Ch. 9; 28 C.F.R. §§ 541.22, but placement in the CMU cannot be considered a form of administrative detention.
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154. In contrast to the administrative detention regulations, the Terre Haute CMU Institution Supplement does not entitle CMU prisoners to be present at hearings before an SRO every 30 days for review of ongoing confinement in the CMU. See 28 C.F.R. § 541.22(c)(1); Program Statement 5270.07, Ch. 9, at 8A.
155. Mr. Benkahla has never received a hearing regarding his ongoing placement in the CMU.
156. In contrast to the administrative detention regulations, the Terre Haute CMU Institution Supplement does not entitle CMU prisoners to a record review conducted by an SRO within three business days of placement in the CMU. See 28 C.F.R. § 541.22(c)(1); Program Statement 5270.07, Ch. 9, at 8A.
157. Upon information and belief, an SRO did not conduct a record review of Mr. Benkahla’s placement in the CMU within three days of such placement.
158. In contrast to the administrative detention regulations, the Terre Haute CMU Institution Supplement does not entitle CMU prisoners to a formal hearing before an SRO after seven days of administrative detention. See 28 C.F.R. § 541.22(c)(1); Program Statement 5270.07, Ch. 9, at 8A.
159. Mr. Benkahla never received such a formal hearing after seven days of confinement in the CMU.
160. In contrast to the administrative detention regulations, the Terre Haute CMU Institution Supplement does not entitle CMU prisoners to weekly record review (without the prisoner present) of CMU placement. See 28 C.F.R. § 541.22(c)(1); Program Statement 5270.07, Ch. 9, at 8A.
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161. Upon information and belief, Mr. Benkahla’s placement in the CMU is not reviewed on the record each week by an SRO in Mr. Benkahla’s absence.
162. Title 28 C.F.R. §§ 541.22(b) requires a prisoner placed in administrative detention to be given an Administrative Detention Order within 24 hours of placement in administrative detention. The Administrative Detention Order is to be issued on form BP-S308. See Program Statement 5270.07, ch. 10, at 12.
163. The Terre Haute CMU Institution Supplement does not contemplate issuance of a Form BP-S308 Administrative Detention Order, and Mr. Benkahla never received such an order. VI. Violation of Existing Regulations Regarding Weekend Visits
164. The Terre Haute CMU Institution Supplement also violates existing regulations regarding visitation, which BOP failed to amend through notice and comment rulemaking.
165. Title 28 C.F.R. 540.42(a) provides: (a) Each Warden shall establish a visiting schedule for the institution. At a minimum, the Warden shall establish visiting hours at the institution on Saturdays, Sundays, and holidays. The restriction of visiting to these days may be a hardship for some families and arrangements for other suitable hours shall be made to the extent practicable. Where staff resources permit, the Warden may establish evening visiting hours.
(emphasis added.) 166. This provision applies to all BOP prisoners. 167. The Terre Haute CMU Institution Supplement states: “Ordinarily, visiting will be
scheduled to occur on weekdays for two-hour periods.” See Ex. B at 3. 168. Similarly, the Institution Supplement – Visiting Regulations states: “There will
be no CMU visiting scheduled for the weekends or holidays.” See Ex. D at 4.
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169. Prisoners in the CMU are not allowed to have visitors on weekends. VII. Exhaustion of Administrative Remedies
170. Mr. Benkahla submitted a series of grievances related to ongoing conditions in the CMU and his ongoing placement in the CMU. He pursued all administrative appeals from the denial of these grievances, up to and including appeals to the BOP Central Office in Washington, DC.
171. BOP incorrectly construed Mr. Benkahla’s complaints about ongoing conditions in the CMU, including complaints about restrictions on telephone calls and visitation, as complaints about the initial decision to place Mr. Benkahla in the CMU.
172. As a result, BOP erroneously concluded that each of these grievances was untimely because Mr. Benkahla did not file them immediately after being designated to the CMU.
173. Since BOP violates its own regulations on control units, administrative detention, and disciplinary segregation by denying any review of ongoing designation to the CMU, see infra ¶¶ 112-119, Mr. Benkahla’s only hope for internal review was through written grievances. But when BOP received written grievances from Mr. Benkahla, BOP took the view that unless Mr. Benkahla complained about a condition in the CMU within 20 days of designation to the CMU, he would be forever barred from complaining about any condition in the CMU for the duration of his ten-year sentence. To the extent a prisoner confined for years in the CMU cannot complain about any issues not raised in the first 20 days, remedies are not available.
174. The unavailability of remedies is compounded by the Terre Haute CMU Institution Supplement, which states, “You may appeal your transfer to D-Unit, or any conditions of your confinement, through the Bureau’s Administrative Remedy Program, 28 C.F.R. §§
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542.10 through 542.19.” Ex. B at 5. Nowhere does the Institution Supplement suggest that any claim about CMU conditions not raised in the first 20 days will be permanently forfeited.
A. Complaint Regarding Visits 175. Mr. Benkahla submitted an Informal Resolution Form (“Informal Resolution Form (Visits)”), marked as received on July 21, 2008, in which he requested contact visits and additional visitation time. A true and correct copy of the Information Resolution Form (Visits) is attached hereto as Exhibit I and incorporated by reference herein. 176. Following the denial of his informal resolution request, Mr. Benkahla submitted a Request for Administrative Remedy (“Request for Administrative Remedy (Visits)”), dated July 23, 2008 and received on July 24, 2008, in which he requested contact visits and additional visitation time. A true and correct copy of the Request For Administrative Remedy (Visits) is attached hereto as Exhibit J and incorporated by reference herein. 177. Both the Informal Resolution Form (Visits) and the Request For Administrative Remedy (Visits) made it clear that Mr. Benkahla was complaining about ongoing conditions in the CMU, not the initial, discrete decision to place him there. 178. The Administrative Remedy Coordinator, Terre Haute FCI, issued a Rejection Notice dated July 28, 2008 (“Terre Haute FCI Rejection Notice (Visits)”), which stated the Request For Administrative Remedy (Visits) had been rejected because: “Your request is untimely. Institution and CCC Requests (BP-09) must be received w/20 days of the event complained about.” A true and correct copy of the Terre Haute FCI Rejection Notice (Visits) is attached hereto as Exhibit K and incorporated by reference herein. 179. Following the denial of the Request for Administrative Remedy (Visits), Mr. Benkahla filed a Regional Administrative Remedy Appeal, dated August 4, 2008 and received
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on August 13, 2008 (“Regional Administrative Remedy Appeal (Visits)”). A true and correct copy of Mr. Benkahla’s Regional Administrative Remedy Appeal (Visits) is attached hereto as Exhibit L and incorporated by reference herein.
180. The Administrative Remedy Coordinator, North Central Regional Office issued a Rejection Notice on August 13, 2008 (“Regional Office Rejection Notice (Visits)”), adopting the same reasoning as the initial rejection. A true and correct copy of the Regional Office Rejection Notice (Visits) is attached hereto as Exhibit M and incorporated by reference herein.
181. Mr. Benkhala filed a Central Office Administrative Remedy Appeal, dated August 25, 2008 and received on September 2, 2008 (“Central Office Administrative Remedy Appeal (Visits)”). A true and correct copy of Mr. Benkahla’s Central Office Administrative Remedy Appeal (Visits) is attached hereto as Exhibit N and incorporated by reference herein.
182. The Administrative Remedy Coordinator, Central Office, issued a Rejection Notice dated September 11, 2008 (“Central Office Rejection Notice (Visits)”), again adopting the same reasoning as the initial rejection. A true and correct copy of the Central Office Rejection Notice (Visits) is attached as Exhibit O and incorporated by reference herein.
B. Complaint Regarding Telephone Calls 183. Mr. Benkahla submitted an Informal Resolution Form (“Informal Resolution Form (Telephone Calls)”), marked as received on July 21, 2008. A true and correct copy of the Information Resolution Form (Telephone Calls) is attached hereto as Exhibit P and incorporated by reference herein. 184. Following the denial of his informal resolution request, Mr. Benkahla submitted a Request for Administrative Remedy (“Request for Administrative Remedy (Telephone Calls)”), dated July 23, 2008 and received on July 24, 2008. A true and correct copy of the Request For
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Administrative Remedy (Telephone Calls) is attached hereto as Exhibit Q and incorporated by reference herein.
185. Both the Informal Resolution Form (Telephone Calls) and the Request For Administrative Remedy (Telephone Calls) made it clear that Mr. Benkahla was complaining about ongoing conditions in the CMU, not the initial, discrete decision to place him there.
186. The Administrative Remedy Coordinator, Terre Haute FCI, issued a Rejection Notice dated July 28, 2008 (“Terre Haute FCI Rejection Notice (Telephone Calls)”), which stated the Request For Administrative Remedy (Telephone Calls) had been rejected because: “Your request is untimely. Institution and CCC Requests (BP-09) must be received w/20 days of the event complained about.” A true and correct copy of the Terre Haute FCI Rejection Notice (Telephone Calls) is attached hereto as Exhibit R and incorporated by reference herein.
187. Following the denial of the Request for Administrative Remedy (Telephone Calls), Mr. Benkahla filed a Regional Administrative Remedy Appeal, dated August 4, 2008 and received on August 13, 2008 (“Regional Administrative Remedy Appeal (Telephone Calls)”). A true and correct copy of Mr. Benkahla’s Regional Administrative Remedy Appeal (Telephone Calls) is attached as Exhibit S and incorporated by reference herein.
188. The Administrative Remedy Coordinator, North Central Regional Office issued a Rejection Notice on August 13, 2008 (“Regional Office Rejection Notice (Telephone Calls)”), adopting the same reasoning as the initial rejection. A true and correct copy of the Regional Office Rejection Notice (Telephone Calls) is attached hereto as Exhibit T and incorporated by reference herein.
189. Following the denial of his Regional Administrative Remedy Appeal (Telephone Calls), Mr. Benkhala filed a Central Office Administrative Remedy Appeal, dated August 25,
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2008 and received on September 2, 2008 (“Central Office Administrative Remedy Appeal (Telephone Calls)”). A true and correct copy of Mr. Benkahla’s Central Office Administrative Remedy Appeal (Telephone Calls) is attached hereto as Exhibit U and incorporated by reference herein.
190. The Administrative Remedy Coordinator, Central Office, issued a Rejection Notice dated September 11, 2008 (“Central Office Rejection Notice (Telephone Calls)”), which rejected Mr. Benkahla’s grievance on the same basis, stating: “Your request is untimely. Institution and CCC Requests (BP-09) must be received w/20 days of the event complained about.” A true and correct copy of the Central Office Rejection Notice (Telephone Calls) is attached as Exhibit V and incorporated by reference herein.
191. Thus, BOP again incorrectly construed Mr. Benkahla’s complaint to focus on his initial designation to the CMU rather than the current and ongoing telephone restrictions about which Mr. Benkahla actually complained.
C. Complaint Regarding Ongoing CMU Confinement 192. Mr. Benkahla submitted an Informal Resolution Form, which was received on July 21, 2008 (“Informal Resolution Form (Current CMU Confinement)”). A true and correct copy of the Informal Resolution Form (Current CMU Confinement) is attached hereto as Exhibit W and incorporated by reference herein. 193. Mr. Benkahla stated on the Informal Resolution Form (Current CMU Confinement): “I am being improperly and incorrectly held in a Control Management Unit and request an immediate transfer to a regular prison that is w/in reasonable distance to my family and in accordance with my proper classification.”
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194. Following his submission of the Informal Resolution Form (Current CMU Confinement), Mr. Benkahla filed a Request for Administrative Remedy, dated July 23, 2008 and received on July 24, 2008 (“Request for Administrative Remedy (Current CMU Confinement)”). A true and correct copy of Request for Administrative Remedy (Current CMU Confinement) is attached hereto as Exhibit X and incorporated by reference herein. On the Request for Administrative Remedy (Current CMU Confinement), Mr. Benkahla stated in part: “The issue has not been properly addressed or resolved …. I would like to be redesignated to a camp facility that is w/in reasonable distance to my family …. This designation [a]ffects my elderly father, my 5 yr old son, my heartached mother and all my other siblings, family, and friends.”
195. The Administrative Remedy Coordinator, Terre Haute FCI issued a Rejection Notice on July 28, 2008 (“Terre Haute FCI Rejection Notice (Current CMU Confinement)”). A true and correct copy of the Terre Haute FCI Rejection Notice (Current CMU Confinement) is attached hereto as Exhibit Y and incorporated by reference herein. The Terre Haute FCI Rejection Notice (Current CMU Confinement) stated: “Your request is untimely. Institution and CCC Requests (BP-09) must be received w/20 days of the event complained about.”
196. In effect, the Terre Haute FCI Rejection Notice (Current CMU Confinement) stated that because Mr. Benkahla did not file a Request for Administrative Remedy within 20 days of his initial placement in the CMU, the Administrative Remedy Request was untimely.
197. Mr. Benkahla filed a Regional Administrative Remedy Appeal dated August 4, 2008 and received on August 13, 2008 (“Regional Administrative Remedy Appeal (Current CMU Confinement)”). A true and correct copy of the Regional Administrative Remedy Appeal
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(Current CMU Confinement) is attached hereto as Exhibit Z and incorporated by reference herein.
198. The Administrative Remedy Coordinator, North Central Regional Office issued a Rejection Notice on August 13, 2008 (“Regional Office Rejection Notice (Current CMU Confinement)”). A true and correct copy of the Regional Office Rejection Notice (Current CMU Confinement) is attached hereto as Exhibit AA and incorporated by reference herein.
199. Mr. Benkahla filed a Central Office Administrative Remedy Appeal dated August 25, 2008 and received on September 2, 2008 (“Central Office Administrative Remedy Appeal (Current CMU Confinement)”). A true and correct copy of the Central Office Administrative Remedy Appeal (Current CMU Confinement) is attached hereto as Exhibit BB and incorporated by reference herein.
200. The Administrative Remedy Coordinator, Central Office issued a Rejection Notice on September 11, 2008 (“Central Office Rejection Notice (Current CMU Confinement)”). A true and correct copy of the Central Office Rejection Notice (Current CMU Confinement) is attached hereto as Exhibit CC and incorporated by reference herein. The Central Office Rejection Notice (Current CMU Confinement) restated the same language used in the earlier Rejection Notices regarding CMU confinement: “Your request is untimely. Institution and CCC Requests (BP-09) must be received w/20 days of the event complained about.”
201. The Central Office listed the subject matter of Mr. Benkahla’s complaint as “CONTROL UNIT PLACEMENT.”
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CLAIM FOR RELIEF Lack of Notice and Comment Rulemaking – 5 U.S.C. §§ 553 and 552(a) 202. The allegations contained in paragraphs 1-201 are restated and incorporated by reference herein. 203. The issuance of the Terre Haute CMU Institution Supplement and the Institution Supplement – Visiting Regulations and the creation of the Terre Haute CMU constitute final agency action under the APA. 204. The Terre Haute CMU Institution Supplement and the Institution Supplement – Visiting Regulations contain substantive rules that required notice and comment rulemaking under 5 U.S.C. § 553 and publication in the Federal Register under 5 U.S.C. §§ 553 and 552(a). 205. The fact that provisions in the Terre Haute CMU Institution Supplement and the Institution Supplement – Visiting Regulations are wholly inconsistent with existing regulations regarding control units, administrative detention, disciplinary segregation, and weekend visitation confirms the status of the new provisions as substantive rules that required notice and comment rulemaking. 206. Defendants Lappin and/or Conley had the authority to engage in notice and comment rulemaking under 5 U.S.C. § 553 and to publish final rules in the Federal Register under 5 U.S.C. §§ 553 and 552(a), but they did not do so.
38

Case 2:09-cv-00025-WTL-DML Document 20 Filed 07/27/09 Page 39 of 40 PageID #: 241
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court
a. Issue a judgment declaring that Defendants violated the Administrative Procedure Act by establishing the Terre Haute CMU and issuing the Terre Haute CMU Institution Supplement and Institution Supplement – Visiting Regulations without notice and comment rulemaking;
b. Order Defendants to engage in immediate notice and comment rulemaking regarding the establishment of CMUs;
c. Permanently enjoin Defendants from operating the Terre Haute CMU in violation of BOP regulations;
d. Order Defendants to comply with 28 C.F.R. 540.42 by establishing CMU visiting hours on Saturdays, Sundays, and holidays;
e. Award attorney’s fees, costs, and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412;
f. Grant such other and further relief as this Court deems just and proper.
39

Case 2:09-cv-00025-WTL-DML Document 20 Filed 07/27/09 Page 40 of 40 PageID #: 242
Dated this 18th day of June, 2009. Respectfully submitted,
s/David M. Shapiro David M. Shapiro Staff Counsel National Prison Project of the American Civil Liberties Union Foundation 915 15th Street, NW 7th Floor Washington, DC 20005 Phone: (202) 393-4930 Fax: (202) 393-4931 Email: dshapiro@npp-aclu.org Kenneth J. Falk Legal Director ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 Phone: (317) 635-4059 ext. 104 Fax: 317/635-4105 Email: kfalk@aclu-in.org
40

 
 Case 2:09-cv-00025-WTL-DML Document 67 Filed 07/29/10 Page 1 of 2 PageID #: 452

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

SABRI BENKAHLA,

)

)

Plaintiff,

)

)

v.

)

)

FEDERAL BUREAU OF PRISONS,

)

)

Defendant.

)

Cause No. 2:09-cv-00025-WTL-DML

ORDER Comes now plaintiff, having filed his Motion to Dismiss, or, Alternatively, Notice of Dismissal, and the Court having read the filing, and being duly advised, finds that this cause should be dismissed, and, IT IS THEREFORE ORDERED that this case is DISMISSED, without prejudice.

_0_7_/2_9_/_2_0_1_0___

__________________________________________

Date

Judge,

United States District Court
_______________________________

cc:
Kenneth J. Falk ACLU of Indiana kfalk@aclu-in.org

Hon. William T. Lawrence, Judge United States District Court Southern District of Indiana

David C. Fathi ACLU National Prison Project dfathi@npp-aclu.org

Thomas E. Kieper Assistant United States Attorney tom.kieper@usdoj.gov

William L. McCoskey

Case 2:09-cv-00025-WTL-DML Document 67 Filed 07/29/10 Page 2 of 2 PageID #: 453
Assistant United States Attorney William.mccoskey@usdoj.gov
William Oscar Harris No. 40743-050 Federal Correctional Institution PO Box 33 Terre Haute, IN 47808
Rex Russell Dean Landers No. 05177-046 Federal Correctional Institution PO Box 33 Terre Haute, IN 47808
Ralph William Taylor No. 14528-052 Federal Correctional Institution PO Box 33 Terre Haute, IN 47808

 
 Case: 2:09-cv-25 As of: 05/07/2013 11:31 PM EDT 1 of 7
U.S. District Court Southern District of Indiana (Terre Haute) CIVIL DOCKET FOR CASE #: 2:09−cv−00025−WTL−DML

CLOSED

BENKAHLA v. FEDERAL BUREAU OF PRISONS, et al Assigned to: Judge William T. Lawrence Referred to: Magistrate Judge Debra McVicker Lynch Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 01/21/2009 Date Terminated: 07/29/2010 Jury Demand: None Nature of Suit: 555 Prisoner Petitions − Prison Condition Jurisdiction: Federal Question

SABRI BENKAHLA 46867−083 TERRE HAUTE − FCI FEDERAL CORRECTIONAL INSTITUTION Inmate Mail/Parcels P.O. BOX 33 TERRE HAUTE, IN 47808

represented by David C. Fathi NATIONAL PRISON PROJECT OF THE ACLU 915 15th Street, NW 7th Floor Washington, DC 20005 (202) 393−4930 Fax: (202) 393−4931 Email: dfathi@npp−aclu.org ATTORNEY TO BE NOTICED

Kenneth J. Falk ACLU OF INDIANA 1031 East Washington Street Indianapolis, IN 46202−3952 (317) 635−4059 x104 Fax: (317) 635−4105 Email: kfalk@aclu−in.org ATTORNEY TO BE NOTICED

V. Defendant FEDERAL BUREAU OF PRISONS

represented by Thomas E. Kieper UNITED STATES ATTORNEY'S OFFICE 10 West Market Street Suite 2100 Indianapolis, IN 46204 (317) 226−6333 Fax: (317) 226−6125 Email: tom.kieper@usdoj.gov ATTORNEY TO BE NOTICED
William Lance McCoskey UNITED STATES ATTORNEY'S OFFICE 10 West Market Street Suite 2100 Indianapolis, IN 46204 317−229−2412 Fax: 317−226−5027 Email: william.mccoskey@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

Case: 2:09-cv-25 As of: 05/07/2013 11:31 PM EDT 2 of 7

01/21/2009 01/21/2009
02/12/2009 02/25/2009 05/01/2009
05/01/2009 05/07/2009
05/07/2009 05/12/2009 05/13/2009 05/13/2009 05/13/2009 05/13/2009 05/15/2009 06/05/2009

1 COMPLAINT against SABRI BENKAHLA, filed by SABRI BENKAHLA.(VS) (Entered: 01/21/2009)
2 NOTICE AND ENTRY directing further proceedings; clerk shall process the complaint filed on 01/13/09 as the complaint in the two new civil actions one will show Seifullah Chapman, as plaintiff, and one will show Sabri Benkahla as plaintiff; this action shall proceed as to plaintiff Randall Todd Royer, who shall have through 02/04/09 to pay filing fee of $350.00 or demonstrate his financial inability to do so. Signed by Judge William T. Lawrence on 01/21/09.(VS) (Entered: 01/21/2009).(VS) (Entered: 01/21/2009)
3 ENTRY Directing Further Proceedings; plaintiff shall have through 03/11/09 in which to either pay $350.00 filing fee for this action or demonstrate that he lacks financial ability to do so. Signed by Judge William T. Lawrence on 2/12/2009. cm(NKD) (Entered: 02/13/2009)
4 Letter dated 2/23/09 regarding this case and case No. 2:09−cv−011−WTL−DML from Randall Todd Royer (NKD) (Entered: 02/25/2009)
5 ORDER granting 7 Motion for Leave to Proceed in forma pauperis; granting 9 Motion for Leave to Proceed in forma pauperis; plaintiff is assessed an initial partial filing fee of $19.00 and shall have through 06/11/09 to pay sum to clerk of district court; filing fee paid in this case shall be applied to the obligation of plaintiff Sabri Benkahla to pay the filing fee in 2:09−cv−25−WTL DML; copy of this entry shall be docketed in 2:09−cv−25− WTL DML;. Signed by Judge William T. Lawrence on 5/1/2009. (VS) (Entered: 05/01/2009) (Entered: 05/01/2009)
6 RECEIPT #th 000694 in the amount of $ 350.00 **(Docketed in this case per entry dated 05/01/09) (VS) (Entered: 05/01/2009)
7 ENTRY concerning selected matters; a habeas claim cannot be joined with other claims; action is dismissed without prejudice to extent that plaintiff challenges either the fact or duration of his confinement; plaintiff's complaint is rejected and he shall have through 06/11/09 to file an amended complaint. Signed by Judge William T. Lawrence on 5/7/2009.(VS) (Entered: 05/07/2009)
8 MOTION for Extension of Time to file amended complaint, filed by Plaintiff SABRI BENKAHLA. (VS) (Entered: 05/08/2009)
9 ORDER denying plaintiff's 8 Motion for Extension of Time in light of directions issued in Entry of 05/07/09. Signed by Judge William T. Lawrence on 5/12/2009. cm (NKD) (Entered: 05/12/2009)
10 MOTION for Attorney David M. Shapiro to Appear pro hac vice., filed by Plaintiff SABRI BENKAHLA. (Attachments: # 1 Text of Proposed Order appear phv)(NKD) (Entered: 05/14/2009)
11 RECEIPT #IP 12669 in the amount of $ 30.00 PHV fee for David M. Shapiro. (NKD) (Entered: 05/14/2009)
12 MOTION for Extension or Clarification of Deadline for Service of Complaint, filed by Plaintiff SABRI BENKAHLA. (Attachments: # 1 Text of Proposed Order motion for extension or clarification of deadline)(NKD) (Entered: 05/14/2009)
13 MEMORANDUM in Support re 12 MOTION for Extension or Clarification of Deadline, filed by Plaintiff SABRI BENKAHLA. (NKD) (Entered: 05/14/2009)
14 ORDER granting 10 Motion to Appear pro hac vice. Attorney David M. Shapiro for SABRI BENKAHLA added. Signed by Magistrate Judge Debra McVicker Lynch on 5/15/2009. cm (NKD) (Entered: 05/21/2009)
15 ORDER granting plaintiff's 12 Motion for Extension or clarification of deadline for service of complaint; plaintiff shall have through 06/18/09 in which to file an amended complaint; time within which plaintiff shall have to serve amended complaint is extended for a period of 90 days following date on which court completes screening of amended complaint. Signed by Judge William T. Lawrence on 6/5/2009. cm (NKD) (Entered: 06/05/2009)

Case: 2:09-cv-25 As of: 05/07/2013 11:31 PM EDT 3 of 7

06/17/2009 06/18/2009
06/18/2009 07/27/2009 07/27/2009

16 NOTICE of Appearance by Kenneth J. Falk on behalf of Plaintiff SABRI BENKAHLA. (Falk, Kenneth) (Entered: 06/17/2009)
17 MOTION To Add and Remove Defendants, filed by Plaintiff SABRI BENKAHLA. (Attachments: # 1 Exhibit Attachment 1 −− Proposed Amended Complaint, # 2 Exhibit Exhibit A to Proposed Amended Complaint −− Letter from U.S. Congressman James Moran, # 3 Exhibit Exhibit B to Proposed Amended Complaint −− Terre Haute CMU Institution Supplement, # 4 Exhibit Exhibit C to Proposed Amended Complaint −− CMU Transfer Notice, # 5 Exhibit Exhibit D to Proposed Amended Complaint −− Institution Supplemnent −− Visiting Regulations, # 6 Exhibit Exhibit E to Proposed Amended Complaint −− Notice of Proposed Rulemaking, # 7 Exhibit Exhibit F to Proposed Amended Complaint −− Comments of Civil Liberties Groups, # 8 Exhibit Exhibit G to Proposed Amended Complaint −− Conley Memorandum, # 9 Exhibit Exhibit H to Proposed Amended Complaint −− Marion CMU Institution Supplement, # 10 Exhibit Exhibit I to Proposed Amended Complaint −− Informal Resolution Form (Visits), # 11 Exhibit Exhibit J to Proposed Amended Complaint −− Request for Administrative Remedy (Visits), # 12 Exhibit Exhibit K −− Terre Haute FCI Rejection Notice (Visits), # 13 Exhibit Exhibit L to Amended Complaint −− Regional Administrative Remedy Appeal (Visits), # 14 Exhibit Exhibit M to Proposed Amended Complaint −− Regional Office Rejection Notice (Visits), # 15 Exhibit Exhibit N to Proposed Amended Complaint −− Central Office Administrative Remedy Appeal (Visits), # 16 Exhibit Exhibit O to Proposed Amended Complaint −− Central Office Rejection Notice (Visits), # 17 Exhibit Exhibit P to Proposed Amended Complaint −− Informal Resolution Form (Telephone Calls), # 18 Exhibit Exhibit Q to Proposed Amended Complaint −− Request for Administrative Remedy (Telephone Calls), # 19 Exhibit Exhibit R to Proposed Amended Complaint −− Terre Haute FCI Rejection Notice (Telephone Calls), # 20 Exhibit Exhibit S to Proposed Amended Complaint −− Regional Administrative Remedy Appeal (Telephone Calls), # 21 Exhibit Exhibit T to Proposed Amended Complaint −− Regional Office Rejection Notice (Telephone Calls), # 22 Exhibit Exhibit U to Proposed Amended Complaint −− Central Office Administrative Remedy Appeal (Telephone Calls), # 23 Exhibit Exhibit V to Proposed Amended Complaint −− Central Office Rejection Notice (Telephone Calls), # 24 Exhibit Exhibit W to Proposed Amended Complaint −− Informal Resolution Form (Current CMU Confinement), # 25 Exhibit Exhibit X to Proposed Amended Complaint −− Request for Administrative Remedy (Current CMU Confinement), # 26 Exhibit Exhibit Y to Proposed Amended Complaint −− Terre Haute FCI Rejection Notice (Current CMU Confinement), # 27 Exhibit Exhibit Z to Proposed Amended Complaint −− Regional Administrative Remedy Appeal (Current CMU Confinement), # 28 Exhibit Exhibit AA to Proposed Amended Complaint −− Regional Office Rejection Notice (Current CMU Confinement), # 29 Exhibit Exhibit BB to Proposed Amended Complaint −− Central Office Administrative Remedy Appeal (Current CMU Confinement), # 30 Exhibit Exhibit CC to Proposed Amended Complaint −− Central Office Rejection Notice (Current CMU Confinement), # 31 Text of Proposed Order Proposed Order)(Shapiro, David) (Entered: 06/18/2009)
18 BRIEF/MEMORANDUM in Support re 17 MOTION To Add and Remove Defendants, filed by Plaintiff SABRI BENKAHLA. (Shapiro, David) (Entered: 06/18/2009)
19 ORDER granting 17 Motion to add and remove defendants; ORDERED defendants Federal Bureau of Prisons, Eric H. Holder, Harley G. Lappin, and Joyce K. Conley, all in their official capacities are added; FURTHER ORDERED all pending claims (counts two, three, four, five, six, and seven) are DISMISSED WITHOUT PREJUDICE against defendants, B.R. Jett, Paul McNulty, Unknown Employees of Correctional Programs Division of the Federal Bureau of Prison, Les Smith, T.R. Henry, S. Julian T. Coleman, and Agent Grass; FURTHER ORDERED Proposed Amended Complaint exhibit 1 shall be entered and shall supersede the original complaint filed 01/13/09. Signed by Judge William T. Lawrence on 7/27/2009. (VS) (Entered: 07/28/2009)
20 AMENDED COMPLAINT against all defendants, filed by SABRI BENKAHLA.(VS) (Entered: 07/28/2009)

Case: 2:09-cv-25 As of: 05/07/2013 11:31 PM EDT 4 of 7

07/31/2009
08/06/2009 08/11/2009 08/11/2009 08/13/2009
08/13/2009
08/21/2009 08/24/2009 08/26/2009 09/14/2009
09/16/2009 09/23/2009 09/23/2009 11/17/2009 11/17/2009 11/19/2009 11/30/2009

21 ENTRY directing further proceedings; although plaintiff's motion to add and remove defendants (dkt17) has been granted, the result is that claims pursuant to the Administravie Procedures Act (APA) are now asserted against individuals as well as against the (BOP). It is the BOP, however that is the sole proper defendant in an action under the APA. Signed by Judge William T. Lawrence on 07/31/09.(VS) Modified on 8/4/2009 (TLH). (Entered: 08/03/2009)
24 Summons Issued as to USA − Warden, Federal Correctional Institution (NKD) (Entered: 08/12/2009)
22 MOTION to Amend/Correct Summons, filed by Plaintiff SABRI BENKAHLA. (Attachments: # 1 Text of Proposed Order, # 2 Corrected Summons)(Falk, Kenneth) (Entered: 08/11/2009)
23 Summons Issued as to USA − FEDERAL BUREAU OF PRISONS (NKD) (Entered: 08/12/2009)
25 ENTRY − plaintiff shall have through 09/02/09 to show cause why claims against Bureau of Prisons employees should not be dismissed as improper based on the observations made in entry entered on 08/03/09. Signed by Judge William T. Lawrence on 8/13/2009.(VS) (Entered: 08/13/2009)
26 ORDER granting plaintiff's 22 Motion to Amend Summons; plaintiff may file the amended summons on the United States Attorney for the Southern District of Indiana that is attached to the Motion. Signed by Judge William T. Lawrence on 8/13/2009. (NKD) (Entered: 08/13/2009)
27 NOTICE, filed by Plaintiff SABRI BENKAHLA (Shapiro, David) (Entered: 08/21/2009)
28 SUMMONS Returned Executed by SABRI BENKAHLA. FEDERAL BUREAU OF PRISONS served on 8/18/2009. (Falk, Kenneth) (Entered: 08/24/2009)
29 ENTRY − Based on plaintiff's filing of 8/21/09, claims against Bureau of Prisons employees are dismissed. Signed by Judge William T. Lawrence on 8/26/2009.(NKD) (Entered: 08/27/2009)
30 SUPERSEDING ENTRY issued on 08/27/09; based on the notice filed by plaintiff on 08/21/09, and based also on court's view that the only proper defendant in action brought pursuant to the Administrative Procedures Act, the Federal Bureau of Prisons is the federal agency implicated by the claims, in this case the claims against the defendant individuals are dismissed; no partial final judgment shall issue at this time as to claims resolved in this entry. Signed by Judge William T. Lawrence on 9/14/2009.(VS) (Entered: 09/14/2009)
31 Clerk's Notice of Change of Terre Haute Division Mailing Address. (JD) (Entered: 09/16/2009)
32 NOTICE of Appearance by Thomas E. Kieper on behalf of Defendant FEDERAL BUREAU OF PRISONS. (Kieper, Thomas) (Entered: 09/23/2009)
33 NOTICE of Parties' First Extension of Time, filed by Defendant FEDERAL BUREAU OF PRISONS. (Kieper, Thomas) (Entered: 09/23/2009)
34 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment, filed by Defendant FEDERAL BUREAU OF PRISONS. (Kieper, Thomas) (Entered: 11/17/2009)
35 BRIEF/MEMORANDUM in Support re 34 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment, filed by Defendant FEDERAL BUREAU OF PRISONS. (Kieper, Thomas) (Entered: 11/17/2009)
36 NOTICE Pursuant to L.R. 6.1(a), filed by Plaintiff SABRI BENKAHLA (Shapiro, David) (Entered: 11/19/2009)
37 Unopposed MOTION for Extension of Time to 12/16/2009 to file response to 34 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment, filed by Plaintiff SABRI BENKAHLA. (Attachments: # 1 Text of Proposed Order)(Shapiro, David) (Entered: 11/30/2009)

Case: 2:09-cv-25 As of: 05/07/2013 11:31 PM EDT 5 of 7

12/01/2009
12/15/2009 12/21/2009 12/28/2009
01/15/2010 01/20/2010 02/08/2010 02/08/2010 02/16/2010 02/25/2010 03/02/2010 04/14/2010 04/14/2010 04/28/2010 04/29/2010
06/16/2010
06/17/2010

38 ORDER granting 37 Motion for Extension of Time to File Response to 34 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment. Response due by 12/16/2009.. Signed by Judge William T. Lawrence on 12/1/2009. (VS) (Entered: 12/02/2009)
39 RESPONSE in Opposition re 34 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment, filed by Plaintiff SABRI BENKAHLA. (Shapiro, David) (Entered: 12/15/2009)
40 Unopposed MOTION for Extension of Time to January 25, 2010, filed by Defendant FEDERAL BUREAU OF PRISONS. (Attachments: # 1 Text of Proposed Order)(Kieper, Thomas) (Entered: 12/21/2009)
41 ORDER granting defendant's 40 Motion for Extension of Time; defendant shall have to and including 01/25/10 within which to file a reply to Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss or for Summary Judgment. Signed by Judge William T. Lawrence on 12/28/2009. (NKD) (Entered: 12/28/2009)
42 Unopposed MOTION for Extension of Time to February 8, 2010, filed by Defendant FEDERAL BUREAU OF PRISONS. (Attachments: # 1 Text of Proposed Order)(Kieper, Thomas) (Entered: 01/15/2010)
43 ORDER granting defendant's 42 Motion for Extension of Time; defendant shall have to and including 2/08/10 within which to file a reply. Signed by Magistrate Judge Debra McVicker Lynch on 1/20/2010. (NKD) (Entered: 01/20/2010)
44 NOTICE of Appearance by William Lance McCoskey on behalf of Defendant FEDERAL BUREAU OF PRISONS. (McCoskey, William) (Entered: 02/08/2010)
45 REPLY in Support of Motion re 34 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment, filed by Defendant FEDERAL BUREAU OF PRISONS. (Kieper, Thomas) (Entered: 02/08/2010)
46 MOTION to Substitute Attorney, filed by Plaintiff SABRI BENKAHLA. (Attachments: # 1 Proposed Order)(Shapiro, David) (Entered: 02/16/2010)
47 ORDER granting 46 Motion to Substitute Attorney DAVID FATHI; Attorney David M. Shapiro withdrawn.. Signed by Judge William T. Lawrence on 2/25/2010. (VS) (Entered: 02/25/2010)
48 NOTICE of Appearance by David C. Fathi on behalf of Plaintiff SABRI BENKAHLA. (Fathi, David) (Entered: 03/02/2010)
49 MOTION to Dismiss Sabri Benkahla's Complaint, filed by Defendant FEDERAL BUREAU OF PRISONS. (McCoskey, William) (Entered: 04/14/2010)
50 BRIEF/MEMORANDUM in Support re 49 MOTION to Dismiss Sabri Benkahla's Complaint, filed by Defendant FEDERAL BUREAU OF PRISONS. (Attachments: # 1 Attachment 1)(McCoskey, William) (Entered: 04/14/2010)
51 MOTION for Extension of Time to June 17, 2010 to file response to 49 MOTION to Dismiss Sabri Benkahla's Complaint, filed by Plaintiff SABRI BENKAHLA. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 04/28/2010)
52 ORDER granting plaintiff's 51 Motion for Extension of Time to File Response to 6/17/2010 re 49 MOTION to Dismiss Sabri Benkahla's Complaint. Signed by Magistrate Judge Debra McVicker Lynch on 4/29/2010. (NKD) (Entered: 04/30/2010)
53 Second MOTION for Extension of Time to July 19, 2010 to file response to 49 MOTION to Dismiss Sabri Benkahla's Complaint (Uncontested), filed by Plaintiff SABRI BENKAHLA. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 06/16/2010)
54 ORDER granting 53 Motion for Extension of Time to File Response to 7/19/2010 re 49 MOTION to Dismiss Sabri Benkahla's Complaint. Signed by Magistrate Judge Debra McVicker Lynch on 6/17/2010. (LH) (Entered: 06/17/2010)

Case: 2:09-cv-25 As of: 05/07/2013 11:31 PM EDT 6 of 7

06/18/2010 06/29/2010 07/02/2010 07/02/2010 07/02/2010 07/02/2010 07/12/2010 07/12/2010 07/14/2010 07/17/2010
07/21/2010 07/28/2010 07/29/2010
08/03/2010 08/09/2010 10/20/2010
11/08/2010

55 MOTION TO INTERVENE***Intervention Petition by affidavit pursuant to Federal Rules of Civil Procedure Rule 24 (a)(2). − Oscaro El Hari, Bey (Attachments: # 1 letter)(VS) Modified on 6/29/2010 (JHO). (Entered: 06/21/2010)
56 RESPONSE in Opposition re 55 MOTION to Intervene, filed by Defendant FEDERAL BUREAU OF PRISONS. (Attachments: # 1 Attachment 1)(Kieper, Thomas) (Entered: 06/29/2010)
57 RESPONSE to Motion re 55 MOTION to Intervene, filed by Plaintiff SABRI BENKAHLA. (Falk, Kenneth) (Entered: 07/02/2010)
58 NOTICE of Amendment of Certificate of Service, filed by Plaintiff SABRI BENKAHLA (Falk, Kenneth) (Entered: 07/02/2010)
59 ***SEE DOCKET #60 FOR COMPLETE DOCUMENT*** Judicial NOTICE by affidavit, filed by Plaintiff SABRI BENKAHLA (Attachments: # 1 letter) (VS) Modified on 7/2/2010 (VS). (Entered: 07/02/2010)
60 CORRECTED DOCUMENT − Please disregard document re 59 Notice (Other) which was Docketed in Error. Corrected document has been attached to this entry. (Attachments: # 1 letter) (VS) (Entered: 07/02/2010)
61 Submission of 3rd party intervenor's claim to strike response, filed by Plaintiff SABRI BENKAHLA. (NKD) (Entered: 07/13/2010)
62 Submission of 3rd party intervenor's claim to strike response, filed by Plaintiff SABRI BENKAHLA. (NKD) (Entered: 07/13/2010)
63 REPLY in Support of Motion re 49 MOTION to Dismiss Sabri Benkahla's Complaint, filed by Defendant FEDERAL BUREAU OF PRISONS. (Attachments: # 1 Attachment 1)(Kieper, Thomas) (Entered: 07/14/2010)
64 Third MOTION for Extension of Time to August 3, 2010 to file response to 49 MOTION to Dismiss Sabri Benkahla's Complaint, filed by Plaintiff SABRI BENKAHLA. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 07/17/2010)
65 ORDER granting 64 Motion for Extension of Time to File Response to 8/3/2010 re 49 MOTION to Dismiss Sabri Benkahla's Complaint. Signed by Magistrate Judge Debra McVicker Lynch on 7/21/2010. cm(NKD) (Entered: 07/21/2010)
66 MOTION to Dismiss or, Alternatively, Notice of Dismissal, filed by Plaintiff SABRI BENKAHLA. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 07/28/2010)
67 CLOSED DISMISSED without prejudice; plaintiff, having filed his Motion to Dismiss, and the Court having read the filing, and being duly advised, finds that this cause should be dismissed. Signed by Judge William T. Lawrence on 7/29/2010.(VS) (Entered: 07/29/2010)
68 Mail Returned as undeliverable. 67 Closed Dismissed sent to Ralph william Taylor. (NKD) (Entered: 08/03/2010)
69 Petition to intervene, filed by Plaintiff SABRI BENKAHLA. (VS) (Entered: 08/10/2010)
70 ENTRY − William Oscar Harris, Rex Russel Dean Landers, and Ralph William Taylor renew their motion to intervene. The previous motion to intervene was pending at the time of judgment and was denied by operation of law when final judgment was entered; The renewed motion to intervene (dkt 69) is likewise denied. The potential intervenors have not shown that their motion is timely or that they share common interests with the plaintiff in this case. Signed by Judge William T. Lawrence on 10/20/2010.(served by U. S. mail)(VS) (Entered: 10/22/2010)
71 NOTICE &Demand for immediate remedy, filed by Plaintiff SABRI BENKAHLA (NKD) (Additional attachment(s) added on 11/8/2010: # 1 Notice with Entry) (NKD). (Entered: 11/08/2010)

Case: 2:09-cv-25 As of: 05/07/2013 11:31 PM EDT 7 of 7

12/13/2010

72 AFFIDAVIT (3rd Party intervenors') in Support of Order Confirming Intervention by William Oscar Harris.(NKD) (Entered: 12/14/2010)

Case #: 2:09−cv−00025−WTL−DML