Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 1 of 77

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

YASSIN MUHIDDIN AREF USP Marion, CMU 4500 Prison Road Marion, IL 62959

and

AVON TWITTY (aka Abdul Ali) FCI Terre Haute, CMU 4200 Bureau Road North Terre Haute, IN 47808

and

DANIEL MCGOWAN USP Marion, CMU 4500 Prison Road Marion, IL 62959

and JENNY SYNAN

CIVIL ACTION NO.- -

and

ROYAL JONES USP Marion 4500 Prison Road Marion, IL 62959

and

KIFAH JAYYOUSI FCI Terre Haute, CMU 4200 Bureau Road North Terre Haute, IN 47808

and

HEDAYA JAYYOUSI

VS.

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 2 of 77
ERIC HOLDER Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 and HARLEY LAPPIN Director of the Federal Bureau of Prisons (BOP) 320 First Street, NW Washington, DC 20534 and D. SCOTT DODRILL Assistant Director, Correctional Programs Division Federal Bureau of Prisons 320 First Street, NW Washington, DC 20534 and FEDERAL BUREAU OF PRISONS 320 First Street, NW Washington, DC 20534
COMPLAINT Plaintiffs YASSIN MUHIDDIN AREF, AVON TWITTY, DANIEL MCGOWAN, ROYAL JONES, and KIFAH JAYYOUSI (collectively "Plaintiffs"), and JENNY SYNAN and HEDAYA JAYYOUSI (collectively "Family Plaintiffs") by and through their attorneys, the Center for Constitutional Rights, allege the following:
NATURE OF ACTION 1. In 2006 and 2007, the Bureau of Prisons (BOP) secretly created two experimental prison units designed to isolate certain prisoners from the rest of the BOP
2

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 3 of 77
and the outside world. These units are called "Communications Management Units" or "CMUs."
2. While euphemistically described by the BOP as "self-contained general population units," the CMUs, alone out of all general population units within the federal system, impose a categorical ban on any physical contact with visiting friends and family, including babies, infants, and minor children. To further social isolation, the BOP has placed severe restrictions on CMU prisoners' access to phone calls and prison programming.
3. Although the creation of the CMU - as well as the indefinite nature of these restrictions - marked a dramatic change in policy and contradicts existing regulations, the CMUs were created without the opportunity for notice and comment, in violation of the Administrative Procedures Act (APA).
4. All Plaintiffs have been classified by the BOP as low or medium security, and were designated to the CMU at the Federal Correctional Institution in Terre Haute, Indiana (hereinafter "FCI Terre Haute"), or the United States Penitentiary in Marion, Illinois (hereinafter "USP Marion") despite having a relatively, and in some cases perfectly, clean disciplinary history.
5. Not a single Plaintiff has received discipline for any communicationsrelated infraction within the last decade, nor any major disciplinary offense. Two Plaintiffs' disciplinary histories are completely clean.
6. Adding to the suspect nature of these units, upwards of two-thirds of the prisoners confined there are Muslim - a figure that over-represents the proportion of
3

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 4 of 77
Muslim prisoners in BOP facilities by at least 1,000%. Many of the remaining prisoners have unpopular political views.
7. Plaintiffs' eMU designation was discriminatory, retaliatory, andlor punitive in nature and not rationally related to any legitimate penological purpose or substantiated information. Instead, their designation was based on their religion andlor perceived political beliefs, or in retaliation for other protected First Amendment activity.
8. Like all prisoners designated to the eMU, Plaintiffs received no procedural protections related to their designation, and were not allowed to examine or refute the allegations that led to their transfer. Plaintiffs are being held indefinitely at the eMU without any meaningful review process. Many face five, ten, even fifteen more years in prison. They expect to serve their entire sentences in these isolated and punitive units.
9. Plaintiffs have been placed indefinitely in a setting that imposes atypical and significant curtailments on their ability to communicate with loved ones, including the right to hug, touch, or embrace their family members, including children. As a result, Plaintiffs' familial relationships and rights of association with loved ones have been substantially impaired, and, with respect to relationships with young children, completely destroyed. eMU conditions hamper Plaintiffs' ability to engage in meaningful rehabilitation, and inflict pointless psychological pain.
10. Family Plaintiffs join in this case to challenge Defendants' interference with their ability to maintain relationships with their loved ones in prison. Those relationships are being irrevocably damaged, without necessity or legitimate penological purpose.
4

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 5 of 77
11. As a result of Defendants' misconduct, all Plaintiffs are suffering severe and unjustifiable emotional distress, psychological injury, and strain on their relationships. Some Plaintiffs, like Avon Twitty, see infra, face a longer prison term due to the stigma attached to CMU placemenL Others have lost meaningful contact with family, including their children.
12. Defendants, by creating, participating in, and endorsing Plaintiffs' systematic mistreatment, are violating the rights guaranteed to Plaintiffs under the First, Fifth, and Eighth Amendments to the United States Constitution, and the Administrative Procedures Act.
13. All Plaintiffs seek a judgment declaring that Defendants' actions and those of all persons acting on their behalf violate the constitutional and statutory rights of all Plaintiffs as to each applicable count. Plaintiffs also seek a declaration that each individual Plaintiffs transfer to and detention in the CMU is and was unjustified, unconstitutional, and unlawful. Plaintiffs further seek an injunction compelling Defendants to return Plaintiffs to the general population of an appropriate BOP facility and allow them the same opportunity to communicate with their families as other prisoners at their classification level, or enjoining Defendants from operating the CMU in a way that violates all Plaintiffs' rights. In addition, all Plaintiffs seek an award of costs and reasonable attorneys' fees.
JURISDICTION AND VENUE 14. This court has jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. §§ 2201 and 2202 (Declaratory Judgment Act), and 5 U.S.C. § 551 et seq. (Administrative Procedures Act).
5

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 6 of 77
15. Venue is proper in the United States District Court for the District of Columbia pursuant to 28 U.S.c. § 139l(b), because Defendants are headquartered and work in Washington, DC, and, as illustrated by memoranda and Congressional testimony, the policies and decisions giving rise to the injuries complained of herein occUl'fed, and continue to occur, in Washington, DC.
PARTIES 16. PlaintiffYASSIN MUHIDDIN AREF is a 39-year-old refugee and published author from Iraqi Kurdistan who fled Saddam Hussein's regime, moving to Albany, New York, in 1999. Following a controversial and well-publicized sting operation, Mr. Aref was convicted of money laundering, material support for terrorism, conspiracy, and making a false statement to the FBI. Mr. Aref is classified as a low security prisoner. Despite the fact that Mr. Arefhas no history of disciplinary infractions within the BOP, he was transferred to the CMU at FCI Terre Haute in May 2007. After 22 months at the FCI Terre Haute CMU, Mr. Arefwas transferred to the CMU at USP Marion, and remains there currently. Mr. Arefhas no affiliation with extremist or violence-oriented religious or political organizations. Indeed, Mr. Aref is opposed to violent or extremist religious and political ideologies. 17. Plaintiff AVON TWITTY (aka Abdul Ali) is a 55-year-old man from Washington, DC, an American citizen and a practicing Muslim. In 1984, Mr. Twitty was sentenced to 20 years to life imprisonment on one count of murder while armed and three to ten years imprisonment for one count of carrying a pistol without a license. He is classified as a medium security inmate. Despite the fact that Mr. Twitty has received no communications-related disciplinary infractions - and received only very minor
6

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 7 of 77
disciplinary infractions overall- he was transferred to the CMU at FCI Terre Haute on May 30, 2007, and has been held there ever since. Mr. Twitty has no affiliation with extremist or violence-oriented religious or political organizations. His underlying conviction involved no allegations of terrorism. Indeed, Mr. Twitty is opposed to violent or extremist religious and political ideologies.
18. Plaintiff DANIEL MCGOWAN is a 35-year-old man from Queens, New York, and is an American citizen. In 2007, Mr. McGowan was sentenced to 7 years imprisonment for conspiracy and arson. He is classified as a low security prisoner. Despite the fact that Mr. McGowan has never received a disciplinary infraction, he was transferred to the CMU at USP Marion in August of2008. While Mr. McGowan's imprisonment resulted from crimes he committed when associated with the Earth Liberation Front (ELF), he is no longer associated with that organization or any similar organization, and he has not attempted any communication with members of ELF or any similar organization. Mr. McGowan has no affiliation with extremist or violenceoriented religious or political organizations. Indeed, Mr. McGowan is opposed to violent or extremist religious and political ideologies.
19. Plaintiff JENNY SYNAN is a 35-year-old woman from New York. She is an American citizen, currently lives in Brooklyn, New York, and has been married to Plaintiff Daniel McGowan for close to four years. She has no criminal record.
20. Plaintiff ROYAL JONES is a 42-year-old man from San Francisco and is an American citizen and a practicing Muslim. In July 2006, Mr. Jones was arrested in Montana for soliciting a crime of violence - bank robbery - and for a probation violation relating to an earlier gun charge. He pled guilty, and was sentenced in 2007 to 94 months
7

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 8 of 77
in prison. He is classified as a medium security prisoner. Despite the fact that Mr. Jones received no major disciplinary infractions, and no communications-related disciplinary infractions within the last ten years, he was transferred to the eMU at USP Marion on June 9, 2008.Mr. Jones has no affiliation with extremist or violentreligious or political organizations. His underlying conviction involved no allegations of terrorism. Indeed, Mr. Jones is opposed to violent and extremist religious and political ideologies.
21. Mr. Jones was released from the eMU in March of2010, without explanation, and is currently in the general population at USP Marion. He has been told that he will remain at USP Marion for at least six months, and will immediately be placed back in the eMU ifhe engages in any of the conduct that led to his eMU designation. Mr. Jones does not know what that conduct was, and thus does not know how to avoid redesignation to the eMU. He joins in all claims based on his well-founded fear ofredesignation to the eMU.
22. PlaintiffKlFAH JAYYOUSI is a 48-year-old American citizen of Jordanian descent from Detroit, Michigan, and a practicing Muslim. Despite the fact that his alleged criminal conduct primarily involved financial contributions to charities, and his sentencing judge found that he ceased involvement in any criminal conspiracy in 1998, Mr. Jayyousi was convicted of conspiracy to murder, kidnap and maim in a foreign country and conspiracy to provide material support to terrorism in August 2007, and sentenced to 12 years and eight months imprisonment. Although Mr. Jayyousi has received no major disciplinary infractions, and absolutely no communications-related disciplinary infractions, he was transferred to the eMU at Terre Haute in June 2007. Mr. Jayyousi has abandoned any affiliation with extremist or violence-oriented religious or
8

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 9 of 77
political organizations. Indeed, Mr. Jayyousi is opposed to violent or extremist religious and political ideologies.
23. PlaintiffHEDAYA JAYYOUSI is a 50-year-old woman who lives in Detroit, Michigan. Ms. Jayyousiis an American citizen and has been married to Plaintiff Kifah Jayyousi since 1983. They have five children: 23 year-old twin boys and daughters aged 18, 14 and 12. Ms. Jayyousi has no criminal record.
24. 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 policy decisions regarding the FCI Terre Haute and USP Marion CMUs, and the promulgation of BOP regulations. See 18 U.S.C. § 4042. Holder has affirmatively maintained the policy of confining individuals indefinitely in the CMU, without notice or opportunity to be heard and for no legitimate penological purpose. Defendant Holder's place of work is located in Washington, DC. Defendant Holder is sued in his official capacity.
25. Defendant HARLEY LAPPIN is, and has been at all times relevant to this case, Director of the BOP. Defendant Lappin exercises authority over all BOP determinations. See 18 U.S.C. §§ 4041, 4042. He made the decision to establish the FCI Terre Haute CMU and the USP Marion CMU, and sets the conditions at both units. Defendant Lappin's place of work is located in Washington, DC. Defendant Lappin is sued in his official capacity.
26. Defendant D. SCOTT DODRILL is, and has been since June 2009, Assistant Director of BOP's Correctional Programs Division. The Correctional Programs
9

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 10 of 77
Division sets policies regarding the designation of inmates to the FCI Terre Haute and USP Marion CMUs and has authored memoranda to this effect. Defendant Dodrill's place of work is located in Washington, DC. Defendant Dodrill is sued in his official capacity.
27. Defendant BOP is a federal agency under the APA and is headquartered in Washington, DC. BOP created the CMU at FCI Terre Haute and the CMU at USP Marion in which plaintiffs are confined, and issued the Terre Haute CMU Institution Supplement and the Marion CMU Institution Supplements. 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.
STATEMENT OF FACTS I. General Baekground
28. The existence of a CMU at FCI Terre Haute was first disclosed on December 11, 2006, when seventeen prisoners were transferred there without explanation, notice or hearing. The publicly-available policies applicable to the unit are contained in the Terre Haute CMU Institution Supplement, a true and correct copy of which is attached hereto as Exhibit A and incorporated by reference herein. The Institution Supplement is dated November 30, 2006, but was not provided to CMU prisoners nor disclosed to the public until January 2007.
29. BOP officially established a CMU at USP Marion through an Institution Supplement dated March 20, 2008. A second Institution Supplement for the Marion CMU was released on November 13, 2008 ("Marion CMU Institution Supplements"). A
10

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 11 of 77
true and correct copy of both of these Marion CMU Institution Supplements are attached hereto as Exhibit B and incorporated by reference herein.
30. Unlike most prisons, where day-to-day conditions and operations are set by the prison warden, the CMUs are controlled by Defendants Lappin and Dodrill. The Wardens at both FCI Terre Haute and USP Marion lack authority to change conditions at the CMU, or order prisoners transferred from the unit. The conditions at both units are identical, with changes in policy occurring simultaneously. Even operational minutia, such as approval for individual visits and telephone calls, is determined by officials in Washington, DC. For example, email, visits and phone calls were temporarily suspended at the CMU in Marion, Illinois in early February 2010 due to snowstorms in Washington, DC. By contrast, wardens at other facilities exercise discretion over such decisions as long as they act within BOP guidelines.
31. Defendant Lappin and the former Assistant Director of BOP's Correctional Programs Division, Joyce K. Conley, ordered and assented to the establishment of both CMUs and the issuance of the Institution Supplements pursuant to new United States Department of Justice policy. The stated purpose of the new units was to hold dangerous terrorists and other high-risk inmates who require heightened communications monitoring and control. See U.S. Dep't of Justice, Office of the Inspector General (OIG), THE FEDERAL BUREAU OF PRISONS' MONITORING OF MAIL FOR HIGH-RISK INMATES, REpORT No. 1-2006-009 (Sept. 2006), at xi (noting that the BOP had "several ongoing and proposed initiatives to improve the monitoring of communications for terrorist and other high-risk inmates. The initiatives include ... consolidating all terrorist inmates in a few institutions in order to concentrate the resources required to
11

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 12 of 77
monitor them [and] limiting the volume of mail and other types of communication available to terrorists or other high-risk inmates.")
32. Defendants Lappin and Holder continue to publicly characterize the CMUs as filled with "terrorists."
33. Subsequent to the issuance of the 010 Report, however, the BOP expanded the types of prisoners who may be housed at the CMUs to include: (1) those convicted of, or associated with, international or domestic terrorism; (2) those convicted of sex offenses who repeatedly attempt to contact their victims; (3) those who attempt to coordinate illegal activities while incarcerated via approved communication methods; (4) those who have received extensive disciplinary actions due to their continued misuse/abuse of approved communication methods; and (5) those with a history of making threats against judicial officers. See Bureau of Prisons' 2007 State of the Bureau Report, available at http://www.bop.gov/newsIPDFs/sob07.pdf, and other BOP documents.
34. Thousands of prisoners within the BOP fit into these categories. For example, according to one OIO report, as of July 2006, the BOP categorized 19,720 inmates within the federal system as "high-risk" based on gang, international or domestic terrorist associations. And in 2009, Director Lappin informed Congress that the BOP has custody of 1,200 international and domestic terrorists. Thousands of other federal prisoners are presumably eligible for transfer to the CMU based on prison infractions involving communications. For example, in 2008 the BOP staff confiscated 1,519 unauthorized cell phones from federal prison camps and 255 cell phones from secure federal prisons.
12

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 13 of 77
35. As described in detail infra, Defendants have neglected to implement any controls or criteria to determine who is designated to the CMU, and to review that designation. Plaintiffs simply have no means to demonstrate that they do not belong in a CMU. The direct and predictable result of this lack of process is a-pattern of transfers for illegitimate, discriminatory, and/or retaliatory reasons. Thus, Defendants have allowed for Plaintiffs to be designated to the CMU based solely on their constitutionally-protected religious or political beliefs, and/or as a result of retaliation. Indeed, several Plaintiffs do not even fit within any of the five broad categories outlined above. Of course, designation based on religious or political identity and speech is arbitrary and impermissible, and lacks any legitimate penological purpose. II. Policies, Practices, and Conditions at the CMU
36. The CMU is an experiment in social isolation. Practices and conditions within the CMU are, however, without legitimate penological purpose. Plaintiffs are allowed no physical contact with their family and friends, and extremely limited opportunity for non-contact visitation and other communication. They are completely segregated from the rest of the prison popUlation.
a. Categorical Ban on Contact Visits 37. As a general matter, the BOP encourages contact visitation by family, friends, and community groups to maintain the morale of the inmate and to aid rehabilitation. Plaintiffs however, are barmed from any physical contact during social visitation. The BOP categorizes the CMU as a "self-contained general population unit." Yet it is the only "general population" unit Plaintiffs are aware of within the entire BOP that prohibits all contact visitation.
13

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 14 of 77
38. The BOP has established procedures to prevent the passage of contraband and to ensure the security and good order of the institution. In that context, the BOP permits limited physical contact, such as handshaking, embracing, and kissing, between an inmate and a visitor, unless there is clear and convincing evidence that such contact would jeopardize the safety or security of the institution. The CMU ban on contaCt visits directly contradicts this explicit BOP policy.
39. BOP prisoners are rarely denied contact visits even after being found guilty of serious disciplinary offenses. BOP prisoners in administrative detention or disciplinary segregation, for example, retain visiting privileges under the same rules and regulations as prisoners in the general population. Visiting may be restricted or disallowed only when a prisoner is charged with, or has been found to have committed, a prohibited act that is directly related to visitation, or where the prisoner acted in a way that would reasonably indicate that the she or he would be a threat to the orderliness or security of the visiting room. Loss of visiting privileges for any other reason requires a hearing, where a Discipline Hearing Officer (DHO) must find that the inmate committed a prohibited act and that there is no other appropriate sanction.
40. At oral argument before the Supreme Court of the United States in the case of Overton v. Bazetta, then Assistant to the Solicitor General, Jeffrey Larnken, characterized these procedural protections related to visitation as "extensive."
41. By contrast, CMU inmates are categorically denied contact visits, potentially for the entire period of their incarceration, without any hearing, the showing of a prohibited act, or any other security justification. CMU inmates may not touch, hug, kiss, shake hands, or have any physical contact whatsoever with their children, wives,
14

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 15 of 77
siblings, pastors, or friends - including infants. This is so despite a complete lack of any evidence or allegation that providing Plaintiffs with contact visits would jeopardize the safety or security of the prison. Indeed, all Plaintiffs had access to contact visits prior to their designation to the eMU, and no incidents or violations occurred.
42. Because contact visitation by Plaintiffs poses no security concern, the categorical ban serves no legitimate penological purpose. According to the BOP, the purpose of the eMU restrictions is to allow for effective monitoring of communications. Even presuming the legitimacy of this purpose, there are ready alternatives at each Unit that would allow for effective monitoring of visits at de minimis cost to the prison, without a ban on physical contact.
43. Each eMU has a contact visitation room, currently available for attorneyclient contact visits. As only one social or attorney-client visit may currently take place in the eMU at any given time, and all the visits are monitored live by Unit staff, effective monitoring of communication could occur by allowing the visit to take place in the attorney-client contact visitation room, and requiring Plaintiffs and their visitors to speak audibly. A simple tape-recorder could be placed on the table in the visiting room if recording of communication for future analysis is desirable. Other easy solutions also exist. Many areas in each eMU are currently wired for audio and video recording. Thus, it is reasonable to assume that a visitation area could be similarly set up at little cost. Indeed, according to a 2006 OIG report, eight BOP facilities are already set up to audiorecord contact visits.
44. The prohibition on contact visitation is exceptionally harsh. For example, Plaintiff Arefs children are 4, 9, 11, and 13. Because Mr. Arefwill not be released until
15

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 16 of 77
2018, he will next be able to hug his 4-year-old daughter when she is 12. A ban on physical contact for this lengthy period, for no legitimate penological purpose, is cruel and unusual, and an atypical hardship.
45. The prolonged and indefinite ban on physical contact is extremely deleterious to Plaintiffs' emotional and mental health and rehabilitation, and to maintenance offamily integrity. While Plaintiffs do have access to email through a BOP pilot program, this non-real time method of communication does not substitute for physical contact, or otherwise mitigate the ill-effects of the blanket ban. Psychological research shows a consistent correlation between quantity and quality of touch and relationship integrity.l Physical contact is a basic human need essential to one's mental health, and the maintenance of close family relationships, especially those between husbands and wives, and parents and children. With respect to young children, it is the only means of effective association. Physical contact in the context of prison visitation is of central importance-as non-contact visitation leads to emotional stress and interferes with the positive role visitation can play in maintaining family integrity?
b. Limitations on Number and Duration of Visits 46. While Plaintiffs can receive non-contact visits, those too are severely circumscribed without legitimate penological purpose.
I See generally, Matthew J. Hertenstein, Julie Verkamp, Alyssa M. Kerestes, Rachel M. Holmes, The Communicative Functions ofTouch in Humans, Nonhuman Primates, and Rats: A Review and Synthesis of the Empirical Research, 132 GENETIC, SOC. & GEN. PSYCHOL. MONOGRAPHS 34 (2006) (available at http://www.depauw.edullearnllab/publications/documents/touchl2006_Touch_The%20communicative_fun ctions_oCtouch_in_humans.pdf); see also, JuDEEK. BURGOON, DAVID B. BULLER, & W. GILL WOODALL, NONVEREAL COMMUNICATION: THE UNSPOKEN DIALOGUE, McGraw-Hill (1996) (arguing that people rely more heavily on nonverbal communication, especially in times of stress, because nonverbal communication rreceded language in evolution ofthe species, and thus has phylogenetic primacy).
See Joyce Arditti, Locked Doors and Glass Walls: Family Visiting at a Local Jail, 8 J.Loss & TRAUMA 115 (2003).
16

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 17 of 77
47. In recognition of the important role visitation plays in rehabilitation, morale, and maintenance of family integrity, the BOP places no cap on the number or duration of visits that BOP inmates may generally receive. The only limit is based on available visiting hours and chronic overcrowding. Existing Regulations, applicable to all BOP prisoners, emphasize that, "at a minimum, the Warden shall establish visiting hours at the institution on Saturdays, Sundays, and holidays." 28 C.F.R. § 540.42(a) (noting also that 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").
48. Neither the Terre Haute CMU Institution Supplement nor the Marion CMU Institution Supplement amended existing Regulations regarding visitation through notice and comment rulemaking. See Section V, infra.
49. As at most federal prisons, non-CMU prisoners in the general popUlation at USP Marion may receive visits each weekday evening, from 5:00 p.m. to 8:00 p.m., and all day on weekends and holidays, from 8:30 a.m. to 3:00 p.m. Even prisoners in administrative and disciplinary segregation may receive weekend visits. There is no apparent limitation on the number or duration of visits that non-CMU inmates at USP Marion may receive per month.
50. Visiting hours and frequency are similar for prisoners in the general population at Terre Haute, where visits may occur on Fridays through Sundays and on federal holidays from 8:00 a.m. to 3:00 p.m. General popUlation inmates at Terre Haute are allowed seven visits during a calendar month, and there is no limit on the duration of
17

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 18 of 77
the visit. Therefore, BOP policy allows inmates in general population up to 49 hours of visits a month.
51. These regulations are typical of the entire federal system. The situation at the CMU stands in sharp contrast.
52. Until January 3, 2010, Plaintiffs were allowed only one four-hour visit or two two-hour visits per month, and could only receive those visits on weekdays, during work/school hours. They were not allowed to receive any visits on weekends, holidays, or evenings. These restrictions made it extremely difficult for Plaintiffs to receive visits from family members who worked or were in school, and thus placed a substantial burden on their ability to maintain the integrity of their familial relationships.
53. In October 2009, after three years of these restrictions being in effect, the BOP announced incremental changes at the CMUs in apparent response to current and threatened litigation.
54. In January 2009, Sabri Benkahla, an inmate at the Terre Haute CMU, filed a federal lawsuit in the Southern District of Indiana alleging that the CMU was established in violation ofthe APA. Mr. Benkahla is represented by the National Prison Project of the American Civil Liberties Union. Mr. Benkahla's APA claim is analogous to the claim asserted here, but he asserts none of the constitutional claims raised by Plaintiffs.
55. Throughout 2009, undersigned counsel communicated extensively with Plaintiffs and other CMU inmates and arranged to visit Plaintiffs and other CMU prisoners in contemplation of the present litigation.
18

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 19 of 77
56. An unsigned and undated Notice to Inmates was posted at both the Marion and Terre Haute CMUs in October 2009. A true and correct copy of the Notice to Inmates is attached hereto as Exhibit C. The Notice announced that the visiting hours for CMU prisoners would be expanded on January 3, 2010.
57. As of January 3,2010, CMU prisoners are now allowed eight hours of visiting time per month. No single visit can be scheduled for a period longer than four hours. Visits are permitted Sunday through Friday, 8:30 a.m. to 2:30 p.m. No visiting is allowed on Saturdays.
58. These incremental changes to CMU policy, though welcome, are not sufficiently substantial to correct the harm done to Plaintiffs' familial relationships over the past several years. Nor do they bring the unit in line with what is typical for federal prisoners throughout the country, and what the Constitution requires.
59. Moreover, the changes have not been codified into either institution supplement, which continue to cite the old policy as controlling. There has been no indication as to the permanency of the changes. And, as it is reasonable to assume they have been made in reaction to threatened and existent litigation, they may not be relied upon to continue.
60. Even as voluntarily-expanded, the visitation policy at the CMU remains the most restrictive for general population prisoners in the federal system.
61. Prisoners at the Administrative Maximum (ADX) facility USP Florence, the only "supermaximum" security facility in the federal system, are allowed significantly more visitation time than CMU prisoners. BOP policy allows those "max" security prisoners up to five visits per month, each of which may last for seven hours -
19

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 20 of 77
for a total of 35 hours of visitation a month. This is more than four times the amount of visitation time eMU prisoners currently receive.
62. There is no legitimate penological purpose for the limited hours and number of visits allowed to eMU prisoners. A weekend visit poses no different security concerns than does a weekday visit, and each visitor is screened prior to entrance into the facility. The policy is needlessly cruel and serves only to interfere with Plaintiffs' ability to maintain meaningful relationships with their families and loved ones.
c. Limitations on Phone Calls 63. As with visits, the BOP recognizes that telephone calls are extremely important to rehabilitation, morale, and the maintenance of family integrity. Indeed, because so many prisoners in the federal system are incarcerated far from their family and friends, telephone communication is the only way many BOP prisoners can stay connected with their loved ones. For this reason, BOP prisoners in general population are allowed 300 minutes of outgoing telephone calls per month. See Telephone Regulations for Inmates, available at http://www.bop.gov/policy/progstatl5264_007.pdf.at 4. They may use these minutes at their discretion, generally between 6:00 a.m. and 11 :30 p.m., with few restrictions. Id. at 14. 64. Until January 3, 2010, by contrast, eMU inmates were entitled to only one 15-minute telephone call per week, and could only make those calls on weekdays, during school and work hours. This rendered telephone communication with school-age children exceptionally difficult. While these restrictions have been minimally loosened, Plaintiffs have no reason to believe the recent change is permanent, nor does it correct the severe impairment of Plaintiffs' relationships.
20

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 21 of 77
65. CMU prisoners are now allowed two IS-minute telephone calls per week. See Exhibit C. Plaintiffs thus receive a total of 120 minutes of telephone calls a month, in contrast to the 300 minutes almost all other federal prisoners receive.
66.· Unlike other federal prisoners, CMU prisoners may only make a call if they sign up and designate the call recipient and the exact timing of the call one week in advance. If the recipient does not pick up the phone, or the call is cut off for some reason, CMU prisoners may not try the number again, nor are they allowed to call someone else instead.
67. The severe restrictions on the number and duration of phone calls have placed a substantial burden on Plaintiffs' ability to maintain relationships with their family and friends. Plaintiffs with large families face difficult decisions each week over who to call, and who not to call.
68. There is no legitimate penological purpose for the needlessly cruel limitation on Plaintiffs' hours and duration of telephone calls, as each call is live monitored. Such limitation serves only to interfere in Plaintiffs' ability to maintain meaningful relationships with their families and loved ones.
d. Segregation from General Population & Lack of Release Preparation Programming
69. Although described as a "general population housing unit," prisoners in the CMU are segregated from other prisoners at both FCI Terre Haute and USP Marion and not allowed to have contact with non-CMU prisoners. The units are known and referred to throughout both prisons (and the BOP as a whole) as "terrorist units." The stigma of "terrorist" follows plaintiffs and other CMU prisoners even after their release.
21

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 22 of 77
70. For some Plaintiffs, this stigma will lead to an increase in the period of their incarceration. For example, as described infra, Plaintiff Twitty was approved for nine months of pre-release placement at a halfway house in his home town of Washington, DC, making him eligible for release to that halfWay house in April 2010. However, the halfWay house will not accept him until August 2010 because his assignment to the CMU suggests that he is a management problem. Thus, the stigma attached to CMU designation will keep Mr. Twitty incarcerated for an extra four months.
71. The remaining Plaintiffs fear that their post-release prospects will be similarly compromised. The BOP requires that all eligible prisoners receive the opportunity to engage in release preparation progranuning to facilitate their ability to gain employment post-release. See generally 28 C.F.R. 571.10 - 571.13; BOP Program Statement 5325.07 Release Preparation Program ("RPP"). Such programming is a mandatory requirement for prisoners within 30 months of release. Plaintiff Twitty is required by BOP regulations to engage in RPP, and would like the benefit of these classes, yet he has been unable to participate due to a complete lack of such progranuning at the CMUs. Other plaintiffs would also like the opportunity to participate in release preparation progranuning as well. Denial of this important tool for rehabilitation is contrary to mandatory BOP rules, and has a significant negative impact on Plaintiffs' ability to gain placement at a halfWay house, gain employment post-release, and successfully reenter free society.
22

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 23 of 77
III. Denial of Due Process a. Lack of Procedural Protections 72. Despite the profound deprivations that have resulted from Plaintiffs'
designation and transfer to the CMU, that designation, along with Plaintiffs' continued confinement in the CMU, is completely devoid of any procedural protections. In some cases it is also contrary to the professional judgment of the prison officials who have direct contact with Plaintiffs.
73. The way prisoners are selected for placement in the CMU is a mystery, and is apparently without any paper trail. According to a Memorandum from the Assistant Director of the BOP Correctional Programs Division (a true and correct copy of which is attached hereto as Exhibit D and incorporated by reference herein), a prisoner may be nominated for CMU designation by regional staffwho believe the prisoner requires enhanced monitoring. Regional Directors and their staff may nominate inmates of their choice for CMU placement by contacting Les Smith, the Chief of the Counterterrorism Unit in Martinsburg, West Virginia. Plaintiffs are also aware of prisoners nominated to the CMU by wardens and other facility staff. Mr. Smith also personally elects certain prisoners for transfer to the CMU. For example, with respect to one prisoner, Mr. Smith instructed a case manager to request the prisoners' transfer to the CMU and even specified the language that request should utilize.
74. Typically, when designation to a special unit will deprive a prisoner of rights or benefits, the BOP issues detailed regulations regarding criteria and documentation ofthe reason for referral. See, e.g., BOP Program Statement P5217.01 Special Management Units at 2 (describing referral criteria and contents of referral
23

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 24 of 77
packet); BOP Program Statement 5212.07 Control Unit Programs at 3-6 (same). Yet the BOP has provided only the most general guidance to staff on criteria for CMU placement, and has not indicated any need to detail and document the reason for referral.
75. Unlike prisoners designated for Special Management Units or Control Units, Plaintiffs did not receive prior notice, an opportunity to be heard, a meaningful description of the information that led to their referral, or the right to an appeaL This lack of process is absolutely unparalleled in the BOP, and establishes a situation ripe for abuse through retaliatory and discriminatory designation and transfer to the CMU. Transfers to Special Management Units and Control Units all come with a hearing, a detailed prehearing notice, a detailed post-hearing explanation and the right to appeal. See BOP Program Statement P5217.01 Special Management Units at 2-4; BOP Program Statement 5212.07 Control Unit Programs at 7-10.
76. In place of meaningful process, after their transfer to the CMU each Plaintiff received a one-page Notice of Transfer stating the following:
This notice informs you of your transfer to a Federal Bureau of Prisons (Bureau) facility that allows greater management of your communication with persons in the community through more effective monitoring of your telephone use, written correspondence, and visiting. Your communication by these methods 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 .... Your transfer to this facility for greater communication management is necessary to the safe, secure, and orderly operation of Bureau institutions, or protection ofthe public. A true and correct copy of each Plaintiffs Notice of Transfer is attached hereto as Exhibit E and incorporated by reference herein. 77. The one-page notice provided to each Plaintiff also includes language purporting to explain why each Plaintiff was designated to the CMU. For some
24

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 25 of 77
Plaintiffs, like Mr. McGowan, the information included in this notice is factually erroneous. For others, the statements are so vague and generic as to provide no notice at all as to the factual premise that led to eMU designation. Plaintiffs Jones and Twitty'S transfer notices, for example, include identical and vague sentences, with no reference to any underlying factual allegations. Thus none of these Plaintiffs is aware of why he was designated to the eMU.
78. Each Plaintiff has sought to discover from the BOP the factual information underlying their designation and transfer. No such information has been forthcoming.
79. eMU designation is especially mysterious for those Plaintiffs, like Jones and Twitty, who do not even fit any of the five alleged bases for eMU designation set out at paragraph 33, supra. And those Plaintiffs, like McGowan, Jayyousi, and Aref, who arguably fit into the first criterion because their conviction is related to terrorism, have not attempted to contact or communicate with any terrorists while in prison nor acted in any other way to threaten prison security. No Plaintiffhas made judicial threats, or even stood accused of attempting to coordinate illegal activity via approved communication methods. No Plaintiff was convicted of a sex crime. And no Plaintiff has a significant history of disciplinary infractions or communications-related infractions.
80. Because Plaintiffs have no meaningful opportunity to challenge their designation to, and continued incarceration in, the eMU, most expect to be held at the eMU for the duration of their sentences. The one Plaintiff who has gained release from the eMU, Mr. Jones, does not know how or why.
8!. Plaintiffs have not been informed of any way they can change their behavior, otherwise earn release, or stay out of the eMU if released. This too, is unique
25

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 26 of 77
within the BOP. In contrast, Special Management Unit placement is intended to last only 18-24 months, and is based upon set steps each prisoner may take to receive benefits through compliance with set behavioral expectations. Similarly, the propriety of continued placement in a Control Unit is reviewed by the unit team every 30 days, and by an Executive Panel (including the regional director and the Assistant Director of the Correctional Programs Division) every 60 to 90 days. See BOP Program Statement P5217.01 Special Management Units at 1, 8; BOP Program Statement 5212.07 Control Unit Programs at 20.
82. The one page CMU transfer notice provided to each Plaintiff states: Your continued designation to this facility will be reviewed regularly by your Unit Team under circumstances providing you notice and an opportunity to be heard, in accordance with the Bureau's policy on Classification and Program Review of inmates. 83. But according to the Notices of Transfer, each Plaintiffs designation to the CMU was based either on their conviction or offense conduct, or upon undisclosed behavior that presumably occurred at a prior institution. Because CMU designation is not based on any ongoing misbehavior, the reason for designation will never change or diminish. Indeed, Plaintiff Jayyousi has been directly told by his Unit Manager that he will serve the rest of his twelve year and eight month sentence at the CMU. 84. Contrary to the Notice of Transfer and referenced BOP policy, Plaintiffs have been repeatedly informed by members of their unit team that neither the unit team nor the warden has power to have a prisoner transferred from the CMU, and that these decisions are instead made in Washington, DC, at the Central level. Compare BOP Program Stmt 5100.008 Classification at 55 ("unit team andlor warden" is final authority
26

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 27 of 77
on custody classification, to be detennined at program reviews; intent of policy is to allow staff to utilize professional judgment within specific guidelines).
85. No meaningful review of the appropriateness ofCMU placement occurs at the program reviews. For years, Plaintiffs who sought to discuss transfer from the CMU at their program reviews were told by their unit team that the only possible way out of the CMU is a request for a "nearer release" transfer. This type of transfer may not be sought until a prisoner has served 18 consecutive months with clear conduct at a given facility. Any disciplinary report, even for a minor rule violation like failing to stand for count, restarts the 18 month clock.
86. Moreover, a nearer relief transfer is completely discretionary, and may be denied without reason or explanation. Plaintiff Jayyousi, for example, waited the requisite 18 months and then sought a nearer release transfer. He was denied without explanation. Other prisoners, like Plaintiff Aref, were transferred from one CMU to the other after 18 months. This also restarts the clock on the possibility of requesting transfer from the CMU.
87. In October 2009, an undated, unsigned Notice to Inmates was posted at both the Terre Haute and Marion CMUs, detailing a new process by which the unit team would review inmates for continued CMU placement at program reviews. According to the BOP's response to a request for infonnal remedy filed by Plaintiff Jones, the memo was authored by Assistant Director Dodrill and was issued on October 15, 2009. A true and correct copy of the Notice to Inmates is attached hereto as Exhibit F and incorporated by reference herein.
27

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 28 of 77
88. The Notice indicates that inmates will be provided with 48 hours notice prior to the review, are expected to attend, and can "personally raise questions and concerns with Unit Team regarding their placement in the CMU." See Exhibit F at 1. By its own description, the process does not serve as a review of, or opportunity to contest, the original reasons individual inmates were transferred to the CMU; rather, the Notice presumes that CMU designation was initially appropriate, indicating that the Unit Team "will consider whether the original reasons for CMU placement still exist." Id. (emphasis supplied).
89. The Notice specifies five factors that will be considered: 1) offense of conviction and offense conduct; 2) whether offense of conviction or offense conduct, or activity while incarcerated, indicates a "propensity" to encourage, coordinate, facilitate, or further illegal activity through communication with persons in the community; 3) whether the inmate has attempted, or "indicates a propensity," to contact victims of current offense of conviction; 4) whether the inmate committed prohibited activity related to the misuse of communication methods while incarcerated; and 5) whether there is other evidence of a potential threat to prison or public safety as a result of the inmate's "unmonitored communication" with persons in the community. The Notice states that the Unit Team will forward its recommendation to the Warden, who, ifin concurrence, will forward that recommendation to the BOP's Counter Terrorism Unit (CTU) for review. Id. The CTU will forward the final recommendation to the Regional Director of the North Central Region "for further review and consideration." Id. According to the Notice to Inmates, the Regional Director of the North Central Region has final authority to approve "an inmate's re-designation from a CMU." Id.
28

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 29 of 77
90. This purported review process is illusory. Contrary to the notice, but consistent with past practice, the Unit Teams at both Terre Haute and Marion have continued to fail to review the propriety of CMU placement at program reviews, and continue to state that the responsibility for decisions about CMU placement occur at the Central rather than facility level. Plaintiffs Jayyousi, McGowan, and Jones each attended a program review since the Notice was posted. They were not provided with any information at the review regarding which of the stated criteria led to their CMU designation, nor were they provided with factual information underlying the designation. At Plaintiff Arefs last review he was explicitly told that he was categorically ineligible for a transfer until he had spent 18 months at the Marion CMU, pursuant to general BOP policy.
91. By its own terms, the new process is merely an assessment of whether the "original reasons for CMU placement still exist." See Exhibit E at 1. As designation is based on past, rather than continuing conduct, nothing can change. Plaintiffs have no way to meaningfully contest their ongoing placement in the CMU because the allegations underlying those factors, and the factors themselves, have never been disclosed or reviewed.
b. Retaliatory and Discriminatory Transfers Resulting from Lack of Process
92. The lack of criteria, documentation, and review establishes a situation ripe for abuse through retaliatory or discriminatory designation to the CMU.
93. For example, in the absence of any history of communications-related violations or significant disciplinary infractions, and as described in further detail infra, it
29

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 30 of 77
appears that Plaintiffs Twitty and Jones were transferred to the eMU in retaliation for grieving and litigating disputes over their treatment in prison.
94. Similarly, it appears as though Plaintiff McGowan was transferred to the eMU because of his political beliefs and continued involvement in lawful social justice movements while incarcerated.
95. Meanwhile, the population breakdown of the eMUs leads to the inescapable inference that the eMUs were created to allow for the segregation and restrictive treatment of Muslim prisoners based on Defendants' discriminatory belief that Muslim prisoners are more likely than others to pose a threat to institution security.
96. Of the first 17 prisoners transferred to the Terre Haute eMU, 15 were Muslim. The population grew quickly. By March 2007, eMU prisoners reported that there were 48 prisoners in the Terre Haute eMU, and 37 of them were Muslim. In the last several years, subsequent to media scrutiny of Defendants' targeting of Muslims, more non-Muslims have been moved to the eMU. Guards on the units have referred to these non-Muslim prisoners as balancers.
97. Pursuant to a ForA request, the BOP has provided statistics on prisoners confined at the Terre Haute and Marion eMUs. According to those statistics, a total of 36 prisoners had been held in the Marion eMU by April 2009, 26 of whom were classified by the BOP as Muslim (making the unit 72% Muslim). There had been 63 prisoners at the Terre Haute eMU, only 14 of whom were allegedly classified as Muslim or of a religion related to Islam (making the unit 22% Muslim). 13 prisoners were listed as having "no preference" in the Terre Haute eMU statistics.
30

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 31 of 77
98. These BOP statistics appear to significantly minimize the disproportionate number of Muslim prisoners at the Terre Haute eMU, and in fact contradict other statistics supplied by the BOP and Terre Haute eMU staff. For example, in a list of Ramadan participants created and posted by Terre Haute eMU staff in August 2008, 38 prisoners' names appear - a number which potentially undercounts the number of Muslim prisoners (as some Muslim prisoners may have chosen not to fast for Ramadan) and yet is almost triple the number the BOP reported in April 2009. Moreover, according to an October 13, 2009 letter from the Associate Director of the DOJ Office of Information Policy, 25 prisoners declared Islam as their religious affiliation at the Terre Haute eMU, and 20 have done so at the Marion eMU.
99. According to Plaintiffs and other eMU prisoners' self-reporting, the proportion of Muslim prisoners at the Terre Haute eMU is far greater than the BOP reports. In November 2009, a prisoner at the Terre Haute eMU reported that 24 of 40 prisoners (or 65% of the prisoner population) were Muslim. Two months previously, in September 2009, another Terre Haute eMU prisoner reported that 25 of 37 prisoners (or 68% of the prisoner population) were Muslim.
100. These numbers (and indeed even the BOP numbers) represent a vast overrepresentation of Muslim prisoners at the two eMUs when compared to the overall popUlation of BOP facilities. Of 150,000 prisoners in BOP facilities nationwide in 2004, approximately 9,000 prisoners (or 6% ofthe total prisoner population) sought Islamic religious services. See U.S. Dep't of Justice, Off. of the Inspector Gen., A Review ofthe Federal Bureau ofPrisons' Selection ofMuslim Religious Service Providers, at 5 (2004)
31

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 32 of 77
This encompasses prisoners who identify as Sunni and Shiite, or are affiliated with Nation ofIslam and the Moorish Science Temple of America.
101. BOP statistics themselves demonstrate that the Marion eMU is 72%
Muslim - a 1,200% overrepresentation compared against the national average. Even if
BOP statistics about the population of the Terre Haute eMU are taken at face value, but
see ~~ 98-99, supra, the population of Muslim prisoners at that unit is 367% higher than
the national average. More reliable estimates, however, suggest that the eMU at Terre
Haute includes an overrepresentation of Muslim prisoners at a rate of over 1,000% of the national average.
102. This discrepancy carmot be explained by any non-discriminatory reason, as no Plaintiff has engaged in any behavior while incarcerated to indicate his communication requires monitoring or he otherwise poses a unique threat to prison security. IV. Facts Specific to Individual Plaintiffs
a. Yassin Aref 103. Before his arrest in August 2004, Yassin Arefwas living in Albany, New York. Mr. Arefis married and has four children ages 4, 10, 12, and 14. Prior to his confinement in the eMU, Mr. Areflived with and maintained a very close relationship with his wife and children, although he has been in custody since his wife was six months pregnant with his youngest. 104. Mr. Aref is a practicing Muslim and served as an Imam of the Masjid-AsSalam Mosque in Albany prior to his incarceration.
32

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 33 of 77
105. Mr. Arefis a refugee from Iraqi Kurdistan. His village, Hashazini, was destroyed by Saddam Hussein's regime in 1988. In 1995, Mr. Arefand his family fled to Syria and were granted refugee status under a United Nations program. In October 1999, Mr. Aref, his wife, and their three children relocated to Albany. His youngest child was born in the United States.
106. As reflected in the numerous letters of support that were submitted to the sentencing court on his behalf, Mr. Aref counseled innumerable members of his mosque, teaching classes and offering them support and advice. He is also an author, whose memoir, Son ofMountains, focuses on his quest for a free and peaceful life in the United States.
107. Mr. Aref was convicted of money laundering, material support, conspiracy, and making a false statement to the FBI in 2007, and was sentenced to a total of 15 years imprisonment. His conviction arose from a controversial and well-publicized sting operation wherein an undercover officer offered to loan money to Mr. Aref s codefendant, Mohanuned Mosharref Hossain, in exchange for checks, telling Hossain that the money was made from buying a Chinese surface to air missile, which was to be provided to a group called Jaish-e-Mohanuned (JEM). Needing a witness to the loan, as is obligatory for Muslims, the men brought Mr. Aref into the arrangement, solely as a witness to the loan transactions. The goverrunent arrested both men, alleging that Mr. Aref chose to support money laundering by witnessing the loan. The prosecution acknowledged during its summations at trial that it was not seeking to establish or prove that Mr. Aref was a terrorist. After Mr. Aref s conviction, The Times Union and the Daily Gazette, Albany's two main daily newspapers, both ran editorials urging leniency
33

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 34 of 77
in sentencing. On March 8, 2007, Mr. Arefwas sentenced to 15 years in prison, half the sentence called for under the Federal Sentencing Guidelines.
108. Mr. Arefhas been in the custody of BOP for the entire duration of his sentence. He is due to be released on October 4,2018.
109. From September 2005 until March 2007, Mr. Arefwas housed at the Rensselaer County Jail in Troy, New York. There, he was able to make daily telephone calls and received two contact visits per week. These visits and calls allowed him to maintain a close and supportive connection with his family, and particularly his young children. Mr. Arers wife and children visited him regularly, and Mr. Arefmet his newborn baby twice while he was at the jail. There, he was able to hold his baby daughter in his arms.
110. While an inmate at Rensselaer County Jail, Mr. Arefhad no disciplinary infractions involving visitation or his use of the telephone or the mail. Mr. Aref has never received an infraction of any kind at a BOP facility.
Ill. Upon sentencing Mr. Aref, Judge McAvoy, district judge for the Northern District of New York, recommended that Mr. Arefbe placed at a facility as close to Albany, New York, as possible.
112. The BOP did not follow the Court's recommendation and, despite classifying Mr. Aref as "low security," it transferred him to the CMU at FCI Terre Haute (a medium security prison). The BOP informed Judge McAvoy by letter that it had not followed his recommendation because of unspecified "security concerns."
34

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 35 of 77
113. Shortly after arriving at the CMU at FCr Terre Haute, Mr. Arefreceived a Notice of Transfer, dated May 11, 2007, that, by way of explanation for his transfer, states:
Your current offense of conviction includes Providing Material Support & Resources to a Foreign Terrorist Organization, & Conspiracy to Use a Weapon of Mass Destruction. Your offense conduct included significant communication, association and assistance to Jaish-e-Mohammed (JeM), a group which has been designated as a foreign terrorist organization. Mr. Arefhas received no further explanation of his designation to the CMU.
114. Mr. Aref spent 22 months at the CMU at FCr Terre Haute, exhausting the
prison grievance system and trying to convince BOP officials that the allegations in his Notice of Transfer mischaracterized his offense conduct.
115. Mr. Aref applied for a nearer release transfer at his Team Review meetings when he was at the Terre Haute CMU, and was told by his case manager that she was recommending his transfer. However, his case manager told Mr. Arefthat transfer was not up to her, but instead was a decision that would be made in Washington, DC.
116. Mr. Arefs hopes for a transfer were raised by this recommendation. However, rather than receiving a transfer to general population, Mr. Aref was transferred, once again without notice or explanation, to the CMU at USP Marion on March 27,2009. He has been incarcerated there ever since.
117. Mr. Aref had a team review meeting in late 2009. At that meeting, he asked how he could obtain a transfer out of the CMU, and he was told that he had to wait for 18 months to be eligible for a transfer pursuant to general BOP policy.
35

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 36 of 77
118. Mr. Arefs confinement in the eMU has severely interfered with his ability to maintain a meaningful relationship with his family.
119. Mr. Arefs confinement in the eMU, and their lack of contact, has caused his wife considerable stress and emotional harm. Until January 2010, Mr. Arefwas forced to talk to his children while they were at school because phone calls were available only during school hours. The children's principal arranged for them to receive Mr. Arefs call during their lunch recess.
120. Since his access to the phone has increased, Mr. Arefnow also calls his children at home once a week. However, Mr. Arefhas found that his children are too young to communicate with him in a truly meaningful and bonding way on the telephone.
121. It is very difficult for Mr. Arefto communicate with his children via email because his family does not have internet access at home. Instead, his children must travel to a public library in order to communicate with their father by email.
122. Because Mr. Arefuses most of his limited phone calls to speak with his children, he is only able to speak with each of his five siblings every six or seven months.
123. The eMU's "no contact" visitation policy also means that Mr. Arefis not
allowed to touch, hold, hug, or even shake hands with his young children. When his
children did visit him at the eMU, Mr. Areffound the pain of being divided by a barrier
and speaking to them on a telephone to be unbearable. Mr. Arefs wife is no longer willing to bring his children to the eMU for a non-contact visit because she fears it is too traumatizing to their children, and Mr. Aref agrees that the non-contact visits are very upsetting. Rather than subject himself and his young children to such restrictive and
36

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 37 of 77
taxing visiting conditions, Mr. Arefhas foregone receiving visits from his family. For
this reason, Mr. Arefhas not received a visit from his family for almost two years. 124. Due to the youth of Mr. Arefs younger children, his only way to
meaningfully associate with them is through physical contact. Because that contact has been denied pursuant to BOP policy, his relationship with them has been severely damaged and he has been denied the opportunity to form any relationship at all with his youngest child. The restrictions have been extremely detrimental to the children as well. One son has even become physically ill with a stress-related condition. Mr. Aref is confident that his children could and would visit him should his access to contact visits be restored.
125. Mr. Arefs designation to the CMU has also had a profound effect on his psychological and emotional health. He has experienced symptoms of anxiety and depression and is obsessed with questions about why he has been singled out for such restrictive confinement, and why he is perceived as dangerous. This question eats away at him constantly. He also suffers from feelings of extreme guilt, sadness and se1floathing over the impact that his confinement at the CMU is having on his wife and children. His limited interaction with them causes him to become deeply emotional, and he cries frequently after speaking to them. He fears that being cut off from his children to such an extent will have a detrimental effect on their emotional well-being and development.
b. Avon Twitty (aka Abdul Ali) 126. Avon Twitty is an African American man and a practicing Muslim. Prior to his arrest on June 14, 1982, Mr. Twitty was living in Washington DC, where he
37

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 38 of 77
maintained a close relationship with his children. Mr. Twitty has two daughters, aged 26 and 28, and a son, aged 35. His younger daughter was born while he was imprisoned, so he relied on visits, letters, and phone calls to develop a relationship with her.
127. In 1984,Mr. Twitty was sentenced to a term of20 years to life for murder and three to ten years for carrying a pistol without a license. There was no allegation whatsoever that Mr. Twitty's offense involved terrorism, or was motivated by extremist religious or ideological beliefs. Mr. Twitty is due to be released in January 2011.
128. Mr. Twitty is a DC prisoner, but has spent a portion of his time in BOP custody pursuant to an agreement between the DC Department of Corrections and the BOP. He has also been housed in facilities operated by the Corrections Corporation of America.
129. Beginning in June 2005, Mr. Twitty was housed in general population at USP Hazelton, in Bruceton Mills, West Virginia. A Progress Report issued on April 20, 2007 indicates that Mr. Twitty was assigned to the kitchen detail, received good work performance ratings, and was not considered to be a management problem. The Report indicates that Mr. Twitty had a "good rapport" with both staff and inmates, and had clear conduct since September 2005. The Report makes no mention whatsoever of involvement in recruitment or radicalization of other inmates.
130. The Report notes that Mr. Twitty's only disciplinary infractions throughout his decades in BOP custody were for failing to stand count and interfering with taking count on August 27, 2005. Aside from the 180-day loss of commissary and telephone privileges associated with this minor incident, Mr. Twitty had no telephone, mail, or visitation restrictions at USP Hazelton or any other BOP facility. Mr. Twitty has
38

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 39 of 77
only one other disciplinary infraction in his 26 years of imprisonment, and that was for a minor assault in 1999. Mr. Twitty's disciplinary history is devoid of any serious misconduct or infractions.
131. However, prior to his designation to the eMU, Mr. Twitty was involved in two ongoing disputes with the BOP, one about good time credits and another regarding missing program documentation that led directly to his denial of parole in 2004. Throughout 2005 and 2006, Mr. Twitty filed grievances and federal litigation over these issues. The litigation was ongoing until July 2008, when his Petition was ultimately denied.
132. On May 30, 2007, in the midst of this advocacy on his own behalf, Mr. Twitty was abruptly, and without notice or a hearing, transferred to the eMU at USP Terre Haute. Shortly after arriving at the eMU at USP Terre Haute, he received a Notice of Transfer that, by way of explanation for his transfer, states that "[r]eliable evidence indicates your incarceration conduct has included involvement in recruitment and radicalization of other inmates through extremist, violence oriented indoctrination methods to intimidate or coerce others." The document does not substantiate these allegations in any way.
133. Mr. Twitty has scant history of disciplinary infractions in general, and no disciplinary infractions or incidents related to recruitment or radicalization of other inmates. Thus, he sought to discover through the prison grievance system what "reliable evidence" existed regarding alleged recruitment and radicalization. He was told that such information is protected by the Freedom of Information Act, and that he could seek it through filing a ForA request. Mr. Twitty followed these instructions, and promptly
39

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 40 of 77
filed a FOIA request seeking access to all documents directly or indirectly related to his designation to the CMU.
134. The documents that were released contained absolutely no information regarding Mr. Twitty's alleged involvement in recruitment and radicalization.
135. However, Mr. Twitty did learn through the FOIA that his designation was accomplished through a May 21, 2007 referral for transfer to the CMU for "close supervision" issued by the Warden at USP Hazelwood. A close supervision transfer is disciplinary in nature, and BOP policy indicates that it is to be based on a documented act of misconduct. See BOP Prograrn Statement P5100.08 Chapter 7, Page 5. In direct contradiction to Mr. Twitty's April 20, 2007 Progress Report one month earlier, the referral noted that Mr. Twitty "is considered to be a management problem due to his involvement in the recruitment and radicalization of other imnates. He has established an average rapport with both imnates and staff since his arrival at USP Hazelton."
136. The transfer form also stated that Mr. Twitty received a disciplinary report for a serious assault at USP Lewisburg but Mr. Twitty's custody classification form incorrectly showed a score of "no history of violence." The Warden wrote that he updated this form to reflect the assault.
137. Mr. Twitty never received a disciplinary report for an assault at USP Lewisburg.
138. Upon gaining access to the transfer document, Mr. Twitty filed two informal resolution forms. In the first, Mr. Twitty alerted the BOP to the incorrect information included on the referral for transfer, directing the BOP to an October 18, 1991 Progress Report, indicating that he had maintained clear conduct, and did not
40

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 41 of 77
receive a single incident report during his incarceration at USP Lewisburg. Mr. Twitty asked that the BOP investigate this discrepaocy, and correct his custody classification fonn.
139. In the official response, Mr. Twitty's case maoager ignored the question of how this mistake was made, aod instead indicated that Mr. Twitty's history of violence rating on his custody classification fonn was based not on the fabricated Lewisburg assault, but on his conviction of assault for a fistfight in 1970, aod a 1999 disciplinary infraction in which Mr. Twitty pushed a correctional officer with ao open haod. However, neither of these incidents constitutes a serious history of violence under BOP staodards. See BOP Program Statement P5100.08, Chapter 6, Page 6-7. Indeed, there is significaot evidence in Mr. Twitty's records (including statements by the officer in question) that the 1999 infraction resulted from Mr. Twitty's attempt to assist a correctional officer during ao attack by aoother imnate.
140. In a second request for infonnal resolution, Mr. Twitty asked that, to the extent the Lewisburg assault infraction was relied upon in labeling him a terrorist aod designating him to the CMU, the mistake be corrected aod for him to be traosferred out of the CMU. Mr. Twitty's case maoager once again ignored the question of the fabricated USP Lewisburg assault, repeated that reliable evidence indicated his involvement in recruitment aod radicalization, aod stated that, based on this evidence, Mr. Twitty would remain in the CMU for a minimmn of 18 months.
141. In response to Mr. Twitty's subsequent administrative appeal of this response to the Central Level, the BOP indicated that Mr. Twitty's designation to the CMU was based solely on recruitment aod radicalization, not aoy disciplinary report
41

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 42 of 77
(although one is required for the type of transfer at issue) and described the Warden's wholesale invention ofthe serious assault as a "typographical error."
142. Mr. Twitty believes that his designation to the CMU was based on discriminatory notions about Muslims, and made in retaliation for his filing grievances and a lawsuit regarding his unjust loss of good time credit and the missing file that led to his parole denial. Given his lack of any serious or communications-related disciplinary infractions, and the fact that his crime of conviction is in no way related to terrorism or communications-related offenses, there is no other plausible explanation for his transfer to the CMU.
143. Mr. Twitty has requested a transfer from the CMU three times, and each time been summarily denied. He has also availed himself of the administrative grievance process to request an explanation of the criteria he must meet to be transferred from the CMU. The BOP has not responded with any criteria to earn transfer.
144. Mr. Twitty's relationships with his children and their mothers have suffered due to the restrictions imposed upon him in the CMU. At previous institutions, Mr. Twitty called his children frequently, sometimes placing several telephone calls in a day. However, because his access to the telephone is so limited, he is unable to remain in touch with his children. While he was able to receive visitors in the past, he has had no visits while at the CMU. Mr. Twitty feels that it would be selfish and unreasonable to subject his family members to the hardship of spending hundreds of dollars to travel from Washington DC to visit him, only to communicate with him through a glass barrier and over a telephone.
42

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 43 of 77
145. Mr. Twitty has also suffered from the stigma of his confinement in the CMU. On January 6, 2009, Mr. Twitty had a parole reconsideration hearing. The CMU case manager forwarded to the parole board information that Mr. Twitty was being held in the CMU for "close supervision." This information may have had an impact on the decision by the parole commission to deny Mr. Twitty's request for parole.
146. His CMU status has also had an impact on Mr. Twitty's ability to prepare for his imminent release from prison. BOP policy mandates prisoner participation in release preparation programming in the months before release. In violation of BOP policy, no such programming is available to CMU prisoners. Thus, Mr. Twitty will not be able to take part in this essential means of preparing to reenter free society after two decades in prison.
147. Finally, CMU designation has prolonged the duration ofMr. Twitty's confinement. In July 2009, Mr. Twitty was approved for nine months of pre-release placement in a Washington, DC "halfway house" by Regional Director Michael K. Nalley. Mr. Twitty's parole date is January 23,2011, so he is eligible to be placed at a halfway house in April 2010. However, Mr. Twitty was told by staff at the CMU that the pre-release program into which he was to be placed, Hope Village, Inc., will not accept him for that entire period because his assignment to the CMU suggests that he is a management problem. Hope Village will not accept Mr. Twitty until August 2010, meaning that he must serve an additional four months in prison.
148. Conditions at the CMU are so restricted and isolated that Mr. Twitty worries about making the transition to free life. At his last two program reviews, Mr. Twitty's unit team recommended that he "maintain and strengthen family ties through
43

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 44 of 77
written, and verbal communication, and visiting as appropriate," yet he is in a unit that places severe restrictions on these outlets.
149. Mr. Twitty has been seriously affected by the conditions of his confinement in the CMU, and the lack of explanation for his placement. He is full of anger and frustration, and fears that he will bring these negative feelings with him into free society. He is extremely concerned that his short transition time and lack of any reentry programming will negatively affect his ability to successfully reenter free society.
c. Daniel McGowan 150. Daniel Gerard McGowan is a 35-year-old man from Queens, New York. Before his arrest in 2005, Mr. McGowan was living with his wife, Jenny Synan, in New York City. Mr. McGowan moved back to New York in 2002 after several years on the west coast specifically to be closer to his family, all of whom live in the vicinity of New York and New Jersey. Mr. McGowan maintained a very close relationship with his entire family, visiting his sisters weekly and his parents several times a month, as well as speaking to them on the phone and emailingconstantly.Mr. McGowan had an especially close relationship with his young niece (now five), for whom he babysat frequently. 151. On December 7, 2005, Mr. McGowan was arrested at his work, a nonprofit organization that assists women in abusive situations with their legal needs. He pled guilty on November 9,2006 to conspiracy and two counts of arson. On June 4,2007 he was sentenced to seven years in prison. 152. Mr. McGowan's charges resulted from arsons at two lumber companies in Oregon in 2001, both credited to the Earth Liberation Front (ELF). No one was injured in either action. Shortly after these arsons, Mr. McGowan distanced himselffrom ELF,
44

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 45 of 77
and disavowed involvement with the group. Mr. McGowan has not had any involvement with ELF since 2001, nor has he partaken in any form of property destruction since that time.
153. After his arrest, but prior to beginning to serve his sentence, Mr. McGowan was released from custody on bail, and spent seven months on house-arrest, living with his wife, his sister, his brother-in-law, and his young niece. While on housearrest, Mr. McGowan was allowed to use the phone freely, and meet with friends and family who chose to visit him.
154. Mr. McGowan's sentencing judge recommended that he serve his time close to his family, in Fort Dix, New Jersey. Indeed, at sentencing the Court emphasized the important role Mr. McGowan's loving relationship with his wife, Ms. Synan, might play in his rehabilitation. Mr. McGowan was classified by the BOP as low security. His security point level has continued to drop due to his clean institutional conduct.
155. After spending a few weeks each at several different correctional institutions, Mr. McGowan was transferred in September of 2007 to FCI Sandstone, a low security prison in Minnesota.
156. At FCI Sandstone, Mr. McGowan was placed in the general popUlation, and was able to spend up to 300 minutes a month on the telephone. He frequently used all of his telephone minutes, so that he could maintain his close relationship with his wife, sisters, and parents. Mr. McGowan especially enjoyed speaking with his young niece, who was two and a half at the time, in an attempt to maintain that relationship.
157. At FCl Sandstone, despite being far removed from his family in New York, Mr. McGowan was also able to enjoy contact visits. He received approximately 15
45

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 46 of 77
visits while there, from his wife, sisters, father, in-laws, friends, and nieces. These visits were immensely important to Mr. McGowan, allowing him to maintain his family relationships and get to know a new niece who was too young to communicate by telephone.
158. Mr. McGowan was not placed on a telephone or mail alert list at FeI Sandstone, nor was he placed under any other communication restrictions.
159. Mr. McGowan has not received a single incident report in his entire period of incarceration. His final program review at FeI Sandstone, prior to eMU designation, indicated clean conduct and no management problems, and resulted in a reduction of his security classification.
160. In August 2008, Mr. McGowan was transferred to the eMU at USP Marion. He did not receive any prior written notice or explanation for this transfer. Nor was he told where he was going or why. Ten days after arriving at the eMU, Mr. McGowan was given a Notice of Transfer dated September 3, 2008, stating the following explanation for his transfer:
Your offense conduct included acts of arson, destruction of an energy facility, attempted arson, and conspiracy to commit arson. You have been identified as a member and leader in the Earth Liberation Front (ELF) and Animal Liberation Front (ALF), groups considered domestic terrorist organizations. Your offense conduct included communicating in code and teaching others how to commit crimes of arson. Your actions had the primary purpose to influence and affect the conduct of government, commerce, private business and others in the civilian population by means offorce, violence, sabotage, destruction of property, intimidation and coercion. Your contact with persons in the community requires heightened controls and review. 161. Much of this information is demonstrably false. Mr. McGowan was never a "leader" of ELF or ALF, and has not been a "member" of either organization for over
46

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 47 of 77
seven years. He did not destroy an energy facility, nor did he teach others to commit arson.
162. Within one week of receiving this notice, Mr. McGowan filed an Administrative Remedy Infonnal Request fonn (BP 8) at the institution, challenging his transfer to the eMU. Mr. McGowan infonned the BOP that the infonnation included in his Notice of Transfer was inaccurate, and asked to see underlying documentation regarding the reasons for his placement in the eMU. When no infonnation was forthcoming, Mr. McGowan filed a BP 9 Request for Administrative Remedy, with the same requests. Warden Hollingsworth denied the request, but stated that he could file a ForA to gain access to the BOP records related to his placement in the eMU. Mr. McGowan appealed this denial to the Regional Level. The response from BOP Regional Director Nalley denied the transfer request, and indicated that the infonnation in the notice regarding Mr. McGowan's "involvement in arson" and association with ELF and ALF came from Mr. McGowan's Pre-Sentence Investigation Report (PSR). The response included no infonnation as to the source for the remaining information in the notice.
163. However, Mr. McGowan's PSR supports his claim that the infonnation on his Notice of Transfer is false. The PSR includes no statement that Mr. McGowan taught others to commit arson, although it does include an allegation that several other named individuals, not Mr. McGowan, trained others about arson. Mr. McGowan's PSR indicates there is no evidence suggesting that he played a leadership role, in contrast to three of his co-conspirators, for whom the prosecution sought role enhancements, andlor characterized as leaders. Finally, the PSR shows that Mr. McGowan was charged and
47

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 48 of 77
pled guilty to one count of"conspiracy to commit arson and destroy an energy facility" (emphasis added). He was not convicted of destroying an energy facility. Indeed, allegations regarding his co-defendants' involvement in targeting an energy facility predate Mr. McGowan's entry into the conspiracy. Mr. McGowan subsequently appealed this response to the Central Office.
164. As directed in the administrative responses, Mr. McGowan filed a FOIA request to the BOP in October of 2008, seeking "all relevant documents and information
related to [his1designation and transfer to the Communications Management Unit." On
February 10,2009, he received three pages in response to this request. The documents did not include any further information regarding the reason for his designation, and indicated only that McGowan was transferred to the CMU for "program participation."
165. At his one year review of his incarceration at the CMU, in August of 2009, Mr. McGowan was informed that he would be considered for a transfer out of the CMU only after 18 to 24 months of clear conduct.
166. On February 5, 2010, at his 18 month review, Mr. McGowan requested a transfer out of the CMU. In disregard of the new process for designation from the CMU created in October 2009, Mr. McGowan's unit team failed to address the criteria listed in the CMU designation notice, but recommended a transfer nonetheless based on Mr. McGowan's clear conduct and progranuning. However, they explained that the decision lay not with them, but with the regional director, and they could not predict the outcome.
167. Mr. McGowan poses no danger to prison security, and, since his incarceration, has made no attempts to communicate with anyone to further illegal activity or otherwise threaten security. However, during his incarceration he has
48

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 49 of 77
continued to speak out about social justice issues and the rights of political prisoners and to communicate with law abiding activists involved in these movements. His designation to the CMU seems based not on any legitimate penological need, but rather in retaliation for Mr. McGowan's continued lawful communication and speech. Conditions at the CMU are designed to stifle that lawful political speech.
168. The silencing of political speech at the CMU is not just effectuated by limiting Mr. McGowan's ability to communicate with lawful activists outside prison (through restrictions on phone calls, visits, etc), but also by limiting his ability to receive information regarding developments in progressive causes. For example, at the CMU, Mr. McGowan is consistently prohibited from receiving written material regarding lawful enviromnental and political prisoner advocacy. Toward this end, he is frequently barmed from receiving publications like Earth First Journal and the Jericho Freedom Times, which pose no threat to prison security, and which Mr. McGowan routinely received at other BOP facilities.
169. Mr. McGowan's incarceration in the CMU also interferes with his ability to maintain a meaningful relationship with his family. He has received four non-contact visits from his wife, Ms. Synan, but those visits took place in a cramped and dirty booth, with thick plexiglass between them. Mr. McGowan's inability to have any physical contact with his wife during the visits was isolating, painful and depressing, and has burdened their ability to maintain their relationship.
170. Mr. McGowan's sisters and father have also visited him on several occasions, and those visits have also been negatively affected by the lack of physical contact. Visits with other family members have proved impossible. Mr. McGowan's
49

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 50 of 77
mother, now deceased, was ill throughout his incarceration and on a liver donor list, so she was unable to travel to Illinois to visit him. While he received visits from his young nieces at Fer Sandstone, they have been unable to visit him at the eMU because the noncontact visiting room was too small to accommodate the children and their mother, and the play area is beyond the sight range of a prisoner in the visiting booth. A larger noncontact visiting room has recently been provided, but Mr. McGowan still will not be able to see his nieces, as Mr. McGowan's sister has determined that the older child, who was able to hug and play with her uncle during contact visits at Fer Sandstone, would be . scared and confused by the more restrictive conditions at the eMU.
171. The restrictions on phone calls have also placed a severe burden on Mr. McGowan's ability to maintain family connections. In the past, Mr. McGowan used his weekly phone call to speak to his wife, in an attempt to maintain that central relationship. Because of this choice, his relationship with other family members suffered. Mr. McGowan, for example, had no way to meaningfully communicate with his young nieces, as they are too young for written communication. Moreover, even with using his one call each week to speak to his wife, that relationship too has suffered, as both Mr. McGowan and his wife are unable to keep each other informed of the day-to-day experiences in their lives in such a short period of time.
172. Since calls were increased to two per week, Mr. McGowan has attempted to reestablish contact with family members and friends. His sisters, nieces, and father gather together once every other week to receive his call. While his elder niece is able to communicate somewhat over the telephone, his youngest niece is unable to do so. Mr.
50

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 51 of 77
McGowan has found that his attempt to meaningfully recounect with family and friends is exceedingly difficult given the IS-minute time limit on his telephone calls.
173. In July of2008, en route to the CMU, Mr. McGowan was subpoenaed to appear before a grand jury. He did not testify, and was held in contempt. Mr. McGowan was transferred to the CMU after indictments issued from that grand jury. In October of 2008 he was again subpoenaed, this time as a witness in the trial, and confined in MCC Chicago and Columbia County Jail. At both places, he was placed in general population, and received unrestricted access to phone calls and visits. At MCC Chicago, where Mr. McGowan spent only nine days, he was so relieved to again have access to his family members he used almost 400 telephone minutes talking to his wife, family, and friends, attempting to repair some of the damage done to his relationships during his previous time in the CMU.
174. The isolation and complete lack of physical contact has also proved detrimental to Mr. McGowan's mental, emotional and physical health. Since his confinement in the CMU, he has experienced symptoms of anxiety and depression, included increased heart-rate, obsessive thoughts, impatience, and feelings of isolation, pessimism, and being trapped. He feels confused when interacting with individuals outside the CMU and worries that he places unnecessary emphasis on minor armoyances, and angers more quickly than in the past. He has also suffered disruptions in his sleep, such as waking up frequently and grinding his teeth.
d. Jenny Synan 175. Plaintiff Jeuny Synan lives in New York City, and works as Director of Technology for a non-profit arts organization. She has been married to Plaintiff Daniel
51

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 52 of 77
McGowan for over three years. Ms. Synan and Mr. McGowan met in New York City in 2002.
176. Ms. Synan has made substantial efforts to maintain her relationship with
Mr. McGowan since his incarceration. At FCr Sandstone, where Mr. McGowan had
unrestricted phone access, the couple spoke nightly on the phone, and for lengthy periods each weekend. By speaking so regularly, they were able to keep each other up-to-date on the minutia of their lives, thus maintaining the closeness of their relationship.
177. At the CMU, the restrictions on phone access make regular communication impossible. The two speak once or twice a week, for fifteen minutes. Prior to January 3, 2010, the calls had to happen during work hours, so Ms. Synan would leave her desk, and go into an empty conference room. Several times, she had to leave meetings or otherwise interrupt her work responsibilities to accept Mr. McGowan's call. The short duration of the call makes deep communication impossible. By the time the two have warmed up, the call is almost over.
178. Despite feeling frustrated and unfulfilled by the short duration of each call, Ms. Synan experiences significant anxiety about the possibility of missing Mr. McGowan's call. She constantly worries about unlikely events like being stuck in an elevator, or losing her cell phone, such that she would miss her one chance to speak to her husband that week.
179. While Ms. Synan is able to email Mr. McGowan regularly, it is no
substitute for live communication. For example, when Mr. McGowan's mother died in December of2009, Mr. McGowan and Ms. Synan had already had their one phone call of
the week, so Ms. Synan had to tell Mr. McGowan over email that his mother had passed
52

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 53 of 77
away. Ms. Synan was distressed at having to convey this information over email, and over her inability to subsequently comfort her husband through live conversation.
180. While incarceration itself has been a burden on their relationship, Ms. Synan relied heavily on frequent phone calls and contact visits to maintain their relationship. The visits were especially important. While at FCI Sandstone, Ms. Synan regularly visited Mr. McGowan for three days at a time, spending eight hours each day at the facility. During the visits, Ms. Synan was able to embrace Mr. McGowan upon greeting and goodbye, and hold his hand throughout. They played cards, shared food, joked, and laughed. The normalcy of their environment and interactions, along with the ability to touch each other, played an essential role in the maintenance of their relationship.
181. The infrequent, short, non-contact visits at the CMU do not allow for the couple to maintain their marital relationship in the same marmer. Ms. Synan visits Mr. McGowan as much as is allowed, regularly spending $600 per trip to fly to Illinois, and spend two days in a row visiting Mr. McGowan for four hours each day in a small booth, through plexiglass. They carmot touch, embrace, share food or play cards. The lack of contact, along with the stark and uncomfortable conditions in the visiting booth, leaves Ms. Synan feeling unfulfilled at the end of the visit. She leaves the prison feeling as though the whole visit barely happened, and depressed that she will now have to wait months to see her husband again. Ms. Synan has calculated that, over the past year, she has seen her husband only 20 hours, less than one full day.
53

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 54 of 77
182. These restrictions, which serve no penological purpose, have significantly impaired Ms. Synan's ability to maintain her relationship with Mr. McGowan, and have severely strained that relationship.
e. Royal Jones 183. Before his arrest in 2006, Plaintiff Royal Jones was living in Great Falls, Montana, and working at a hospice graveyard. At that time, Mr. Jones maintained a close relationship with his three daughters, now ages 19,20, and 24, and his two sons, ages 16 and 18. He also has five grandchildren, ranging in age from several months to three years old. Three of Mr. Jones's grandchildren were born after his transfer to the CMU at USP Marion, thus he has never met them. 184. Mr. Jones was convicted in Helena, Montana of solicitation of bank robbery and a probation violation stemming from a 1995 charge of gun possession. He was sentenced to a total of 94 months in prison. His conviction involved no allegations of terrorism, nor did it involve allegations of extremist religious or ideological motives. Mr. Jones has been in the custody of BOP for the entire duration of his sentence. He is due to be released pursuant to good time conduct on May 13,2013. 185. After his sentencing in 2007, Mr. Jones was placed in general population at FCI Englewood in Littleton, Colorado, where, like all other inmates, he received up to 300 minutes on the telephone per month. Mr. Jones frequently used the telephone to stay in touch with his family, including his sister, his mother, and his five children. At Englewood, there were no restrictions on his ability to receive contact visits. In February 2008, Mr. Jones was moved to the SHU in Englewood without explanation, and his access to the phones was limited.
54

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 55 of 77
186. While an inmate at FCI Englewood, Mr. Jones had no serious disciplinary infractions, and absolutely no infractions involving visitation or his use of the telephone or themail.Mr. Jones did have one minor communications related infraction during his first incarceration: in 1997 he called a family member and asked them to make a threeway call to the parents of a fellow prisoner. Mr. Jones was placed on a 90-day phone restriction as punishment for that infraction.
187. Mr. Jones has always been a productive inmate, earning Certificates of Completion in various areas, including word processing, drug education, radiological emergency management, and obtaining a commercial driver's license.
188. Mr. Jones is a practicing Muslim, and played an active leadership role in the Muslim community at previous federal facilities. He is also an outspoken and litigious prisoner. He has written several books, and has repeatedly attempted to correspond with various politicians and other public figures regarding unfair treatment in prison. While at FCI Englewood, staff at that facility threatened Mr. Jones that he would be "sent east" ifhe continued to file complaints. Mr. Jones filed a complaint about being subjected to this threat, and continued to advocate on his own behalf.
189. On June 6, 2008, Mr. Jones was abruptly, and without notice or a hearing, transferred to the CMU at USP Marion. Shortly after arriving at the CMU he received a Notice of Transfer, dated June 17, 2008, that, by way of explanation for his transfer, states:
Your current offense of conviction is solicitation to commit a crime of violence. Reliable evidence indicates your crimes and incarceration conduct have included involvement in recruitment and radicalization efforts, including other inmates, through extremist, violence oriented indoctrination methods to intimidate or coerce others.
55

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 56 of 77
Mr. Jones has received no further explanation of his designation to the CMU. Responses to the various administrative remedies that Mr. Jones has filed have indicated only that his designation to the CMU is "not punitive in nature," and that there is "no requirement to afford [him] the opportunity" to challenge his placement in the CMU at a hearing.
190. A referral for Mr. Jones's transfer to the CMU, dated May 1,2008, was issued by Warden Blake R. Davis at FCl Englewood. The referral indicates that Mr. Jones "has not presented any management problems." However, the referral goes on to note that "[r]eliable evidence indicates his crimes and incarceration conduct has included involvement in recruitment and radicalization efforts of other inmates through extremist, violence oriented indoctrination methods to intimidate or coerce others." The document does not substantiate these allegations in any way, and Mr. Jones has been unable to contest any of these allegations or discover their basis. The referral concludes: "the inmate need not concur with the transfer request nor should the inmate be consulted or notified of the transfer application."
191. Like Mr. McGowan (but unlike Mr. Twitty) Mr. Jones' transfer was classified as a code 324 transfer for "program participation." However, BOP policy explicitly restricts program transfers to those intended to facilitate participation in four specific national programs, including (a) Residential Drug Treatment; (b) the Life Counections Program; (c) Special Management Unit; and (d) Sex Offender Programs. See BOP Program Statement 5100.08 Chapter 7, Page 7.
192. En route to the CMU at USP Marion from FCl Englewood, Mr. Jones was briefly housed at FTC Oklahoma. Holdover Unit Team documents generated at FTC Oklahoma state: "Violation or Reason: Terrorist." The document does not substantiate or
56

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 57 of 77
explain this allegation in any way, and Mr. Jones has been unable to contest this allegation or discover its basis.
193. In response to Mr. Jones' attempts to discover the reason for his placement
in the CMU through the administrativeremedy process, he was told only that he could file a ForA request.
194. Mr. Jones followed these instructions, and filed a ForA request seeking documents related to his placement in the CMU. The BOP responded to this request by
indicating that the records Mr. Jones sought would cost $5,131.00 to disclose, and that
Mr. Jones' indigence does not qualifY him for a ForA fee waiver. Mr. Jones could not afford the fee, and thus did not receive access to any documents responsive to his request.
195. In December of 2008, Mr. Jones filed apro se complaint in the Federal District Court for the Southern District of Illinois, raising many claims similar to those raised in the instant complaint. See Jones v. Mukasey, No. 08-881 (WDS). Mr. Jones voluntarily dismissed that action in August of 2009, after being told by CMU staff that he needed to drop his complaint because it had "upset the big shots" and that things were going to get bad for him. Mr. Jones was promised that ifhe withdrew his pro se action, he would be transferred to FCI Herlong, were he could see his children and grandchildren.
196. Several months later, Mr. Jones became the first CMU prisoner Plaintiffs are aware of to be transferred from the CMU to a normal general population unit. Mr. Jones was moved to the main compound at Marion in early March 2010, and is no longer subject to the communications restrictions described in this case. He was given no written or verbal explanation for the transfer, but was told that ifhe misbehaved or
57

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 58 of 77

engaged in the conduct that led to his CMU designation, he would be immediately

transferred back to the CMU. CMU staff further informed Mr. Jones that, after six

months of clear conduct on the compound, he would be eligible for a transfer from

Marionto a prison, like FCr Herlong, that is closer to his family. Because Mr. Jones

does not know what conduct resulted in his transfer to the CMU, he does not know how

to avoid being sent back.

197. While Mr. Jones did request a nearer release transfer at his last team

review based on 18 months of clear conduct and successful progranuning, Plaintiffs

believe his transfer was based not on that discretionary process, but rather in exchange

for withdrawing his pro se complaint. Upon transfer, Mr. Jones was warned by CMU

staff once more to cease complaining about the CMU. He has disregarded that

instruction by filing this lawsuit, and faces re-designation to the CMU.

f.

Kifah Jayyousi

198. Kifah Jayyousi is a 48-year-old man from Detroit, Michigan. He is a

United States citizen of Jordanian descent. Mr. Jayyousi is married and has three

daughters, ages 12, 14, and 18, and twin sons age 23. Prior to his arrest and

incarceration, Mr. Jayyousi maintained a close and loving relationship with his wife and

their five children.

199. From 1999 to 2001, Mr. Jayyousi served as the Chief Facilities Director of

the Washington, DC public school system. In April 2001, he and his family relocated to

Detroit, where Mr. Jayyousi served as an adjunct professor at the College of Engineering

at Wayne State University, teaching classes in the Civil and Environmental Engineering

Department.

58

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 59 of 77
200. In September 2003, Mr. Jayyousi took a sabbatical from his teaching job and relocated to Doha, Qatar, for a contract engineering job. His wife and their daughters accompanied him to Doha, while his sons enrolled in college in Detroit.
201. In March 2005, Mr. Jayyousi returned to Detroit to visit his father, who was scheduled to have open-heart surgery.
202. Mr. Jayyousi had been subject to an ongoing investigation into his involvement with the Global Relief Foundation and had been interviewed by the FBI on nurnerous occasions. Before he left for his job in Doha, Jayyousi contacted federal authorities, reported his plans, and offered to meet with government representatives. Federal officials then searched Jayyousi's home before returning his passport to him.
203. When Mr. Jayyousi returned to Detroit in March 2005, he was arrested at the airport and charged with providing material support to terrorists, mostly through charitable donations.
204. U.S. District Judge Marcia Cooke granted bail to Mr. Jayyousi on January 5,2006.
205. In August 2007, Mr. Jayyousi was convicted in Federal District Court in Miami of conspiracy to murder, kidnap and maim in a foreign country and conspiracy to provide material support to terrorism. On January 22, 2008, he was sentenced to 12 years, eight months imprisonment, and the court recommended that he be housed at FCI Milan in Michigan, so that he could be near his family.
206. At sentencing, Judge Marcia G. Cooke noted on the record that there was no evidence linking Mr. Jayyousi to specific acts of violence anywhere. The Court also pointed out that Mr. Jayyousi has honorably served in the United States Navy; was highly
59

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 60 of 77
educated and "exhibited excellent competence level in all of his employment;" was a devout Muslim who was "willing to discuss religion with others without conflict" and "celebrated the peace efforts in the Middle East." The Court further noted that Mr. Jayyousi "provided assistance to people in his mosque and in the Muslim community" and "is the kind of neighbor that people would want in a community, and many wrote letters of support."
207. The Court also stated: "Raised in a refugee camp, [Mr. Jayyousi] saw firsthand how the sufferers of armed conflict affected communities. When he heard of the armed conflict in the Middle East, Africa and Eastern Europe, he provided financial and other resources to assist those abroad. There is no evidence that Mr. Jayyousi continued his involvement in the instant offense after 1998 ... and there are no intercepts of Mr. Jayyousi. He totally withdrew from the instant conspiracy in this case."
208. After sentencing, Mr. Jayyousi was incarcerated at FDC Miami and detained in the Special Housing Unit (SHU). Though initially denied them because of his confinement in SHU, he was eventually allowed contact visits in the regular visiting area of the facility. He received no communications-related disciplinary infractions while incarcerated at FDC Miami.
209. Indeed, Mr. Jayyousi has received only two disciplinary infractions during his entire period of incarceration. One, which was issued at the CMU, was dismissed after he grieved it, and was unrelated to communications. The other, which dates from his incarceration at FDC Miami, was issued after Mr. Jayyousi pressed the call button in his cell because he was scheduled to speak to his wife following their daughter's surgery, but had not been fetched from his cell in time to make that call. Mr. Jayyousi was issued
60

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 61 of 77
an infraction for tampering with a mechanical device as a result of this incident - which is classified as a moderate category offense. However, when Mr. Jayyousi was shown a copy of his records at the CMU, the record related to this infraction had been modified, elevating the offense to interfering with a security device - which is classified as a high category offense. Despite the fact that all high category offense charges must be submitted to a Disciplinary Hearing Officer (DHO) for a hearing, the incident was never submitted to a DHO, and Mr. Jayyousi was never punished for the infraction. Mr. Jayyousi is currently challenging the modification of this infraction.
210. Mr. Jayyousi is a low-security prisoner, and his Custody Classification Form, dated December 14,2009, indicates that he is being considered for a decrease in security level.
211. On or around April 30, 2008, Mr. Jayyousi learned that he was to be transferred to the CMU at Terre Haute. On May 5, 2008, his attorney filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Florida in an effort to enjoin Mr. Jayyousi's transfer. The court denied Mr. Jayyousi's motion for a preliminary injunction on June 11,2008.
212. In June 2008, Mr. Jayyousi was transferred to the CMU at Terre Haute. He did not receive any prior written notice or explanation for this transfer. On June 18, 2008, upon arriving at the CMU, he was given a "Notice to Inmate of Transfer to Communications Management Unit." The notice stated the following explanation for Mr. Jayyousi's transfer:
Your current offenses of conviction are for Conspiracy to Commit Murder in a Foreign Country; Conspiracy to Kidnap, Maim, and Torture; and Providing Material Support to a Terrorist Organization. You acted in a
criminal conspiracy to raise money to support mujahideen [sic1operations
61

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 62 of 77
and used religious training to recruit other individuals in furtherance of criminal acts in this country as well as many countries abroad. Your offense conduct included significant communication, association and assistance to al-Qaida, a group which has been designated as a foreign terrorist organization. 213. Mr. Jayyousi immediately informed the Unit Team at the CMU that the information included in the Notice of Transfer was inaccurate and erroneous, and consisted largely of allegations that were made but not proven at trial. He requested administrative remedy forms so that he could correct this erroneous information and discover more information about the basis for his transfer to the CMU. Despite these efforts, Mr. Jayyousi has been given no information about why he was sent to the CMU, and his grievances have been summarily rejected. 214. Mr. Jayyousi participated in a program review in December 2009. The review was identical to those he attended prior to the BOP's announcement of new process regarding CMU designation. It was clear to Mr. Jayyousi that the Unit Team had not and did not plan to engage in any independent analysis of the suitability of Mr. Jayyousi's continued designation to the CMU. He was told that the authority for transfer out of the CMU resides in Washington, DC. Mr. Jayyousi requested re-designation anyway, and the Unit Manager told him that, based on his offense conduct, he will serve the rest of his sentence at the CMU. 215. Mr. Jayyousi told his counselor that he would request a transfer to a facility closer to his home. The written request he subsequently made was rejected by the Unit Manager and the Warden. 216. Mr. Jayyousi has found the restrictions placed on his visitation and telephone access to be extremely painful and onerous. Mr. Jayyousi has struggled to
62

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 63 of 77
maintain a close relationship with his wife and children since his confinement in the CMU. His family drive from Detroit to visit him approximately every three months, but the lack of contact visits is very difficult on all of them. Mr. Jayyousi misses being able to hug his wife and children and has not done so since he was at FDC Miami in June 2007, where he had access to contact visits. The lack of physical contact with his family for such a long period of time has been painful. His two elderly parents, who live in Detroit, have not visited him due to the non~contact policy.
217. Because Mr. Jayyousi expects to be confined in the CMU for the duration of his sentence, his teenaged children will be fully grown adults when he is next able to hug, embrace, or hold them.
218. Moreover, the telephone restrictions have made it very hard for the family to stay in regular touch. When Mr. Jayyousi was only able to make one call a week, he called his wife and children and his elderly parents on alternate weeks. However, Mr. Jayyousi found it hard to have a meaningful conversation in 15 minutes, particularly when attempting to communicate with his wife and five children within the confines of a single call every other week. Since the policy has changed, Mr. Jayyousi has used his one extra call a week to speak to his wife and children. However, even on the weeks when he can call them twice, the combined time of 30 minutes is not enough to have meaningful conversation with his wife and five children.
219. The timing restrictions on calls have also been very difficult to navigate. Because calls were only available during school and work hours, Mr. Jayyousi's wife had to take the children out of school, meet up with their working sons outside the school, and receive his call in the parking lot. Under these conditions, it was extremely difficult for
63

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 64 of 77
Mr. Jayyousi to engage in anything but the most fleeting and cursory of conversations with his family.
220. Designation to the CMU has caused Mr. Jayyousi significant psychological and emotional harm, Besides the damage done to his relationships, he feels tense all the time, is unable to sleep several nights a week, has trouble concentrating, and his hands frequently shake, among other symptoms of anxiety and depression.
g. Hedaya Jayyltusi 221. Hedaya Jayyousi lives in Detroit, Michigan, where she works part-time as a substitute teacher in the Dearborn public school system. Ms. Jayyousi was raised in Saudi Arabia, and married Kifah Jayyousi there on AprilS, 1983. Ms. Jayyousi moved to the United States to join Mr. Jayyousi in California a year later, after completing her undergraduate degree in economics. 222. After settling down in San Diego, Ms. Jayyousi and her husband had three children: twin boys, who were born in April 1986, and a daughter who was born in October 1991. The Jayyousi family then moved to Irvine, where Mr. and Ms. Jayyousi's two youngest daughters were born in November 1995 and May 1997, respectively. 223. Ms. Jayyousi was in Qatar when she learned of her husband's arrest. She and her daughters returned to the United States. By the time she returned, Mr. Jayyousi had been transferred to Miami, where his trial was to be held. Ms. Jayyousi and her three daughters moved to Fort Lauderdale to be near Mr. Jayyousi. 224. At FCI Miami, Mr. Jayyousi was held in a Special Housing Unit. SHU policy forbade contact visits, and children were not allowed in the non-contact visitation
64

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 65 of 77
room, but the prison made special arrangements to allow Mr. Jayyousi's daughters weekly contact visits with their father. In January 2006, Mr. Jayyousi was released from jail, and placed on house arrest. Before and during his trial, Ms. Jayyousi and her daughters lived with Mr. Jayyousi in arented apartment in Florida.
225. In August 2007, Mr. Jayyousi was convicted. Ms. Jayyousi and her daughters moved back to Detroit to be near her sons, and to wait for Mr. Jayyousi's designation to an FeI. Over the nine months he remained at Foe Miami, the family visited Mr. Jayyousi every couple of months, and enjoyed regular contact visits. During these visits, the family was able to sit with Mr. Jayyousi at a table in a large visiting room, hug him when they arrived, hold his hand, and share food with him.
226. In May 2007, Ms. Jayyousi heard from her husband that he had been transferred to the eMU at Terre Haute. She and her five children visited him a month later, and have visited him there six or seven times since then. Ms. Jayyousi describes their visits as torturous for her children. The family is separated by a glass window and must take turns communicating over a telephone. The visiting room is tiny, cramped and poorly ventilated, and there are no vending machines available. If one of the children has to use the bathroom during a visit, Ms. Jayyousi is forced to urge them to hold off so the visit is not shortened.
227. More than anything, the lack of physical contact is devastating to the younger children. At the end of their first visit, Ms. Jayyousi's youngest daughter, then ten years old, screamed that she wanted to hug her father, and began to cry uncontrollably. Ms. Jayyousi tried to calm her daughter down, hugging her and saying that it was the same as her father doing so. Her daughter pushed her away and screamed
65

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 66 of 77
for her father, who began crying as well as he was forced to watch his family's pain and was unable to comfort them.
228. The lack of contact is heartbreaking for Ms. Jayyousi as well, but she . struggles to prevent herself from crying at the visits so as not to upset her daughters.
229. Efforts to stay in touch with Mr. Jayyousi using the telephone are similarly difficult and upsetting because calls are so brief. The Jayyousi's sons alternate giving up their portion ofthe calls so that their younger sisters have more time to talk to their father. Ms. Jayyousi, one son, and her three daughters split up the 15 minute calls, so that they each have three minutes. The time limit makes meaningful conversation impossible. Ms. Jayyousi usually limits her conversation with her husband so that her three daughters can speak to their father for slightly more time. The girls frequently cry and argue over whose turn it is to talk to their father and how much time they each get. The entire family is left upset and distressed by the calls. Ms. Jayyousi is pained by seeing her daughters fight and cry over getting to talk to their father for a few minutes apiece.
230. Now that calls can be made in evening hours, the family is able to speak to their father at home. However, before January 2010, because calls had to occur during school hours, Ms. Jayyousi would go to the girls' school, remove them from class, and wait for Mr. Jayyousi's call in the car. Ms. Jayyousi then moved to an apartment nearer the school so that her daughters could come home in the middle of the school day in order to talk to their father.
231. Ms. Jayyousi's own relationship with her husband has been burdened by these communication restrictions and Ms. Jayyousi has experienced substantial anxiety as a result. However, Ms. Jayyousi feels that she must bear these hardships, and worries
66

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 67 of 77
more about her children's well-being. Ms. Jayyousi reports that her daughters are sad and distressed much of the time and show symptoms of stress. One talks frequently in her sleep, mentioning her father constantly. One of her sons is depressed, has dropped out of college, and is uncommunicative. He refuses to communicate with his father over email because it is too painful. Her other son is angry and frustrated by the situation and has refused to visit his father because of the painful and arduous nature of non-contact visits.
232. These communication restrictions, which serve no penological purpose, have significantly impaired Ms. Jayyousi's and her children's relationships with Mr. Jayyousi, and have caused them emotional and psychological injury. V. Lack of Rulemaking Procedures
233. The 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, 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.
234. In this case, BOP evaded public scrutiny by issuing substantive rules, which require full notice and comment rulemaking, via Institution Supplements. This violates the APA.
67

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 68 of 77
a. Initial Effort at Rulemaking and its Abandonment 235. Prior to issuing the Terre Haute CMU Institution Supplement, and then subsequently issuing the Marion CMU Institution Supplement, BOP began a notice and comment proceeding for a similar rule, also aimed at restricting the communications of inmates charged or convicted of terrorist offenses. Limited Communication for Terrorist Inmates, 71 Fed. Reg. 16520 (Apr. 3, 2006) ("Notice of Proposed Rule"). 236. Just as the Terre Haute CMU Institution Supplement and the Marion CMU Institution Supplement severely restricts communications and visitation, the proposed rule would have severely restricted non-legal telephone calls and visitation. See 71 Fed. Reg. at 16524 (Proposed 28 C.F.R. §§ 540.203(a), 540.204(a)(l) (limiting inmates to one 15-minute telephone call to immediate family members per month, and one visit of one hour by immediate family members per month, but allowing contact visits "at the discretion of the Warden.")). 237. On June 2, 2006, comments on the proposed rule were filed by 18 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. The comments advised that the regulation should be withdrawn, and stated that the proposed regulation "is poorly conceived, almost certainly unconstitutional, and entirely unnecessary. " 238. BOP abandoned this rulemaking following the submission of comments. BOP has not taken final action on the Notice of Proposed Rule or finalized the proposed rule since.
68

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 69 of 77
239. Less than six months after comments criticizing the original proposed rule were submitted, on November 30, 2006, BOP simply issued the Terre Haute CMU Institution Supplement without notice and comment proceedings. Approximately fifteen . months later, BOP then establishedanotherCMU at USP Marion.
b. Failure to Comply with the APA 1. The APA's Notice and Comment Requirement
240. The Terre Haute and Marion CMU Institution Supplements contain 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).
241. None of the circumstances that excuse notice and comment rulemaking apply here, in that the rules contained in both Institution Supplements 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)(I)-(2).
242. Nor are the Institution Supplements interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice. See 5 U.S.C. § 553(b)(3)(A).
243. Finally, neither Institution Supplement contains a finding that notice and public procedure are impracticable, urmecessary, or contrary to the public interest. See 5 U.S.C. § 553(b)(3)(B).
69

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 70 of 77
2. Lack of Notice of Proposed Rulemaking 244. Prior to issuing the Terre Haute CMU Institution Supplement and the Marion CMU Institution Supplement, and establishing those facilities, the BOP did not publish the general notice of proposed rulemaking in the Federal Register. See 5 U.S;C. § 553(b). 245. Nor did the BOP 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). 246. The BOP did not name, personally serve, or otherwise give notice to all persons subject to the Terre Haute CMU Institution Supplement and the Marion CMU Institution Supplement. See 5 U.S.C. § 553(b).
3. Failure to Request and Consider Public Comments 247. Prior to issuing the CMU Institution Supplements and establishing those facilities, the BOP did not give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments, with or without opportunity for oral presentation. See 5 U.S.C. § 553(c). Nor did the BOP consider such relevant information. See 5 U.S.C. § 553(c).
4. Failure to Publish a Final Rule 248. The BOP did not publish either Institution Supplement 30 days before its effective date, or at any time thereafter. See 5 U.S.C. §§ 552(a)(1), 553(d).
70

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 71 of 77
249. None of the exceptions to the publication for a final rule requirement apply in that: (1) neither Institution Supplement granted or recognized an exemption or relieved a restriction; (2) both contained substantive rules, and contained neither interpretat~ve rules nor statements of policy; and (3) neither contained a finding of good cause that would exempt the documents from publication in the Federal Register. See 5 U.S.C. § 553(d)(l)-(3). VI. Exhaustion
250. Plaintiffs have exhausted their administrative remedies. FIRST CAUSE OF ACTION
(Fifth Amendment: Procedural Due Process) 251. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 252. Plaintiffs bring this claim against all individual Defendants. 253. By transferring Plaintiffs to the CMU without notice, a hearing, the ability to present evidence to contest that transfer, regular review of their ongoing placement in the CMU, notice of the projected duration of their confinement in the CMU, and notice of any criteria for release, Defendants, acting under color oflaw and their authority as federal officers, are intentionally or recklessly sUbjecting Plaintiffs to an atypical and significant hardship, and depriving Plaintiffs of liberty without due process of law and without legitimate penological purpose, in violation of the Fifth Amendment to the United States Constitution. 254. Plaintiffs have no effective means of enforcing their Fifth Amendment due process rights other than by seeking declaratory and injunctive relief from the Court.
71

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 72 of 77
255. As a result of Defendants' unlawful conduct, Plaintiffs are suffering emotional distress, psychological injury, and destruction of family ties.
SECOND CAUSE OF ACTION (Fifth Amendment: Substantive Due Process) 256. Plaintiffs and Family Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 257. Plaintiffs and Family Plaintiffs bring this claim against all individual Defendants. 258. By unreasonably and excessively restricting all Plaintiffs' access to visits and to telephone calls, and imposing arbitrary and unjustified rules regarding the scheduling of such communication, Defendants, acting under color of law and their authority as federal officers, are intentionally or recklessly interfering with all Plaintiffs' interests in family integrity without legitimate penological purpose, in violation of the Fifth Amendment to the United States Constitution. 259. Plaintiffs and Family Plaintiffs have no adequate remedy at law or other effective means of enforcing their Fifth Amendment due process rights other than by seeking declaratory and injunctive relief from the Court. 260. As a result of Defendants' unlawful conduct, all Plaintiffs are suffering psychological injury, emotional distress, and destruction of their familial relationships.
THIRD CAUSE OF ACTION (First Amendment: Free Association) 261. Plaintiffs and Family Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
72

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 73 of 77
262. Plaintiffs and Family Plaintiffs bring this claim against all individual Defendants.
263. In sUbjecting all Plaintiffs to unreasonably and excessively restricted access to visits and to telephone calls with family members, and imposing arbitrary and unjustified rules regarding the scheduling of such communication, Defendants, without legitimate penological purpose, and acting under color oflaw and their authority as federal officers, are intentionally or recklessly interfering with all Plaintiffs' right to free speech and association in violation of the First Amendment to the United States Constitution.
264. Plaintiffs and Family Plaintiffs have no adequate remedy at law or other effective means of enforcing their First Amendment free association rights other than by seeking declaratory and injunctive relief from the Court.
265. As a result of Defendants' unlawful conduct, all Plaintiffs are suffering psychological injury, emotional distress, and destruction of their familial relationships.
FOURTH CAUSE OF ACTION (Eighth Amendment: Cruel and Unusual Punishment) 266. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 267. Plaintiffs bring this claim against all individual Defendants. 268. By willfully and maliciously subjecting Plaintiffs to excessive, cruel, inhuman, and degrading conditions of confinement, including prolonged and complete denial of any opportunity for physical contact with their loved ones, excessive restriction of other means of communication with family members; and extended detention in a unit segregated from other inmates, without legitimate penological purpose, Defendants,
73

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 74 of 77
acting under color oflaw and their authority as federal officers, are denying Plaintiffs the minimal civilized measure oflife's necessities, and subjecting Plaintiffs to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
269. Plaintiffs have no adequate remedy at law or other effective means of enforcing their Eighth Amendment rights other than by seeking declaratory and injunctive relief from the Court.
270. As a result of Defendants' unlawful conduct, Plaintiffs are suffering psychological injury, emotional distress, and destruction of their familial relationships.
FIFTH CAUSE OF ACTION (First & Fifth Amendment: Equal Protection, Retaliation) 271. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 272. Plaintiffs bring this claim against all individual Defendants. 273. By creating and maintaining a policy whereby individuals are designated to the CMU without procedural protections, and by failing to effectively oversee implementation of that policy, Defendants have allowed for and encouraged the development of a pattern and practice throughout the BOP of designating individuals, including Plaintiffs, to the CMU in retaliation for their protected political and religious speech and beliefs, or based on their religion, national origin, and perceived political and/or ideological beliefs. In this way, Defendants, acting under color oflaw and their authority as federal officers, are violating Plaintiffs' rights to freedom of speech and religion, and equal protection of the law under the First and Fifth Amendments to the United States Constitution.
74

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 75 of 77
274. Plaintiffs have no effective means of enforcing these rights other than by seeking declaratory and injunctive relief from the Court.
275. As a result of Defendants' unlawful conduct, Plaintiffs are suffering psychological injury, emotional distress, and destruction of their familial relationships
SIXTH CAUSE OF ACTION (Administrative Procedures Act) 276. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 277. Plaintiffs bring this claim against Defendant BOP. 278. The issuance ofthe Terre Haute CMU Institution Supplement and the Marion CMU Institution Supplement, and the creation of the Terre Haute CMU and Marion CMU, constitute final agency action under the APA. 279. The Terre Haute CMU Institution Supplement and the Marion CMU Institution Supplement contain substantive rules that require 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). 280. The provisions contained in the Terre Haute CMU Institution Supplement and the Marion CMU Institution Supplement are wholly inconsistent with existing regulations regarding control units, administrative detention, disciplinary segregation, and weekend visitation, confirming their status as new provisions and substantive rules that require notice and comment rulemaking. 281. The BOP 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). Defendant BOP failed to do either.
75

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 76 of 77
282. Plaintiffs have no effective means, or adequate remedy at law, of enforcing provisions of the APA other than by seeking declaratory and injunctive relief from the Court.
PRAYER FOR RELIEF WHEREFORE Plaintiffs respectfully request the Court: a. Declare that Defendants' actions violate Plaintiffs' First, Fifth and Eighth
Amendment rights, and the Administrative Procedures Act; and b. Order Defendants to transfer each Plaintiff from the CMU to the general
population at a federal prison appropriate for each Plaintiffs' security classification or provide each Plaintiff with due process to ensure their designation to the CMU was appropriate and devoid of discriminatory animus; and c. Order Defendants to award Plaintiffs the same opportunities for communication as all other general population prisoners in the BOP, i.e. 300 phone minutes a month, and contact visitation pursuant to the rules of the facility to which they are designated; and d. Award Plaintiffs attorney's fees and costs; and e. Order such other relief as this Court deems just and proper. Dated: New York, New York March 29, 2010
76

Case 1:10-cv-00539-RMU Document 5 Filed 04/01/10 Page 77 of 77 Respectfully submitted,
Shayana D. Kadidal (D. . Bar No. 454248) Alexis Agathoc\eous Rachel Meeropol CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor NewYork,NY 10012 Tel: (212) 614-6438 Fax: (212) 614-6499 kadidal@ccrjustice.org Attorneys/or Plaintiffs
77

 
 Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 1 of 38

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

YASSIN MUHIDDIN AREF et al., Plaintiffs, v.
ERIC HOLDER et al., Defendants.

: : : Civil Action No.: 10-0539 (RMU) : : Re Document Nos.: 9, 19, 29 : : : :

MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS; GRANTING THE DEFENDANTS’ SUPPLEMENTAL MOTION FOR PARTIAL DISMISSAL;
DENYING THE APPLICANTS’ MOTION TO INTERVENE I. INTRODUCTION
This matter is before the court on the defendants’ motion to dismiss and supplemental motion to dismiss. The plaintiffs are a group of federal prisoners who are or were incarcerated in specially designated Communication Management Units (“CMUs”) established at the Federal Correctional Institutions (“FCI”) in Terre Haute, Indiana (“Terre Haute CMU”) and Marion, Illinois (“Marion CMU”) as well as two spouses of the prisoners. They contend that the defendants – the United States Attorney General, the Federal Bureau of Prisons (“BOP”), the Director of the BOP and the Assistant Director of the BOP’s Correctional Programs Division – violated their constitutional rights by designating them to the CMUs. The plaintiffs also allege that the defendants violated the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., by failing to engage in notice and comment rulemaking prior to establishing the CMUs.
In their initial motion to dismiss, the defendants contend that the plaintiffs have failed to sufficiently plead their constitutional claims, that the plaintiffs’ APA claim is moot and that plaintiff Royal Jones lacks standing. In their supplemental motion for partial dismissal, the

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 2 of 38

defendants argue that plaintiff Avon Twitty’s claims are moot because he is not currently designated to a CMU. For the reasons discussed below, the court grants in part and denies in part the defendants’ initial motion to dismiss and grants the defendants’ supplemental motion to dismiss.
The matter is also before the court on the motion to intervene filed by four inmates at the Terre Haute CMU (“applicants”) who are not currently parties in this action. Because the current plaintiffs adequately represent the interests of the applicants, the court denies the applicants’ motion to intervene.

II. FACTUAL & PROCEDURAL BACKGROUND
A. Communication Management Units
The BOP established the Terre Haute CMU in 2006 and the Marion CMU in 2008.
Compl., Ex. A (“BOP Terre Haute CMU Institution Supplement”) at 1; see also id., Ex. B (“BOP
Marion CMU Institution Supplement”) at 1.1 The BOP describes the CMUs as follows:
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 [BOP] facilities, and protect the public.
The CMU is a self-contained general population housing unit where inmates reside, eat, and participate in all educational, recreational, religious, visiting, unit

1

The Institution Supplements are documents setting forth the policies and procedures of the

CMUs. See Compl., Ex. A (“BOP Terre Haute CMU Institution Supplement”); id., Ex. B (“BOP

Marion CMU Institution Supplement”). The Institution Supplements for both the Terre Haute

CMU and the Marion CMU are nearly identical. Compare BOP Terre Haute CMU Institution

Supplement with BOP Marion CMU Institution Supplement. Accordingly, the court will

hereinafter cite to the BOP Terre Haute CMU Institution Supplement only.

2

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 3 of 38

management, and work programming . . . . 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.
BOP Terre Haute CMU Institution Supplement at 1. An inmate may be placed in a CMU
because
(a) [t]he inmate’s current offense(s) of conviction, or offense conduct, included association, communication, or involvement, related to international or domestic terrorism; (b) [t]he inmate’s current offense(s) of conviction, offense conduct, or activity while incarcerated, indicates a propensity to encourage, coordinate, facilitate, or otherwise act in furtherance of, illegal activity through communication with persons in the community; (c) [t]he inmate has attempted, or indicates a propensity, to contact victims of the inmate’s current offense(s) of conviction; (d) [t]he inmate committed prohibited activity related to misuse/abuse of approved communication methods while incarcerated; or (e) [t]here is any other evidence of a potential threat to the safe, secure, and orderly operation of prison facilities, or protection of the public, as a result of the inmate’s unmonitored communication with persons in the community.
Compl., Ex. F (“Notice to Inmates”) at 1.
With the exception of attorney visits, all visits with inmates housed in CMUs are “non-
contact” visits, meaning that the visit takes place in a room with a partition separating the inmate
from the visitor and both must communicate using a telephone. BOP Terre Haute CMU
Institution Supplement at 2. All communication during the visits must be in English and the
visits are live-monitored by BOP staff and are subject to recording. Id. at 2-3. CMU inmates are
currently afforded eight visitation hours per month and no single visit may last more than four
hours.2 Compl. ¶ 57. Visiting hours are from 8:30 a.m. to 2:30 p.m. Sunday through Friday. Id.
CMU inmates are entitled to at least one phone call per month lasting at least three

2

Prior to January 3, 2010, CMU inmates were allowed one four-hour visit or two two-hour visits

per month on weekdays. Compl. ¶ 52.

3

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 4 of 38

minutes. BOP Terre Haute CMU Institution Supplement at 2 (citing 28 C.F.R. §§ 540.100(b), 540.101(d)). With the exception of legal phone calls, id., CMU inmates are allowed two fifteenminute phone calls per week,3 Compl. ¶ 65. Both the inmate and the call recipient must speak in English only. BOP Terre Haute CMU Institution Supplement at 2. The calls are live-monitored by BOP staff and subject to recording. Id.
Within five calendar days of being transferred into a CMU, an inmate must be provided a “Notice to Inmate of Transfer to [CMU]” stating the reasons for his placement in the CMU. Id. at 1. An inmate may appeal his “transfer to [a CMU], or any conditions of his confinement, through the [BOP’s] Administrative Remedy Program, 28 C.F.R. §§ 542.10 through 542.18, and corresponding policy.” Id. at 5.
B. The Plaintiffs 1. Yassin Aref Yassin Aref is an Iraqi refugee who is serving a fifteen-year sentence for money laundering, providing material support for terrorism, conspiracy and making a false statement to the FBI. Compl. ¶¶ 16, 107. Prior to his convictions he served as an Imam of the Masjid-AsSalam Mosque in Albany, New York. Id. ¶ 104. His conviction arose from his participation in a loan transaction that would have helped to finance the purchase of a surface-to-air missile to a terrorist group called Jaish-e-Mohammed (“JEM”). Id. ¶ 107. At the time his incarceration began in 2007, the BOP classified Aref as a “low security” inmate. Id. ¶¶ 107, 112. He has no disciplinary history and “has never received an infraction of

3

Prior to January 3, 2010, CMU inmates were allowed one fifteen-minute phone call per week.

Compl. ¶ 64.

4

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 5 of 38
any kind at a BOP facility.” Id. ¶ 110. Aref was transferred from the Rensselaer County Jail in Troy, New York to the Terre Haute CMU in May 2007. Id. ¶ 113. After arriving at the CMU, he received a Notice of Transfer purporting to explain the reasons for his transfer:
Your current offense of conviction includes Providing Material Support & Resources to a Foreign Terrorist Organization, & Conspiracy to Use a Weapon of Mass Destruction. Your offense conduct included significant communication, association and assistance to Jaish-e-Mohammed (JeM), a group which has been designated as a foreign terrorist organization. Id. Aref challenged his designation to the CMU through the prison’s grievance system, arguing that the Notice of Transfer “mischaracterized his offense conduct.” Id. ¶ 114. He applied for a transfer and was eventually sent to the Marion CMU. Id. ¶ 116.
2. Avon Twitty In 1984, Avon Twitty was sentenced to a term of imprisonment of twenty years to life for murder and three to ten years for carrying a pistol without a license. Id. ¶¶ 17, 127. He was designated to the Terre Haute CMU in May 2007. Id. ¶ 132. On October 20, 2010, Twitty was placed in a halfway house in Washington, D.C. Defs.’ Supplemental Mot. to Dismiss on Mootness Grounds (“Defs.’ Suppl. Mot.”) at 2. He was paroled on January 21, 2011. Pls.’ Notice Regarding Change in Confinement Status of Avon Twitty (“Pls.’ 1st Notice”) at 1.
3. Daniel McGowan & Jenny Synan Daniel McGowan4 is a former member of the Earth Liberation Front (“ELF”), Compl. ¶ 18, a domestic terrorist organization, Defs.’ Mot. at 4. In 2006, he pled guilty to two counts of arson and, in 2007, he was sentenced to seven years of incarceration. Compl. ¶ 151. Like Aref, McGowan has been classified by the BOP as “low security” and has had no disciplinary history
5

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 6 of 38

during his incarceration. Id. ¶¶ 154, 159.
In August 2008, McGowan was transferred to the Marion CMU. Id. ¶ 160. Ten days
after the transfer, he received a Notice of Transfer stating as follows:
Your offense conduct included acts of arson, destruction of an energy facility, attempted arson, and conspiracy to commit arson. You have been identified as a member and leader in the Earth Liberation Front (ELF) and Animal Liberation Front (ALF), groups considered domestic terrorist organizations. Your offense conduct included communicating in code and teaching others how to commit crimes of arson. Your actions had the primary purpose to influence and affect the conduct of government, commerce, private business and others in the civilian population by means of force, violence, sabotage, destruction of property, intimidation and coercion. Your contact with persons in the community requires heightened controls and review.
Id.
McGowan administratively appealed his transfer. Id. ¶¶ 162, 164. This effort ultimately
proved unfruitful. Id. In October 2010, McGowan was transferred from the CMU into the
general population at the Marion facility. Defs.’ Suppl. Mot. at 2. He was, however, transferred
to the Terre Haute CMU on February 24, 2011. Defs.’ Notice Regarding Govt’s Supplemental
Mot. To Dismiss (“Defs.’ Notice”) at 1.
4. Royal Jones
Royal Jones was convicted of solicitation of bank robbery, which also constituted a
probation violation for an earlier gun possession conviction. Compl. ¶ 184. He was sentenced in
2007 to ninety-four months of incarceration. Id. ¶¶ 184-85. Jones has had “no serious
disciplinary infractions” and only “one minor communications[-]related infraction” during this
period of incarceration. Id. ¶ 186.

4

McGowan is married to plaintiff Jenny Synan. Id. ¶ 175.

6

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 7 of 38

Jones was transferred to the Marion CMU in June 2008. Id. ¶ 189. His Notice of
Transfer, which he received shortly after his transfer, stated as follows:
Your current offense of conviction is solicitation to commit a crime of violence. Reliable evidence indicates your crimes and incarceration conduct have included involvement in recruitment and radicalization efforts, including other inmates, through extremist, violence[-]oriented indoctrination methods to intimidate or coerce others.
Id. ¶ 189.
Jones’s efforts to administratively appeal his transfer were unsuccessful. Id. ¶ 194. Jones
filed a pro se complaint in the United States District Court for the Southern District of Illinois,
challenging, inter alia, his transfer to the CMU. Id. ¶ 195. Jones explains, however, that he
voluntarily dismissed that complaint in August 2009 because CMU staff told him that such a
dismissal would result in his transfer out of a CMU and to a facility where he could see his
family. Id. In March 2010, Jones was transferred out of the Marion CMU and into the general
population at the Marion facility. Id. ¶ 196.
5. Kifah Jayyousi & Hedaya Jayyousi Kifah Jayyousi5 was convicted in August 2007 of conspiracy to murder, kidnap and
maim in a foreign country and conspiracy to provide material support to terrorism. Id. ¶ 205.
Upon his incarceration, the BOP classified him as a “low security” prisoner. Id. ¶ 210.
Jayyousi was transferred into the Terre Haute CMU in June 2008. Id. ¶ 212. Upon
arriving there, he received a Notice of Transfer, which stated as follows:
Your current offenses of conviction are for Conspiracy to Murder in a Foreign Country; Conspiracy to Kidnap, Maim, and Torture; and Provide Material Support to a Terrorist Organization. You acted in a criminal conspiracy to raise

5

Jayyousi is married to plaintiff Hedaya Jayyousi. Id. ¶ 221.

7

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 8 of 38
money to support mujahideen operations and used religious training to recruit other individuals in furtherance of criminal acts in this country as well as many countries abroad. Your offense conduct included significant communication, association and assistance to al-Qaida, a group which has been designated as a foreign terrorist organization. Id. Jayyousi pursued administrative remedies, arguing that the Notice of Transfer contained inaccurate and erroneous information. Id. ¶ 213. His attempts have been “summarily rejected.” Id.
C. Procedural History In their complaint, filed on April 1, 2010, the plaintiffs allege that their procedural due process rights were violated because they did not receive adequate Notices of Transfer or an opportunity to challenge their designation to the CMUs. See Compl. ¶ 253. The plaintiffs also allege that their substantive due process rights have been violated because the conditions at the CMU “intentionally or recklessly interfer[e] with [their] interests in family integrity without legitimate penological purpose.” Id. ¶ 258. Similarly, the plaintiffs allege that communications restrictions in the CMU interfere with their free speech and free association rights. Id. ¶ 263. The plaintiffs also bring an equal protection claim, arguing that there is “a pattern and practice throughout the BOP of designating individuals, including Plaintiffs, to the CMU in retaliation for their protected political and religious speech and beliefs, or based on their religion, national origin, and perceived political and/or ideological beliefs.” Id. ¶ 273. Further, the plaintiffs assert that the conditions of confinement in the CMUs, “including [the] prolonged and complete denial of any opportunity for physical contact with their loved ones,” constitutes cruel and unusual punishment. Id. ¶ 268. Lastly, the plaintiffs submit that the defendants’ failure to engage in notice and comment rulemaking prior to establishing the CMUs constitutes a violation
8

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 9 of 38
of the APA. Id. ¶ 281. The plaintiffs seek a declaration that the defendants’ violated their First, Fifth and Eighth Amendment rights and the APA, an order requiring the defendants to transfer the plaintiffs out of the CMUs or to provide each plaintiff with constitutionally sufficient due process and an order requiring the defendants to provide the plaintiffs with the same communication privileges as “all other general population prisoners.” Id. at 76
On April 19, 2010, four inmates at the Terre Haute CMU filed a motion to intervene in this action pursuant to Federal Rule of Civil Procedure 24(a). See generally Mot. to Intervene. The defendants filed a motion to dismiss on July 21, 2010, asserting that Jones does not have standing and that the other plaintiffs have not stated claims upon which relief can be granted, see generally Defs.’ Mot. to Dismiss. On November 9, 2010, filed a supplemental motion to dismiss Twitty’s claims as moot because he is no longer housed in a CMU, see generally Defs.’ Suppl. Mot. With the motions fully briefed, the court turns now to the applicable legal standards and the parties’ arguments.
III. ANALYSIS A. The Defendants’ Motions to Dismiss 1. The Court Denies the Defendants’ Motion to Dismiss
Jones’s Claims for Lack of Standing a. Legal Standard for Standing
Article III of the Constitution limits the jurisdiction of federal courts to cases or controversies. U.S. Const. art. III, § 2, cl. 1. These prerequisites reflect the “common understanding of what it takes to make a justiciable case.” Steel Co. v. Citizens for a Better
9

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 10 of 38
Env’t, 523 U.S. 83, 102 (1998). Consequently, “a showing of standing ‘is an essential and unchanging’ predicate to any exercise of [a court’s] jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Put slightly differently, “Article III standing must be resolved as threshold matter.” Raytheon Co. v. Ashborn Agencies, Ltd., 372 F.3d 451, 453 (D.C. Cir. 2004) (citing Steel Co., 523 U.S. at 96-102).
As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing standing. Lujan, 504 U.S. at 561; Steel Co., 523 U.S. at 104; City of Waukesha v. Envtl. Prot. Agency, 320 F.3d 228, 233 (D.C. Cir. 2003) (per curiam). At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct will suffice. Sierra Club v. Envtl. Prot. Agency, 292 F.3d 895, 898-99 (D.C. Cir. 2002).
To demonstrate standing, a plaintiff must satisfy a three-pronged test. Sierra Club, 292 F.3d at 898 (citing Lujan, 504 U.S. at 560). First, the plaintiff must have suffered an injury in fact, defined as a harm that is concrete and actual or imminent, not conjectural or hypothetical. Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 243 (D.C. Cir. 1999) (citing Steel Co., 523 U.S. at 103). Second, the injury must be fairly traceable to the governmental conduct alleged. Id. Finally, it must be likely that the requested relief will redress the alleged injury. Id. This Circuit has made clear that no standing exists if the plaintiff’s allegations are “purely ‘speculative[, which is] the ultimate label for injuries too implausible to support standing.’” Tozzi v. Dep’t of Health & Human Servs., 271 F.3d 301, 307 (D.C. Cir. 2001) (quoting Advanced Mgmt. Tech., Inc. v. Fed. Aviation Admin., 211 F.3d 633, 637 (D.C. Cir. 2000)). Nor does standing exist where the court “would have to accept a number of very speculative inferences and assumptions
10

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 11 of 38
in any endeavor to connect [the] alleged injury with [the challenged conduct].” Winpisinger v. Watson, 628 F.2d 133, 139 (D.C. Cir. 1980).
b. Plaintiff Jones Has Standing to Pursue His Claims The defendants argue that Jones lacks standing because he is not currently designated to a CMU and, accordingly, is not suffering an injury in fact for which relief can be provided. See Defs.’ Mot. at 9-10. The defendants note that, in March 2010, Jones was transferred to the general population at the Marion facility and is not currently designated to a CMU. Id. at 9; see also Compl. ¶ 21. The plaintiffs respond that Jones was placed in a CMU without proper explanation or process and, as a result, he has no idea what conduct to refrain from in order to avoid being sent back. Pls.’ Opp’n to Defs.’ Mot. (“Pls.’ Opp’n”) at 69. Moreover, the plaintiffs note that McGowan was designated to a CMU, transferred back into the general population and then redesignated to a CMU without receiving sufficient notice or an opportunity to be heard. See generally Pls.’ Notice in Resp. to Defs.’ Feb. 25, 2011 Notice (“Pls.’ 2d Notice”). This, the plaintiffs contend, is evidence that Jones faces a realistic threat of being redesignated to a CMU. See id. at 5. The defendants reply that Jones’s injury is only hypothetical because has not demonstrated that there is a “sufficient likelihood” that he will be returned to a CMU. Defs.’ Reply in Supp. of Mot. to Dismiss (“Defs.’ Reply”) at 2. The Supreme Court has explained that “application of the constitutional standing requirement [is not] a mechanical exercise, and that when standing is challenged on the basis of the pleadings[,] we accept as true all material allegations of the complaint, and . . . construe the complaint in favor of the complaining party.” Pennell v. City of San Jose, 485 U.S. 1, 7 (1988). “[A] prediction of injury based on experience suffices to show injury in fact to the extent that
11

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 12 of 38
‘past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury.’” Biggerstaff v. Fed. Commc’n Comm’n, 511 F.3d 178, 183 (D.C. Cir. 2007) (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)).
Viewed through this prism, Jones has plainly stated facts that, accepted as true, demonstrate a realistic threat that he might be redesignated to a CMU. Jones’s Notice of Transfer indicated that he was placed in the CMU because of the nature of his underlying conviction and because of his alleged efforts to radicalize other inmates. Compl. ¶ 189. These facts are not going to change; thus, it appears entirely plausible that Jones will be redesignated to the CMU for the very reasons he was sent there in the first place. Indeed, as noted by the plaintiffs, McGowan who, like Jones, has also raised a claim of retaliation, was transferred out of the Marion CMU and placed in the general prison population only to be redesignated to the Terre Haute CMU four months later. See generally Pls.’ 2d Notice. The court, thus, determines that the plaintiffs have advanced sufficient evidence suggesting that Jones faces a realistic threat of redesignation to a CMU. See Pennell, 485 U.S. at 7-8 (explaining that the owners of a building subject to a City Ordinance satisfied standing by alleging that they were subject to the Ordinance even though no enforcement of the Ordinance had yet been sought against the owners); Biggerstaff, 511 F.3d at 183 (holding that the plaintiff had demonstrated standing based on his experience that it is “definitely likely” that the challenged agency order will be applied to him) cf. Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (ruling that a plaintiff did not have standing because “the odds that [a plaintiff seeking an injunction barring the use of chokeholds by police officers] would not only again be stopped for a traffic violation but would also be subjected to a chokehold without any provocation whatsoever are [in]sufficient to make out a federal case for
12

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 13 of 38
equitable relief”). Accordingly, at this stage in the litigation, the court holds that Jones has standing.
2. The Court Grants the Defendants’ Supplemental Motion for Partial Dismissal a. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1)
Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) (noting that “[a]s a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction”).
Because “subject-matter jurisdiction is an ‘Art[icle] III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.’” Akinseye v. Dist. of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)). On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Because subject matter jurisdiction focuses on the court’s power to hear the claim, however, the court must give the plaintiff’s factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim. See Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Thus, the court is not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227,
13

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 14 of 38
241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Instead, “where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
b. Legal Standard for Mootness Under Rule 12(b)(1), a party may move to dismiss a case on grounds of mootness. Comm. in Solidarity with People of El Salvador v. Sessions, 929 F.2d 742, 744 (D.C. Cir. 1991); Super Sack Mfg. Corp. v. Chase Packaging Corp., 57 F.3d 1054, 1060 (Fed. Cir. 1995); Am. Historical Ass’n v. Peterson, 876 F. Supp. 1300, 1308 (D.D.C. 1995). Article III’s case-orcontroversy requirement prohibits courts from issuing advisory opinions or decisions based on hypothetical facts or abstract issues. Flast v. Cohen, 392 U.S. 83, 96 (1968). “The doctrine of mootness is a logical corollary of the case or controversy requirement[.]” Better Gov't Ass’n v. Dep’t of State, 780 F.2d 86, 90 (D.C. Cir. 1986). In cases where challenged conduct ceases and “there is no reasonable expectation that the wrong will be repeated . . . it becomes impossible for the court to grant any effectual relief whatever to the prevailing party, and any opinion as to the legality of the challenged action would be advisory.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000). Accordingly, a court may not rule on the merits of a case in which the claim for relief is moot. Courts must evaluate mootness “through all stages” of the litigation in order to ensure that a live controversy remains. 21st Century Telesis Joint Venture v. Fed. Commc’ns Comm’n, 318 F.3d 192, 198 (D.C. Cir. 2003) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
14

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 15 of 38
(TOC), Inc., 528 U.S. 167, 191 (2000) and Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)). As a result, “[e]ven where litigation poses a live controversy when filed, the [mootness] doctrine requires a federal court to refrain from deciding it if ‘events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.’” Id. (quoting Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990)).
A case is moot when “the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” City of Erie, 529 U.S. at 287 (internal quotations omitted). An intervening event may render a claim moot if (1) there is no reasonable expectation that the conduct will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violations. Pharmachemie B.V. v. Barr Labs,, Inc., 276 F.3d 627, 631 (D.C. Cir. 2002); Sellers v. Bureau of Prisons, 959 F.2d 307, 310 (D.C. Cir. 1992). A case is not moot, however, so long as any single claim for relief remains viable, as the remaining live issues satisfy the case-or-controversy requirement. Tucson Med. Ctr. v. Sullivan, 947 F.2d 971, 978 (D.C. Cir. 1991) (internal quotations and citations omitted). The burden of establishing mootness rests on the party raising the issue, and it is a heavy burden. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953); Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449, 458-59 (D.C. Cir. 1998).
15

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 16 of 38

c. Plaintiff Twitty’s Claims Are Moot The defendants argue that because Twitty was placed in a halfway house in October 2007 and paroled in January 2011, he is no longer in BOP custody and his claims are therefore moot.6 See generally Defs.’ Suppl. Mot.; Defs.’ Notice. The plaintiffs oppose dismissal of Twitty’s claims, arguing that the defendants’ voluntary transfer of Twitty to a halfway house does not render his claim moot pursuant to the “voluntary cessation” exception to the mootness doctrine. Pls.’ Opp’n to Defs.’ Suppl. Mot. at 2; see also Pls.’ 1st Notice at 1. The defendants respond that the voluntary cessation exception does not apply here because Twitty had been approved for halfway house placement prior to the filing of this lawsuit. See Defs.’ Suppl. Reply at 3-8, 1215. “[A] defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Friends of the Earth, Inc., 528 U.S. at 189. “[I]n order for this exception to apply, the defendant’s voluntary cessation must have arisen because of the litigation.” Pub. Util. Comm’n of Cal. v. Fed. Energy Regulatory Comm’n, 100 F.3d 1451, 1460 (9th Cir. 1996). There is no dispute that prior to the commencement of this lawsuit, the BOP had already determined that Twitty was eligible for placement in a halfway house. Compl. ¶ 70 (“Twitty was approved for nine months pre-release placement at a halfway house.”); Defs.’ Suppl. Mot. at 2. Because the decision to release Twitty preceded this lawsuit, it is clear that the cessation of his

6

The defendants initially argued that McGowan’s claims are also moot because at the time the

defendants filed their motion in July 2010, McGowan had been transferred out of the Marion

CMU. See generally Defs.’ Suppl. Mot. Since that time, however, McGowan has been

reassigned to the Terre Haute CMU and, accordingly, the defendants have withdrawn their

argument that his claims are moot. See Defs.’ Notice.

16

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 17 of 38
designation to a CMU was not the result of this litigation. Accordingly, the defendants have demonstrated that Twitty was not transferred “because of” this lawsuit and the voluntary cessation exception to mootness does not apply. See Pub. Util. Comm’n, 100 F.3d at 1460. The court, therefore, dismisses Twitty’s claims as moot.
3. The Court Grants in Part and Denies in Part the Defendants’ Motion to Dismiss the Plaintiffs’ Claims Pursuant to Rule 12(b)(6) a. Legal Standard for a Rule 12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues.” Conley, 355 U.S. at 47-48 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002), or “plead law or match facts to every element of a legal theory,” Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).
Yet, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S.
17

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 18 of 38
544, 562 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-46, instructing courts not to dismiss for failure to state a claim unless it appears beyond doubt that “no set of facts in support of his claim [] would entitle him to relief”). A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).
In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual allegations – including mixed questions of law and fact – as true and draw all reasonable inferences therefrom in the plaintiff’s favor. Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. Dist. of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004); Browning, 292 F.3d at 242. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555).
b. The Court Grants the Defendants’ Motion to Dismiss the Plaintiffs’ Substantive Due Process Claim
The plaintiffs allege that that the defendants have violated their First Amendment right to “family integrity” through the restrictions placed on the plaintiffs’ communications. Compl. ¶ 258; see also Pls.’ Opp’n at 39 (arguing that the defendants have violated their right “to maintain
18

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 19 of 38
vital relationships with family members and members of the community both through visitation and through phone calls”). The defendants argue that no such right exists and that, even if it did, the CMU restrictions “are valid because they are reasonably related to legitimate penological goals.” Defs.’ Mot. at 24.
As an initial matter, the court notes that although the Supreme Court has acknowledged that “the Constitution protects certain kinds of highly personal relationships,” it is unclear to what extent such a right survives incarceration. Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (internal quotation omitted). Regardless, because, as discussed below, the CMU regulations are rationally related to legitimate penological interests, the plaintiffs’ substantive due process claim fails.
It is well settled that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). In determining whether this standard is met, the court looks to four considerations. See id. “First, there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Id. (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)). Second, the court examines “whether there are alternative means of exercising the right that remain open to prison inmates.” Id. at 90. Third, the court must assess “the impact that accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Id. Fourth, the court must consider the availability of alternatives. Id. “Although [these] factors are intended as guides to a single reasonableness standard, the first factor looms especially large. Its rationality inquiry tends to encompass the remaining factors, and some of its criteria are
19

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 20 of 38
apparently necessary conditions.” Amatel v. Reno, 156 F.3d 192, 196 (D.C. Cir. 1998) (internal citations omitted).
According to the defendants, the penological interest furthered by the restrictions imposed by the CMUs is the “effective monitoring of the communications of high-risk inmates . . . to protect the safety, security and orderly operation of Bureau facilities, and to protect the public.” Defs.’ Mot. at 25. The plaintiffs do not dispute that this is a legitimate interest. Pls.’ Opp’n at 46 (“Plaintiffs agree that protection of the safety and operations of a prison and protection of the public are legitimate penological interests . . . [and] that effective monitoring of the communications of high-risk inmates could serve those interests.”). Indeed, the weight of the relevant case law supports the conclusion that the types of communications restrictions imposed by the CMUs are rationally related to the legitimate penological interest of promoting the safety of correctional institutions and the public. See, e.g., Block, 468 U.S. at 588 (holding that a prohibition on contact visits is rationally related to the legitimate goal of promoting institutional security); Williams v. Mierzejewski, 401 F. App’x 142, 145 (7th Cir. 2010) (“We give considerable deference to a prison official’s determination that a communication between a prisoner and the outside world constitutes a security threat.” (citing Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989))); Maze v. Tafolla, 369 F. App’x 532, 535 (5th Cir. 2010) (applying Block and upholding a ban on contact visits for a pretrial detainee as rationally related to a legitimate penological interest); Perez v. Fed. Bureau of Prisons, 229 F. App’x 55, 57 (3rd Cir. 2007) (holding that “restrict[ing] telephone calls to one per week [for] prisoners who have a history of using the telephone to conduct criminal activity is clearly reasonable because it relates to the legitimate penological goal of public and institutional safety”); Pope v. Hightower, 101
20

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 21 of 38
F.3d 1382, 1385 (11th Cir. 1996) (explaining that the imposition of a ten-person calling list is rationally related to the legitimate governmental objective of reducing criminal activity); Stojanovic v. Humphreys, 309 F. App’x 48, 51 (7th Cir. 2009) (“Safety and security are legitimate penological interests, and this is equally true in the visitation context.”); Searcy v. United States, 668 F. Supp. 2d 113, 122 (D.D.C. 2009) (holding that “regulations restricting inmates’ telephone use are reasonable as long as they further the government’s legitimate penological interests, including the safety and security of correctional institutions, inmates, staff, and the public” (citing Arney v. Simmons, 26 F. Supp. 2d 1288, 1293 (D. Kan. 1998))).
Accordingly, because the plaintiffs have not adequately alleged that the CMU restrictions are not rationally related to the legitimate penological interest in monitoring the communication of high-risk inmates, the court dismisses the plaintiffs’ substantive due process claim. See Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990) (explaining that “[t]he first [Turner] factor constitutes a sine qua non”); Amatel, 156 F.3d at 196 (noting that the first rationality factor “tends to encompass the remaining factors”).
c. The Court Denies the Defendants’ Motion to Dismiss the Plaintiffs’ Procedural Due Process Claim
The defendants contend that the plaintiffs have not articulated the deprivation of a constitutional or government-created liberty interest as required to state a viable procedural due process claim. See Defs.’ Mot. at 10-20. According to the defendants, the BOP’s “transfer of Plaintiffs to a CMU and the imposition of the subject communication restrictions do not impose significant or ‘unduly harsh’ restrictions,” as required to trigger a government-created liberty interest in the prison context. Defs.’ Reply at 10. Furthermore, the defendants argue that even if
21

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 22 of 38
the plaintiffs have a liberty interest at stake, the plaintiffs were not deprived of procedural due process because they received proper notice of the reasons for their CMU designation after arriving at the CMUs, as well as an opportunity to contest that designation. Defs.’ Mot. at 20-21.
The plaintiffs maintain that they have a government-created liberty interest in avoiding the conditions of confinement that exist in the CMUs because those conditions impose an “atypical and significant hardship on the [plaintiffs] in relation to the ordinary incidents of prison life.” Pls.’ Opp’n at 9 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Furthermore, the plaintiffs assert that any procedures the defendants have provided are insufficient to protect these rights. Id. at 20-25. Additionally, the plaintiffs contend that the BOP’s purported “reviews” of the plaintiffs’ designation to the CMUs “are merely an assessment of whether the ‘original reasons for CMU placement still exist’” and thus, meaningless because those original reasons “cannot change.” Pls.’ Opp’n at 23.
The Fifth Amendment requires that no person be deprived of his liberty without due process of law. U.S. CONST. amend. V. To establish an actionable due process claim, the plaintiffs must show that (1) they have a constitutionally-protected life, liberty or property interest and (2) the defendants deprived the plaintiffs of that interest without constitutionally adequate procedure. See Propert v. Dist. of Columbia, 948 F.2d 1327, 1331 (D.C. Cir. 1991); Soeken v. Herman, 35 F. Supp. 2d 99, 104-105 (D.D.C. 1999). Liberty interests are generally derived from the Constitution, but “[t]he government may under certain circumstances create liberty interests which are protected by the Due Process Clause.” Sandin, 515 U.S. at 484; see also Marshall v. Fed. Bureau of Prisons, 518 F. Supp. 2d 190, 194 (D.D.C. 2007) (citing Ellis v. Dist. of Columbia, 84 F.3d 1413, 1415 (D.C. Cir. 1996)).
22

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 23 of 38
Once a liberty interest is implicated, a “fundamental requirement” of due process is that an individual receive “the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976); see also Propert, 948 F.2d at 1331. In determining whether “an appropriate hearing has been provided at a meaningful time and in a meaningful matter,” the court considers three factors:
[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Mathews, 424 U.S. at 335. All the while, the court must remain mindful that “due process is flexible and calls for such procedural protections as the particular situation demands.” Mathews, 424 U.S. at 334 (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
i. The Plaintiffs Have Plausibly Alleged a Liberty Interest Protected by Procedural Due Process
This Circuit has observed that a deprivation in prison implicates a [government-created] liberty interest protected by the Due Process Clause only when it imposes an “atypical and significant hardship” on an inmate in relation to the most restrictive confinement conditions that prison officials, exercising their administrative authority to ensure institutional safety and good order, routinely impose on inmates serving similar sentences.
Hatch v. Dist. of Columbia, 184 F.3d 846, 856 (D.C. Cir. 1999) (quoting Sandin, 515 U.S. at 484).
At present, the plaintiffs designated to a CMU are allowed two fifteen-minute phone calls per week and eight hours of non-contact visits per month. Compl. ¶¶ 57, 65. Each visit may not
23

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 24 of 38
exceed four hours and must be held in a partitioned room; no physical contact is permitted between the inmate and his visitor and visitors and inmates must communicate verbally using telephone handsets. Id. ¶ 57; BOP Terre Haute CMU Institution Supplement at 2. Pursuant to the “guidelines and procedures” articulated in the Institution Supplements, while housed at the CMUs, the plaintiffs are only entitled to one three-minute telephone call per month. BOP Terre Haute CMU Institution Supplement at 2.
By contrast, BOP prisoners housed in the general population are typically allowed 300 phone minutes per month. Compl. ¶ 63; Defs.’ Mot. at 6. BOP regulations governing visitation for prisoners housed in the general population provide no specific cap on the number or duration of visits, but do indicate that each inmate shall be allowed at least four hours of visiting time per month, 28 C.F.R. § 540.43, and that the visits should be contact visits “unless there is clear and convincing evidence that such contact would jeopardize the safety or security of the institution,” id. § 540.51(h)(2). Indeed, the plaintiffs allege that inmates at “the Administrative Maximum facility USP Florence, the only ‘supermaximum’ security facility in the federal system” are allowed up to five visits a month with each visit lasting for up to seven hours. Compl. ¶ 61.
The plaintiffs note that at this early stage in the litigation – prior to discovery – they are unable to cite specific examples of the most restrictive conditions of confinement routinely imposed on inmates serving sentences similar to those being served by the plaintiffs. Pls.’ Opp’n at 15; see also Brown v. Plaut, 131 F.3d 163, 170 (D.C. Cir 1997) (explaining that the comparison of prison conditions is a “complex and fact-specific inquiry”). Nonetheless, the aforementioned allegations are specific and detailed and plausibly suggest a significant disparity in the treatment of CMU inmates and those housed in the general population. Compl. ¶¶ 37-68.
24

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 25 of 38
The defendants for their part do not engage in any qualitative comparative analysis of the conditions of confinement faced by inmates with similar sentences to those of the plaintiffs. See generally Defs.’ Mot.; Defs.’ Reply. Although the defendants suggest that the restrictions in the CMU are no harsher than those found in solitary confinement, Defs.’ Reply at 9, the defendants do not address whether prisoners with similar sentences are routinely placed in solitary confinement. See generally Defs.’ Mot.; Defs.’ Reply. Thus, drawing all factual inferences in favor of the plaintiff, see Holy Land Found., 333 F.3d at 165, the court determines that it is plausible that the conditions of confinement in the CMUs constitute an atypical and significant hardship on the plaintiffs, Iqbal, 129 S. Ct. at 1949; Hatch, 184 F.3d at 856. Accordingly, the plaintiffs have plausibly alleged that they have a liberty interest in avoiding designation to a CMU and the confinements related to such a designation. See Wilkinson v. Austin, 545 U.S. 209, 228 (2005) (recognizing that inmates have a liberty interest in not being assigned to a “supermax” facility because the conditions – prohibition of almost all human contact, constant lighting and minimal exercise in confined quarters – imposed a “atypical and significant hardship” on the inmates). ii. The Plaintiffs Have Plausibly Alleged That They Were Denied Procedural Due Process
As discussed, Mathews delineates a three-factor test for determining whether a plaintiff has received an opportunity to be heard at a meaningful time and in a meaningful manner. Mathews, 424 U.S. at 333. In this case, the first factor requires the court to consider the significance of the plaintiffs’ interest in avoiding erroneous placement in a CMU. See Wilkinson, 545 U.S. at 225. The plaintiffs assert, and the defendants do not contest, that the plaintiffs have an interest in avoiding designation to a CMU. Pls.’ Opp’n at 23; see generally Defs.’ Mot.;
25

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 26 of 38
Defs.’ Reply. Although the plaintiffs’ interest in their liberty is legitimately impacted by virtue of their imprisonment, their liberty interest is not “minimal” and merits procedural due process so long as it is evaluated “within the context of the prison system.” Wilkinson, 545 U.S. at 225.
Next, the court considers the risk that procedures used by the defendants resulted in the erroneous deprivation of the plaintiffs’ liberty interest, as well as the “probable value, if any, of additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335. “To insure that [a] review does not become simply a sham, the content and substance of that review must be scrutinized under the illumination” of the Fifth Amendment, Mims v. Shapp, 744 F.2d 946, 954 (3d Cir. 1984), and “prison officials must be prepared to offer evidence that the . . . reviews held are substantive and legitimate, not merely a sham,” Giano v. Kelly, 869 F. Supp. 143, 150 (W.D.N.Y. 1994).
The defendants insist that the BOP’s standard administrative remedies are available to the plaintiffs designated to the CMU and contain a process for review of “an issue relating to any aspect of [the plaintiffs’] confinement.” Defs.’ Mot. at 21 n.5. The defendants further assert that the plaintiffs have “received reviews of their continued confinement in the CMU by the CMU’s Unit Team in connection with regularly scheduled program reviews.” Id. at 21. The plaintiffs allege that administrative remedies and periodic reviews are “illusory,” id. ¶ 90, and that the Notices of Transfer are “so vague and generic” that they effectively provide no notice at all. Id. ¶ 77. The plaintiffs allege that the administrative and periodic review process is insufficient because those procedures involve review at the institutional or regional level, but the decisions for CMU designation are only made by officials in Washington, D.C., id. ¶ 84, 90. The plaintiffs also argue that “[b]ecause CMU designation is not based on any ongoing misbehavior, the reason
26

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 27 of 38
for designation will never change or diminish.” Compl. ¶ 83. Moreover, according to Jayyousi, his unit manager informed him that, apparently despite the periodic review procedures, he would serve the rest of his sentence at the CMU. Id. Accordingly, the plaintiffs seek procedures assuring that they receive detailed Notices of Transfer and ongoing reviews by officials with decision-making power who will review whether their continued placement in the CMU is still appropriate, see id. ¶¶ 73-91.
In light of the plaintiffs factual allegations supporting their contention that reviews provided by the defendants are “illusory” and meaningless, the court determines that they have adequately alleged there is a high risk that the procedures used by the defendants have resulted in erroneous deprivations of their liberty interests. See Mathews, 424 U.S. at 335; see also Williams v. Norris, 277 F. App’x 647, 649 (8th Cir. 2008) (noting that the reason for segregation should “not only be valid at outset but must continue to subsist during period of segregation” and reversing the lower court’s grant of summary judgment because there remained unresolved issues of fact as to whether the prisoner “received meaningful reviews, rather than sham reviews, as he contend[ed]”); Lira v. Cate, 2009 U.S. Dist. Lexis 91292, at *90 (N.D. Cal. Sept. 30, 2009) (denying the defendant’s motion to dismiss because the plaintiff provided evidence that reviews of his administrative segregation were “largely perfunctory” and the prison “provided no substantive review of the propriety of [his] retention in administrative segregation”); Hogan v. Epps, 2009 U.S. Dist. Lexis 128449, at *6 (S.D. Miss. July 6, 2009) (denying summary judgment because the defendants did not provide any evidence to contradict the plaintiff’s claim that review of administrative segregation in prison was not meaningful nor explained “the circumstances under which an inmate may be removed from . . . segregation”).
27

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 28 of 38
The third Mathews factor addresses the government’s interest and the burden that additional or substitute procedures would impose on the government. Mathews, 424 U.S. at 335. The defendants note that the BOP’s goal is “providing both increased and effective monitoring of high-risk inmates,” Defs.’ Mot. at 26, but neglect to address how the procedures sought by the plaintiffs – detailed Notices of Transfer and meaningful reviews – would create an unwarranted burden on the BOP’s resources, see generally id.; Defs.’ Reply. Without more, the court cannot conclude that the defendants cannot both accommodate the government’s interest while affording the plaintiffs their requested procedural due process.
Accordingly, the court determines that at this stage in the proceedings, the plaintiffs have adequately alleged facts sufficient to satisfy the three Mathews factors. As a result, the plaintiffs have plausibly alleged that the defendants violated their procedural due process rights, see Iqbal, 129 S. Ct. at 1949 (internal citation omitted), and the court denies the defendants’ motion to dismiss the plaintiffs’ procedural due process claim.
d. The Court Grants the Defendants’ Motion to Dismiss the Plaintiffs’ Eighth Amendment Claims
The defendants argue that the plaintiffs have not adequately alleged that they have been denied “the minimal civilized measure of life’s necessities” as required to sustain a cruel and unusual punishment claim under the Eighth Amendment. Defs.’ Mot. at 32. The plaintiffs respond that they have been deprived of “the essential human need for meaningful contact with one’s family,” and that accordingly, they have alleged a viable Eighth Amendment claim. Pls.’ Opp’n at 52.
28

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 29 of 38
To establish an Eighth Amendment violation, a prisoner must make an objective and a subjective showing. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). Objectively, the alleged deprivation must be “sufficiently serious;” subjectively, the prison officials’ actions, must demonstrate a “deliberate indifference” to the prisoner’s health or safety. See id. A deprivation is “sufficiently serious” if it denies a prisoner the “minimum civilized measures of life’s necessities.” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (internal citations omitted); see also Hudson v. McMillian, 503 U.S. 1, 8-9 (1992) (stating that “extreme deprivations are required to make out a conditions-of-confinement claim”). These necessities are typically “food, shelter, health care, and personal security.” Inmates of Occoquan v. Barry, 844 F.2d 828, 839 (D.C. Cir. 1988).
The plaintiffs’ allegations are based on the conditions of their confinement in the CMUs – namely the visitation and telephone restrictions imposed on their contact with their families. See Compl. ¶ 268; Pls.’ Opp’n at 52-53. It is far from clear, however, that family contact is a basic life necessity for Eighth Amendment purposes. Indeed, the Supreme Court has stated that a two-year ban on visitation did not “deprive inmates of basic necessities, or fail to protect their health or safety.” Overton, 539 U.S. at 136-37. Similarly, another court in this district has recently explained that “[d]eprivations such as infrequent or no visits from family . . . do not meet the threshold of ‘extreme deprivations’ required to state an Eighth Amendment claim regarding conditions of prison confinement.” Simmons v. Wolff, 594 F. Supp. 2d. 6, 9 (D.D.C. 2009); see also Perez v. Fed. Bureau of Prisons, 229 F. App’x 55, 57 (3rd Cir. 2007) (“An altered security classification that allows limits on telephone privileges certainly does not rise to [the] level [of extreme deprivation].” (citing Inmates of Occoquan, 844 F.2d at 836)); Wirsching
29

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 30 of 38
v. Colo., 360 F.3d 1191, 1205 (10th Cir. 2004) (“[V]isitation with a particular person does not constitute basic necessity, the denial of which would violate the Eighth Amendment.” (citing Ky. Dep’t of Corrections v. Thompson, 490 U.S. 454, 461 (1989))); Phillips v. Norris, 320 F.3d 844, 848 (8th Cir. 2003) (determining that thirty-seven days without contact visitation or religious services did not involve “life’s necessities,” such as water, food or shelter and as such did not constitute an Eighth Amendment violation); Saleem v. Helman, 1997 WL 527769, at *2 (7th Cir. Aug. 21, 1997) (“[D]enial of contact visitation altogether does not violate the Eighth Amendment.” (citing Caldwell v. Miller, 790 F.2d 589, 601 n.16 (7th Cir. 1986))); Ademola v. Bureau of Prisons, 2006 WL 2466840, at *4 (D.N.J. Aug. 23, 2006) (holding that the telephone restrictions challenged by the plaintiff did not constitute a “basic human need” (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991))). Accordingly, because the plaintiffs have not plausibly alleged that they have been denied a basic life necessity, the court grants the defendants’ motion to dismiss this claim.
e. The Court Denies the Defendants’ Motion to Dismiss the Plaintiffs’ Retaliation Claims
The plaintiffs allege that the defendants transferred Jones into the CMU in retaliation for his continued litigation against the BOP and that they transferred McGowan into the CMU in retaliation for his vocalization “about social justice issues and the rights of political prisoners.” Compl. ¶¶ 167, 188. The defendants contend that the plaintiffs have failed to allege that retaliation was the “but for” cause of their transfer. See Defs.’ Mot. at 34-39.
A prisoner alleging a First Amendment claim of retaliation must allege that “(1) he engaged in conduct protected under the First Amendment; (2) the defendant took some
30

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 31 of 38
retaliatory action sufficient to deter a person of ordinary firmness in plaintiff’s position from speaking again; and (3) a causal link between the exercise of a constitutional right and the adverse action taken against him.” Banks v. York, 515 F. Supp. 2d 89, 111 (D.D.C. 2007) (citing Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001); Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)). To satisfy the causation link, a plaintiff must allege that his or her constitutional speech was the “but for” cause of the defendants’ retaliatory action. Hartman v. Moore, 547 U.S. 250, 256 (2006). “Evidence that actions by correctional officers were taken in retaliation for the exercise of protected conduct may be inferred from the fact that the acts occurred shortly after the filing of a grievance, and that the inmate previously had a good disciplinary record.” Garcia v. Dist. of Columbia, 56 F. Supp. 2d 1, 13 (D.D.C. 1998) (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); Smith v. Deckelbaum, 1998 WL 433926 (S.D.N.Y. July 27, 1998)).
Here, the plaintiffs allege that Jones is “an outspoken and litigious prisoner” and that he has written books about improper prison conditions and filed grievances and complaints on his own behalf. Compl. ¶ 188. They further allege that his prison record contains “no serious disciplinary infractions” and “one minor communications[-]related infraction” from 1997. Id. ¶ 186. Although the timeline is somewhat unclear with respect to this plaintiff, it appears that he filed a complaint in 2007 after he was placed in FCI Englewood in Littleton, Colorado. See id. ¶¶ 185, 188-89. While there, he alleges that staff told him he would be “sent east” if he continued filing complaints. Id. ¶ 188. He filed a complaint about this alleged threat and, on June 6, 2008, he was transferred to the Marion CMU. Id. ¶¶ 188-89. In light of the plaintiffs’ allegation regarding Jones’s relatively clean disciplinary history, his history of complaints and the threat allegedly directed at him by staff at FCI Englewood, Jones has plausibly alleged that
31

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 32 of 38
he was transferred to the CMU in retaliation for his continued litigation against the BOP. See Garcia, 56 F. Supp. 2d at 13.
Similarly, the plaintiffs allege that McGowan has a clean disciplinary record and has been “active in social justice movements during his incarceration.” Compl. ¶ 159; see also Pls.’ Opp’n at 32. He was placed in the Marion CMU in August 2008. Compl. ¶ 160. The plaintiffs assert that the information in his Notice of Transfer is patently untrue and that the BOP has been unresponsive to his attempts to correct his record. Id. ¶¶ 462-64. Moreover, McGowan was released into the general population at FCI Marion in October 2010, see Defs.’ Suppl. Mot. at 2, but was redesignated to the Terre Haute CMU in February 2011, see Defs.’ Notice at 1. The plaintiffs allege that this redesignation was in direct response to a telephone conversation that he had with his wife, after being placed back in the general population, in which he requested that she ask his attorneys to send him certain legal documents. See Pls.’ 2d Notice at 3. In light of these allegations, the court concludes that McGowan has also stated a plausible claim of retaliation. See Garcia, 56 F. Supp. 2d at 13. Accordingly, the court denies the defendants’ motion to dismiss the plaintiffs’ retaliation claims.
f. The Court Grants the Defendants’ Motion to Dismiss the Plaintiffs’ Discrimination Claims
The plaintiffs allege that the defendants transferred Aref, Jayyousi and Jones into CMUs because they are Muslim and therefore unlawfully discriminated against them in violation of the First and Fifth Amendment. Compl. ¶ 273. The plaintiffs base their claim entirely on statistics they allege they received from the BOP pursuant to a Freedom of Information Act request and from an article published by the BOP. Id. ¶¶ 97-100. According to the plaintiffs, the statistics
32

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 33 of 38
demonstrate that in 2004, six percent of the total BOP prison population sought Islamic religious services, id. ¶ 100, while between sixty-five and sixty-eight percent of the inmates designated to the Terre Haute CMU are Muslim, id. ¶ 99, and seventy-two percent of the inmates designated to the Marion CMU are Muslim, id. ¶ 101. The defendants assert that “[t]he Complaint is devoid of allegations of any act, statement or other conduct that indicates any hostility whatsoever to Muslims on the part of [the defendants].” See Defs.’ Mot. at 39.
Where, as here, a plaintiff claims that he was discriminated against in violation of the First and Fifth Amendments, “the plaintiff must plead and prove that the defendant acted with discriminatory purpose.” Iqbal, 129 S. Ct. at 1948. “Under extant precedent purposeful discrimination requires more than ‘intent as volition or intent as awareness of consequences[;]’ . . . [i]t instead involves a decisionmaker’s undertaking a course of action ‘because of, not merely in spite of, [the action’s] adverse effects upon an identifiable group.’” Id. (quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)). Although “[p]roof of discriminatory intent must necessarily usually rely on objective factors[,] [t]he inquiry is practical.” Feeney, 442 U.S. at 279 n.24.
The statistics proffered by the plaintiff, without more, are not minimally sufficient to survive a motion to dismiss. See Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 213 (5th Cir. 2009) (holding that plaintiffs’ statistics, even combined with allegations that the defendants used racial epithets, did not allege sufficient facts to survive a motion to dismiss its § 1983 claims); see also Segar v. Smith, 738 F.2d 1249, 1273-74 (D.C. Cir. 1984) (explaining that “to be legally sufficient” the proffered statistics must demonstrate not just a disparity of treatment, but they must “eliminate the most common nondiscriminatory explanations of the disparity, and thus
33

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 34 of 38
permit the inference that, absent other explanation, the disparity more likely than not resulted from illegal discrimination”); Hollander v. Am. Cyanamid Co., 999 F. Supp. 252, 260 (D. Conn. 1998) (noting that plaintiffs using statistics in disparate treatment cases must “take into account nondiscriminatory explanations for numerical disparities” (citing Doan v. Seagate Tech., Inc., 82 F.3d 974, 979 (10th Cir. 1996))). That is, even accepting as true the fact that there are a statistically disproportionate amount of Muslim prisoners designated to the CMUs, this fact alone does not “state a claim to relief that is plausible on its face,” Iqbal, 129 S. Ct. at 1949, because the plaintiffs have not alleged that the defendants acted with any discriminatory purpose, see generally Compl. The court also notes that Aref and Jayyousi were convicted of terrorismrelated offenses – one of the grounds an inmate may place designated to a CMU, see Compl. ¶¶ 16, 107, 205; Notice to Inmates at 1 – a fact which provides an “obvious alternative explanation” for their designation to a CMU, Iqbal, 129 S. Ct. at 1951 (explaining that there was an “obvious alternative explanation” to discrimination for the increase in arrests of Arab Muslims after the September 11 terrorist attacks). Accordingly, the court grants the defendants’ motion to dismiss the plaintiffs’ discrimination claims.
g. The Court Dismisses Without Prejudice the Plaintiffs’ APA Claims The plaintiffs also challenge the creation of the CMUs, arguing that the defendants did not engage in prior notice and comment rulemaking as required by the APA. Compl. ¶¶ 276282. Although the defendants assert that notice and comment rule making were not required because the APA does not apply to the Marion and Terre Haute Institution Supplements that created the CMUs, they note that the BOP has, nevertheless, began the process for rulemaking as it pertains to the CMUs. Defs.’ Mot. at 39-43. In fact, the proposed rule was published in the
34

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 35 of 38
Federal Register on April 6, 2010, and the comment period closed on June 7, 2010. See 75 Fed. Reg. 17324. Thus, as it now appears that the defendants have begun the process sought by the plaintiffs, the plaintiffs’ APA claim is moot. See Natural Res. Def. Council, Inc. v. U.S. Nuclear Regulatory Comm’n, 680 F.2d 810, 814 (D.C. Cir. 1982) (rendering a claim seeking full notice and comment rulemaking moot where a rule was promulgated without affording a comment and notice period, but was subsequently “repromulgated” in accordance with notice and comment requirements effectively curing any initial deficiencies in the rulemaking process). Accordingly, the court dismisses the plaintiffs’ APA claim without prejudice, allowing the plaintiffs’ to renew such a claim in the event that the defendants again abandon the rulemaking process.
B. The Motion to Intervene 1. Legal Standard for a Rule 24(a) Motion to Intervene Federal Rule of Civil Procedure 24(a) sets forth the requirements for intervention as of right. FED. R. CIV. P. 24(a); Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003). Rule 24(a) provides for intervention as of right, stating that [o]n timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. FED. R. CIV. P. 24(a). This Circuit has identified “four prerequisites to intervene as of right: ‘(1) the application to intervene must be timely; (2) the applicant must demonstrate a legally protected interest in the action; (3) the action must threaten to impair that interest; and (4) no party to the action can be an
35

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 36 of 38
adequate representative of the applicant’s interests.’” Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008) (quoting Sec. Exch. Comm’n v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C. Cir. 1998)). In addition, an applicant must demonstrate that it has standing. Jones v. Prince George’s Cnty., Md., 348 F.3d 1014, 1017-18 (D.C. Cir. 2003).
2. The Court Denies the Motion to Intervene Four inmates at the Terre Haute CMU (“applicants”) seek leave to intervene as a matter of right in this action pursuant to Rule 24(a). See generally Applicants’ Mot. to Intervene. They argue that their “interest is not being adequately articulated nor represented nor protected by the existing parties.” Id. at 1. The plaintiffs assert that they have and will adequately represent the applicants’ interests, as well as the interests of all of the inmates currently designated to the two CMUs. See generally Pls.’ Opp’n to Mot. to Intervene. The applicants respond that their interests differ from those of the plaintiffs and, thus, intervention is required. Applicants’ Reply in Supp. of Mot. to Intervene at 1-2. The applicants bear the burden of demonstrating that the plaintiffs will inadequately represent their interests. See Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972). Although this burden is not onerous, see Dimond v. Dist. of Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986), the applicants “must produce something more than speculation as to the purported inadequacy,” Moosehead Sanitary Dist. v. S.G. Phillips Corp., 610 F.2d 49, 54 (1st Cir. 1979). Other than generally arguing that their interests are not being adequately represented, the applicants state only that the “existing parties[’] representation may use bad or poor judgment in conducting or settling the cause of action.” Applicants’ Mot. to Intervene at 3. These allegations are insufficient to demonstrate inadequate representation for the purposes of intervention. See
36

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 37 of 38
Jones, 348 F.3d at 1019-20 (explaining that “fil[ing] suit in an inappropriate forum, advanc[ing] a disadvantageous choice-of-law position, and fail[ing] to bring a state-law claim” does not rise to the level of inadequate representation necessary for intervention); Moosehead Sanitary Dist., 610 F.2d at 54-55 (holding that the applicant’s argument that the plaintiff may be tempted to settle a claim in a way unfavorable to the applicant, where the applicant made no indication that “any such settlement was in the offing,” was insufficient to demonstrate inadequate representation).
Indeed, the applicants have not stated what their interests are or how they differ from those of the plaintiffs. See generally Applicants’ Mot. to Intervene; Applicants’ Reply. Although they allege that they have constitutional claims that have not been addressed by the plaintiffs, Applicants’ Reply at 2, the applicants do not state the nature of these claims, see generally id.; Mot. to Intervene at 3 (indicating that the applicants, like the plaintiffs, are seeking injunctive relief and removal from the CMU); Bldg. & Constr. Trades Dep’t, AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994) (holding that, where the applicant “offered no argument not also pressed by the defendant” intervention was not appropriate); Va. v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976) (denying intervention because the applicant sought the same relief as the plaintiff). Accordingly, because the applicants have not demonstrated that the plaintiffs will inadequately represent their interests, the court denies the motion to intervene as a
37

Case 1:10-cv-00539-RMU Document 37 Filed 03/30/11 Page 38 of 38
matter of right.7
III. CONCLUSION For the foregoing reasons, the court grants in part and denies in part the defendants’ motion to dismiss, grants the defendants’ supplemental motion for partial dismissal and denies the applicants’ motion to intervene. An Order consistent with the Memorandum Opinion is separately and contemporaneously issued this 30th day of March, 2011.
RICARDO M. URBINA United States District Judge

7

The court notes that, in their reply, the applicants suggest for the first time that they also seek

permissive intervention pursuant to Rule 24(b). See Applicants’ Reply in Supp. of Mot. to

Intervene at 1 (stating that “[a]ll that is required in any Intervenor’s claim and the main action[] is

that they have a question of law or fact in common”). The court does not address this argument

which was raised for the first time in the reply. See Aleutian Pribilof Islands Ass'n, Inc. v.

Kempthorne, 537 F. Supp. 2d 1, 12 n.5 (D.D.C. 2008) (noting that “it is a well-settled prudential

doctrine that courts generally will not entertain new arguments first raised in a reply brief” (citing

Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992))).

38

 
 Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 1 of 55

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

YASSIN MUHIDDIN AREF, et al.

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 10-0539 (RMU)

)

)

ERIC HOLDER, et al.

)

)

)

Defendants.

)

)

DEFENDANTS’ MOTION TO DISMISS COMPLAINT

Pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure,

Defendants hereby respectfully request that the Court dismiss all claims in the Complaint

for failure to state a claim for relief, and also dismiss for lack of jurisdiction the Sixth

Cause of Action because the claim is moot and dismiss all of Plaintiff Royal Jones’s

claims because he lacks standing. The reasons in support of Defendants’ Motion are set

forth in the attached Memorandum of Points and Authorities.

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 2 of 55

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

YASSIN MUHIDDIN AREF, et al.

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 10-0539 (RMU)

)

)

ERIC HOLDER, et al.

)

)

)

Defendants.

)

)

DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 3 of 55
TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 BACKGROUND .............................................................................................................................3
I. Plaintiffs and Family Plaintiffs. .........................................................................................3 II. Overview of The Purpose and Operation of CMUS.........................................................4
A. Restrictions on Telephone Use ...........................................................................5 B. Restrictions on Visiting .......................................................................................6 C. Access to Correspondence and Email .................................................................7 D. Notice and Opportunity To Challenge CMU Designation..................................7 ARGUMENT ...................................................................................................................................8 STANDARD OF REVIEW .............................................................................................................8 I. Mr. Jones Does Not Have Standing Because He Was Transferred Out of the CMU Before His Complaint Was Filed ...................................................................................8 II. Plaintiffs Have No Procedural Due Process Rights That Are Triggered By A Transfer to A CMU ......................................................................................................10 A. Standard For Determining Whether A Liberty Interest Exists ........................10 B. The Transfer of Plaintiffs To The General Prison Unit of a CMU Does Not
Deprive Them Of Any Liberty Interest ...........................................................11 C. The CMU’s Elimination of Contact Visits and Restriction On Telephone
Use Do Not Deprive Plaintiffs Of A Constitutionally-Protected Liberty Interest..............................................................................................................13
1. Plaintiffs Do Not Have A Liberty Interest Based On The Due Process Clause Itself In Avoiding The Communications Restrictions At Issue..................................................................................................13
2. Plaintiffs Do Not Have Any Government-Created Liberty Interest In Avoiding The Restrictions On Communication In The CMU Because They Are Not “Atypical and Significant”...............................17
D. To The Extent A Liberty Interest Is Implicated By A Transfer To The CMU, The Procedural Protections Provided Were Constitutionally Sufficient ..........................................................................................................20
i

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 4 of 55
III. The Restrictions on Communication In A CMU Do Not Implicate The Inmates’ Constitutional Rights, And Even If They Do, The Restrictions Are Permissible ............................................................................................................21
A. Neither the Due Process Clause Nor The First Amendment Grants Plaintiffs A Constitutional Right To Contact Visits Or 300 Minutes Of Telephone Time Per Month ...............................................................................................22
B. To The Extent The Court Finds The CMU’s Communication Rules Restrict Plaintiffs’ Constitutional Rights, They Should Be Upheld Because They Are Reasonably Related To “Legitimate Penological Interests” Under The Supreme Court’s Turner v. Safley Standard ....................................................23
1. First Turner Factor .................................................................................24
2. Second Turner Factor ............................................................................28
3. Third Turner Factor ...............................................................................29
4. Fourth Turner Factor..............................................................................30
IV. The CMU Communication Restrictions Do Not Violate The Eighth Amendment ..................................................................................................................31
V. The Inmates’ Allegations That They Were Transferred To The CMU In Retaliation For Engaging In Protected First Amendment Activity, Or As A Result Of Discrimination Against Muslims, Are Not Plausible And Should Be Dismissed .......33
A. Plaintiffs McGowan, Twitty and Jones Have Failed To State A Claim That Their Transfer To The CMU Was In Retaliation For Engaging in First Amendment Activity........................................................................................34
1. McGowan’s Claim of Retaliation ..........................................................34
2. Twitty’s Claim of Retaliation ................................................................35
3. Jones’s Claim of Retaliation ..................................................................35
B. Plaintiffs Have Failed To State A Claim That Their Transfer To The CMU Was Because Of Their Religion ......................................................................37
VI. The APA Did Not Require The Bureau To Provide Notice and Comment Rulemaking Before Creating The CMUs ....................................................................39
A. The Institution Supplements Are Interpretive Rules or Policy Statements That Do Not Trigger Notice and Comment Procedures ..................................39
B. Plaintiffs’ Claims for Notice and Comment Rulemaking Are Now Moot ......43
ii

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 5 of 55 CONCLUSION ..............................................................................................................................43
iii

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 6 of 55
TABLE OF AUTHORITIES CASES
Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998) .................................................................................................24
American Mining Congress v. Mine Safety and Health Administration, 995 F.2d 1106 (D.C. Cir. 1993) ...................................................................................40, 41, 43
Anderson-Bey v. District of Columbia, 466 F. Supp. 2d 51 (D.D.C. 2006) ...........................................................................................34
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) .......................................................................................8, 35, 36, 37, 38
Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672 (D.C. Cir. 2009) ...................................................................................................8
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).............................................................................................................8, 36
Benzel v. Grammer, 869 F.2d 1105 (8th Cir. 1989) .................................................................................................16
Berry v. Brady, 192 F.3d 504 ............................................................................................................................15
Block v. Rutherford, 468 U.S. 576 (1984)...............................................................................................13, 14, 24, 30
Brown v. Federal Bureau of Prisons, 602 F. Supp. 2d 173 (D.D.C. 2009) .........................................................................................19
City of Los Angeles v. Lyons, 461 U.S. 95 (1983).....................................................................................................................9
Corley v. Burnett, No. 95-6451, 1997 WL. 178876 (6th Cir. Apr. 11, 1997) .......................................................14
Enigwe v. Bureau of Prisons, 2006 WL 3791379 (D.D.C. 2006) ...........................................................................................19
Farmer v. Brennan, 511 U.S. 825 (1994).................................................................................................................32
iv

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 7 of 55
Franklin v. District of Columbia, 163 F.3d 625 (D.C. Cir. 1998) .....................................................................................11, 12, 19
Gerber v. Hickman, 291 F.3d 617 (9th Cir. 2002) ...................................................................................................14
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191 (D.D.C. 2002) ...........................................................................................4
Hartman v. Moore, 547 U.S. 250 (2006)...........................................................................................................34, 37
Hatch v. District of Columbia, 184 F.3d 846 (D.C. Cir. 1999) .................................................................................................17
Herbert v. National Academy of Sciences, 974 F.2d 192 (D.C. Cir. 1992) ...................................................................................................8
Hewitt v. Helms, 459 U.S. 460 (1983)...........................................................................................................11, 20
Hudson v. McMillian, 503 U.S. 1 (1992).....................................................................................................................32
Huskey v. Quinlan, 785 F. Supp. 4 (D.C. Cir. 1992)...............................................................................................43
Jasperson v. Federal Bureau of Prisons, 460 F. Supp. 2d 76 (D.D.C. 2006) ...........................................................................................19
Jones v. Bock, 549 U.S. 199 (2007)...................................................................................................................3
Jones v. Yanta, 610 F. Supp. 2d 34 (D.D.C. 2009) .....................................................................................14, 15
Kentucky Department of Corrections v. Thompson, 490 U.S. 454 (1989)...............................................................................................10, 11, 15, 16
Kotz v. Lappin, 515 F. Supp. 2d 143 (D.D.C. 2007) .............................................................................20, 40, 43
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).........................................................................................................8, 9, 10
v

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 8 of 55
Mathews v. Eldridge, 424 U.S. 319 (1976).................................................................................................................20
Meachum v. Fano, 427 U.S. 215 (1976).................................................................................................................11
Miller v. Federal Bureau of Prisons, 2010 WL 1172576 (D.D.C. 2010) .......................................................................................3, 11
Miller v. Henman, 804 F.2d 421 (7th Cir. 1986) ...................................................................................................19
Moody v. Daggett, 429 U.S. 78 (1976)..................................................................................................................11
Morrisey v. Brewer, 408 U.S. 471 (1972).................................................................................................................20
Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977)...........................................................................................................34, 37
Olim v. Wakinekona, 461 U.S. 238 (1983).................................................................................................................19
Overton v. Bazzetta, 539 U.S. 126 (2003).................................................................14, 22, 23, 24, 25, 28, 29, 30, 31
Perez v. Federal Bureau of Prisons, 229 Fed. Appx. 55 (3d Cir. 2007) ......................................................................................16, 32
Personnel Administrator of Massachusetts. v. Feeney, 442 U.S. 256 (1979).................................................................................................................37
Phillips v. Norris, 320 F.3d 844 (8th Cir. 2003) ...................................................................................................14
Pope v. Hightower, 101 F.3d 1382 (11th Cir. 1996) ...............................................................................................23
Procunier v. Martinez 416 U.S. 396 (1974).................................................................................................................20
Pryor-El v. Kelly, 892 F. Supp. 261 (D.D.C. 1995) ........................................................................................34, 37
vi

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 9 of 55
Qassim v. Bush, 466 F.3d 1073 (D.C. Cir. 2006) ...............................................................................................35
Reno v. Koray, 515 U.S. 50 (1995).............................................................................................................40, 42
Ricco v. Conner, 146 Fed. Appx. 249, 255 (10th Cir. 2005)...............................................................................33
Rhodes v. Chapman, 452 U.S. 337 (1981).................................................................................................................32
Roberts v. United States Jaycees, 468 U.S. 609 (1984).................................................................................................................22
Robinson v. Palmer 841 F.2d 1151 (D.C. Cir. 1988) ...............................................................................................15
Saleem v. Helman, No. 96-2502, 1997 WL 527769 (7th Cir. Aug. 21, 1997) .......................................................33
Sandin v. Conner, 515 U.S. 472 (1995)...............................................................................................10, 11, 16, 17
Searcy v. United States, 668 F. Supp. 2d 113 (D.D.C. 2009) .............................................................................16, 23, 27
Smith v. United States, 277 F. Supp. 2d 100 (D.D.C. 2003) ...................................................................................12, 19
Strandberg v. City of Helena, 791 F.2d 744 (9th Cir. 1986) ...................................................................................................27
Turner v. Safley, 482 U.S. 78 (1987).................................................................................................22, 24, 25, 28
Valdez v. Rosenbaum, 302 F.3d 1039 (9th Cir. 2002) .................................................................................................23
Vitek v. Jones, 445 U.S. 480 (1980).................................................................................................................16
Washington v. Davis, 426 U.S. 229 (1976).................................................................................................................37
vii

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 10 of 55
Washington v. Harper, 494 U.S. 210 (1990)...........................................................................................................16, 24
Whitmore v. Arkansas, 495 U.S. 149 (1990)...................................................................................................................9
Wilkinson v. Austin, 545 U.S. 209 (2005).........................................................................................10, 11, 16, 20, 21
Women Prisoners of the District of Columbia Department of Corrections v. District of Columbia, 899 F. Supp. 659 (D.D.C. 1995) ..............................................................................................14
Zimmerman v. Burge, No. 06-C 2008 WL 850677 (N.D.N.Y. March 28, 2008)........................................................15
STATUTES 5 U.S.C. § 551 ...............................................................................................................................39 5 U.S.C. § 553 ........................................................................................................................39, 43 18 U.S.C. § 3621......................................................................................................................19, 40 18 U.S.C. § 4001......................................................................................................................19, 40 18 U.S.C. § 4042............................................................................................................................40 18 U.S.C. § 4081............................................................................................................................41 28 U.S.C. § 1391............................................................................................................................43 42 U.S.C. § 1997..............................................................................................................................2
REGULATIONS AND RULES 28 C.F.R. § 542.10 .........................................................................................................................21 28 C.F.R. § 540.12 .........................................................................................................................41 28 C.F.R. § 542.13 .........................................................................................................................21 28 C.F.R. § 542.14 .........................................................................................................................21 28 C.F.R. § 542.15 .........................................................................................................................21
viii

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 11 of 55 28 C.F.R. § 542.18 .........................................................................................................................21 28 C.F.R. § 540.40 ...............................................................................................................5, 18, 41 28 C.F.R. § 540.42 .................................................................................................................5, 1842 28 C.F.R. § 540.43 ...................................................................................................................18, 42 28 C.F.R. § 540.51 .........................................................................................................................18 28 C.F.R. § 540.100 .................................................................................................................18, 42 28 C.F.R. § 540.101 .......................................................................................................................42 28 C.F.R. § 540.102 .......................................................................................................................41 Fed. R. Civ. P. 12(b) ....................................................................................................2, 4, 8, 21, 33 Proposed Rule, "Communication Management Units," 75 Fed. Reg. 17324 (April 6,
2010) ................................................................................................5, 18, 25, 26, 27, 28, 30, 43
ix

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 12 of 55

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

YASSIN MUHIDDIN AREF, et al.

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 10-0539 (RMU)

)

)

ERIC HOLDER, et al.

)

)

)

Defendants.

)

)

DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS

INTRODUCTION

This action is brought by five federal prison inmates (“Plaintiffs”) and two spouses

(“Family Plaintiffs) who challenge the decision of the Bureau of Prisons (“Bureau” or “BOP”) to

transfer the Plaintiffs to a “Communication Management Unit” (CMU). The CMU is a self-

contained general population unit that is used by the BOP to monitor the communications of

high-risk prisoners, such as terrorists. This monitoring is accomplished both by reducing the

total amount of communication that takes place in the CMU, and by imposing certain restrictions

on the communications that do occur in order to protect institutional security and the public.

Plaintiffs allege that their transfer to the CMU violated their procedural due process

rights, and that the CMU’s prohibition on physical “contact” visits and limitations on time for

visits and telephone calls violate their substantive due process rights to family integrity, their

First Amendment rights to freedom of speech and association, and constitute cruel and unusual

punishment. They also allege their transfer was in retaliation for engaging in First Amendment

protected activities, such as filing grievances, and/or because they are Muslim. Finally, Plaintiffs

1

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 13 of 55
contend that the Bureau was required under the Administrative Procedures Act (“APA”) to provide notice and comment rulemaking before establishing the CMUs. Family Plaintiffs join in the claims that the Bureau’s restrictions on visits and telephone communication violate the Due Process Clause and First Amendment.
As demonstrated below, this Court should dismiss all the counts in the Complaint. Plaintiffs do not have a liberty interest in avoiding a transfer to a CMU, and thus have no rights to procedural due process. Even if they did, they received notice of the reasons for their transfer and an opportunity to contest their initial designation and continued confinement to a CMU. No more process was constitutionally required. Plaintiffs and Family Plaintiffs are also wrong that they have a constitutional right to “contact visits” or a particular amount of time each month to visit or speak on the telephone. Assuming arguendo that they do, the restrictions survive scrutiny because they are reasonably related to the Bureau’s legitimate penological interest in effectively monitoring the communications of high-risk inmates. Given this legitimate interest, and the lack of any allegation that the restrictions on communication amount to the denial of the minimal civilized measures of life’s necessities, Plaintiffs also fail to state a claim under the Eighth Amendment. Finally, Plaintiffs fail to state a claim that their transfer to a CMU was done in retaliation for engaging in constitutionally protected activity or due to their religion because they fail to allege sufficient facts that, if believed, would render these allegations plausible.
Plaintiffs are also mistaken that the Bureau was required to provide notice and comment rulemaking before establishing the CMUs. The Institution Supplements governing the CMUs are interpretive rules or agency policy statements that are exempt from the APA’s notice and comments procedures. Furthermore, Plaintiffs’ demand for notice and comment rulemaking is now moot, since the Bureau has published a proposed rule in the Federal Register describing and
2

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 14 of 55
codifying the procedures governing the CMUs. As a result, this Court is without jurisdiction to hear Plaintiffs’ APA claim.
For the aforementioned reasons, the Court should dismiss all of the counts in the Complaint for failure to state a claim for relief under Rule 12(b)(6), and dismiss Plaintiffs’ APA claim under Rule 12(b)(1) for lack of jurisdiction. In addition, Plaintiff Royal Jones does not have standing because he was transferred out of the CMU prior to filing this lawsuit, and therefore his claims should be dismissed pursuant to Rule 12(b)(1) as well.1
BACKGROUND I. Plaintiffs and Family Plaintiffs.
Three of the Plaintiffs, Yassin Aref, Daniel McGowan, and Kifah Jayyousi have been convicted of terrorism-related offenses. See Compl. ¶ 79 (acknowledging “their conviction is related to terrorism”). Upon their transfer to the CMU, each was provided notice that the reason for the transfer was based at least in part on their association with terrorism. See Compl. ¶ 113 (Aref informed that his transfer was because his “current offense of conviction includes Providing Material Support & Resources to a Foreign Terrorist Organization & Conspiracy to Use a Weapon of Mass Destruction”); id. ¶ 160 (McGowan informed that his transfer was
1 The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust administrative remedies before filing suit with respect to “prison conditions.” 42 U.S.C. § 1997(e). This is not a pleading requirement, but rather an affirmative defense that is typically “analyzed as a motion for summary judgment.” See Miller v. Federal Bureau of Prisons, 2010 WL 1172576, at *4 (D.D.C. 2010) (citing Jones v. Bock, 549 U.S. 199, 216 (2007)). Because it appears upon a preliminary review that at least one of the Plaintiffs has exhausted with respect to each issue in the Complaint, Defendants do not further address this issue here. However, they reserve the right to raise the affirmative defense of exhaustion with respect to each individual Plaintiff in a responsive pleading or summary judgment motion should their Motion to Dismiss not be granted in full.
3

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 15 of 55
because his “offense conduct included acts of arson, destruction of an energy facility, attempted arson, and conspiracy to commit arson,” and that he has “been identified as a member and leader in the Earth Liberation Front (ELF) and Animal Liberation Front (ALF), groups considered domestic terrorist organizations”); id. ¶ 212 (Jayyousi informed transfer was because his “current offenses of conviction are for Conspiracy to Commit Murder in a Foreign Country; Conspiracy to Kidnap, Maim, and Torture; and Providing Material Support to a Terrorist Organization”). Avon Twitty and Royal Jones, who were convicted respectively of murder, id. ¶ 127, and solicitation of bank robbery, id. ¶184, were provided notice that their transfer to a CMU was because of their involvement in recruitment and radicalization efforts while incarcerated. See id. ¶ 132 (Twitty); id. ¶189 (Jones).
The Family Plaintiffs are Jenny Synan, the wife of Mr. McGowan, id. ¶182, and Hedaya Jayyousi, id. ¶ 232, the wife of Mr. Jayyousi, who each allege that the CMU’s communication restrictions have injured her marital relationship. II. Overview of The Purpose and Operation of CMUs.
The Bureau operates two CMUs, one located at the Federal Correctional Institution in Terre Haute, Indiana (“FCI Terre Haute”), and the other at the United States Penitentiary in Marion, Illinois (“USP Marion”). Compl. ¶ 4; 11/30/06 Terre Haute CMU Institution Supplement (Ex. A to Comp.); 3/20/08 and 11/13/08 Marion CMU Institution Supplement (Ex. B to Comp.).2 The CMU is a “self-contained general population housing unit where inmates reside, eat, and participate in all educational, recreational, religious, unit management, and work
2 For purposes of Rule 12(b)(6), the Court “may only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).
4

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 16 of 55
programming” within the unit itself. See, e.g., 11/13/2008 Marion CMU Institution Supplement at § 1. As described in the Institution Supplements, the purpose of the CMU is “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.” 11/30/06 Terre Haute Institution Supplement at § 1; 11/13/08 Marion Institution Supplement at § 1.
Transfer to a CMU may be warranted for inmates (1) who are convicted of or associated with terrorism; (2) who pose a risk of coordinating illegal activities by communicating with persons in the community; (3) who have attempted or have a propensity to contact the victims of their crimes; (4) who have committed prohibited acts involving the misuse or abuse of approved communications methods; and (5) where there is other evidence that the inmate’s unmonitored communication with the public poses a threat to the security and orderly operation of Bureau facilities or the protection of the community. See Notice to Inmates (Review of Inmates for Continued Communication Management Unit (CMU) Designation) (Ex. F to Compl.); Compl. ¶ 33; Proposed Rule, “Communication Management Units,” 75 Fed. Reg. 17324, 17326 (April 6, 2010) (“CMU Proposed Rule”) (listing criteria for CMU placement).
Pursuant to the goal of reducing and effectively monitoring the communications of CMU inmates, the Bureau imposes the following restrictions:
A. Restrictions on Telephone Use. All calls are made on the Inmate Telephone System (“ITS”) and are live-monitored by staff and subject to recording. Terre Haute CMU Institution Supplement at § 3(b); 11/13/2008 Marion CMU Institution Supplement at § 3B(b). In accordance with the agency’s legislative
5

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 17 of 55
regulations, inmate telephone use may be limited as necessary to protect institutional security and the safety of the public, but inmates must be provided with at least one three-minute call each month. 28 C.F.R. §§ 540.100, 540.101(d). The CMU Institution Supplements state that “[i]n no event” will the frequency of telephone use in the CMUs be reduced below this minimum level. Terre Haute CMU Institution Supplement at § 3(b); 3/20/2008 Marion CMU Institution Supplement at § 3B(b). As implemented, CMU inmates have been allowed more than one threeminute call per month. Effective January 3, 2010, CMU inmates are permitted two 15-minute calls per week for a total of 120 minutes per month, and calls may be made on any day except Saturday. Compl. ¶¶ 64-65; Notice to Inmates (Social Telephone and Social Visiting) (Ex. C to Compl.). Prior to January 3, 2010, CMU inmates were allowed one 15-minute call per week and were not permitted to schedule calls during the weekend. Id. As noted in Plaintiffs’ Complaint, under the Bureau’s national Program Statement on inmate telephone use, which is an interpretive rule, BOP prisoners in the general population are typically allowed 300 telephone minutes per month. Compl. ¶ 63 (citing Telephone Regulations for Inmates at 4).3 Thus, the CMUs reduce the amount of telephone time that is generally available to inmates, while permitting more time than is legally required by the agency’s legislative regulations.
B. Restrictions On Visiting. CMU inmates may have “contact visits” with their attorneys, but for other members of the community visits are conducted “using non-contact facilities,” which employ secure partitioned rooms where inmates and their visitors speak using telephone lines. Terre Haute CMU Institution Supplement at § 3(c); 11/13/2008 Marion CMU Institution Supplement at § 3B(c). These conversations are live-monitored and subject to recording. Id. Communication
3 Available at http://www.bop.gov/policy/progstat/5264_007.pdf 6

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 18 of 55
must be verbal and the use of hand signals or sign language may result in the termination of the visit. Id. If this occurs, the visit is immediately terminated. Id. Prior to January 3, 2010, inmates were allowed 4 hours of visiting time during the weekdays. Compl. ¶ 52. Currently, they are allowed up to 8 hours of visiting time per month, and visits may take place every day except Saturday. Id. ¶ 57. Under the agency’s legislative regulations, the warden “shall allow each inmate a minimum of four hours visiting time per month.” 28 C.F.R. § 540.43. Thus, as with telephone calls, CMU inmates receive more visiting time than the agency’s legislative regulations require.
C. Access to Correspondence and Email. CMU inmates may communicate using the mail. Terre Haute Institution Supplement at § 3; 11/13/2008 Marion Institution Supplement at § 3B(a). All incoming and outgoing written general correspondence must be reviewed by staff prior to delivery to the inmate or further processing to the post office. Id. Outgoing special mail (i.e., addressed to an attorney, federal courts, probation officers) may be sealed and is not inspected. In addition, CMU inmates have access to email. Compl. ¶ 45. D. Notice and Opportunity To Challenge CMU Designation. Upon being transferred to a CMU, inmates receive a “Notice to Inmate of Transfer to Communication Management Unit” indicating the reasons for their placement in the unit. See, e.g., Terre Haute CMU Institution Supplement, Attachment A. Inmates are told that they may appeal their transfer decision to the CMU, or any conditions of confinement while there, using the Bureau’s Administrative Remedy Program. See, e.g., Terre Haute CMU Institution Supplement, Attachment A. In addition to the Administrative Remedy Program, the CMU’s Unit Team conducts a review of an inmate’s continued designation to the CMU during regularly scheduled program reviews. Compl. ¶¶ 87-91; Notice to Inmates (Review of Inmates for
7

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 19 of 55
Continued Communication Management Unit (CMU) Designation). Inmates who are approved for further designation to a CMU are notified of the determination and, as with their initial designation, may appeal the decision using the Bureau’s Administrative Remedy Program. Notice to Inmates (Review of Inmates for Continued Communication Management Unit (CMU) Designation).
ARGUMENT STANDARD OF REVIEW Actions are subject to dismissal when the court lacks subject matter jurisdiction over the claims. Fed. R. Civ. P. 12(b)(1). In reviewing a motion to dismiss for lack of subject matter jurisdiction, the court may where necessary consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts. Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992). When ruling on a defendant's motion to dismiss under 12(b)(6), “a judge must accept as true all of the factual allegations contained in the complaint.” Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (internal quotation marks omitted). Although “detailed factual allegations” are not required to withstand such a motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (emphasis added) (quoting Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949.
8

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 20 of 55
I. Mr. Jones Does Not Have Standing Because He Was Transferred Out of the CMU Before His Complaint Was Filed. Standing to sue is “an essential and unchanging part of the case-or-controversy
requirement,” and without it a court lacks subject matter jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The standing requirement consists of three elements: (1) an “injury in fact” that is (2) “fairly . . . trace[able] to the challenged action of the defendant,” and (3) “likely . . . redress[able] by a favorable decision.” Id. at 560-561.
Mr. Jones fails to allege that he is suffering an “injury in fact,” which requires him to show the “invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. (internal quotation marks and citations omitted). As explained by the Supreme Court in City of Los Angeles v. Lyons, 461 U.S. 95, 10203 (1983), a plaintiff cannot base his standing to sue for declaratory and injunctive relief on allegations of “[p]ast exposure to illegal conduct” because “past wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy.” Rather, a plaintiff must show a “sufficient likelihood” that he will suffer the same injury in the future to assure that the court does not entertain a suit based on speculative or hypothetical harms. Id. at 105-106, 111; Lujan, 503 U.S. at 563-65 n. 2.
Mr. Jones alleges that “[b]ecause he does not know what conduct resulted in his transfer to the CMU, he does not know how to avoid being sent back.” Compl. ¶ 196. He also claims that after his transfer from the CMU, he “was warned by CMU staff once more to cease complaining about the CMU,” and that because he has filed the instant complaint, he “faces redesignation to the CMU.” Id. ¶ 197. These allegations do not establish “a real and immediate threat” or “sufficient likelihood” that he will be returned to the CMU. City of Los Angeles, 461 U.S. at 104-05, 111. Instead, they are based on “speculation” and “conjecture.” See Whitmore
9

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 21 of 55
v. Arkansas, 495 U.S. 149, 158 (1990) (explaining that speculation and conjecture about “possible future injury do not satisfy the requirements” of standing).
Furthermore, Mr. Jones’s claims are not redressable because he acknowledges he is no longer incarcerated in a CMU, and therefore the communication restrictions at issue in this case do not apply to him. See Compl. (Prayer for Relief). Therefore, he lacks standing for this reason as well. Lujan, 504 U.S. at 560 (redressability essential element of standing). II. Plaintiffs Have No Procedural Due Process Rights That Are Triggered By A
Transfer To A CMU. Plaintiffs allege that their transfer to a CMU violated their rights to procedural due process. Compl. ¶ 253. Such claims are analyzed in two steps: “the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460 (1989). There is no liberty interest in avoiding a transfer to the general prison population of a CMU, nor is there any liberty interest in avoiding the particular communication restrictions imposed on CMU inmates. Thus, no constitutionally-mandated procedures were required. Id. at at 465. However, to the extent procedural protections were required by the Due Process Clause, the allegations in the Complaint show that the protections Plaintiffs received were sufficient. A. Standard For Determining Whether A Liberty Interest Exists. “A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ . . . or it may arise from an expectation or interest created by state law or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). With respect to the former, the Supreme Court has explained, “the Due Process Clause does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner.” Sandin v.
10

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 22 of 55
Conner, 515 U.S. 472, 478 (1995). Instead, “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” Thompson, 490 U.S. at 460-61 (internal quotation marks omitted). In other words, “[t]he Due Process Clause standing alone confers no liberty interest in freedom from state action taken within the sentence imposed.” Sandin, 515 U.S. at 480 (internal quotation marks omitted).
In addition to liberty interests created by virtue of the Constitution, the government may create a protected liberty interest if it “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484.
B. The Transfer of Plaintiffs To The General Prison Unit of a CMU Does Not Deprive Them Of Any Liberty Interest.
“[T]he Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement.” Austin, 545 U.S. at 221. For instance, the Supreme Court has held that the Due Process Clause does not create a liberty interest in avoiding a transfer from a medium to a maximum security prison because such a transfer is “within the normal limits or range of custody which the conviction has authorized the State to impose.” Meachum v. Fano, 427 U.S. 215, 225 (1976). In Meachum, no liberty interest existed “even though the change of facilities involved a significant modification in conditions of confinement, later characterized by the Court as a ‘grievous loss.’” Hewitt v. Helms, 459 U.S. 460, 467 (1983) (quoting Moody v. Daggett, 429 U.S. 78, 88 n.9) (1976)); see also Franklin v. Dist. of Columbia, 163 F.3d 625, 634-635 (D.C. Cir. 1998) (housing and classification decisions are the “ordinary consequence of confinement for committing a crime,” and do not give rise to a liberty interest “[u]nless the prisoner is subjected to some extraordinary treatment”); Miller v. Federal Bureau of
11

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 23 of 55
Prisons, 2010 WL 1172576 at *6 (March 29, 2010 D.D.C.) (“The due process claim necessarily fails because it is settled law that a prisoner does not have a liberty interest in his place of confinement or custody classification that can be redressed by the due process clause of the constitution.”)
Accordingly, Plaintiffs have no liberty interest protected by the Due Process Clause in avoiding a transfer to a CMU where they are able to leave their cells, have access to leisure and law libraries, table games such as chess, hobby crafts, and televisions, and recreational activities including handball, basketball courts, stationary biking, stair-stepping machines, and walking. Terre Haute CMU Institution Supplement at § 4; 11/13/2008 Marion CMU Institution Supplement at § 4. Furthermore, transfer to the CMU does not constitute punishment and does not by itself increase the length of incarceration, since inmates continue to earn good-conduct sentence credit in accordance with Bureau policy. See, e.g., Terre Haute CMU Institution Supplement, Attachment A; CMU Proposed Rule, 75 Fed. Reg. at 17328 (explaining that “[d]esignation to the CMU is not punitive and, by itself, has no effect on the length of the inmate’s incarceration.”).
Nor is there any government-created liberty interest in avoiding a transfer to the CMU because such a transfer does not impose an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. Nothing about the conditions in the CMU qualify as the sort of “extraordinary treatment” that is required for a deprivation to be “atypical and significant.” See Smith v. United States, 277 F. Supp. 2d 100, 113 (D.D.C. 2003) (Urbina, J.) (no “atypical and significant” deprivation by moving prisoner from community correction center (CCC); prisoner was not “subject to any ‘extraordinary
12

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 24 of 55
treatment’ because prison housing and transfers are issues within the ‘day-to-day management of prisons.’”) (quoting Franklin, 163 F.3d at 634-635).
C. The CMU’s Elimination of Contact Visits and Restriction On Telephone Use Do Not Deprive Plaintiffs Of A Constitutionally-Protected Liberty Interest.
To the extent Plaintiffs allege a liberty interest in avoiding a transfer to a CMU because of the particular communication restrictions imposed on CMU inmates, this allegation also fails to state a claim. Below, Defendants first show that the challenged restrictions on communication do not implicate a liberty interest under the Constitution, and then demonstrate that no government-created liberty interest exists in avoiding such restrictions as well.
1. Plaintiffs Do Not Have A Liberty Interest Based On The Due Process Clause Itself In Avoiding The Communications Restrictions At Issue.
Contact Visits. In Block v. Rutherford, the Supreme Court addressed a due process challenge to a ban on contact visits between pretrial detainees and their family members and friends. 468 U.S. 576, 578 (1984). Because the case arose in the context of a challenge brought by pretrial detainees, who may not be “punished prior to an adjudication of guilt in accordance with due process of law,” the Court asked whether the restriction on contact visits was punitive. Id. at 583-584 (internal quotation marks omitted). In making this determination, the Court considered whether the restriction was “reasonably related to a legitimate governmental objective,” because if so, “it does not, without more, amount to punishment.” Id. (internal quotation marks omitted).
The Court found the ban on contact visits helped to prevent the introduction of contraband and reduced the possibility of violent confrontations during visits, and, as a result, promoted the legitimate governmental objective of maintaining the internal security of the prison. Id. at 586. Once the Court decided that the restriction on contact visits did not qualify as
13

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 25 of 55
punishment, its analysis was at an end as there was no suggestion that the Constitution might independently provide a right to contact visits. Rather, the Court held “the Constitution does not require that detainees be allowed contact visits when responsible, experienced administrators have determined, in their sound discretion, that such visits will jeopardize the security of the facility.” Id. at 589.
Following its decision in Block, the Supreme Court has continued to strongly indicate that there is no constitutional right to contact visits. In Overton v. Bazzetta, 539 U.S. 126 (2003), the Supreme Court rejected a claim that a number of restrictions on visitation violated the right to association of prisoners and their families under the Due Process Clause and First Amendment. Importantly, the inmates who challenged the restrictions were all subject to noncontact visitation. Id. at 130. The prisoners were required to “communicate with their visitors through a glass panel,” and had no opportunity for any physical contact. Id. In the course of upholding the restrictions barring entry to certain visitors, the Supreme Court never suggested that the restrictions on contact visits might themselves pose any constitutional problem.
While it does not appear that any decision in this Circuit has squarely addressed whether there is a liberty interest in maintaining contact visits,4 a number of decisions outside this Circuit have decisively rejected the contention that such an interest exists. Many of these decisions also conclude that the Supreme Court in Block conclusively established that no constitutional right exists. See, e.g., Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002) (noting it is “well-settled that prisoners have no constitutional right while incarcerated to contact visits”); Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (“A prisoner does not have a liberty interest in contact
4 This Circuit has recognized that the decision in Block extends to prisoners as well as pretrial detainees. See Women Prisoners of the District of Columbia Department of Corrections v. District of Columbia, 899 F. Supp. 659, 674-675 (D.D.C. 1995); Jones v. Yanta, 610 F. Supp. 2d 34 (D.D.C. 2009).
14

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 26 of 55
visitation.”) (citations omitted); Corley v. Burnett, No. 95-6451, 1997 WL 178876, at *1 (6th Cir. Apr. 11, 1997) (“[Plaintiff] has no constitutional right to contact visits.”) (citations omitted); Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999) (“Berry has no constitutional right to [any] visitation privileges.”) (citation omitted); Zimmerman v. Burge, No. 06-CV-0176, 2008 WL 850677 at 2, *12 n.53 (N.D.N.Y. March 28, 2008) (stating that “there is abundant case law establishing that inmates have no liberty or property interest in contact visits”) (collecting cases).
The claim that Plaintiffs have a right to contact visits guaranteed by the Due Process Clause cannot be squared with the limitations on visitation that the prison setting justifies and that the Supreme Court has endorsed. The Supreme Court has written that it cannot “seriously be contended . . . that an inmate’s interest in unfettered visitation is guaranteed directly by the Due Process Clause,” and thus “the denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence, and therefore is not independently protected by the Due Process Clause.” Thompson, 490 U.S. at 461 (internal quotation marks and citation omitted); id. at 465 (no liberty interest under the Due Process in avoiding a six-month ban on inmate’s ability to visit with his mother). Similarly, the D.C. Circuit has upheld a permanent ban on all visits between an inmate and his wife in response to the wife’s attempt to bring marijuana into the prison. In Robinson v. Palmer, then-D.C. Circuit Judge Ruth Bader Ginsburg found that no liberty interest existed in the inmate being able to visit his wife despite the fact that the ban was permanent. 841 F.2d 1151, 1155-1156 (D.C. Cir. 1988); see also Jones v. Yanta, 610 F. Supp. 2d 34, 43 (D.D.C 2009) (finding neither wife, son, nor mother-in-law “has a constitutionally protected right to visitation”). If no liberty interest is triggered when a prison imposes a permanent ban on visitation between immediate family
15

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 27 of 55
members, then a fortiori, there is no constitutionally-mandated liberty interest when the government imposes the far less onerous restriction of “no-contact” visits.
Telephone Restrictions. Nor can it seriously be contended that Plaintiffs have a liberty interest protected by the Due Process Clause itself in receiving a set number of phone minutes each month. “An inmate has no right to unlimited telephone use.’” Searcy v. United States, 668 F. Supp. 2d 113, 122 (D.D.C. 2009) (internal quotation marks omitted). The Third Circuit has held that because “limits on telephone usage are ordinary incidents of prison confinement,” their restriction “do[es] not implicate a liberty interest protected by the Due Process Clause.” Perez v. Federal Bureau of Prisons, 229 Fed. Appx. 55, 58 (3rd Cir. 2007).
Scheduling Of Communication. There is also no liberty interest protected by the Due Process Clause that is implicated by the rules governing the scheduling of visits or phone calls in the CMU. Such restrictions are nothing like the transfer to a mental institution, the involuntary administration of psychotropic drugs, or the possibility of indefinite transfer to solitary confinement that the Supreme Court has found fall outside the normal boundaries of confinement needed to trigger a liberty interest under the Due Process Clause. See Vitek v. Jones, 445 U.S. 480, 493-94 (1980) (transfer to mental hospital); Washington v. Harper, 494 U.S. 210, 221-222 (1990) (involuntary administration of psychotropic drugs); Austin, 545 U.S. at 224 (indefinite transfer to solitary confinement).
In short, there is no liberty interest protected by the Due Process Clause that is implicated by these restrictions on visitation and communication because they are not “qualitatively different from the punishment characteristically suffered by a person convicted of crime.” Thompson, 490 U.S. at 460-61 (internal quotation marks omitted); see also Sandin, 515 U.S. at 480.
16

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 28 of 55
2. Plaintiffs Do Not Have Any Government-Created Liberty Interest In Avoiding The Restrictions On Communication In The CMU Because They Are Not “Atypical and Significant.”
As discussed above, even where the Due Process Clause does not itself create a liberty interest, the government may create one where a prison restriction imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. In Sandin, the Court found that the disciplinary transfer of an inmate for 30 days to solitary confinement “did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest.” 515 U.S. at 486-487; id. at 494 (Breyer, J., dissenting) (describing conditions of confinement.) This is because the punishment “mirrored those conditions imposed upon inmates in administrative segregation and protective custody.” Id. at 486.
Based on Sandin, the D.C. Circuit has sought to define the “ordinary incidents of prison life” for purposes of creating a baseline that can be used to determine whether a particular restriction is atypical and significant. In Hatch v. District of Columbia, the D.C. Circuit rejected treating the conditions of prison life in the general population as the appropriate baseline. 184 F.3d 846, 856-858 (D.C. Cir. 1999). Instead, Hatch explains that the conditions that are imposed in administrative segregation should be used in determining what constitutes the “ordinary incidents of prison life.” Id. at 855-85. Accordingly, courts should determine what is atypical and significant in comparison with the “most restrictive confinement conditions that prison officials, exercising their administrative authority to ensure institutional safety and good order, routinely impose on inmates serving similar sentences.” Id. at 856. In making this determination, courts should not only consider the nature of the restriction but also its duration. Id. at 858.
17

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 29 of 55
Under Sandin and Hatch, the loss of contact visits and reduced time for visits and telephone calls do not constitute an “atypical and significant” deprivation. As noted, while the agency’s legislative rules only require four hours of visitation per month, 28 C.F.R. § 540.43, CMU inmates are allowed eight hours of visits per month. Notice to Inmates (Social Telephone and Social Visiting). And consistent with the Warden’s authority to “restrict inmate visiting when necessary to ensure the security and good order of the institution,” 28 C.F.R. § 540.40, the agency’s regulations expressly contemplate the possibility that inmates will lose contact visitation privileges based on security concerns. Id. § 540.51(h)(2) (noting that “[s]taff shall permit limited physical contact . . . unless there is clear and convincing evidence that such contact would jeopardize the safety or security of the institution). In this case, the Bureau has made a determination that threats to the security of its facilities and/or the public justify the imposition of no-contact visits. See Compl. ¶¶ 33, 79, 107, 127, 160, 184, 212 (referring to notice of transfers stating security reasons for Plaintiffs designation to CMU); see also Notice to Inmates (Review of Inmates for Continued Communication Management Unit (CMU) Designation) (listing criteria for CMU designation); CMU Proposed 75 Fed. Reg. at 17326 (same).
Inmate telephone use “is subject to those limitations which the Warden determines are necessary to ensure the security or good order, including discipline, of the institution or to protect the public,” and require only that an inmate who is not on discipline receive one threeminute telephone call. Id. § 540.100(a)-(b); § 540.101(d); id. §540.100(a) (stating that “[t]elephone privileges are a supplemental means” of communicating with persons in the community). In contrast, CMU inmates receive 117 telephone minutes more than is required under the agency’s binding regulations. Id.
18

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 30 of 55
In short, the CMU’s communication restrictions do not constitute the kind of “extraordinary treatment” required to find a government-created liberty interest. Smith v. U.S., 277 F. Supp. 2d at 113 (no “atypical and significant” deprivation due to prison transfer because prisoner was not “subject to any ‘extraordinary treatment’” but instead transfer was an issue within the “‘day-to-day management of prisons.’”) (quoting Franklin, 163 F.3d at 634-35).
Finally, the Bureau’s broad discretion to transfer an inmate to a CMU is incompatible with Plaintiffs’ claim that specific constitutionally-mandated procedures must be followed before this discretionary determination is made. Decisions about where an inmate is confined and his security classification are left to the Bureau. See 18 U.S.C. §§ 3621 and 4001(b). This discretion is such that Congress has precluded all judicial review under the APA of claims that an inmate’s particular place of imprisonment, transfer to other federal facilities, or security classification violates the agency’s regulations. 18 U.S.C. § 3625; Brown v. Federal Bureau of Prisons, 602 F. Supp. 2d 173, 176 (D.D.C. 2009); Jasperson v. Federal Bureau of Prisons, 460 F. Supp. 2d 76, 82 n.4 (D.D.C. 2006); Enigwe v. Bureau of Prisons, 2006 WL 3791379, at *2 (D.D.C. 2006).
The Bureau’s essentially unreviewable discretion (absent an improper constitutional purpose or ultra vires action) to determine appropriate confinement conditions means that Plaintiffs have no liberty interest implicated by a transfer to the CMU. As the Supreme Court has explained, “[i]f officials may transfer a prisoner ‘for whatever reason or for no reason at all, there is no such [liberty] interest for process to protect.” Olim, 461 U.S. 238, 250 (internal citation and quotation marks omitted); see also Miller v. Henman, 804 F.2d 421, 423 (7th Cir. 1986) (“When the jailer is free to move a prisoner for any or no reason, the due process clause does not require hearings.”). Indeed, in response to a claim by an inmate that a BOP Program
19

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 31 of 55
Statement created a liberty interest in participating in a rehabilitative program, this Court concluded that “prison officials are vested with substantial discretion to set the terms of conditions of rehabilitative programs, and this discretionary function undercuts the plaintiff’s argument that he has a protected liberty interest.” Kotz v. Lappin, 515 F. Supp. 2d 143, 149-150 (D.D.C. 2007) (Urbina, J.). As a result, the Court found that no procedural requirements were mandated by the Due Process Clause. Id.
D. To The Extent A Liberty Interest Is Implicated By A Transfer To The CMU, The Procedural Protections Provided Were Constitutionally Sufficient.
Even assuming arguendo that Plaintiffs were deprived of a protected liberty interest by virtue of their transfer to the CMU, or because of the specific communication restrictions that have been imposed on them, the procedures they received satisfy constitutional requirements.
As the Supreme Court has made clear, the requirements of due process are “flexible and call[] for such procedural protections as the particular situation demands.” Morrisey v. Brewer, 408 U.S. 471, 481 (1972); Austin, 545 U.S. at 224; see also Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (identifying factors used to determine procedures mandated by Constitution). For instance, the Due Process Clause does not invariably require an opportunity to be heard in advance of a decision. See Hewitt, 459 U.S. at 476 & n.8 (providing inmate opportunity to be heard within reasonable time after decision to place him in administrative segregation constitutionally sufficient). Nor does it require a formal hearing. In Procunier v. Martinez, after the Supreme Court noted that inmates have a First Amendment right to “uncensored communication,” it held that, because an inmate is notified of the rejection of a letter addressed to him and there is an opportunity to protest that decision, adequate procedural protections were provided under the Due Process Clause. 416 U.S. 396, 418-419 (1974).
20

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 32 of 55
In this case, Plaintiffs allege they received notice of the reason for their designation to the
CMU shortly after they were transferred, and they allege they have appealed that decision through the Bureau’s Administrative Remedy Program.5 See Compl. ¶¶ 113-114, 132, 138-141,
143, 160, 189, 193, 212-213. Plaintiffs have also received reviews of their continued
confinement in the CMU by the CMU’s Unit Team in connection with regularly scheduled
program reviews. Ex. F to Compl. In short, Plaintiffs received notice of the reasons for their
designation within a reasonable period of time after being transferred to a CMU and have had an
opportunity to contest that decision. No more process was required. See Wilkinson, 545 U.S. at
225-26 (notice and fair rebuttal opportunity “are among the most important procedural
mechanisms for purposes of avoiding erroneous deprivations” of liberty interests). The mere fact
that these procedures have not produced the desire outcome for Plaintiffs do not mean they are
constitutionally inadequate.
For the reasons stated above, Plaintiffs’ procedural due process claim should be
dismissed for failure to state a claim under Rule 12(b)(6).
III. The Restrictions on Communication In A CMU Do Not Implicate The Inmates’ Constitutional Rights, And Even If They Do, The Restrictions Are Permissible. Plaintiffs and Family Plaintiffs allege that Defendants have violated their substantive due
process rights to family integrity “[b]y unreasonably and excessively restricting all Plaintiffs’
access to visits and to telephone calls, and imposing arbitrary and unjustified rules regarding the 5 The Administrative Remedy Program provides multiple levels of review and is the means by which an inmate “seek[s] formal review of an issue relating to any aspect of his/her own confinement.” 28 C.F.R. § 542.10(a). Generally, “an inmate shall first present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy.” Id. § 542.13(a). If an informal resolution is not achieved, the inmate may submit a formal written Administrative Remedy Request with the warden of the institution where he is confined. Id. § 542.14(a). If dissatisfied with the response, he may then appeal an adverse decision to the Regional Office and the Central Office of the BOP. Id. §§ 542.15(a) and 542.18.
21

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 33 of 55
scheduling of such communication.” Compl. ¶¶ 256-260. They allege these restrictions also violate their rights to free speech and association protected by the First Amendment. Id. ¶¶ 261265. In their prayer for relief, they request the Court to order that BOP provide Plaintiffs with 300 phone minutes a month (instead of their current allotment of 120 minutes) and allow them contact visits. Plaintiffs and Family Plaintiffs are mistaken that these restrictions implicate any constitutional rights they possess, and even if they do, the regulations are valid because they are “reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).
A. Neither the Due Process Clause Nor The First Amendment Grants Plaintiffs A Constitutional Right To Contact Visits Or 300 Minutes Of Telephone Time Per Month.
For the reasons previously discussed, prisoners do not have a substantive due process right to contact visits, a set quantum of telephone use, or to schedule visits or telephone calls on precisely the same schedule that applies to prisoners in the general prison population at Terre Haute and Marion. Nor is the privilege of contact visits and telephone communication transformed into a constitutionally-protected right simply because Plaintiffs invoke the First Amendment’s protection of freedom of association and speech. Compl. ¶¶ 261-265. In Overton, the Supreme Court left open the question of whether prisoners continue to enjoy a right of association or family integrity that survives incarceration and which encompasses a right to inperson visits. Like the Plaintiffs’ claims here, respondents (inmates, family members and friends) alleged that certain visitor restrictions “infringe a constitutional right of association” protected under the Due Process Clause and First Amendment. Overton, 539 U.S. at 131. The Court began its analysis by observing that the “Constitution protects ‘certain kinds of highly personal relationships.’” Id. (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984)). However, the Court explained that “[t]he very object of imprisonment is confinement.” Id.
22

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 34 of 55
Accordingly, “[m]any of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner. An inmate does not retain rights inconsistent with proper incarceration.” Id. And unsurprisingly, “freedom of association is among the rights least compatible with incarceration.” Id.
Because the Court found the challenged restrictions to be reasonable, it did not have to reach the question of whether a right to association or family integrity survives incarceration. Id. at 132. However, at no point did the Court suggest that the restrictions on contact visits that were present in the case were of any constitutional dimension. Id. at 136 (upholding “the regulation as to all noncontact visits”). Thus, both Block and Overton are incompatible with the proposition that the Constitution creates a free-standing right to contact visits, and numerous courts have held that no such right exists. See supra pp. 14-15 (collecting cases).
As for Plaintiffs’ claims regarding telephone use, some cases have viewed restrictions on telephone use “expansively as the First Amendment right to communicate with family and friends.” Searcy, 668 F. Supp. 2d at 122 (quoting Pope v. Hightower, 101 F.3d 1382, 1385 (11th Cir. 1996)); see also Valdez v. Rosenbaum, 302 F.3d 1039, 1047-1048 (9th Cir. 2002) (“We have previously “stated in dicta that prisoners have a First Amendment right to telephone access, subject to reasonable security limitations,” although “[t]he genesis of this purported constitutional right to use a telephone is obscure.”) This does not imply, however, that a prisoner has a First Amendment right to unfettered use of the telephone; he does not. Searcy, 668 F. Supp. 2d at 122 (explaining “[a]n inmate has no right to unlimited telephone use” (internal quotation marks omitted)). In particular, there is no constitutional right to anything as specific as 180 more telephone minutes per month. See Compl. (Prayer for Relief).
23

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 35 of 55
B. To The Extent The Court Finds The CMU’s Communication Rules Restrict Plaintiffs’ Constitutional Rights, They Should Be Upheld Because They Are Reasonably Related To “Legitimate Penological Interests” Under The Supreme Court’s Turner v. Safley Standard.
“[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). This standard of review is based upon the need to reconcile the Supreme Court’s “longstanding adherence to the principle that inmates retain at least some constitutional rights despite incarceration with the recognition that prison authorities are best equipped to make difficult decisions regarding prison administration.” Harper, 494 U.S. at 223-224. The burden is not on the government to prove the validity of prison regulations, but on the prisoner to disprove it. Overton, 539 U.S. at 132.
Turner identified four factors for a court to consider in determining whether a regulation is reasonable. Overton, 539 U.S. at 132. First, “there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Turner, 482 U.S. at 89 (quoting Block, 468 U.S. at 586). Second, a court will inquire “whether there are alternative means of exercising the right that remain open to prison inmates.” Id. Third, a court must consider “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Id. Fourth, “the absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Id. Although the factors are intended as a single reasonableness standard, the first factor “looms especially large.” Amatel v. Reno, 156 F.3d 192, 196 (D.C. Cir. 1998). An application of the Turner factors based on the allegations in the Complaint, the materials attached to the Complaint, and the Bureau’s Proposed CMU Rule, show the restrictions are reasonably related to legitimate penological goals and that Plaintiffs’ constitutional claims fail to
24

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 36 of 55
state a claim for relief. See Gustave-Schmidt, 226 F. Supp. 2d at 196 (explaining motion to dismiss may consider materials attached to complaint, and matters about which the Court may take judicial notice).
1. First Turner Factor. There is a “valid, rational connection” between communication restrictions imposed in a CMU and the goal of effective monitoring of the communications of high-risk inmates. Turner, 482 U.S. at 89. The objectives of this increased monitoring are: (1) “to protect the safety, security, and orderly operation of Bureau facilities,” and (2) to “protect the public.” See Terre Haute Institution Supplement at § 1; 11/13/08 Marion Institution Supplement at § 1. There can be no doubt that these are legitimate penological goals. See, e.g., Overton, 539 U.S. at 133 (describing the maintenance of internal security of a prison as “perhaps the most legitimate of penological goals”). The connection between the restrictions on communications of high-risk individuals and the promotion of these legitimate goals is made plain by the criteria used to decide whether an inmate should be transferred to a CMU. For instance, inmates are eligible for CMU placement if there is evidence they will use their communication privileges to further criminal activity or contact their victims. See Review of Inmates for Continued Communication Management Unit (CMU) Designation; see also CMU Proposed Rule, 75 Fed. Reg. at 17326. The dangers posed by such communications are self-evident. Inmates may also be transferred to the CMU if their current conviction or offense conduct “included association, communication, or involvement” related to international or domestic terrorism. Id. In its Proposed Rule, the Bureau explained that “[t]here have been cases of imprisoned terrorists communicating with their followers regarding future terrorist activity.” 75
25

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 37 of 55
Fed. Reg. at 17326. In addition, terrorist-related communication “can occur in codes which are difficult to detect and extremely time-consuming to interpret.” Id. The penological goal of preventing inmates from furthering terrorist activity while in prison is of the utmost importance.
An inmate may also be transferred to the CMU if he or she has “committed prohibited activity related to misuse/abuse of approved communication methods while incarcerated.” Review of Inmates for Continued Communication Management Unit (CMU) Designation; 75 Fed. Reg. at 17326. It is clearly “valid” and “rational” for the Bureau to decide on a case-bycase basis that individuals who abuse communication privileges require enhanced monitoring given the risks they pose to the internal security and orderly operation of Bureau prisons as well as to the safety of the public.
Finally, inmates may be sent to the CMU for the very penological reasons that justify the CMU in the first place. See Review of Inmates for Continued Communication Management Unit (CMU) Designation (CMU placement proper if there is “any other evidence of a potential threat to the safe, secure, and orderly operation of prison facilities, or protection of the public, as a result of the inmate’s unmonitored communication with persons in the community”); CMU Proposed Rule, 75 Fed. Reg. at 17326.
Given the stated goals of providing both increased and effective monitoring of high-risk inmates, the transfer of inmates who require such monitoring into a single facility promotes this goal. It allows the Bureau to concentrate limited resources, see CMU Proposed Rule, 75 Fed. Reg. at 17326, and avoids the dangers that inmates will be able to evade restrictions on communications as they can more easily do in a general prison population environment. Id. at 17325 (“It is difficult to police inmate communication in the ‘open’ context of a general prison
26

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 38 of 55
population setting because it is harder to detect activity such as inmates sending mail under another’s name, or using another’s PIN number, without constant monitoring.”)
The specific restrictions on communication at the CMU also enable effective monitoring. The use of non-contact visits allows for visits to take place in “secure partitioned rooms” where the inmate speaks with his visitor using a telephone line that facilitates the monitoring of the visit. See Terre Haute Institution Supplement at § 3(c); 11/13/08 Marion Institution Supplement at § 3B(c). Any communication that occurs is recorded, which the Bureau has determined will “lead to greater protection for the public, since reconstruction of communications from random monitoring may not provide a full scenario if dangerous communications are discovered.” CMU Proposed Rule, 75 Fed. Reg. at 17325-17326. In addition, if either an inmate or visitor breaks one of the rules governing such visits, the conversation is immediately terminated. Terre Haute Institution Supplement at § 3(c); 11/13/08 Marion Institution Supplement at § 3B(c). These restrictions are related to the legitimate goal of monitoring potentially dangerous communications.
The same goal is promoted by the CMU’s treatment of inmate telephone calls, which are also live-monitored and subject to recording. Terre Haute CMU Institution Supplement at § 3(b); 11/13/2008 Marion CMU Institution Supplement at § 3B(b). Courts routinely uphold reasonable restrictions on telephone use in response to constitutional challenges. See Searcy, 668 F. Supp. 2d at 122 (“[R]egulations restricting inmates' telephone use are reasonable as long as they further the government's legitimate penological interests, including the safety and security of correctional institutions, inmates, staff, and the public.”); Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986) (a prisoner’s right to telephone access is “subject to
27

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 39 of 55
rational limitations in the face of legitimate security interests of the penal institution”) (internal quotation marks omitted).
The Bureau is also able to provide for more effective monitoring of inmates’ communication by reducing the total amount of time for visits and telephone calls that take place in the CMU. See CMU Proposed Rule, 75 Fed. Reg. at 17327 (“Reducing the volume of communications will help ensure the Bureau’s ability to provide heightened security in reviewing communications, and thereby increasing both internal security within correctional facilities, and the security of members of the public.”) There is a clear relationship between reducing the time CMU inmates are allowed to visit and use the telephone and the goal of effective monitoring of such communication. See Overton, 539 U.S. at 129-133 (legitimate penological interest in reducing the total amount of individuals who can visit an inmate in response to security problems posed by visits).
As shown above, the means chosen by the Bureau and the goal of effectively monitoring the communication of high risk inmates is both “rational” and “valid.” Turner, 482 U.S. at 89.
2. Second Turner Factor The next question under Turner is whether inmates have “alternative means of exercising the constitutional right they seek to assert.” Overton, 538 U.S. at 135. “Where other avenues remain available for the exercise of the asserted right . . . courts should be particularly conscious of the measure of judicial deference owed to corrections officials . . . in gauging the validity of the regulation.” Turner, 482 U.S. at 90 (internal quotation marks and citations omitted). In Overton, where restrictions were imposed on visits from non-immediate family members, including a complete prohibition on visits from minor nieces and nephews, the Supreme Court found there were “alternative means of associating with those prohibited from
28

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 40 of 55
visiting” because the “inmates can communicate with those who may not visit by sending messages through those who are allowed to visit.” 539 U.S. at 135. Even with respect to a twoyear ban on all visitation for inmates found to have committed substance violations, the Court found alternative means of communicating: “Although this option is not available to inmates barred all visitation after two violations, they and other inmates may communicate with persons outside the prison by letter and telephone.” Id.
The communication restrictions in this case are far less onerous than those approved in Overton. Here, CMU inmates have a number of different ways to communicate with family members and other persons outside the prison. They have access to in-person non-contact visits, telephone use, and email and written correspondence. Compl. ¶ 45 (alleging access to email); Terre Haute Institution Supplement at § 3; 11/13/08 Marion Institution Supplement at § 3B. In addition, attorney-client communication is not monitored. Id. Similar to Plaintiffs’ allegations here, the respondents in Overton complained that “letter writing is inadequate for illiterate inmates and for communication with young children. They say, too, that phone calls are brief and expensive, so that these alternatives are not sufficient.” 539 U.S. at 135. In response to this argument, the Court stated that “[a]lternatives to visitation need not be ideal, however; they need only be available.” Overton, 539 U.S. at 135. Here, as alleged in Plaintiffs’ Complaint, ample alternative communication methods exist.
3. Third Turner Factor The third Turner factor requires a consideration of the impact that accommodation of the asserted associational right will have on “guards, other inmates, the allocation of prison resources, and the safety of visitors.” Overton, 539 U.S. at 135. The design of the CMU is motivated in part to avoid the impact of unnecessarily imposing communication restrictions on
29

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 41 of 55
other inmates who do not need it. See CMU Proposed Rule, 75 Fed. Reg. at 17325 (“By physically separating out the properly classified prisoners who need comprehensive monitoring . . . [the Bureau] hope[s] to lessen any adverse impact on the vast majority of other prisoners not subject to comprehensive monitoring but still only subject to random monitoring.”) In addition, to the extent Plaintiffs are allowed more opportunities for communication, this will obviously increase the burden on staff to monitoring such communications. See Overton, 539 U.S. at 135 (considering burden on guard of accommodating asserted right).
4. Fourth Turner Factor The final Turner factor asks whether there are “ready alternatives.” Overton, 539 U.S. at 136. This is not a “least-restrictive-alternative test.” Id. Rather, it “asks instead whether the prisoner has pointed to some obvious regulatory alternative that fully accommodates the asserted right while not imposing more than a de minimis cost to the valid penological goal.” Id. at 136. Plaintiffs fail to allege facts that, if believed, show that transferring them out of the CMU will not harm the Bureau’s legitimate penological goals. The Bureau has explained the difficulties of imposing enhanced scrutiny of communications on inmates who remain in a general prison population, see CMU Proposed Rule, 75 Fed. Reg. at 17325, and the Supreme Court has recognized the legitimacy of similar concerns. See, e.g., Block, 468 U.S. at 587 (rejecting argument that ban on contact visits should only apply to certain high risk pretrial detainees because “[i]t is not unreasonable to assume, for instance, that low security risk detainees would be enlisted to help obtain contraband or weapons by their fellow inmates who are denied contact visits”). Plaintiffs also fail to allege any alternatives to the current restrictions on visiting hours and telephone time other than to give them exactly what they would have if they were not in the
30

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 42 of 55
CMU. In Overton, the Court rejected a claim that a state’s interest in maintaining order in its prisons would not be harmed by lifting a ban on inmate visits with nieces and nephews under the age of 18. The Supreme Court wrote that “[i]ncreasing the number of child visitors in that way surely would have more than a negligible effect on the goals served by the regulation,” 539 U.S. at 136, and that “[t]o reduce the number of child visitors, a line must be drawn, and the categories set out by these regulations are reasonable.” Id. at 133. The same is true here.
Finally, while Plaintiffs allege that the Bureau could provide contact visits because such visits could be monitored by guards and recorded, either with a tape recorder or by using a room equipped to record sound or video, Compl. ¶¶ 42-43, on their face these alternatives do not accommodate the Bureau’s penological goal of total communication management. With respect to no-contact visits, communications can be immediately terminated because the CMU inmate must use a phone line to communicate with a visitor. Terre Haute CMU Institution Supplement at § 3(c); 11/13/2008 Marion CMU Institution Supplement at § 3B(c). This is not the case with contact visits. Also, the very act of physical contact at the beginning or end of a visit can be an opportunity for unmonitored communication.
The facts as alleged in Plaintiffs’ Complaint and attached materials demonstrate that the Bureau’s restrictions on communication are reasonably related to the legitimate penological goal of effectively monitoring the communication of high-risk inmates. Accordingly, Plaintiffs’ and Family Plaintiffs’ Second and Third Causes of Action should be dismissed for failure to state a claim. IV. The CMU Communication Restrictions Do Not Violate The Eighth Amendment.
Plaintiffs allege that Defendants have subjected them to cruel and unusual punishment in violation of the Eighth Amendment based on the denial of “physical contact with their loved
31

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 43 of 55
ones, excessive restriction of other means of communication with family members; and extended detention in a unit segregated from other inmates.” Compl. ¶ 268.
In order to establish that conditions of confinement violate the Eighth Amendment, both an objective and subjective element must be met. “First, the deprivation alleged must be, objectively, sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted). This requires alleging that “a prison official’s act or omission result[ed] in the denial of the minimal civilized measure of life’s necessities.” Id. (internal quotation marks omitted). Only “extreme deprivations” support an Eighth Amendment claim because “routine discomfort” is part of the penalty inmates pay for their crimes. Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). To meet the second requirement, a prison official must have a “sufficiently culpable state of mind,” which requires “deliberate indifference” to inmate health or safety. Farmer, 511 U.S. at 834.
Nothing about the conditions existing in the CMUs, (e.g., inmates not confined to cells, have access to leisure activities and exercise), Terre Haute CMU Institution Supplement at § 4; 11/13/2008 Marion CMU Institution Supplement at § 4, or the CMU’s restrictions on communication deprive Plaintiffs of “the minimal civilized measure of life's necessities.” Farmer, 511 U.S. at 834 (internal quotation marks omitted). They do not deny prisoners food, clothing, shelter, or medical care, or subject them to wanton pain or threat of physical harm. Id. at 832. In the absence of such conditions, even measures that may seem harsh do not offend the Eighth Amendment. See Rhodes, 452 U.S. at 346-347.
The Third Circuit has found that reducing the telephone privileges of a federal prisoner does not state a claim under the Eighth Amendment. Perez, 229 Fed. Appx. at 57.
32

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 44 of 55
(“An altered security classification that allows limits on telephone privileges certainly does not rise to th[e] level” of an Eighth Amendment violation). And numerous courts have found that a restriction on contact visits likewise does not violate the Eighth Amendment. See, e.g., Saleem v. Helman, No. 96-2502, 1997 WL 527769, at *2 (7th Cir. Aug. 21, 1997) (“We have previously held that a denial of contact visitation altogether does not violate the Eighth Amendment.”); Ricco v. Conner, 146 Fed. Appx. 249, 255 (10th Cir. 2005) (“[W]e conclude that the five-year restriction [on all visitation privileges] imposed in this case does not violate the Eighth Amendment].”) The Court should reach the same conclusion and dismiss Plaintiffs’ Fourth Cause of Action. Compl. ¶ 266-270. V. The Inmates’ Allegations That They Were Transferred To The CMU In Retaliation
For Engaging In Protected First Amendment Activity, Or As A Result Of Discrimination Against Muslims, Are Not Plausible And Should Be Dismissed. Plaintiffs allege that Defendants have violated their rights to freedom of speech, religion and equal protection of the law under the First and Fifth Amendment by “allow[ing] for and encourag[ing] the development of a pattern and practice throughout the BOP of designating individuals, including Plaintiffs, to the CMU in retaliation for their protected speech and beliefs, or based on their religion, national origin, and perceived political and/or ideological beliefs.” Compl. ¶ 273. Specifically, Plaintiff McGowan alleges that he was “transferred to the CMU because of his political beliefs and continued involvement in lawful social justice movements while incarcerated. ” Id. ¶ 94. Plaintiffs Twitty and Jones allege they were “transferred to the CMU in retaliation for grieving and litigating disputes over their treatment in prison.” Id. ¶ 93. And the four Plaintiffs who are Muslim (Aref, Twitty, Jones, and Jayyousi) allege that the “CMUs were created to allow for the segregation and restrictive treatment of Muslim prisoners based on Defendants’ discriminatory belief that Muslim prisoners are more likely than others to
33

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 45 of 55
pose a threat to institution security.” Id. ¶ 95. In each instance these claims should be dismissed under Rule 12(b)(6).
A. Plaintiffs McGowan, Twitty and Jones Have Failed To State A Claim That Their Transfer To The CMU Was In Retaliation For Engaging In First Amendment Activity.
McGowan, Twitty and Jones allege that their transfer to the CMU was in retaliation for filing grievances and/or for their political and religious beliefs. Compl. ¶¶ 93, 142, 167. To state a valid claim for retaliation a prisoner must allege the following: (1) “the type of activity he engaged in was protected under the First Amendment”; (2) “the state impermissibly infringed on his right to engage in the protected activity”; and (3) “the retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals.” Pryor-El v. Kelly, 892 F. Supp. 261, 274 (D.D.C. 1995) (internal quotation marks omitted); Anderson-Bey v. Dist. of Columbia, 466 F. Supp. 2d 51, 65 (D.D.C. 2006). A plaintiff alleging retaliation for the exercise of constitutionally protected rights must show that his protected conduct was a “substantial” or “motivating” factor in the defendant's adverse decision. See Pryor-El, 892 F. Supp. at 274 (citing Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274, 287 (1977)); Hartman v. Moore, 547 U.S. 250, 256 (2006) (to establish constitutional violation requires allegation that plaintiff’s protected activities were the “but-for” cause of the challenge decision). Plaintiffs’ allegations fail to meet these requirements.
1. McGowan’s Claim of Retaliation. McGowan alleges that “during his incarceration he has continued to speak out about social justice issues and the rights of political prisoners and to communicate with law abiding activists involved in these movements.” Compl. at ¶ 167. Then, in an entirely conclusory fashion, he alleges that “[h]is designation to the CMU seems based not on any legitimate penological need, but rather in retaliation for Mr. McGowan’s continued lawful communication
34

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 46 of 55
and speech.” Id. (emphasis added); see also id. at ¶ 94 (alleging that “it appears” McGowan was transferred to the CMU because of his political beliefs and involvement in social justice issues).
McGowan has failed to allege “sufficient factual matter, accepted as true” to show that his claim of retaliation is “plausible” and not merely “possible.” See Iqbal, 129 S. Ct. at 1949. It is not sufficient for a Plaintiff to allege merely that it “seems” or “appears” that he was retaliated against without more, particularly where the “obvious alternative explanation” is that his transfer was motivated by his conviction for activity related to domestic terrorism. Iqbal, 129 S. Ct. at 1951; Compl. ¶ 79 (acknowledging “conviction is related to terrorism”).
2. Twitty’s Claim of Retaliation. Twitty alleges that throughout 2005 and 2006, and continuing through July 2008, he filed grievances and federal litigation over issues relating to good time credits and “missing program documentation.” Compl. ¶ 131. His allegation of retaliation is based on the fact that, “[o]n May 30, 2007, in this midst of this advocacy on his own behalf,” he was transferred to the CMU. Id. ¶ 132. Without any factual allegations making it “plausible” that there is connection between his protected advocacy and his transfer to the CMU, Twitty has failed to allege that the filing of grievances was a “substantial” factor in the Bureau’s decision to transfer him to the CMU must be dismissed. Moreover, after arriving at the CMU at Terre Haute, Mr. Twitty was informed that his transfer was based on his “involvement in recruitment and radicalization of other inmates.” Id. ¶ 132. These concerns provided the legitimate penological reason for his transfer. 6
6 Mr. Twitty alleges that he will be released from the CMU into a halfway house in August 2010. Compl. ¶ 147. Once he is released, this will moot his claims and require dismissal. Qassim v. Bush, 466 F.3d 1073, 1077 & n.4 (citing D.C. Circuit cases that have “repeatedly held” that a prisoner’s release or transfer moots any claims for equitable relief).
35

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 47 of 55
3. Jones’s Claim of Retaliation. Prior to his designation to a CMU, and while incarcerated at FCI Englewood, Jones alleges that “staff at th[e] facility threatened [him] that he would be ‘sent east’ if he continued to file complaints.” Id. ¶ 188. Jones contends that he then filed a complaint about being subjected to this threat, and after some unspecified amount of time transpired, he was transferred to the CMU at USP Marion on June 6, 2008. Id. ¶ 189. The threat by staff members to send him “east” is vague and the Complaint does not allege facts showing whether there was a close relationship in time between the threat and the transfer decision. At best, these allegations are merely consistent with a claim of retaliation, but in light of the alternative explanation that he was sent to the CMU for engaging in radicalization and recruitment efforts while incarcerated, see Compl. ¶ 189, his claim of retaliation is not plausible under the standard established in Twombly and Iqbal. See Iqbal, 129 S. Ct. at 1949 (“Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief’”) (quoting Twombly, 550 U.S. at 557). Mr. Jones also alleges that, after being transferred to the CMU, he filed a pro se complaint in the Federal District Court for the Southern District of Illinois, raising many claims similar to those brought in the instant complaint. Compl. ¶ 195. He alleges that he voluntarily dismissed the action in August 2009 “after being told by CMU staff that he needed to drop his complaint because it had ‘upset the big shots’ and that things were going to get bad for him.” Id. He alleges that he “was promised that if he withdrew his pro se action, he would be transferred to FCI Herlong.” Id. Several months later, he was transferred out the CMU and has been in the main compound at Marion since early March 2010 and “is no longer subject to the communications restrictions described in this case.” Id. ¶ 196. These allegations fail to state a
36

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 48 of 55
claim that he was transferred to the CMU in retaliation for filing the lawsuit. Compl. ¶ 273. Mr. Jones filed his complaint after he was transferred to the CMU, and therefore it is a logical impossibility that this conduct was a “substantial” or “motivating” factor in the Bureau’s decision to initially transfer him to a CMU. Mt. Healthy City Sch. Dist., 429 U.S. at 287; Hartman, 547 U.S. at 256; Pryor-El, 892 F. Supp. at 274.
Finally, as discussed above, Mr. Jones’s claims must be dismissed because he lacks standing since he was released from the CMU prior to the filing of this lawsuit. See supra pp. 89.
B. Plaintiffs Have Failed To State A Claim That Their Transfer To The CMU Was Because Of Their Religion.
Plaintiffs allege that the percentage of Muslim inmates in the CMUs are far higher than the proportion of Muslim inmates in the rest of the federal prison system, and that this alleged discrepancy “cannot be explained by any non-discriminatory reason” and therefore demonstrates that Defendants have “allowed for and encouraged” retaliation against Muslim inmates. Id. ¶¶ 95-102, 273. These allegations fail to state a claim of invidious discrimination.
As this litigation involves no allegations that the Bureau has adopted a facially discriminatory classification, to state a claim of discrimination Plaintiffs must allege that some government officials acted with “discriminatory purpose.” Iqbal, 129 S. Ct. at 1948; Washington v. Davis, 426 U.S. 229, 240 (1976). This requires proof of more than mere “intent as volition or intent as awareness of consequences,” but rather a showing that a decisionmaker undertook a course of action “‘because of,’ not merely ‘in spite of,’ [the action’s adverse effects upon an identifiable group].” Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979). Here, there are no plausible allegations of discriminatory animus against Muslim inmates, let alone that these four inmates were transferred to the CMU “because of” their religion.
37

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 49 of 55
On the contrary, Plaintiffs Aref and Jayyousi admit that they were convicted of material support of terrorism. Compl. ¶¶ 16, 22,79. Such a conviction is one of the reasons that the Bureau, acting on a case-by-case basis, may designate an inmate to the CMU for heightened monitoring. Compl. ¶ 33; see also Notice to Inmates (Review of Inmates for Continued Communication Management Unit (CMU) Designation). This valid legitimate penological purpose shows that their claim of a Bureau-wide conspiracy to discriminate against Muslims is not plausible and should be dismissed.
Similarly, the Bureau informed Twitty and Jones that they were being transferred to the CMUs based on their “recruitment and radicalization” efforts committed while incarcerated. Compl. ¶¶ 132, 189. In the face of these reasons, Twitty and Jones offer no specific allegations to render it plausible that high-level Bureau officials “encouraged” wide-scale discrimination against Muslims in general and against Twitty and Jones in particular. Compl. ¶¶ 271-275; see Iqbal, 129 S. Ct. at 1949. The allegation that a large number of CMU inmates are Muslim is not sufficient, by itself, to state a claim of invidious discrimination as to these Plaintiffs given the alternative explanation for their designation to the CMU.
In Iqbal, the Plaintiffs alleged that former FBI Director Mueller and Attorney General Ashcroft engaged in individious discrimination against Muslims because the FBI “arrested and detained thousands of Arab Muslim men” following the 9/11 attacks. Iqbal, 129 S. Ct. at 1951, “Taken as true, the Court found these allegations are consistent” with Plaintiffs’ claim that the men were detained “because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose.” Id. In particular, the Court found that the “obvious alternative explanation” for the arrests was that they were a response to legitimate security concerns following the 9/11 attacks. Id. As the Court concluded, in the face
38

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 50 of 55
of this explanation, “the purposeful, invidious discrimination respondent asks us to infer . . . is not a plausible conclusion.” Id. at 1951-1952.
So too here. The Complaint is devoid of allegations of any act, statement or other conduct that indicates any hostility whatsoever to Muslims on the part of the officials sued in their official capacity, nor of any unnamed BOP officials. Because Plaintiffs’ claims of discrimination are not plausible in light of the individual reasons that support their transfer to a CMU, their claims of discrimination should be dismissed for failure to state a claim. VI. The APA Did Not Require The Bureau To Provide Notice And Comment
Rulemaking Before Creating The CMUs. A. The Institution Supplements Are Interpretive Rules or Policy Statements
That Do Not Trigger Notice and Comment Procedures. Plaintiffs allege that the Terre Haute and Marion CMU Institution Supplements are “substantive rules that require 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).” Compl. ¶ 279. Plaintiffs are mistaken. Under the APA, an agency intending to engage in rulemaking must first publish a notice of the rule in the Federal Register and provide interested persons with the opportunity to comment. 5 U.S.C. § 553(b). This requirement only applies to agency “rules,” which the APA defines as “the whole or a part of an agency statement 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.” Id. § 551(4). The APA specifically exempts “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice” from notice and comment requirements. Id. § 553(b)(3)(A).
39

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 51 of 55
The CMU Institution Supplements are not “rules” within the meaning of the APA, but are akin to interpretive rules or agency policy statements that the Bureau uses to advise the public and its staff of the manner in which it will exercise its discretionary statutory and regulatory authority. Cf. Reno v. Koray, 515 U.S. 50, 61 (1995) (BOP Program Statements are “akin to an interpretive rule that do[es] not require notice and comment [and] is still entitled to some deference) (internal quotation marks omitted). This conclusion is confirmed by controlling D.C. Circuit precedent. In determining whether a rule is interpretive, and thus not subject to the APA’s notice and comment rulemaking requirements, the D.C. Circuit directs a court to consider:
(1) Whether in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of duties, (2) whether the agency has published the rule in the Code of Federal Regulations, (3) whether the agency has explicitly invoked its general legislative authority, or (4) whether the rule effectively amends a prior legislative rule. American Mining Cong. v. Mine Safety and Health Administration, 995 F.2d 1106, 1112 (D.C. Cir. 1993)). “If the answer to any of these questions is affirmative, we have a legislative, not an interpretive rule.” Id. This Court has applied the American Mining test in holding that a BOP Program Statement is an interpretive rule that does not require notice and comment procedures. See Kotz v. Lappin, 515 F. Supp. 2d 143, 151 (D.D.C. 2007) (Urbina, J.). Applying this test here demonstrates that the CMU Institution Supplements likewise do not trigger the APA’s requirement for notice and comment rulemaking. First American Mining Factor. There is clear legislative authority for the creation of the CMUs. American Mining, 995 F.2d at 1112. “[T]he control and management of Federal penal and correctional institutions . . . shall be vested in the Attorney General . . . .” 18 U.S.C. § 4001(b)(1). And under the direction of the Attorney General, the BOP is granted broad authority
40

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 52 of 55
and discretion for the management and regulation of all federal penal and correctional institutions. Id. § 4042(a)(1). Prisoners are committed to the custody of the Bureau, and the agency is expressly authorized to designate the inmate’s placement of confinement. Id. § 3621(a) and (b). In addition, the Bureau is charged with determining the proper security classification for federal prisoners based on the nature of their offenses. Id. § 4081. In addition to its statutory authority to create CMUs, the Bureau also has ample regulatory authority to implement the restrictions on the communications employed in the CMUs. See, e.g., 28 C.F.R. § 540.12(a) (authorizing wardens to establish and exercise control to protect individuals, security, discipline, and good order of institution); id. § 540.14(b)-(c) (authorizing inspection of mail); id. § 540.102 (authoring monitoring of telephone communication); id. § 540.40 (authorizing restrictions and limits on inmate visiting). Thus, the agency did not need to issue a legislative rule to establish the CMUs, because it already had the legislative and regulatory authority to do so.
Second American Mining Factor. The Institution Supplements meet the additional test of a non-legislative rule because they were not published in the Federal Register. American Mining, 995 F.2d at 1112.
Third American Mining Factor. This factor requires the court to ask whether the “agency has explicitly invoked its general legislative authority.” American Mining, 995 F.2d at 1112. The CMU Institution Supplements do not invoke any general legislative authority. See generally Terre Haute CMU Institution Supplement; 3/20/08 and 11/13/08 Marion CMU Institution Supplement.
Fourth American Mining Factor. The last factor asks “whether the rule effectively amends a prior legislative rule.” American Mining Congress, 995 F.2d at 1112. In
41

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 53 of 55
implementing the CMUs, the agency did not amend any of its legislative rules, as the CMUs operate within the boundaries of preexisting regulations. Indeed, they provide more time for visiting and telephone use than is required by these substantive rules. Compare Notice to Inmates (Social Telephone and Social Visiting) (providing 120 telephone minutes per month and 8 hours of visitation) with 28 C.F.R. § 540.100 and § 540.101(d) (requiring a minimum of one monthly three-minute phone call); id. § 540.43 (warden “shall allow each inmate a minimum of four hours visiting time per month”).
While Plaintiffs appear to allege that the operation of the CMUs are inconsistent with the agency’s regulations regarding weekend visitation, see Compl. ¶¶ 47-48, 280, that is not the case. “Consistent with available resources, such as space limitations and staff availability, and with concerns of institution security, the Warden may limit the visiting period.” 28 C.F.R. § 540.42(b). In particular, “[w]ith respect to weekend visits, for example, some or all inmates and visitors may be limited to visiting on Saturday or on Sunday.” Id. Effective January 3, 2010, the inmates in the CMUs are entitled to visits on Sunday through Friday. See Notice to Inmates (Social Telephone and Social Visiting).
Nor is the establishment of the CMUs “inconsistent with existing regulations regarding control units, administrative detention, [and] disciplinary segregation.” Compl. ¶ 280. These rules do not govern the CMUs. Similarly, Plaintiffs are mistaken to the extent they allege that notice and comment rulemaking was required because of the Bureau’s Program Statement on telephone use, which provides that inmates in the general population are typically allowed 300 minutes of telephone time per month. Compl. ¶ 63. This Program Statement is an interpretive rule and therefore may take effect and be amended without following notice and comment procedures. See Reno, 515 U.S. at 61. American Mining focuses on whether an agency has
42

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 54 of 55
amended a prior legislative rule, not an interpretive rule such as a Program Statement. American Mining, 995 F.2d at 1112.
Because all of the American Mining factors demonstrate that the CMU Institution Supplements are not legislative rules, notice and comment rulemaking was not required. 5 U.S.C. § 553(b)(3)(A). As noted, this Court applied the same factors to conclude that a “[BOP] Program Statement is an interpretive rule, and the APA, including its notice and comment requirements, does not apply to it.” Kotz, 515 F. Supp. 2d at 151 (Urbina, J.). The same test should control the outcome here with respect to the Institution Supplements. Accordingly, Plaintiffs have failed to state a claim that notice and comment rulemaking was required. It was not.
B. Plaintiffs’ Claims for Notice and Comment Rulemaking Are Now Moot. As set forth above, on April 6, 2010, the agency published a proposed rule seeking to describe and codify the procedures governing the CMUs. Proposed CMU Rule, 75 Fed. Reg. 17324. And as of June 7, 2010, the comment period closed. Id. at 17324. Thus, Plaintiffs’ demand for notice and an opportunity to comment on a proposed CMU rule have been satisfied and are now moot. Accordingly, the Court should dismiss the APA claim under Rule 12(b)(1) for lack of jurisdiction as well as under Rule 12(b)(6) for failing to state a claim.7
7 In the event the Court does not grant Defendants’ Motion to Dismiss in full, a motion for transfer may be appropriate under 28 U.S.C. § 1404(a). See Huskey v. Quinlan, 785 F. Supp. 4, 6-7 (D.C. Cir. 1992) (holding that “because the implementation of [national] policy is at issue, and because that implementation took place at the Marion facility in Illinois, venue is more appropriately laid in Illinois” under § 1404(a)).
43

Case 1:10-cv-00539-RMU Document 19 Filed 07/21/10 Page 55 of 55
CONCLUSION For the aforementioned reasons, Defendants respectfully request that the Court grant their Motion To Dismiss all of Plaintiffs’ and Family Plaintiffs’ claims with prejudice.

Dated: July 21, 2010

Respectfully submitted,
TONY WEST Assistant Attorney General
RONALD C. MACHEN JR. United States Attorney
VINCENT M. GARVEY Deputy Branch Director Federal Programs Branch
________/s/_______________ NICHOLAS CARTIER (D.C. Bar # 495850) Trial Attorney U.S. Department of Justice Civil Division/Federal Programs Mail: P.O. Box 883 Washington, D.C. 20044 Street: 20 Massachusetts Ave., N.W. Room 7224 Washington, DC 20001 Ph: (202) 616-8351 Fax: (202) 616-8470 Email: nicholas.cartier@usdoj.gov
Attorneys for Defendants

44

 
 Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 1 of 83

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

Yassin Muhiddin AREF, et al., )

)

Plaintiffs,

)

)

v.

)

Case No. 1:10-cv-00539-RMU

)

Eric HOLDER, et al.,

)

)

Defendants.

)

______________________________)

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 2 of 83

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT ................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................ 2
SUMMARY OF THE ARGUMENT ............................................................................................ 6
ARGUMENT................................................................................................................................. 7
STANDARD OF REVIEW ............................................................................................... 7
I. PLAINTIFFS HAVE ADEQUATELY PLED A VIOLATION OF THE DUE PROCESS CLAUSE BASED ON THEIR DESIGNATION TO THE CMU WITHOUT ANY PROCEDURAL PROTECTIONS............................................................. 8
A. Given the Atypical, Harsh and Indefinitely-Imposed Restrictions Experienced There, Plaintiffs Have a Liberty Interest in Avoiding Designation to the CMU............................... 9
i. Conditions and Policies at the CMU Are Considerably Harsher than Those in Administrative Segregation, Both in Nature and Duration....................... 10
1. Nature of the Deprivations................................... 10
2. Duration of CMU Confinement ........................... 13
3. Plaintiffs’ Sentences............................................. 15
ii. Defendants Fail To Establish the Lack of a Liberty Interest.............................................................................. 16
B. Plaintiffs Have Been Denied Any Procedural Protections Around their Original and Ongoing Designation to the CMU ............................................................................................ 20
II. PLAINTIFFS HAVE ADEQUATELY PLED VIOLATION OF THE FIRST AND FIFTH AMENDMENT BASED ON THEIR DISCRIMINATORY AND RETALIATORY PLACEMENT IN THE CMU................................................................................................ 25
A. Plaintiffs Jones, Twitty, and McGowan Were Designated to the CMU in Retaliation For Protected First Amendment Activity. ....................................................................................... 26
i. Royal Jones ...................................................................... 28
ii. Avon Twitty ..................................................................... 30
iii. Daniel McGowan ............................................................. 31

i

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 3 of 83

TABLE OF CONTENTS (continued)

Page

B. Mr. Jayyousi, Mr. Aref, Mr. Twitty, and Mr. Jones Were Designated to the CMU for Discriminatory Reasons .................. 33
i. Kifah Jayyousi ................................................................. 35
ii. Yassin Aref ...................................................................... 36
iii. Royal Jones and Avon Twitty.......................................... 37
III. PLAINTIFFS HAVE ADEQUATELY PLED VIOLATIONS OF THE FIRST AND FIFTH AMENDMENTS BASED ON RESTRICTION OF THEIR ABILITY TO COMMUNICATE WITH FAMILY WITHOUT REASONABLE RELATIONSHIP TO LEGITIMATE PENOLOGICAL INTERESTS................................ 38
A. Prisoners and Their Family Members Retain a Limited Right to Freedom of Association and Family Integrity under the First and Fifth Amendments ........................................ 38
B. The CMU Restrictions, and Their Impact on Plaintiffs’ Constitutional Rights, Cannot Be Justified Under Turner ........... 45
i. First Turner Factor ........................................................... 45
ii. Second Turner Factor....................................................... 49
iii. Third Turner Factor.......................................................... 50
iv. Fourth Turner Factor........................................................ 51
IV. PLAINTIFFS HAVE ADEQUATELY PLED CRUEL AND UNUSUAL PUNISHMENT ARISING FROM THE HARSH CMU RESTRICTIONS ........................................................................... 52
A. CMU Designation Deprives Plaintiffs of the Essential Human Need for Meaningful Contact with Their Families. ........ 52
B. CMU Designation Involves Unnecessary and Wanton Infliction of Pain .......................................................................... 53
C. CMU Designation Imposes Arbitrary or Disproportionate Punishment................................................................................... 55
D. Evolving Standards of Decency................................................... 58
E. Plaintiffs Have Adequately Pled Deliberate Indifference by Defendants ................................................................................... 61

ii

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 4 of 83

TABLE OF CONTENTS (continued)

Page

V. PLAINTIFFS HAVE ADEQUATELY PLED A VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT, AND RECENT EFFORTS TO CORRECT THIS VIOLATION ARE INCOMPLETE. ....................................................................................... 61
A. The CMU Institution Supplements Consist of Substantive Rules that Must Be Promulgated through Notice and Comment Rulemaking ................................................................. 62
B. Because the BOP Still Has Not Finalized and Published a Regulation Providing for the CMUs, Plaintiffs’ APA Claim Is Not Moot. ................................................................................. 67
VI. ROYAL JONES HAS STANDING TO SUE DEFENDANTS BECAUSE HE FACES A REAL AND IMMEDIATE THREAT OF CMU REDESIGNATION ................................................................. 68
CONCLUSION................................................................................................................ 70

iii

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 5 of 83

TABLE OF AUTHORITIES

Page(s)

Cases: Aka v. Wash. Hospital Ctr., 156 F.3d 1284 (D.C. Cir. 1998) ........................................................36 Ali v. Gibson, 483 F. Supp. 1102 (D.V.I. 1980), aff’d in part and rev’d in part, 631 F.2d
1126 (3rd Cir. 1980) ................................................................................................................41 Almahdi v. Ashcroft, 310 Fed. Appx. 519 (3rd Cir. 2009).............................................................42 Amatelv. Reno, 156 F.3d 192 (D.C. Cir. 1998) .............................................................................48 American Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106 (D.C. Cir.
1993) ............................................................................................................................ 64, 66-67 Appalachian Power Co. v. Environ. Protection Agency, 208 F.3d 1015 (D.C. Cir. 2000) ...........64 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ............................................................................ 8, 26-28 Atherton v. D.C. Office of the Mayor, 567 F.3d 672 (D.C. Cir. 2009) ............................................7 Austin v. Hopper, 15 F. Supp. 2d 1210 (M.D. Ala 1998) ..............................................................41 Banks v. York, 515 F. Supp. 2d 89 (D.D.C. 2007)...................................................................26, 31 Bazzetta v. McGinnis, 148 F. Supp. 2d 813 (E.D. Mich. 2001).....................................................56 Bazzetta v. McGinnis, 286 F.3d 311 (6th Cir. 2002), rev’d on other grounds, Overton v.
Bazzetta, 539 U.S. 126 (2003) ...........................................................................................12, 40 Beard v. Banks, 548 U.S. 521 (2006) ............................................................................................47 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .....................................................................8 Benzel v. Grammer, 869 F.2d 1105 (8th Cir. 1989) ......................................................................43 Biggerstaff v. FCC, 551 F.3d 178 (D.C. Cir. 2007)................................................................. 68-69 Black v. Warden, 467 F.2d 202 (10th Cir. 1972)...........................................................................55 Block v. Rutherford, 468 U.S. 576 (1984) ...............................................................................18, 42

i

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 6 of 83

TABLE OF AUTHORITIES (continued)

Page(s)

Boudin v. Thomas, 533 F. Supp. 786 (S.D.N.Y. 1982), appeal dismissed and remanded, 697 F.2d 288 (2d Cir. 1982).....................................................................................................39

Brandon v. District of Columbia Board of Parole, 823 F.2d 644 (D.C. Cir. 1997) ......................33

Brown v. Plaut, 131 F.3d 163 (D.C. Cir. 1997).......................................................................10, 14

Calderon v. State of Connecticut Department of Corrections, No. 04CV1562, 2006 U.S. Dist. LEXIS 81303 (D. Conn. Sept. 1, 2006) ..........................................................................41

Caldwell v. Hammonds, 53 F. Supp. 2d 1 (D.D.C. 1999)..............................................................17

Campbell-El v. District of Columbia, 881 F. Supp. 42 (D.D.C. 1995)..........................................54

Caraballo Sandoval v. Onsted, 35 F.3d 521 (11th Cir. 1994) .......................................................40

Chandler v. D.C. Department of Corrections, 145 F.3d 1355 (D.C. Cir. 1998) .....................53, 61

Chao v. Ballista, 630 F. Supp. 2d 170 (D. Mass. 2009) ................................................................27

Chapman v. Pickett, 586 F.2d 22 (7th Cir. 1978) ....................................................................56, 57

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .........................................................................68

Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) …………………………………….33

Coker v. Georgia, 433 U.S. 584 (1977).........................................................................................60

Colon v. Howard, 215 F.3d 227 (2d Cir. 2000).............................................................................14

County of Los Angeles v. Davis, 440 U.S. 625 (1979)...................................................................11

Dawson v. Kendrick, 527 F. Supp. 1252 (S.D.W.V. 1981) ...........................................................55

Delaney v. District of Columbia, 659 F. Supp. 2d 185 (D.D.C. 2009)..........................................34

Estelle v. Gamble, 429 U.S. 97 (1976) .................................................................................... 58-59

Farmer v. Brennan, 511 U.S. 825 (1994) ......................................................................................61

Fulwood v. Clemmer, 206 F. Supp. 370 (D.D.C. 1962) ................................................................56

Furtado v. Bishop, 604 F.2d 80 (1st Cir. 1979).............................................................................55 ii

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 7 of 83

TABLE OF AUTHORITIES (continued)

Page(s)

Garcia v. District of Columbia, 56 F. Supp. 2d 1 (D.D.C. 1998)............................................27, 29 General Electric Co. v. EPA, 290 F.3d 377 (D.C. Cir. 2002) .......................................................66 Graham v. Florida, 130 S. Ct. 2011 (2010)...................................................................................58 Gregg v.Georgia, 428 U.S. 153 (1976) .........................................................................................58 Greybuffalo v. Kingston, 581 F. Supp. 2d 1034 (W.D.Wis. 2007)................................................47 Hardwick v. Ault, 447 F. Supp. 116 (M.D. Geo 1978) ............................................................16, 56 Hartman v. Moore, 547 U.S. 250 (2006).......................................................................................26 Hatch v. District of Columbia, 184 F.3d 846 (D.C. Cir. 1999) ..........................9, 10, 12-15, 19-20 Heartland Regional Medical Center v. Sebelius, 566 F.3d 193 (D.C. Cir. 2009) .........................62 Herbert v. National Academy of Sciences, 974 F.2d 192 (D.C. Cir. 1992) .....................................8 Hewitt v. Helms, 459 U.S. 460 (1983) ...........................................................................................17 Inmates of DC Jail v. Jackson, 416 F. Supp. 119 (D.D.C. 1975) ..............................................5, 54 Inmates of Occoquan v. Barry, 844 F.2d 828 (D.C. Cir. 1998).....................................................52 Jones v. Yanta, 610 F. Supp. 2d 34 (D.D.C. 2009)........................................................................18 Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996) ...............................................................................14 Kentucky Department of Corrections v. Thompson, 490 U.S. 454 (1989) ....................................18 King v. Federal Bureau of Prisons, 415 F.3d 634 (7th Cir 2005) .................................................47 King v. Frank, 328 F. Supp. 2d 940 (W.D. Wisc. 2004) ...............................................................41 Kotz v. Lappin, 515 F. Supp. 2d 143 (D.D.C. 2007)......................................................................67 Laaman v. Helgemoe, 437 F. Supp. 269 (D.N.H. 1977)................................................................55 Leslie v. Doyle, 868 F. Supp. 1039 (N.D. Ill. 1994) ......................................................................56

iii

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 8 of 83

TABLE OF AUTHORITIES (continued)

Page(s)

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ....................................................................68

MacCool v. Schriro, 280 Fed. Appx. 663 (9th Cir. 2008) .............................................................43

Mathews v. Eldridge, 424 U.S. 319 (1976)....................................................................... 21, 23- 25

Meachum v. Fano, 427 U.S. 215 (1976)........................................................................................16

Meyer v. Nebraska, 262 U.S. 390 (1923) ......................................................................................43

M.L.B. v. S.L.J., 519 U.S. 102 (1996) ............................................................................................40

Moore v. East Cleveland, 431 U.S. 414 (1977) .............................................................................44

Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001) ............................................................................49

Overton v. Bazzetta, 539 U.S. 126 (2003) .............................................................18, 40, 42, 54, 56

Owens-El v. Robinson, 442 F. Supp. 1368 (W.D. Pa. 1978) .........................................................43

Paralyzed Veterans of America v. D.C. Arena, L.P., 117 F.3d 579 (D.C. Cir. 1997)...................65

Pell v. Procunier, 417 U.S. 817 (1974) ............................................................................. 38-40, 45

Pennell v.City of San Jose, 485 U.S. 1 (1988))..............................................................................68

Perez v. Federal Bureau of Prisons, 229 Fed. Appx. 55 (3d Cir. 2007) .......................................58

Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979) ..............................................33

Philips v. Bell, 365 Fed. Appx. 133 (10th Cir. 2010) ....................................................................27

Poole v. Michigan Reformatory, No. 10-CV-378, 2010 U.S. Dist. LEXIS 75222, (W.D. Mich. Jul. 26, 2010) ................................................................................................44, 47

Pope v. Hightower, 101 F.3d 1382 (11th Cir. 1996) .....................................................................43

Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001)..........................................................48

Pryor-El v. Kelly, 892 F. Supp. 261 (D.D.C. 1995).................................................................28, 33

Rauser v. Horn, 241 F.3d 330 (3rd Cir. 2001)...............................................................................27

iv

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 9 of 83

TABLE OF AUTHORITIES (continued)

Page(s)

Rhodes v. Chapmen, 452 U.S. 337 (1981)..............................................................52-53, 56-57, 59

Ricco v. Conner, 146 Fed. Appx. 249 (10th Cir. 2005)...........................................................56, 58

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ...............................................................................43

Robinson v. Palmer, 841 F.2d 1151 (D.C. Cir. 1988) ...................................................................18

Saenz v. McGinnis, No. 98-2022, 1999 U.S. App. LEXIS 23246 (6th Cir., Sept. 17, 1999) ........43

Saleem v. Helman, No. 96-2502, 1997 U.S. App. LEXIS 22572 (7th Cir. Aug. 21, 1997) ..........58

Sandin v. Conner, 515 U.S. 472 (1995)............................................................................... 9, 14-20

Sattar v. Gonzales, No. 07CV02698, 2008 U.S. Dist. LEXIS 112428 (D. Colo., Nov. 3, 2008) ..........................................................................................................24

Searcy v. U.S., 668 F. Supp. 2d 113 (D.D.C. 2009) ..........................................................18, 39, 42

Sprint v. FCC, 315 F.3d 369 (D.C. Cir. 2003)...............................................................................64

Stanley v. Illinois, 405 U.S. 645 (1972).........................................................................................52

Steinbach v. Branson, No. 1:05CV101, 2007 U.S. Dist. LEXIS 75156 at *19 (D.N.D. Oct. 9, 2007) ........................................................................................................40, 47

Syncor Intern. Corp. v. Shalala, 127 F.3d 90 (D.C. Cir. 1997)...............................................64, 67

Thornburgh v. Abbott, 490 U.S. 401 (1989) ............................................................................39, 48

Towle v. Commissioner of New Hampshire Department of Corrections, No. 06-CV-464, 2007 U.S. Dist. LEXIS 27905 (D.N.H. April 16, 2007)..........................................................41

Turner v. Safley, 482 U.S. 78 (1987) ................................................................................. 38, 48-51

Valdez v. Rosenthal, 302 F.3d 1039 (9th Cir. 2002)................................................................42, 43

Washington v. Davis, 426 U.S. 229 (1976)..............................................................................34, 38

Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994) .......................................................................42

Weems v. United States, 217 U.S. 349 (1910) ...............................................................................59

v

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 10 of 83

TABLE OF AUTHORITIES (continued)

Page(s)

Whitmore v. Arkansas, 495 U.S. 149 (1990) ........................................................................... 70-71

Wilkinson v. Austin, 545 U.S. 209 (2005)............................................................................9, 18, 20

Williams v. Donald, No.01CV292, 2007 U.S. Dist. LEXIS 89079 (M.D. Geo Dec. 4, 2007) .......................................................................................................................................48

Williams v. Fountain, 77 F.3d 372 (11th Cir. 1996)......................................................................14

Williams v. Frank, 06-CV-1051, 2007 U.S. Dist. LEXIS 78687 (E.D. Wis. Oct. 23, 2007) ........56

Wilson v. Seiter, 501 U.S. 294 (1986)............................................................................................52

Wirsching v. Colorado, 360 F.3d 1191 (10th Cir. 2004)...............................................................43

Women Prisoners of the D.C. Department of Corrections v. District of Columbia, 899 F. Supp. 659 (D.D.C. 1995) aff’d in part, rev’d in part, 93 F.3d 910 (D.C. Cir. 1996) ..............54

Statutes, Regulations and Rules: 5 U.S.C. § 551................................................................................................................................62 5 U.S.C. § 552................................................................................................................................62 5 U.S.C. § 553................................................................................................................................62 18 U.S.C. § 3621............................................................................................................................68 28 C.F.R. § 540.43 .........................................................................................................................11 28 C.F.R. § 540.50 ................................................................................................................... 11-12 28 C.F.R. § 540.51 .........................................................................................................................20 28 C.F.R. § 541.22 ...................................................................................................................11, 15 28 C.F.R. § 542 ..............................................................................................................................24 Proposed C.F.R. § 540.205 ............................................................................................................11 Federal Rule of Civil Procedure 12 .................................................................................................7
vi

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 11 of 83

TABLE OF AUTHORITIES (continued)

Page(s)

Limited Communication for Terrorist Inmates, 71 Fed. Reg. 16,520 (proposed Apr. 3, 2006) ….……………………………………………………….…….63, 64, 68
Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Sept. 30, 1993) ……………………………..…63
Other Authorities:
Eugene Zemans & Ruth Shonle Cavan, Marital Relationships of Prisoners, 49 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 51 (1958) ..............................................................................60

vii

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 12 of 83
PRELIMINARY STATEMENT This case arises from the Federal Bureau of Prisons’ (BOPs’) secret establishment, in 2006 and 2008, of two small and experimental prison units in the Midwest. These units, known as “Communications Management Units,” or “CMUs,” are explicitly designed to isolate prisoners from the rest of the prison population and the outside world. Plaintiffs are prisoners with innocuous disciplinary histories and no record of management or communications-related problems. Yet, they have been indefinitely designated to the CMUs, and there are subjected to communications restrictions that are harsher than those found in supermaximum security confinement. Plaintiffs have never been told why they were designated to the CMU. And more importantly still, they have never been given a chance to demonstrate that they do not belong there. This case presents their first chance to do so. Rather than address Plaintiffs’ individualized allegations about the deeply troubling circumstances under which they were designated to the CMU, Defendants move to dismiss their claims by relying on broad and alarmist abstractions. “There have been cases,” they caution, “of imprisoned terrorists communicating with their followers regarding future terrorist activity.” Motion to Dismiss (“MTD”) at 25. The BOP, they assert, has a “legitimate penological interest in effectively monitoring the communications of high-risk inmates.” Id. at 2. Neither of these statements is controversial, and nowhere do Plaintiffs suggest otherwise. But in issuing their blanket admonitions, Defendants entirely evade – and attempt to obscure – the nature and substance of Plaintiffs’ actual claims. As will be explained in the pages that follow, Plaintiffs present no unique security concerns. They are all low- and medium-security prisoners. They have no history of communications-related infractions that would justify their CMU designations. They have never been flagged as management problems at other facilities.
1

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 13 of 83
Two of them were convicted of crimes entirely unrelated to terrorism. There are, meanwhile, thousands of “high-risk” and terrorist prisoners within the BOP. Yet Plaintiffs, who are litigious, hold politically unpopular views, or are devout Muslims, were designated to the CMUs.
Defendants, in short, move to dismiss the wrong case. Plaintiffs do not argue that the government may not monitor the communications of high-risk prisoners consistent with Constitutional principles. And they do not contest that the BOP has broad discretion in realizing that goal. Rather, Plaintiffs assert that the draconian communications restrictions to which they are being subjected do not fulfill this purpose. And Defendants’ conspicuous failure to provide for meaningful explanation or review of CMU placement has resulted in designations not based on security need, but on illicit rationales. Defendants’ repeated and strained attempts to avoid these troubling allegations result in a motion that never departs from the general, and as a result completely fails to address Plaintiffs’ well-pled and specific allegations.
Plaintiffs request an oral hearing.
STATEMENT OF FACTS Plaintiffs are low- and medium-security prisoners who have been designated to CMUs and, as a result, have seen their ability to maintain meaningful relationships with spouses, children, and other loved ones deteriorate needlessly and cruelly. Complaint (“Compl.”) at ¶ 9. Two “Family Plaintiffs” join this lawsuit to challenge the CMUs’ unjustifiable interference with their ability to maintain relationships with their incarcerated loved ones. Id. at ¶ 10. The BOP has broadly described who may be designated to the CMUs as those convicted of terrorism, sex offenders who repeatedly contact their victims, those who abuse communication methods, and those who make threats against judicial officers. Id. at ¶ 33. Though their CMU designation implies that Plaintiffs are “problem” prisoners, the opposite is true. Not a single
2

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 14 of 83
Plaintiff has received discipline for any communications-related infraction within the last decade, nor any major disciplinary offenses. Id. at ¶ 5. Two Plaintiffs (Daniel McGowan and Yassin Aref) have completely clean disciplinary histories. Id. Prior to their CMU designations, each Plaintiff who was incarcerated in a BOP prison facility was a general population prisoner, and received full telephone and visitation privileges without incident. Id. at ¶¶ 109, 129, 156-57, 185.
Even though literally thousands of BOP prisoners fit the broad criteria for CMU designation, id. at ¶ 34, two Plaintiffs are categorically unsuited for CMU placement. Royal Jones and Avon Twitty were convicted of solicitation of bank robbery and murder, respectively. Id. at ¶¶ 17, 20. Neither conviction had any relation to terrorism, and each man has spent decades in BOP facilities without any major disciplinary incident. Id. at ¶¶ 127, 130, 184, 18687. But like two-thirds of the CMU population, both men are Muslim. Moreover, they are both litigious. Id. at ¶¶ 97, 99, 126, 188.
The remaining Plaintiffs, though convicted of crimes related to terrorism, have been classified by the BOP as low security prisoners. Id. at ¶¶ 16-18, 210. Their offense conduct alone cannot explain their designation to the CMU, yet their disciplinary histories are either nonexistent or innocuous. In short, they present no unique security concerns. Mr. Aref, for example, was convicted of material support for terrorism, but his conviction arose from witnessing a loan transaction in his role as an Imam, and the government explicitly acknowledged at his trial that it was not seeking to establish or prove that Mr. Aref was a terrorist. Id. at ¶ 107. His institutional record is spotless. Id. at ¶ 110.
Although unsubstantiated, CMU designation is potentially permanent. Plaintiffs have languished between 24 and 39 months at the CMUs, id. at ¶¶ 160, 113, and have been given no
3

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 15 of 83
criteria for release into general population. Id. at ¶ 80, 81. Mr. Aref, for example, was initially told that he must wait 18 months before he could request a discretionary transfer from the Terre Haute CMU. Id. at ¶¶ 85-86. After 22 months of clean conduct, Mr. Aref’s case manager recommended his transfer out of the CMU. Id. at ¶ 115. Instead, he was moved to the CMU at USP Marion, and told his must wait 18 months to be eligible for another transfer. Id. at ¶ 11617. Kifah Jayyousi, meanwhile, has been told he will serve his entire sentence – over 12 years – at the CMU. Id. at ¶¶ 205, 214. Not a single Plaintiff has been able to discover what underlying allegations led to his CMU designation, or to challenge that designation. Id. at ¶ 78. Each expects to serve his entire sentence at the CMU as a result. Id. at ¶ 80.
In an agency normally committed to documentation, Plaintiffs were designated to the CMU without paper trail. Id. at ¶ 73. The relevant documentation that does exist (including progress reports and disciplinary records) contradicts the notion that Plaintiffs present security concerns or management problems. Id. at ¶¶ 110, 112, 129, 159, 186, 208-210. The BOP’s terse one-paragraph explanation for each Plaintiff’s designation to the CMU either exaggerates and mischaracterizes their offense conduct, or lodges allegations that are so vague and generic as to be meaningless. Id. at Exh. E; ¶¶ 113, 132, 160, 189, 212.
To avoid the process, documentation, and review that adhere to BOP designations to special or restrictive units, and might correct these mistakes, the CMUs are euphemistically described as “self-contained general population units.” Id. at ¶ 2. But unlike all other general population units (and even most segregation units), the CMUs permanently impose severe restrictions on prisoners’ access to telephone calls, visits, and prison programming. Id.
BOP facilities usually allow physical contact unless there is clear and convincing evidence that such contact would jeopardize the security of the institution. Id. at ¶ 38. The
4

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 16 of 83
CMUs, by contrast, are the only units within the federal system that impose, without process, a blanket and permanent ban on all physical contact during visitation. Id. at ¶ 37. The number and duration of visits are also heavily circumscribed at the CMU. Recognizing the important role of visits in rehabilitation, morale, and maintenance of family integrity, the BOP generally places no cap on the number or duration of visits prisoners may receive (within limits posed by visiting hours and physical capacity). Id. at ¶ 47. Until January 2010, by contrast, Plaintiffs received only a single four-hour visit (or two two-hour visits) per month. Id. at ¶ 52. The BOP voluntarily increased this to two four-hour visits per month in January 2010. Id. at ¶ 57. Notably, prisoners at the Administrative Maximum facility USP Florence, the only “supermaximum” facility in the federal system, receive four times as many visits. Id. at ¶ 61.
The BOP also recognizes the vital role that telephone calls play in maintenance of family integrity, and thus give most prisoners 300 minutes of calls per month. Id. at ¶ 63. For years, all CMU prisoners, including Plaintiffs, were permitted only one 15-minute telephone call per week. Id. at ¶ 64. In January 2010, Defendants voluntarily increased telephone access to two weekly 15-minute calls. Id. at ¶¶ 53-55, 65. Between them, Plaintiffs have 18 children, ranging in age from 4 to 35. Id. at ¶¶ 103, 126, 183, 198. These unparalleled restrictions on access to visits and telephone calls have made it exceedingly difficult, and in some cases impossible, for Plaintiffs to maintain relationships with these children, and with other family members. Id. at ¶ 67.
Even the creation of the CMUs deviated from the norm. The BOP itself initially recognized that the CMUs could be established only in accordance with the notice and comment rulemaking procedures set forth in the Administrative Procedure Act. Prior to opening the two CMUs and issuing the associated Institution Supplements, the BOP began a notice and comment proceeding proposing a rule aimed at restricting the communications of prisoners charged with
5

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 17 of 83
or convicted of terrorist offenses. Id. at ¶ 235. After civil rights and liberties groups criticized the proposed rule, the BOP abandoned this rulemaking process and never took final action on its proposed rule. Id. at ¶¶ 237, 238. Instead, less than six months later, it quietly opened the Terre Haute CMU and issued the corresponding Institution Supplement without notice and comment proceedings. Id. at ¶ 239. Fifteen months later it opened the CMU at USP Marion in the same manner. Id. at ¶ 29.
SUMMARY OF THE ARGUMENT The CMUs impose unparalleled and permanent restrictions on Plaintiffs’ ability to communicate with the outside world – to maintain relationships with family, to remain in meaningful contact with loved ones and the community, and to foster crucial familial bonds through physical contact. These limitations are far more restrictive than even those faced by maximum security prisoners. And yet Plaintiffs, who are low- or medium-security prisoners, have been indefinitely designated to the CMU without any meaningful procedural protections. They have been unable to contest their designations, learn of the reasons for those designations, or show that they do not belong in the CMU. As demonstrated in Point I, these facts state a claim that Plaintiffs have been denied their right to procedural due process. This lack of process has predictably created a situation ripe for abuse. Plaintiffs have no history of communications infractions – or any serious disciplinary history – that would warrant such unusual restrictions. But most Plaintiffs, like most CMU prisoners, are Muslim; others are litigious, and some hold politically unpopular views. As a result, Plaintiffs were placed in the CMU not because they pose any particular security risk, but in retaliation for the exercise of their protected First Amendment rights and due to religious discrimination. As such, they state a
6

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 18 of 83
plausible claim that their CMU designations arise from illicit rationales, and thus offend the equal protection clause and the First Amendment (Point II).
Where there is no plausible non-discriminatory or non-retaliatory rationale for their CMU designations, and where Plaintiffs’ communication with the outside world could be successfully and easily monitored without cruel restrictions, there is simply no justifiable penological purpose for subjecting them to a ban on contact visits and such limited access to calls and visits. These restrictions have destroyed – and continue to destroy – Plaintiffs’ ability to maintain relationships with their children and other loved ones. As such, Plaintiffs have plausibly alleged free association and substantive due process claims (Point III). Given their effect on Plaintiffs and their families, and taken in the aggregate, the conditions also state a claim under the Eighth Amendment (Point IV).
Just as policies and procedures at the CMUs lack transparency, so too did their establishment. While the BOP initially gestured at opening its plans to public scrutiny, it abandoned those efforts and quietly established the CMUs. Because the units are unprecedented, the BOP is required to complete the notice and comment rulemaking process mandated by the Administrative Procedures Act (Point V). To date it has failed to do so.
ARGUMENT STANDARD OF REVIEW On a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, the Court must “‘treat the complaint’s factual allegations as true . . . and must grant [Plaintiffs] the benefit of all inferences that can be derived from the facts alleged.’” Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 677 (D.C. Cir. 2009) (citation omitted). A court may not dismiss so long as the pleadings “suggest a ‘plausible’ scenario” that shows that
7

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 19 of 83
the pleader is entitled to relief. Id. at 681. A court may not, for example, grant a motion to dismiss for failure to state a claim “‘even if it strikes a savvy judge that . . . recovery is very remote and unlikely.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Instead, a claim “has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
In considering a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, the court may, where necessary, consider the Complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts. Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992). I. PLAINTIFFS HAVE ADEQUATELY PLED A VIOLATION OF THE DUE
PROCESS CLAUSE BASED ON THEIR DESIGNATION TO THE CMU WITHOUT ANY PROCEDURAL PROTECTIONS. Plaintiffs allege that they were designated to the CMU, and there have been subjected to extraordinary and indefinitely-imposed restrictions, without notice, a hearing, meaningful review of their ongoing placement, information regarding the projected duration of their CMU confinement, or provision of any criteria for release. Compl. ¶ 253. First, the nature and duration of the restrictions to which Plaintiffs are subjected plainly establish a liberty interest in avoiding CMU designation. And second, because a liberty interest is involved, the lack of any procedural protections associated with these designations states a claim for violation of Plaintiffs’ right to due process. As such, Defendants’ motion to dismiss Plaintiffs’ first cause of action must be denied.
8

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 20 of 83
A. Given the Atypical, Harsh and Indefinitely-Imposed Restrictions Experienced There, Plaintiffs Have a Liberty Interest in Avoiding Designation to the CMU.
The government creates a liberty interest protected by the Fifth Amendment’s Due Process Clause when it subjects a prisoner to forms of “restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations omitted). Addressing Sandin’s comparative baseline, the D.C. Circuit has explained that prison conditions are atypical and significant if they are more restrictive than “the most restrictive conditions that prison officials, exercising their administrative authority to ensure institutional safety and good order, routinely impose on inmates serving similar sentences.” Hatch v. District of Columbia, 184 F.3d 846, 847 (D.C. Cir. 1999).
Identifying a liberty interest under Sandin involves three steps. First, a court must examine the nature of the deprivations at issue. Id. at 856. Conditions in administrative segregation serve as the comparative baseline that defines those incidents of prison life that are considered routine and ordinary. Id. The deprivations are considered in the aggregate, rather than individually. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (stating that, “[w]hile any of [the] conditions [at the Ohio State Penitentiary] standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship”) (emphasis supplied). Next, a court must look to the duration of the deprivation. Hatch, 184 F.3d at 856 (citing Sandin, 515 U.S. at 486). And finally, the length of the sentence the prisoner is serving is used to assess atypicality. Id.
9

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 21 of 83
i. Conditions and Policies at the CMU Are Considerably Harsher than Those in Administrative Segregation, Both in Nature and Duration. 1. Nature of the Deprivations
Under Hatch, conditions and procedural protections associated with designation to administrative segregation form the baseline that defines the ordinary incidents of prison life. 184 F.3d at 856. Conditions that fall below this baseline, in other words, trigger a liberty interest. The public record regarding administrative segregation within the Federal Bureau of Prisons, as laid out in the Code of Federal Regulations (“CFR”), shows that communications restrictions there are in fact considerably more favorable than those at the CMU. Moreover, designation to administrative segregation is necessarily limited in duration, and strict and regular procedural protections are mandated.
In conducting this comparison, the Court should be mindful that Sandin’s “complex and fact-specific inquiry into the conditions prisoners face,” Brown v. Plaut, 131 F.3d 163, 170 (D.C. Cir. 1997), is neither possible nor appropriate at this stage of this litigation. The precise nature of conditions in administrative segregation at FCI Terre Haute and USP Marion, for example, will not become apparent until appropriate discovery has been conducted. Rather, what is determinative for purposes of this motion is that Defendants do not and cannot argue that conditions at the CMU are less onerous than those actually imposed in administrative segregation.
This is because taken together, and compared to conditions in administrative segregation, restrictions at the CMU impose unique and unparalleled hardships. For years, all CMU prisoners, including Plaintiffs, were permitted only a single 15-minute phone call per week. Compl. ¶ 64. In the wake of litigation, Defendants increased telephone access to two weekly 15minute phone calls. Id. at ¶¶ 53-55, 65. Because this modest increase was voluntary, and the
10

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 22 of 83

BOP has yet to publish or adopt any formal rule regarding policies and conditions at the CMU, it could decrease phone access at any time.1 Until January 2010, Plaintiffs received only a single four-hour visit (or two two-hour visits) per month. Id. at ¶ 52. Again, the BOP voluntarily increased this to two four-hour visits per month in January 2010, but has indicated its willingness to decrease visitation at any time.2 Id. at ¶ 57. Moreover, the CMU remains the only general population unit in the federal prison system of which Plaintiffs are aware that imposes a blanket, permanent ban on contact visitation. Id. at ¶ 37.
Prior to CMU designation, all Plaintiffs who were previously incarcerated in a BOP prison facility were held in general population and received full telephone and visitation privileges – comprised of 300 minutes of calls per month, and visitation limited only by available general visiting hours and chronic overcrowding, id. at ¶¶ 63, 47 – without incident. Id. at ¶¶ 109, 129, 156-57, 185. Unlike at the CMU, visiting and telephone privileges in administrative segregation are designed to mimic those in general population. The CFR specifies that prisoners in administrative segregation receive “the same general privileges given to inmates in the general population.” 28 C.F.R. § 541.22(d). “Ordinarily, an inmate retains visiting privileges while in detention or segregation status.” 28 C.F.R. § 540.50(c). General regulations also specify that a Warden may limit the length or frequency of visits “only to avoid chronic overcrowding.” 28 C.F.R. § 540.43. Only a prisoner in segregation who has committed “a prohibited act having to

1

Indeed, the BOP has already signaled its willingness to do so. In its recently-proposed rule, the

BOP seeks to limit access to the telephone at the CMU to as little as a single 15-minute call per month.

See Communication Management Units, 75 F.R. 17,324 (proposed Apr. 6, 2010) (to be codified at 28

C.F.R. pt. 540); see also County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (voluntary cessation

of illegal conduct does not deprive a court of the power to consider that conduct if there is a reasonable

expectation that the violation will recur and interim relief or events have not completely and irrevocably

eradicated the effects of the alleged violation).

2

The recently-proposed rule seeks to authorize as little as a single one-hour visit per month for

CMU prisoners. See Proposed C.F.R. § 540.205(a).

11

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 23 of 83
do with visiting guidelines or has otherwise acted in a way that would reasonably indicate that he or she would be a threat to the orderliness or security of the visiting room” will have his or her visitation restricted or disallowed. 28 C.F.R. § 540.50(c). There is no provision in the CFR prohibiting prisoners in administrative segregation from enjoying contact visits. Communications deprivations at the CMU are therefore far harsher than those in administrative segregation. And courts have recognized that such fundamental changes in visitation conditions infringe on a liberty interest protected by due process. See, e.g., Bazzetta v. McGinnis, 286 F.3d 311, 323 (6th Cir. 2002) (harsh restrictions on visitation constitute a “qualitatively greater isolation than is imposed by a prison sentence”), rev’d on other grounds, Overton v. Bazzetta, 539 U.S. 126 (2003).
The Sandin analysis also calls for comparison to “more restrictive conditions at other prisons if it is likely both that inmates serving sentences similar to appellant’s will actually be transferred to such prisons and that once transferred they will actually face such conditions.” Hatch, 184 F.3d at 847 (emphasis supplied). While it is premature to engage in this analysis – again, discovery is necessary before this fact-intensive inquiry is possible – several facts pled by Plaintiffs support the establishment of a liberty interest in light of this element.
First, and most fundamentally, the CMU is unique on its face. Only two CMUs exist in the entire federal prison system and there is no equivalent throughout the rest of the BOP. No other general population prison unit imposes such limited telephone access and a permanent blanket ban on contact visitation. Even prisoners at the “supermaximum” ADX Florence enjoy up to 35 hours of visits a month. Compl. ¶ 61.
Second, it is extremely unlikely that prisoners serving sentences similar to Plaintiffs would be subjected to comparable communications deprivations. After all, Mr. Aref, Mr.
12

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 24 of 83
McGowan, and Mr. Jayyousi are low-security prisoners, while Mr. Jones and Mr. Twitty are medium-security prisoners. Id. at ¶¶ 16-18, 20, 210. While low or medium security prisoners might lose communications privileges for a set term, as discipline for a given infraction, there is simply no factual or regulatory precedent for subjecting them to indefinite and strict communications restrictions. And Plaintiffs’ disciplinary histories are either perfectly clean or minimal, meaning that they (and other prisoners like them) are ineligible for transfer to disciplinary segregation. Id. at ¶¶ 110, 130, 159, 186, 209.
2. Duration of CMU Confinement The Hatch court made it clear that even if the conditions at issue are no more restrictive than those in administrative segregation, a court must still determine whether their duration is “‘atypical’ compared to the length of administrative segregation routinely imposed on similarly situated prisoners.” 184 F.3d at 858. The atypically restrictive nature of the CMU is compounded by the indeterminacy – and apparent permanency – of CMU designation. Mr. Aref and Mr. Twitty have been confined at a CMU for 39 months, id. at ¶¶ 113, 132; Mr. McGowan for 24 months, id. at ¶ 160; and Mr. Jayyousi for 26 months, id. at ¶ 212. Mr. Jayyousi has been explicitly told by his Unit Manager that he will serve the entirety of his 152-month sentence at a CMU. Id. at ¶ 214. No Plaintiff has received any indication that he will be transferred out of the CMU. And while Mr. Jones was returned to general population after spending 21 months at the CMU, his transfer was based not on any review process but rather in exchange for withdrawing a pro se complaint about CMU conditions pending in federal district court. Id. at ¶¶ 195, 197. Moreover, he faces the ongoing threat of redesignation to the CMU. Id. at ¶ 196; see also Section VI, infra. The indeterminacy of confinement at the uniquely-restrictive CMU, the fact that Plaintiffs have been confined there for years, and the threat that they will serve their entire
13

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 25 of 83

sentences there, combine to form an atypical and significant hardship. See, e.g., Colon v.

Howard, 215 F.3d 227, 231-32 (2d Cir. 2000) (305 days in segregated housing unit atypical and

significant); Williams v. Fountain, 77 F.3d 372, 374 n.3 (11th Cir. 1996) (one year in solitary

confinement atypical and significant); Brown v. Plaut, 131 F.3d 163, 165, 172 (D.C. Cir. 1997)

(remand to determine whether ten months in administrative segregation imposes atypical

hardship); Hatch, 184 F.3d at 858 (remand to determine whether 29 weeks of segregation

atypical); Keenan v. Hall, 83 F.3d 1083, 1087-89 (9th Cir. 1996) (remand to determine whether

six months in administrative segregation atypical and significant).

Moreover, CMU designation appears to prolong incarceration. See Sandin, 515 U.S. at

487 (considering whether the State’s action will affect the duration of the sentence in assessing

whether a liberty interest is created). Mr. Twitty was approved for nine months of pre-release

placement in a halfway house, and was eligible to be placed there in April 2010. Compl. ¶ 147.

His pre-release program, however, would not accept him for that entire period because his

assignment to the CMU suggested – falsely – that he was a management problem. Id. As a

result, Mr. Twitty has still not been released, thereby serving a substantial amount of extra time in prison as a result of the stigma associated with his CMU designation.3 Id.

In contrast to CMU designation, the duration of administrative segregation is curtailed as

a matter of policy and practice. Administrative segregation is reserved for a specifically-

enumerated set of circumstances, including holdover status, transfer, new commitments, and

pending a disciplinary hearing or investigation. 28 C.F.R. § 541.22(a). As such, it naturally

expires when, for example, a prisoner is transferred to a new facility, or when a disciplinary

hearing is held. Moreover, the CFR requires that administrative segregation “is to be used only

3

At the time this case was filed, Mr. Twitty had been told he would be transferred to a halfway

house in August 2010. Compl. ¶ 147. Counsel for Plaintiffs put the Court on notice that since the filing,

Mr. Twitty’s release to a halfway house has been further delayed, this time until October 2010.

14

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 26 of 83
for short periods of time except where an inmate needs long-term protection, or where there are exceptional circumstances.” 28 C.F.R. § 541.22(c). No such durational limits exist at the CMU.
Unlike at the CMU, the limited duration of administrative segregation is also guaranteed by strict procedural protections. The Warden must prepare an order detailing the reasons for placing a prisoner in administrative segregation, and a copy must be given to the prisoner within 24 hours of placement. 28 C.F.R. § 541.22(b). A review of administrative segregation status must occur within three work days of the prisoner’s placement, and a hearing and formal review (attended by the prisoner) must occur if a prisoner spends seven continuous days in administrative segregation. 28 C.F.R. § 541.22(c). Cases must be reviewed weekly, and a hearing and review must be formally held, with the prisoner present, every 30 days thereafter. Id. As demonstrated infra, no such protections exist to limit the duration of CMU designation.
3. Plaintiffs’ Sentences The atypicality of deprivations also “depends in part on the length of the sentence the prisoner is serving.” Hatch, 184 F.3d at 856. Prisoners serving exceptionally long sentences, in other words, can expect harsher conditions. The record in this case has not been sufficiently developed to perform a fact-intensive analysis of whether the restrictions to which Plaintiffs are being subjected are “within the range of confinement to be normally expected for one serving [similar sentences].” Sandin, 515 U.S. at 487. And Defendants have not argued as much. At this juncture, though, Plaintiffs have alleged facts that plainly state a claim under this prong. Several Plaintiffs are serving relatively short, determinate sentences. Mr. McGowan, for instance, is serving a seven year sentence, Compl. ¶ 18, Mr. Jones a 94 month sentence, id. at ¶ 20, and Mr. Jayyousi a 12 year and eight month sentence, id. at ¶ 22. In Sandin, the Court determined that 30 days in disciplinary segregation was to be normally expected by someone serving the petitioner’s sentence. Sandin, 515 U.S. at 475, 487. But that sentence was an
15

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 27 of 83

indeterminate term of 30 years to life. Id at 487. Here, Plaintiffs are serving considerably shorter determinate sentences. Yet they have spent years at the CMU. Moreover, CMU restrictions cannot be “normally expected” by any prisoner within the BOP as they are unparalleled in nature and duration.
ii. Defendants Fail To Establish the Lack of a Liberty Interest. Defendants’ effort to persuade this Court that CMU designation does not trigger a liberty interest fails because it relies on inapposite cases, elides Sandin’s “atypical and significant” inquiry, and as such does not explain how or why the conditions to which Plaintiffs have been subjected are consistent with the “ordinary incidents of prison life.” Sandin, 515 U.S. at 484. Defendants first assert, relying on Meachum v. Fano, 427 U.S. 215 (1976), that Plaintiffs’ so-called “transfer” to the CMU is not subject to procedural protections. MTD at 11-12. But Defendants’ characterization of CMU designation as an unremarkable transfer is misleading. In Meachum, appellants were merely moved from one general population setting to another, albeit one that was “more disagreeable.” 427 U.S. at 225.4 Plaintiffs, by contrast, were nominated for and then designated to the CMU. The CMU is a unique, segregated unit that houses only about 70 out of hundreds of thousands of federal prisoners. Compl. ¶¶ 97, 99. Without any hearing whatsoever, it permanently imposes unparalleled restrictions, none of which are co-extensive with either general population or administrative segregation. See Section I(i), supra. Where prisoners are removed to a penal setting that subjects them to deprivations that are unique in character and duration, courts have rejected the state’s attempt to characterize designation to that setting as “a mere relocation” controlled by Meachum. Hardwick v. Ault, 447 F. Supp. 116, 123 (M.D. Geo 1978). Defendants’ effort here is similarly unconvincing, as a

4

Of course, Meachum does not comparatively analyze the conditions to which the transferred

prisoners were subjected, as it predates the establishment of the Sandin “atypical and significant” test.

16

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 28 of 83
blanket ban on contact visits, for example, is unique and not within the “normal limits or range of custody.” Meachum, 427 U.S. at 225.
Defendants also erroneously assert that CMU designation does not constitute punishment or increase the length of incarceration. MTD at 12. First, while the question of whether conditions are punitive was relevant under Hewitt v. Helms, 459 U.S. 460 (1983), that approach was explicitly abandoned by Sandin. 515 U.S. at 483. The distinction is now immaterial. But even if it were relevant, Defendants conspicuously ignore critical facts. First, Plaintiffs have almost entirely clear disciplinary histories, and have no history of communications-related disciplinary infractions (with a single, innocuous exception). See Compl. ¶¶ 110, 130, 159, 186, 209. Second, Plaintiffs were afforded access to contact visits without incident prior to their CMU designations. Id. at ¶ 41. Yet, they have been deprived of normal access to their families and loved ones – including being subjected to a blanket and permanent ban on physical contact – for years. Id. at ¶¶ 113 (Aref: 39 months); 132 (Twitty: 39 months), 160 (McGowan: 24 months); 212 (Jayyousi: 26 months). Third, Defendants have never demonstrated a need for these restrictions. Finally, Plaintiffs expect to serve their entire sentences at the CMU. Under these circumstances, it is difficult to discern what purpose CMU designation serves other than one that is punitive.
Moreover, as Mr. Twitty’s case demonstrates, the stigma associated with CMU designation does in fact increase the length of incarceration. Compl. ¶ 147; see also supra at Section I(i). Clearly, this case does not involve innocuous transfers. It involves the imposition of deprivations that are “dramatically different from those which [Plaintiffs] experienced” in prior facilities, and which carry “a stigma qualitatively different from the stigma attached to imprisonment alone.” Caldwell v. Hammonds, 53 F. Supp. 2d 1, 11 (D.D.C. 1999).
17

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 29 of 83
Next, Defendants attempt to argue that “the challenged restrictions on communication do not implicate a liberty interest under the Constitution.” MTD at 13 (emphasis supplied). They address CMU restrictions on physical contact, visits, and phone calls one by one, and cite to a series of cases that address the freestanding constitutionality of each of those restrictions in isolation. Id. at 13-16. These arguments are also unavailing.
First, Plaintiffs’ procedural due process claim was pled, and is properly analyzed, under the Sandin standard, see Compl. ¶ 253, rather than “under the Constitution” as Defendants erroneously suggest. MTD at 13. Nowhere have Plaintiffs claimed that their rights stem from the Due Process Clause of “its own force.” Sandin, 515 U.S. at 484. Defendants’ attempt to recharacterize Plaintiffs’ claim, and thus invoke a more difficult legal standard, is misleading.
Second, Defendants incorrectly disaggregate the CMU restrictions and address them each in isolation – rather than applying the proper legal analysis that examines those restrictions “taken together.” Wilkinson, 545 U.S. at 224; see also Section I(i), supra.
And finally, the cases upon which Defendants rely shed no light on the present inquiry. They are either not procedural due process cases, see Block v. Rutherford, 468 U.S. 576 (1984) (addressing a substantive due process challenge), Overton v. Bazzetta, 539 U.S. 126 (2003) (addressing substantive due process, First Amendment, and Eighth Amendment challenges), Searcy v. U.S., 668 F. Supp. 2d 113 (D.D.C. 2009) (addressing a First Amendment challenge); or they address bans on visits by a particular visitor after a particular instance of that visitor’s wrongdoing. See Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454 (1989) (involving limited bans on visits by two inmates’ mothers after contraband-related violations), Robinson v. Palmer, 841 F.2d 1151 (D.C. Cir. 1988) (involving ban on visits from a prisoner’s wife after she attempted to smuggle him marijuana), Jones v. Yanta, 610 F. Supp. 2d 34 (D.D.C. 2009)
18

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 30 of 83
(involving ban on jail visits between three family members during a criminal investigation). Not one of these cases sheds light on whether or not the CMU imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” Sandin, 515 U.S. at 484, or whether sweeping restrictions can be imposed on all communication with the outside world, irrespective of wrongdoing, and without due process.
When Defendants do turn to the Sandin analysis, they argue that the loss of contact visits and reduced access to visits and calls at the CMU do not constitute an atypical and significant deprivation because agency rules contemplate similarly harsh restrictions on calls and visitation. See MTD at 18. Again, Defendants misapprehend the relevant analysis. The liberty interest question at stake here is not whether the BOP is ever authorized to restrict communication; rather, as the D.C. Circuit has emphasized: “Properly construed, Sandin’s baseline requires not mere inquiry into the most restrictive conditions prison officials have legal authority to impose for administrative reasons, but a factual determination of the most restrictive conditions prison officials ‘ordinarily’ or ‘routinely’ impose.” Hatch, 184 F.3d at 857 (emphasis added).
As noted supra, Defendants have not argued that conditions at the CMU are similar to those ordinarily and routinely imposed at FCI Terre Haute and USP Marion (particularly in administrative segregation, the comparative baseline identified in Hatch), or anywhere else. Plaintiffs, by contrast, have alleged restrictions that significantly exceed those contemplated by the CFR regarding administrative segregation. Similarly, Defendants have not argued that conditions at other prisons to which prisoners like Plaintiffs are likely be transferred are similar to those at the CMU, and any effort to do so would be premature before discovery. As such, Plaintiffs have stated a claim that must survive Defendants’ motion to dismiss.
19

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 31 of 83
Indeed, Defendants do not engage in any of the comparative analysis required by Sandin and Hatch. They do not specifically address the conditions at the CMU in the aggregate, acknowledge the indefinite duration of those conditions, or argue that such restrictions are ordinarily and routinely imposed in settings to which prisoners like Plaintiffs are likely to be transferred and would likely actually face. Instead, Defendants blithely conclude that the CMU’s restrictions “do not constitute the kind of ‘extraordinary treatment’ required to find a government-created liberty interest.” MTD at 19 (citation omitted).
As argued supra, this is simply not the case. CMU restrictions are unique both in nature and duration. The very rules upon which Defendants rely make it clear, for example, that contact visits should not be withheld “unless there is clear and convincing evidence that such contact would jeopardize the safety or security of the institution.” 28 C.F.R. § 540.51(h)(2). No evidence – clear, convincing, or otherwise – has been cited to justify the harsh restrictions imposed on Plaintiffs either in this litigation or elsewhere. The CMU subjects Plaintiffs to “extraordinary treatment” if for no other reason than this, and Defendants’ say-so does not constitute evidence to the contrary.
For the foregoing reasons, Plaintiffs have plausibly alleged a liberty interest in avoiding CMU designation, thus dismissal is inappropriate.
B. Plaintiffs Have Been Denied Any Procedural Protections Around their Original and Ongoing Designation to the CMU.
Upon finding a liberty interest in avoiding designation to the CMU, a court must next determine what process is due prior to such placement. See Wilkinson, 545 U.S. at 224. The Supreme Court has considered three factors: first, “the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;
20

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 32 of 83
and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Rather than address the three Mathews factors, Defendants simply assert that Plaintiffs were provided with constitutionally-adequate process. Defendants claim that Plaintiffs “received notice of the reason for their designation to the CMU,” and “received reviews of their continued confinement in the CMU by the CMU’s Unit Team in connection with regularly scheduled program reviews.” MTD at 21. Before Plaintiffs address the Mathews analysis, some clarifications about these purported procedural protections are necessary.
First, Plaintiffs did not receive any meaningful notice about the reasons for their CMU designation. Unlike prisoners designated for Special Management Units or Control Units, Plaintiffs did not receive prior notification of transfer, an opportunity to be heard, a meaningful description of the information that led to their referral, or the right to an appeal. Compl. ¶ 75. Rather, after his transfer to the CMU, each Plaintiff received a one-page Notice of Transfer. Id. at ¶ 76; Exh. E. This document includes generic and unsubstantiated language indicating that Plaintiffs’ “transfer to this facility for greater communication management is necessary to the safe, secure, and orderly operation of Bureau institutions, or protection of the public.” Id.
The document then purports to explain why each Plaintiff was designated to the CMU. Id. at ¶ 77; Exh. E. But for a number of Plaintiffs, these “explanations” are so vague and generic as to provide no notice at all as to the factual premise that led to CMU designation. Id. Mr. Jones’s and Mr. Twitty’s transfer notices, for example, include almost identical language indicating that “[r]eliable evidence indicates your incarceration conduct has included involvement in recruitment and radicalization of other inmates through extremist, violence
21

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 33 of 83
oriented indoctrination methods to intimidate or coerce others.” Id. at ¶¶ 132, 190; Exh. E. No reference whatsoever is made to any actual facts or events. When Plaintiffs attempted to learn those underlying facts through the administrative grievance process, they were told to file a Freedom of Information Request. Id. at ¶¶ 133, 134, 164, 193. Those requests, however, also failed to produce any information regarding whom Plaintiffs are alleged to have recruited, at what time and location, or toward what end. Id. Other Plaintiffs have been provided with reasons that are factually incorrect. Id. at ¶¶ 160-63; see also Sections II(A)(iii), II(B)(i) infra. Thus, Plaintiffs are unaware of why they were designated to the CMU, the underlying conduct that led to the designation, or what behavior to avoid in the future.
Second, to characterize Plaintiffs’ program reviews as a meaningful review of their continued confinement in the CMU is similarly misleading. The reviews to which Defendants refer were announced in October 2009. Id. at ¶ 87. As such, Defendants apparently concede that no review occurred before that date. And indeed, for years the only avenue out of the CMU was through request for a “nearer release” transfer, a discretionary benefit that may be sought after 18 months of clean conduct. Compl. ¶¶ 85-86. There is some indication that this rule remains in effect. Id. at ¶ 90. Mr. Aref, for example, was told at his recent program review that he was categorically ineligible for transfer until he had spent 18 months at the Marion CMU, despite having already served 22 months at the Terre Haute CMU. Id.
But in any case, the new “review process” offers no protections. The reviews are not timely, as a prisoner must languish at the CMU for seven months before his first program review. See BOP Program Statement: Inmate Security Designation and Custody Classification, Ch. 6, p. 1. Moreover, they are substantively meaningless. First, according to their Notices of Transfer, each Plaintiff’s designation to the CMU was based either on their conviction or offense conduct,
22

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 34 of 83
or upon undisclosed behavior that presumably occurred at a prior institution. Compl. ¶ 83; Exh. E. The new program reviews are merely an assessment of whether the “original reasons for CMU placement still exist.” See Exhibit F at 1. As these facts cannot change, any “review” is by definition illusory.
Furthermore, Plaintiffs have no way to meaningfully contest their ongoing placement in the CMU because the actual facts that purportedly led to their designation have never been disclosed. Mr. Jayyousi, Mr. McGowan, and Mr. Jones each attended a program review since the Notice was posted, and no such information was forthcoming. Id. at ¶ 90. To compound the meaningless nature of these purported reviews, members of their unit teams have repeatedly informed Plaintiffs that neither the unit team nor the warden have the power to order a prisoner transferred from the CMU. Id. at ¶ 84. These decisions, they have stated, are made in Washington, DC. Id.
Plaintiffs have, in other words, been provided with no meaningful notice about, or review of, their CMU designations. And the Mathews analysis compels the conclusion that Defendants’ failure to provide Plaintiffs with any process violates procedural due process principles.
First, Plaintiffs’ interest in avoiding designation to the CMU is obvious. Mathews, 424 U.S. at 335. Conditions at the CMU profoundly interfere with their ability to maintain family ties. Compl. ¶ 9. Because Mr. Aref will not be released until 2018, for example, he will next be able to hug his 4-year-old child when she is 12. Id. at ¶ 44. Plaintiffs are subjected to an unparalleled and permanent ban on physical contact with visitors, leading to emotional stress and irreparably interfering with the only means of effective association with young children. Id. at ¶ 45. The uniquely strict limitations on access to the telephone and to visits compounds this harm.
23

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 35 of 83
Some Plaintiffs, like Mr. Twitty, face a longer prison term due to the stigma attached to CMU placement. Id. at ¶ 147.
Second, the risk of erroneous deprivation of these interests through the procedures used, and the probable value of additional safeguards, is clear. Mathews, 424 U.S. at 335. Plaintiffs have innocuous disciplinary histories, an almost uniform lack of any communications-related infractions, and some do not even fit into the alleged bases for CMU designation listed in BOP documents. See Compl. ¶¶ 33, 79. Plaintiffs have plausibly alleged that the lack of process has directly resulted in a pattern of discriminatory and/or retaliatory designations. See Section II, infra; see also Compl. ¶¶ 92-102. Such rationales are by definition illegitimate.
Defendants’ suggestion that the administrative remedy program eases any concerns about erroneous deprivations, see MTD at 21, is unavailing. The administrative remedy system does not provide for proper notice, an opportunity to be heard, or the right to a meaningful appeal, and thus is no substitute for these due process protections. See 28 C.F.R. § 542; Sattar v. Gonzales, No. 07CV02698, 2008 U.S. Dist. LEXIS 112428 at *13 (D. Colo., Nov. 3, 2008) (“the Court does not agree that the administrative remedy program is ‘all that is required’ to satisfy procedural due process . . . . ‘[T]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner’”) (citations omitted).
Plaintiffs’ attempts to utilize the administrative remedy system to challenge their CMU placement demonstrate this fundamental disconnect. Mr. Twitty, for example, filed a grievance seeking any factual substance underlying the allegation that he was involved in “recruitment and radicalization” only to have that phrase repeated back to him again and again as justification for his CMU placement. Compl. at ¶¶ 140-41. And even where designations have been made on the basis of demonstrably erroneous information, the administrative process has yielded no relief.
24

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 36 of 83
Much of the information included on Mr. McGowan’s Notice of Transfer as explanation for his CMU designation, for example, is false. Compl. ¶¶ 161, 163; see also Section II(A)(iii), supra. And yet, his administrative efforts to correct the information, and seek transfer out of the CMU, have been unsuccessful. Id. at ¶ 162.
Third, the Government has no identifiable interest in refusing additional or substitute procedures, Mathews, 424 U.S. at 335, nor has it asserted one. Given the small size of the CMUs, see Compl. ¶ 97, the burdens associated with such procedures would be minimal. Moreover, the BOP already mandates such procedures for Special Management Unit or Control Unit designations, id. at ¶ 75, demonstrating that they are manageable and affordable.
In light of the liberty interest at stake, Plaintiffs have adequately alleged that Defendants’ failure to provide them with notice or review of their CMU designations violates their rights to procedural due process. II. PLAINTIFFS HAVE ADEQUATELY PLED VIOLATION OF THE FIRST AND
FIFTH AMENDMENT BASED ON THEIR DISCRIMINATORY AND RETALIATORY PLACEMENT IN THE CMU. As the facts included in the Complaint adequately allege, Plaintiffs have been placed in the CMU not because they pose any particular security risk, but in retaliation for the exercise of their protected First Amendment rights and due to religious discrimination. Mr. Jones, Mr. Twitty, and Mr. McGowan were all engaged in protected First Amendment activity prior to their CMU designation. Compl. ¶¶ 188, 131, 167. They were model prisoners and posed no management problem. Id. at ¶¶ 186, 129, 159. Mr. Jones and Mr. Twitty are both Muslim, and their convictions are unrelated to terrorism. Id. at ¶¶ 188, 184, 126, 127. Their abrupt CMU designation lacks any plausible explanation other than retaliation. Mr. Aref and Mr. Jayyousi, meanwhile, are also Muslim, also lack any serious disciplinary history, and also pose no management problem. Id. at ¶¶ 104, 110, 206, 209. In the face of the vast
25

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 37 of 83
overrepresentation of Muslim prisoners at the CMU, id. at ¶ 101, the only plausible explanation for their transfers is religious discrimination. The purportedly “obvious alternative explanations” for Plaintiffs’ designations to the CMU offered by Defendants, MTD at 35, are so general and so contradictory of Plaintiffs’ clean institutional histories as to be meaningless. Indeed, many of the BOP statements Defendants rely on to explain Plaintiffs’ CMU designations are demonstrably incorrect. Id. at ¶¶ 107, 114, 161, 163. Thus, as explained in detail below, Plaintiffs have stated valid First and Fifth Amendment claims.
A. Plaintiffs Jones, Twitty, and McGowan Were Designated to the CMU in Retaliation For Protected First Amendment Activity.
To state a claim for retaliation, a prisoner must allege that: (1) he engaged in conduct protected under the First Amendment; (2) the defendant took some retaliatory action sufficient to deter a person of ordinary firmness in plaintiff’s position from speaking again; and (3) a causal link exists between the exercise of a constitutional right and the adverse action taken against him. Banks v. York, 515 F. Supp. 2d 89, 111 (D.D.C. 2007).
Defendants do not dispute that Mr. Jones, Mr. Twitty, and Mr. McGowan were engaged in protected First Amendment activities at the time of their designation to the CMU, or that placement in the CMU is sufficiently harsh to deter a person of ordinary firmness. They argue instead that Plaintiffs’ claims of retaliation are not “plausible” under Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), because there are alternative explanations for each Plaintiff’s designation. MTD at 34-37. But the facts demonstrate that retaliation is the only credible explanation for these abrupt designations. See Hartman v. Moore, 547 U.S. 250, 256 (2006) (stating that “when nonretaliatory grounds are in fact insufficient to provoke the adverse consequences . . . retaliation is subject to recovery as the but-for cause of official action offending the Constitution”).
26

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 38 of 83
Defendants do not, and cannot, argue that Plaintiffs engaged in communications-related misconduct, or any serious misconduct before they were assigned to the CMU. Compl. ¶¶ 110, 130, 159, 186, 209. Plaintiffs were, however, engaged in protected First Amendment activities just prior to their designations. See Rauser v. Horn, 241 F.3d 330, 334 (3rd Cir. 2001) (finding “suggestive temporal proximity” between the prisoner’s exercise of his First Amendment rights and his transfer established a claim of retaliation); see also Garcia v. District of Columbia, 56 F. Supp. 2d 1, 13 (D.D.C. 1998) (“Evidence that actions by correctional officers were taken in retaliation for the exercise of protected conduct may be inferred from the fact that the acts occurred shortly after the filing of a grievance, and that the inmate previously had a good disciplinary record”). This timing, coupled with Defendants’ inability to argue that Plaintiffs posed any communications risk, renders it not only plausible, but probable, that Plaintiffs’ protected activity was the “substantial” or “motivating” factor behind Defendants’ decision to designate Plaintiffs to the CMU. El-Pryor v. Kelly, 892 F. Supp. 261, 274 (D.D.C. 1995).
Moreover, even if Defendants’ alternative explanations were also plausible, this in itself would not render Plaintiffs’ allegations implausible. See Iqbal, 129 S. Ct. at 1949 (“[t]he plausibility standard is not akin to a ‘probability’ requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully”). To find a claim implausible under Iqbal, a defendant must offer an alternative explanation that is “a far more likely inference from the available facts” and is “so overwhelming, that claims no longer appear plausible.” Chao v. Ballista, 630 F. Supp. 2d 170, 177 (D. Mass. 2009); see also Philips v. Bell, 365 Fed. Appx. 133, 141 (10th Cir. 2010) (dismissing complaint were alternative explanation more plausible than that advanced by plaintiff).
27

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 39 of 83
i. Royal Jones Mr. Jones’ allegations of retaliatory designation to the CMU are plausible under the Iqbal standard, and thus must not be dismissed. Mr. Jones has always been an industrious prisoner, availing himself of available programs and educational opportunities. Compl. ¶ 187. His record contains no serious disciplinary infractions whatsoever, with only one minor communications-related infraction (asking a relative to make a three-way call to a fellow prisoner’s parents) well over a decade ago, in 1997. Id. at ¶ 186. While housed in general population at FCI Englewood, Mr. Jones was allowed contact visits and 300 minutes a month of telephone use without incident, and was able to maintain a close relationship with his mother, sister, and five children. Id. at ¶ 185. Mr. Jones, however, is an outspoken and litigious prisoner. Id. at ¶ 188. He has written several books and has publicized improper prison conditions. Id. He has not hesitated to file grievances and complaints as a means to advocate on his own behalf. Id. He also played a leadership role in the Muslim community in prison. Id. at ¶ 188. These valid exercises of his First Amendment rights provoked a threat from BOP staff at FCI Englewood that he would be “sent east” if he continued to file complaints. Id. Mr. Jones did not heed that warning, and on June 6, 2008, he was abruptly designated to the CMU at USP Marion. Id. at ¶¶ 188-89. Defendants’ own records demonstrate that their purported rationale for Mr. Jones’ CMU designation is pretextual. For instance, Mr. Jones’ referral to the CMU, issued by FCI Englewood Warden Davis, indicates that Mr. Jones “has not presented any management problems.” Id. at ¶ 190. But then goes on to state, in boilerplate language, that “[r]eliable evidence indicates his crimes and incarceration conduct has included involvement in recruitment and radicalization efforts of other inmates through extremist, violence oriented indoctrination methods to intimidate or coerce others.” Id. The discrepancy between these two statements is
28

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 40 of 83

entirely unexplained. And although the BOP lists as punishable many categories of behavior one might logically expect to be involved in such recruitment and radicalization, especially if undertaken by “coercion or intimidation,” Mr. Jones was not disciplined. See BOP Program Statement 5270.07 Chapter 4 (including as punishable acts: threats; extortion; encouraging group demonstration; participating in an unauthorized meeting or gathering; using abusive or obscene language; and the catch-all “conduct which disrupts or interferes with the security or orderly running of the institution or the Bureau of Prisons”). Beyond the bald allegation of “recruitment and radicalization,” Defendants can point to no indication of any of improper conduct.
En route to the CMU, Mr. Jones was housed briefly at FTC Oklahoma. There, the Holdover Unit Team generated documents that state: “Violation or Reason: Terrorist.” Id. at ¶ 192. But Mr. Jones’s conviction involves no association with or allegation of terrorism. Id. at ¶ 184. He has been given no opportunity to contest that categorization, or even discover its alleged basis. Id. at ¶192. These inconsistent and unsubstantiated justifications do not render Mr. Jones’s allegations of retaliation implausible.
Defendants argue that the threat by BOP staff members to send Mr. Jones east is “vague” and that he does not allege sufficient facts showing the temporal proximity of the threat and his CMU designation. MTD at 36. If the threat to send Mr. Jones “east” was ever vague, it is no longer so. It was realized. Compl. ¶¶ 188-89. Moreover, Plaintiffs have alleged all the temporal detail necessary: the threat was issued after his protected First Amendment activity but before his CMU designation.5 Id.; see also Garcia, 56 F.Supp.2d at 13. In light of Mr. Jones’s almost spotless disciplinary history, and BOP records that plainly state that he has “not presented any

5

Defendants appear to misunderstand Mr. Jones’s allegations. MTD at 36-37. The alleged

retaliation stems from his designation to the CMU after filing various administrative grievances. Compl.

¶ 188. He does not allege that his transfer out of the CMU, in exchange for voluntary dismissal of his pro

se CMU case, was retaliatory. Id. at ¶¶ 195-96.

29

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 41 of 83
management problems,” Compl. ¶ 190, it is Defendants who offer no plausible non-retaliatory explanation for Mr. Jones’s CMU designation.
ii. Avon Twitty Mr. Twitty has also alleged a plausible retaliation claim. He has been incarcerated since 1984, and has incurred no communications-related infractions and no serious disciplinary infractions during his decades in BOP custody. Id. at ¶ 130. He used his unrestricted telephone and contact visitation privileges at previous BOP facilities without incident to maintain a close relationship with his three children. Id. at ¶¶ 126, 130. A progress report issued by USP Hazelton on April 20, 2007, notes Mr. Twitty’s spotless record since 2005, his good work performance ratings, specifically indicates that he is not a management problem, and cites his “good rapport” with staff and fellow prisoners. Id. at ¶ 129. But like Mr. Jones, Mr. Twitty exercised his First Amendment rights in order to advocate on his own behalf. Throughout 2005 and 2006, he filed grievances and federal litigation against the BOP to resolve disputes over his good time credits and missing program documentation. Id. at ¶ 131. Then, on May 30, 2007, in the midst of this litigation – but only one month after his positive progress report – Mr. Twitty was designated to the CMU. Id. at ¶ 132. In language almost identical to Mr. Jones’s, Mr. Twitty’s Notice of Transfer contains only the generic allegation that “reliable evidence indicates your incarceration conduct has included involvement in recruitment and radicalization of other inmates through extremist, violence oriented indoctrination methods to intimidate or coerce others.” Id. at ¶ 132; Exh. E No specific allegations appear. Id. As Mr. Twitty has a good disciplinary record and no infractions that would substantiate the Notice, he sought to discover this “reliable evidence.” Id. at ¶ 133. Through a FOIA request, he obtained his transfer referral, issued by the Warden of USP Hazelwood, id. at ¶ 135, which incorrectly stated that Mr. Twitty had received a
30

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 42 of 83
disciplinary report for a serious assault at USP Lewisburg. Id. at ¶ 136. After Mr. Twitty’s repeated attempts to correct this fabrication, the BOP finally acknowledged the information was incorrect, characterizing it as a “typographical error.” Id. at ¶ 141.
Defendants argue that Mr. Twitty fails to allege facts making it plausible that his advocacy and litigation was a substantial factor in his transfer to the CMU, because the BOP’s unsubstantiated “concerns” about his involvement in “recruitment and radicalization” provide an alternate legitimate basis for his CMU designation. MTD at 35. But there is no indication that Mr. Twitty ever posed a problem of this nature – only evidence to the contrary from the BOP itself. Defendants cannot avoid a retaliation claim by contradicting Plaintiffs’ allegations with an unsubstantiated, and in part avowedly false, alternative explanation. Banks, 515 F. Supp. 2d at 111 (discounting, on motion to dismiss retaliation claim, Defendants’ contradictory explanation for discretionary placement in solitary confinement). Given the timing of Mr. Twitty’s transfer – in the midst of his federal litigation against the BOP, and only one month after a positive progress report that indicated nothing about alleged recruitment or radicalization of other inmates, but rather he had “good rapport” with staff and prisoners – retaliation is the only plausible explanation for his transfer.
iii. Daniel McGowan Mr. McGowan’s First Amendment activities, coupled with the demonstrably false information on his Notice of Transfer, also state plausible allegations of retaliation. Mr. McGowan is a low security prisoner, and his disciplinary record is completely clean. Compl. ¶¶ 154, 159. His security point level, already low, has continued to drop due to his good conduct. Id. at ¶ 154. While housed at FCI Sandstone, Mr. McGowan used the available contact visitation and 300 minutes of telephone time without incident to maintain close relationships with his wife,
31

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 43 of 83
sisters, parents, and young niece. Id. at ¶¶ 156-57. At his final program review at FCI Sandstone, the BOP indicated clean conduct and no management problems. Id. at ¶ 159.
Mr. McGowan, in other words, has been a model prisoner. But he has also been very active in social justice movements during his incarceration. He has advocated for progressive causes since his arrest, argued for the rights of political prisoners, and communicated with lawabiding social justice activists from inside prison. Id. at ¶ 167. Then, in August 2008, he was abruptly designated to the CMU. Id. at ¶ 160. There, he has been unable to continue his communication with law-abiding activists, and has been limited in his ability to receive information regarding developments in progressive causes. Id. at ¶ 168.
The BOP’s stated explanation for Mr. McGowan’s CMU designation is in large part demonstrably incorrect. Id. at ¶ 161. After Mr. McGowan arrived at the CMU, he received a Notice of Transfer that incorrectly stated he had destroyed an energy facility, was “a member and leader in the Earth Liberation Front (ELF) and Animal Liberation Front (ALF), groups considered domestic terrorist organizations,” and had taught others how to commit crimes of arson. Id. at ¶ 160; Exh. E. These allegations are patently untrue. Id. at ¶ 161. Mr. McGowan did not destroy an energy facility, has never been a leader of the ELF or ALF, has not been a member of either organization since 2001, and never taught anyone how to commit arson. Id. In response to Mr. McGowan’s attempts to correct this misinformation, BOP Regional Director Nalley indicated that the information in Mr. McGowan’s Notice to Transfer came from his PreSentence Report (PSR). Id. at ¶ 162. But Mr. McGowan’s PSR includes no statement that he ever taught others how to commit arson, and specifically indicates that there is no evidence he was a leader in either the ELF or the ALF. Id. at ¶ 163. The BOP has been unresponsive to Mr.
32

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 44 of 83
McGowan’s attempts to correct his record, and he has received no further information explaining his designation. Id. at ¶ 164.
Defendants contend that Mr. McGowan has failed to allege sufficient facts to state a plausible claim of retaliation, in light of the “obvious alternative explanation” that his transfer was “motivated by his conviction related to domestic terrorism.” MTD at 35. But if this were the case, one presumes the Notice of Transfer would refer only to that conviction – there would be no need to exaggerate and fabricate Mr. McGowan’s offense conduct and associations.
B. Mr. Jayyousi, Mr. Aref, Mr. Twitty, and Mr. Jones Were Designated to the CMU for Discriminatory Reasons.
The Fifth Amendment’s Equal Protection Clause mandates that “all persons similarly situated should be treated alike.” Pryor-El, 892 F. Supp. at 269 (quoting Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)). It also “forbids unequal enforcement of valid laws, where such unequal enforcement is the product of improper motive,” and demands that the government “apply its laws in a rational and nonarbitrary way.” Id. To state an equal protection claim, prisoners must show that: (1) they were treated differently from other prisoners in their circumstances, and (2) their unequal treatment was the result of intentional or purposeful discrimination. Id. at 270 (citing Brandon v. District of Columbia Bd. of Parole, 823 F.2d 644, 650-51 (D.C. Cir. 1997)). Purposeful discrimination must “[n]ecessarily . . . be inferred from the totality of the relevant facts,” Washington v. Davis, 426 U.S. 229, 242 (1976), and proof of discriminatory intent requires a “practical” inquiry. Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 n. 24 (1979). “What . . . any official entity is ‘up to’ may be plain from the results its action achieve.” Id.
The staggeringly disproportionate percentage of Muslims at the CMU, compared to the population of Muslim prisoners in BOP custody overall, is notable. Washington, 426 U.S. at
33

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 45 of 83
242. While approximately 6% of prisoners in BOP facilities nationwide sought Muslim religious services in 2004, available statistics place the percentage of Muslim prisoners in the CMU at between 65 and 72%. Compl. ¶¶ 97-101. The statistics indicate that not only do Muslims compose upwards of two-thirds of the prisoners in the CMU, they are overrepresented by more than 1,000% compared to the overall Muslim population in BOP custody. Id. As media scrutiny began to focus on Defendants’ targeting of Muslims, more non-Muslim prisoners were moved to the CMU, and referred to by guards as “balancers.” Id. at ¶ 96.
Plaintiffs have plausibly alleged facts that demonstrate that they were designated to the CMU based not on a legitimate reason, but on the discriminatory notion that, as vocal Muslims, they pose a greater threat to prison security than other prisoners. There are 19,720 inmates within BOP custody who are classified as “high-risk,” due to gang, international, or domestic terrorist associations, and the BOP has custody of 1,200 domestic or international terrorists. Id. at ¶ 34. Yet neither Mr. Twitty nor Mr. Jones was convicted of a crime related to terrorism. Beyond their near immaculate disciplinary records, the only characteristic Mr. Jayyousi, Mr. Aref, Mr. Jones, and Mr. Twitty share is adherence to Islam. All are vocal Muslims, and all were designated to the CMU while thousands of other high-risk prisoners were not. Given the religious disparity in the CMU, the lack of a reasonable justification for the designations of these Plaintiffs gives rise to their equal protection claims. See, e.g., Delaney v. Dist. of Columbia, 659 F. Supp. 2d 185, 198 (D.D.C. 2009) (finding that plaintiff stated an equal protection claim where she alleged she was subject to discriminatory treatment when attempting to visits clients in prison, that defendants had no justifiable basis for doing so, and that defendants knew that she was an African-American female).
34

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 46 of 83
i. Kifah Jayyousi Mr. Jayyousi is a 48 year-old United States citizen from Detroit, Michigan. Compl. ¶ 198. He is deeply committed to his wife, three daughters and twin sons. Id. at ¶ 198. Although Mr. Jayyousi is incarcerated for a terrorism-related conviction, his offense conduct principally involved charitable donations to the Global Relief Foundation. Id. at ¶ 202, 207. The trial court found that there was no evidence that Mr. Jayyousi continued his involvement in the offense past 1998, and that he had totally withdrawn from the alleged conspiracy in the case. Id. at ¶ 207. Judge Cook recommended that Mr. Jayyousi be housed at FCI Milan in Michigan, near his family. Id. at ¶ 205. Mr. Jayyousi is a low security prisoner with no history of communications or serious disciplinary infractions. Id. at ¶¶ 208-10. While housed at FDC Miami, Mr. Jayyousi enjoyed contact visits without incident. Id. at ¶ 208. Nonetheless, in June 2008 the BOP designated Mr. Jayyousi to the CMU. Id. at ¶ 211. When shown a copy of his records at the CMU, Mr. Jayyousi noticed that they had been altered to elevate his sole infraction, a moderate category offense for pushing the emergency button in his cell when he was denied a scheduled call to his wife following his daughter’s surgery, to a high category offense. Id. at ¶ 209. Furthermore, the Notice of Transfer he received after arriving at the CMU incorrectly stated that he “used religious training to recruit other individuals in furtherance of criminal acts in this country as well as many countries abroad,” and that he had “significant communication, association and assistance to al-Qaida, a group which has been designated as a foreign terrorist organization.” Id. at ¶ 212. Mr. Jayyousi immediately informed BOP officials at the CMU that the information in his Notice to Transfer was erroneous, consisting largely of allegations that were rejected at trial. Id. at ¶ 213. Despite his efforts to correct his record, Mr. Jayyousi’s grievances were summarily denied. Id.
35

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 47 of 83
Defendants also refer to Mr. Jayyousi’s terrorism-related conviction as the legitimate alternative explanation for his CMU designation, but as with Mr. McGowan, were his conviction itself Defendants’ true motivation, there would be no need for Mr. Jayyousi’s Notice of Transfer to exaggerate and misstate his offense conduct. Similarly, it is unclear why his disciplinary records have been altered, unless it is to provide cover for Defendants’ true, discriminatory motivation. Cf Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1293 (D.C. Cir. 1998) (“The jury can conclude that an employer who fabricates a false explanation has something to hide; that ‘something’ may well be discriminatory intent . . . . Such an inference is of course in line with how evidence of consciousness of guilt is treated in other cases, criminal or civil”). In light of the BOP’s prevarications and the striking overrepresentation of Muslims at the CMU (including Muslims who were not convicted of crimes related to terrorism), Mr. Jayyousi has plausibly alleged religious discrimination.
ii. Yassin Aref Mr. Aref is married with four young children, and resided with his family in Albany, New York after being granted refugee status in the United States. Id. at ¶ 103. His conviction arose from a well-publicized and controversial sting operation, and solely involved his witnessing of a loan transaction in his role as an Imam. Id. The government acknowledged at trial that it was not seeking to establish or prove that Mr. Aref was a terrorist. Id. Mr. Aref is a low security prisoner with a completely clean disciplinary record. Id. at ¶¶ 110, 112. While he was housed in Rensselaer County Jail, he enjoyed daily telephone calls and contact visits with his wife and children without incident. Id. at ¶ 109. However, ignoring his clean institutional record and the court’s express recommendation that he be housed as close to Albany as possible, the BOP designated Mr. Aref to the CMU for unspecified “security concerns.” Id. at ¶¶ 110, 112. And just as with Mr. McGowan and Mr.
36

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 48 of 83
Jayyousi, the Notice of Transfer that Mr. Aref received shortly after his arrival at the CMU mischaracterized his conviction, stating that his “offense conduct included significant communication, association, and assistance to Jaish-e-Mohammed (JeM), a group which has been designated a foreign terrorist organization.” Id. at ¶ 113. But Mr. Aref was convicted in an FBI sting; he never actually displayed a propensity – or ability – to reach out to any terrorist group. Mr. Aref exhausted the grievance process attempting to correct his record to no avail, and received no other information explaining his designation to the CMU. Id. at ¶¶ 113, 114.
Defendants claim that the nature of Mr. Aref’s conviction explains his CMU designation. MTD at 38. But again, this is belied by Defendants’ mischaracterization of Mr. Aref’s conviction and offense conduct. Indeed, Defendants fail to address the government’s own representation at trial that it did not seek to prove that Mr. Aref was a terrorist. Id. at ¶ 107. In light of the BOP’s refusal to correct the misleading and inaccurate information on Mr. Aref’s Notice of Transfer, and the lack of any evidence suggesting he warrants heightened monitoring, Mr. Aref has plausibly alleged that his CMU designation is not based on his offense conduct, but rather on discriminatory animus.
iii. Royal Jones and Avon Twitty As explained above, Defendants claim that the nature of Mr. Jayyousi’s and Mr. Aref’s convictions, rather than their religion, explain their CMU designation. MTD at 38. But Mr. Jones’s and Mr. Twitty’s designations further illustrate why this alternative explanation is implausible. Both Mr. Jones and Mr. Twitty are Muslim, but neither of them was convicted of a crime related to terrorism. Compl. at ¶¶ 188, 184, 126, 127. Rather, they were placed in the CMU in retaliation for protected First Amendment activity, which includes playing a leadership role in Muslim communities at previous BOP facilities. Id. at ¶¶ 142, 188. A terrorist-related conviction cannot explain Mr. Jones’s and Mr. Twitty’s CMU designations, and Defendants’
37

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 49 of 83
explanations for these designations, strain credulity. See supra. In other words, Mr. Twitty’s and Mr. Jones’s designations, animated by religious discrimination, lay bare the fallacy of Defendants’ attempt to suggest that Mr. Jayyousi’s and Mr. Aref’s designations were triggered by the nature of their convictions. See Washington, 426 U.S. at 242 (invidious discrimination must necessarily be “inferred from the totality of the relevant facts”). Here, the totality of the currently available facts leads to the plausible inference that it was Plaintiffs’ common religion, and Defendants’ discriminatory beliefs about that religion, that caused Plaintiffs’ designation to the CMU. For these reasons, Plaintiffs’ equal protection claim must survive Defendants’ motion to dismiss. III. PLAINTIFFS HAVE ADEQUATELY PLED VIOLATIONS OF THE FIRST AND
FIFTH AMENDMENTS BASED ON RESTRICTION OF THEIR ABILITY TO COMMUNICATE WITH FAMILY WITHOUT REASONABLE RELATIONSHIP TO LEGITIMATE PENOLOGICAL INTERESTS. In their second and third causes of action, Prisoner and Family Plaintiffs allege that the CMU’s severe restrictions on communication with family members violate their right to freedom of association and substantive due process. Because these restrictions interfere with Plaintiffs’ exercise of those rights without reasonable relationship to legitimate penological interests, Plaintiffs have adequately stated claims under the First and Fifth Amendments. A. Prisoners and Their Family Members Retain a Limited Right to Freedom of
Association and Family Integrity under the First and Fifth Amendments. It is axiomatic that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987). “A prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the correctional system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). Thus, the Supreme Court has consistently held that a prison regulation that
38

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 50 of 83
infringes on First Amendment rights must have a valid, rational connection to a legitimate governmental interest. Turner, 482 U.S. at 89-91.
The First Amendment protects the right, in the prison context, to maintain vital relationships with family members and members of the community both through visitation and through telephone calls. This right “may be defined expansively as the First Amendment right to communicate with family and friends.” Searcy v. United States, 668 F. Supp. 2d 113, 122 (D.D.C. 2009) (citation omitted). While prisoners have no unfettered right to telephone calls or visits, these methods of communication are a means of exercising the broad First Amendment right, and thus are subject only to rational limitation in the face of legitimate security interests. See id. at 122 (collecting cases); see also, Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (recognizing “legitimate demands of those on the ‘outside’” who seek to enter the prison, including “families and friends who seek to sustain relationships”) (citations omitted).
Defendants acknowledge the applicability of this precedent with respect to reasonable telephone access, but would deny the First Amendment implications of restricting visitation. MTD at 22. But neither logic nor precedent supports distinguishing between the two methods of communication, especially given the pivotal role visits play in preserving a prisoner’s relationship with loved ones and other members of the community. Contact visitation, in particular, has unique properties that cannot be substituted by other forms of communication. Such a visit, for example, is the only possible way for a prisoner to maintain any relationship with a pre-verbal child. See, e.g., Boudin v. Thomas, 533 F. Supp. 786, 793 (S.D.N.Y. 1982), appeal dismissed and remanded, 697 F.2d 288 (2d Cir. 1982). And while the Supreme Court has not squarely ruled, in Overton or elsewhere, on the question of whether there is a constitutional
39

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 51 of 83
right to reasonable opportunities for visitation, its close scrutiny of restrictions on visitation foreshadow that holding.
In Pell, for example, the Court upheld a ban on prison visits from journalists, but noted that the regulation was permissible in part because prisoners retained “an unrestricted opportunity to communicate with the press or any other member of the public through their families, friends, clergy, or attorneys who are permitted to visit them at the prison.” 417 U.S. at 825. In so holding, the Pell Court cautioned that it would not defer to prison officials when there was “substantial evidence in the record to indicate that the officials [had] exaggerated their response” to a problem. Id. at 827. By subjecting the restrictions to close analysis, the Court clearly signaled its recognition that vital First Amendment interests are at stake in prison visitation policy. See also, Steinbach v. Branson, No. 1:05CV101, 2007 U.S. Dist. LEXIS 75156 at *19 (D.N.D. Oct. 9, 2007) (noting “suggestion in Pell that visitation has a free speech nexus”). Scrutiny is especially appropriate when, as is the case here, the challenged restrictions interfere with family relationships, including the parent-child bond, specially protected by the Constitution. M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (“Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance to our society, rights sheltered against the State’s unwarranted usurpation, disregard, or disrespect”).
In light of these critical interests, Plaintiffs’ First Amendment right to freedom of association with loved ones prohibits the arbitrary or unreasonable restriction of visitation, and requires application of the Turner standard. See, e.g., Bazzetta v. McGinnis, 286 F.3d 311, 316 (6th Cir. 2002), judgment rev’d on other grounds, 539 U.S. 126 (2003) (First Amendment right to visitation requires Turner scrutiny); Caraballo Sandoval v. Onsted, 35 F.3d 521, 525 (11th
40

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 52 of 83
Cir. 1994) (suggesting existence of First Amendment right, but upholding denial of visitation under Turner); Towle v. Comm’r of N.H. Dept. of Corr., No. 06-CV-464, 2007 U.S. Dist. LEXIS 27905 at *19-23 (D.N.H. Apr. 16, 2007) (prisoners retain a First Amendment right to intimate association, but regulations at issue survive Turner inquiry); Calderon v. State of Conn. Dept. of Corr., No. 04-CV-1562, 2006 U.S. Dist. LEXIS 81303 at *23-24 (D. Conn. Sep. 1, 2006) (suggesting a First Amendment right of association with regard to visitation); King v. Frank, 328 F. Supp. 2d 940, 945-46 (W.D. Wis. 2004) (Supreme Court’s use of Turner test in Overton suggests that prisoners retain some right to visitation); Austin v. Hopper, 15 F. Supp. 2d 1210, 1233 (M.D. Ala. 1998) (prisoners retain constitutional right to visitation subject to Turner analysis); Ali v. Gibson, 483 F. Supp. 1102, 1119 (D.V.I. 1980), aff’d in part and rev’d in part, 631 F.2d 1126 (3rd Cir. 1980) (same).
Defendants rely heavily on Overton to avoid First Amendment scrutiny of visitation restrictions, but that case lends them minimal support. In Overton, a class of prisoners challenged visitation restrictions under the First, Eighth, and Fourteenth Amendments. 539 U.S. at 130. The Court reaffirmed that the Constitution protects “highly personal relationships,” indicating that prisoners surrender “many of the liberties and privileges enjoyed by other citizens.” Id. at 131 (emphasis added). Far from extinguishing those rights, however, the Court noted that “some curtailment of that freedom must be expected in the prison context,” id. (emphasis added), and explicitly summarized: “We do not hold, and we do not imply, that any right to intimate association is altogether terminated by incarceration or is always irrelevant to claims made by prisoners.” Id. at 131-32. Assuming that prisoners continue to enjoy constitutional rights to family association, the Court analyzed the reasonableness of the visitation restrictions under the Turner framework. Id.
41

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 53 of 83
Lack of physical contact during visitation was not an issue challenged by the plaintiffs in Overton, and thus the Court’s failure to subject that aspect of Michigan’s visitation rules to constitutional scrutiny is not surprising, nor does it provide any support for Defendants’ argument. See MTD at 23. And while Block v. Rutherford, 468 U.S. 576 (1984), did squarely uphold a ban on physical contact during visits, it did not deny any constitutional dimension to the rule. Rather, the Court relied upon sworn testimony establishing the legitimate security purposes served by an across-the-board ban on contact visits at the largest jail in the country, where thousands of pre-trial detainees were held for a week or less pending trial. Id. at 577, 588-89.
While Defendants seem to acknowledge that telephone calls also play a critical role in allowing prisoners and their loved ones to maintain intimate relationships, see, e.g., Owens-El v. Robinson, 442 F. Supp. 1368, 1386 (W.D. Pa. 1978) (“telephone access to the outside world is good for inmate morale, helps lessen stress, [and] helps maintain relationships”), Defendants would reframe Plaintiffs’ claim to a plea for a certain number of telephone minutes. MTD at 23. But the relevant question is not whether prisoners have a constitutional right to 300 minutes of telephone access a month, but whether the CMU restrictions on telephone access are legitimate.
As this Court and others have consistently held, prisoners have a constitutional right to communicate with people outside prison, and the telephone provides a vital means to exercise that right. Searcy, 668 F. Supp. 2d at 121; see also, Almahdi v. Ashcroft, 310 Fed. Appx. 519, 522 (3rd Cir. 2009); Valdez v. Rosenthal, 302 F.3d 1039, 1048 (9th Cir. 2002). As such, “there is no legitimate governmental purpose to be attained by not allowing reasonable access to the telephone, and . . . such use is protected by the First Amendment.” Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994) (citation omitted). Acknowledging the First Amendment speech and associational interests at stake, courts have consistently subjected curtailments on a prisoner’s
42

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 54 of 83
telephone access to Turner analysis. See, e.g., Almahdi, 310 Fed. Appx. at 521-22; Valdez, 302 F.3d at 1048; Saenz v. McGinnis, No. 98-2022, 1999 U.S. App. LEXIS 23246, at *5-6 (6th Cir. Sep. 17, 1999); Pope v. Hightower, 101 F.3d 1382, 1385 (11th Cir. 1996); Benzel v. Grammer, 869 F.2d 1105, 1108-09 (8th Cir. 1989).
Along with the First Amendment, the Fifth Amendment’s due process clause also protects the right “to enter into and maintain certain intimate human relationships.” Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984). This right is insulated “against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” Id. The Supreme Court has explicitly recognized that the “personal affiliations that exemplify these considerations [] are those that attend the creation and sustenance of a family – marriage; childbirth; the raising and education of children; and cohabitation with one’s relatives.” Id. at 619-20. Indeed, the “deep attachments and commitments” inherent in familial relationship warrant particular protection. Id.; see also Moore v. East Cleveland, 431 U.S. 414 (1977); Meyer v. Nebraska, 262 U.S. 390 (1923).
Defendants argue that this Court should disallow Plaintiffs the opportunity to challenge the restrictive CMU conditions under the Fifth Amendment because their status as prisoners deprives them of a “free-standing” constitutional right to reasonable telephone access and visitation. MTD at 22-23. In so arguing, Defendants again rely heavily on Overton. But as explained above, Overton actually provides support for the continued existence of the right, albeit with restrictions. And indeed, Overton’s recognition that a person’s right to family association survives incarceration has been consistently followed. See, e.g., MacCool v. Schriro, 280 Fed. Appx. 663, 664 (9th Cir. 2008) (analyzing family visitation regulation impinging on prisoner’s due process rights under Overton and Turner); Wirsching v. Colorado, 360 F.3d 1191
43

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 55 of 83
(10th Cir. 2004) (same); Poole v. Michigan Reformatory, No. 10-CV-378, 2010 U.S. Dist. LEXIS 75222, at *29-32 (W.D. Mich. Jul. 26, 2010) (same).
CMU restrictions significantly burden and curtail Plaintiffs’ freedom of association. Plaintiffs are subject to an exceptionally harsh categorical ban on contact visits, and their access to visits is severely circumscribed in number and duration. Compl. at ¶¶ 37, 46. The frequency and length of their telephone calls are restricted to a fraction of the telephone privileges afforded to almost all other federal prisoners. Id. at ¶¶ 64, 65. These communications restrictions have substantially impaired Plaintiffs’ and Family Plaintiffs’ familial relationships and rights of association with one another. Id. at ¶ 9.
Mr. Aref’s ability to form a relationship with his youngest child, for example, has been completely blocked. Id. at ¶¶ 123-24. Other plaintiffs, such as Mr. McGowan and Mr. Twitty, have seen their relationships with family members deteriorate while at the CMU. Id. at ¶¶ 144, 169-71. Destroying any semblance of a normal parent-child relationship, Mr. Jayyousi and Mr. Aref have not hugged their young children since their CMU designation, and will not be able to do so until their children are teenagers, id. at ¶ 109 (Aref), or fully grown adults, id. at ¶¶ 216-19 (Jayyousi). Family Plaintiffs have experienced the same inability to maintain the integrity of their relationships with their loved ones at the CMU, id. at ¶¶ 176-82 (Synan), and have seen their family units suffer as a result. Id. at ¶¶ 227-31 (H. Jayyousi).
In light of longstanding precedent recognizing that both prisoners and non-prisoners retain free associational and due process rights when consistent with the legitimate penological objectives of the correctional system, Pell, 417 U.S. at 822, and in light of substantial interference with the means to exercise those rights at the CMU, the Court must examine CMU restrictions pursuant to the reasonableness test set forth in Turner.
44

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 56 of 83
B. The CMU Restrictions, and Their Impact on Plaintiffs’ Constitutional Rights, Cannot Be Justified Under Turner.
“When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89. Courts consider four factors under Turner: (1) Whether “a valid, rational connection [exists] between the prison regulation and the legitimate governmental interest put forward to justify it” and whether “prison regulations restricting inmates’ First Amendment rights operate[] in a neutral fashion, without regard to the content of the expression”; (2) “whether there are alternative means of exercising the right that remain open to prison inmates”; (3) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally”; and (4) whether there are “ready alternatives” to the restriction to secure the penological interest. Id. at 89-90. The allegations in the Complaint state valid claims for relief under each of these four factors.
i. First Turner Factor The first Turner factor requires “a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.” Id. at 89. The connection must not be “so remote as to render the policy arbitrary or irrational.” Id. at 89-90. Plaintiffs challenge excessive restrictions on their access to visits and telephone calls. Compl. ¶¶ 256, 258. As pleaded, and as described in detail supra, Plaintiffs are subject to a categorical ban on contact visits, id. at ¶¶ 37-45, and strict limitations on the number and duration of calls and visits. Id. at ¶¶ 37-45, 46-68. Those restrictions stand in stark contrast to BOP regulations allowing far more access to visits and calls for other federal prisoners. Id. Defendants, meanwhile, identify the “goal” of the CMU restrictions as “effective monitoring of
45

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 57 of 83
the communications of high-risk inmates,” in order “(1) ‘to protect the safety, security, and orderly operation of Bureau facilities,’ and (2) to ‘protect the public.’” MTD at 25.
Plaintiffs agree that protection of the safety and operations of a prison and protection of the public are legitimate penological interests under Turner. Similarly, Plaintiffs agree that “effective monitoring of the communications of high-risk inmates” could serve those interests. However, Defendants fail to adequately explain how restriction of Plaintiffs’ access to visits or the telephone is rationally connected to monitoring that communication.
Defendants claim that limitation of physical contact “enables effective monitoring” but ignore Plaintiffs’ allegations that equally effective monitoring can and does occur without limiting physical contact. Compl. ¶¶ 41-43. Defendants also argue that limiting Plaintiffs’ access to telephone calls and visitation enhances monitoring because it reduces the total number of calls and visits that will occur. MTD at 28. For this, Defendants rely wholly on the Supreme Court’s finding in Overton that a reduction in total number of visits in Michigan State prisons was rationally related to prison security. Id., citing 539 U.S. at 129-33. But the Overton Court so held based on testimony that the restrictions in question arose in response to an increase in visits to Michigan prisons that strained prison resources and led to difficulties in maintaining order and preventing transmission of contraband. 539 U.S. at 129. There has been no such sworn testimony here. Nor is there evidence or even an allegation that the number of contact visits or telephone calls at the Marion or Terre Haute prisons, or within the CMUs, has posed any particular security concern.
Moreover, Defendants’ arguments fail to demonstrate “a valid, rational connection between” the imposition of the CMU restrictions on Plaintiffs and their asserted interests. Turner, 482 U.S. at 89 (internal quotations omitted). Prior to their CMU designations, Plaintiffs
46

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 58 of 83
exercised their expressive and family associational rights without major incident. None of them had been disciplined for any communications-related infraction within the past ten years, nor incurred any major disciplinary offenses. Compl. ¶¶ 110, 130, 159, 186, 209. As a result, Plaintiffs have adequately alleged that there is no “valid, rational connection” between their histories and the CMU restrictions. Cf Poole, 2010 U.S. Dist. LEXIS 75222 at *29-30 (finding a valid connection between the infringement of a prisoner’s right to intimate association by way of a visitation restriction on the basis of that prisoner’s history of smuggling drugs into prison); Steinbach, 2007 U.S. Dist. LEXIS at *56 (“if [a particular inmate] had ‘intentionally’ attempted to introduce drugs into the prison, there is no question that prison officials should be allowed to impose tough restrictions” on that prisoner).
Defendants have also failed to explain why the imposition of CMU restrictions on Plaintiffs is rationally related to improving prison security and operations or to protecting the public. See, e.g., Beard v. Banks, 548 U.S. 521, 535 (2006) (“Turner requires prison authorities to show more than a formalistic logical connection between a regulation and a penological objective”); King v. Federal Bureau of Prisons, 415 F.3d 634, 639 (7th Cir. 2005) (“the government must present some evidence to show that the restriction is justified”); see also Greybuffalo v. Kingston, 581 F. Supp. 2d 1034, 1042 (W.D. Wis. 2007) (requiring that “[p]rison officials have the initial burden to show a logical connection between the [regulation] and their legitimate interest” and collecting cases). Defendants do not refer to any specific misconduct or danger stemming from Plaintiffs that is addressed by the CMU restrictions. Instead, Defendants simply rely on general assertions that “[t]here have been cases of imprisoned terrorists communicating with their followers regarding future terrorist activity.” MTD at 25-26 (quoting 75 Fed. Reg. at 17326). But Defendants do not argue that such a concern is applicable to
47

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 59 of 83
Plaintiffs themselves. Without more, any purported connection between the imposition of the restrictions on Plaintiffs and the claimed penological interests is “so remote as to render the [prison restriction] arbitrary or irrational.” Turner, 482 U.S. at 89-90.
Moreover, under the first Turner factor, “the governmental objective must be a legitimate and neutral one.” Id. at 90. A restriction is neutral only if prison officials restrict communications “solely on the basis of their potential implications for prison security . . . unrelated to the suppression of expression.” Thornburgh, 490 U.S. at 415-16; see also Amatel v. Reno, 156 F.3d 192, 197 (D.C. Cir. 1998) (“as voiced by the Court, the ‘neutrality’ requirement is an absolute prerequisite . . . . [T]he Court’s actual application of the requirement, with its focus on the existence of some legitimate goal and on assuring that rules are in fact not framed so as to advance illegitimate or unvetted goals, must control [courts’] understanding of its meaning”).
The CMU restrictions are neither legitimate nor neutral under Turner and Thornburgh. Indeed, Plaintiffs have alleged both that the CMU’s telephone and visitation restrictions have been imposed upon them discriminately, and in retaliation for exercise of First Amendment Rights. Compl. at ¶¶ 92-102.
The first Turner factor is the sine qua non of the four-part analysis. Morrison v. Hall, 261 F.3d 896, 901 (9th Cir. 2001); Prison Legal News v. Cook, 238 F.3d 1145, 1151 (9th Cir. 2001) (“[F]ailure on this prong ensures a finding of unconstitutionality”). Accordingly, since Defendants are unable to establish the first prong of the test, the Court need not address the remainder of the Turner factors. Cole v. Me. Dep’t of Corr., 07-82-B-W, 2009 U.S. Dist. LEXIS 19921, at *88 (D. Me. Mar. 5, 2009); Williams v. Donald, No. 01-CV-292, 2007 U.S. Dist. LEXIS 89079, *9 (M.D. Geo. Dec. 4, 2007), vacated as moot, 322 Fed. Appx. 876 (11th Cir. 2009). Regardless, analysis of the remaining prongs does not support dismissal.
48

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 60 of 83
ii. Second Turner Factor The second Turner factor requires the court to consider “whether there are alternative means of exercising the right that remain open to prison inmates.” 482 U.S. at 90. “Where ‘other avenues’ remain available for the exercise of the asserted right, courts should be particularly conscious of the measure of judicial deference owed to corrections officials . . . in gauging the validity of the regulation.” Id. (internal citations and quotations omitted). Here, there are no alternative methods for Plaintiffs to exercise their First and Fifth Amendment rights. As pleaded in the Complaint, Plaintiffs have been unable to meaningfully maintain relationships with their family under the CMU restrictions. Compl. ¶¶ 44-45, 66-68, 118-25, 144, 153, 156-57, 169-74, 177-79, 180-81, 216-20, 226-32. There is no substitute for physical contact with loved ones – young children in particular. Id. at ¶¶ 109, 216-19. Similarly, real-time communication is crucial for Plaintiffs to communicate and maintain intimate relationships with family and friends. Id. at ¶¶ 45, 179. The visitation policy at the CMU is so restrictive as to be impossible for many of the Plaintiffs’ families and intimates. Id. at ¶¶ 123, 144, 170, 181, 226-27. Defendants argue that alternative methods of communication include mail and email. MTD at 29. Such alternatives are insufficient, however, because they do not allow any form of essential physical contact, which, as alleged, is crucial to forming intimate familial relationships. Compl. ¶ 45. Moreover, mail and email do not allow crucial real-time or live communication, which is equally essential. Id. at ¶¶ 45, 179. While alternatives “need not be ideal,” Overton, 539 U.S. at 135, they should at least be sufficient to allow the inmate to exercise his limited constitutional rights. Plaintiffs have adequately alleged that here they are not.
49

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 61 of 83
iii. Third Turner Factor The third Turner factor instructs courts to consider “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” 482 U.S. at 90. “When accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.” Id. Plaintiffs have adequately alleged that modifying the CMU will not have a substantial, or negative, impact on prison officials or other prisoners. The CMUs are already equipped to allow contact visits and could be easily modified to allow more such visits. Compl. at ¶ 43. Given that only one social or attorney-client visit may currently take place in the CMU at any given time, and all social visits are monitored live by Unit staff, effective monitoring of communication could occur by allowing the visit to take place in the attorney-client contact visiting room at no additional cost. Id. Visits could easily be tape recorded, and many areas in the CMU are already wired for audio and video recording. Id. Thus, it is reasonable to assume that a visiting area could be similarly set up at little cost. Indeed, according to a 2006 OIG report, eight BOP facilities are already set up to audio record contact visits. Id. The minimal modifications required to allow for contact visits would have little impact on resource allocation by the prison. Similarly, loosening CMU restrictions on the number and duration of visits would have no significant impact on BOP resources. Prisoners at the Administrative Maximum facility USP Florence, the only “supermaximum” facility in the federal system, receive four times more visitating time than CMU prisoners. Id. at ¶ 61. Thus, the BOP can and has harmonized the constitutionally-protected need for adequate visitation with security concerns. Modification of the CMU telephone restrictions would also have little negative impact on prison staff and other officials. CMU officials already monitor every phone call made from the
50

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 62 of 83
CMU. Id. at ¶ 68. And contrary to Defendants’ claims, MTD at 30, the small size of the CMUs means that such monitoring could continue with minimal cost or effect.
iv. Fourth Turner Factor Finally, courts consider whether there are “ready alternatives” to the restriction to secure the penological interest. Turner, 482 U.S. at 90-91. “[T]he absence of ready alternatives is evidence of the reasonableness of a prison regulation . . . . By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.” Id. The Court in Turner was careful to explain that the fourth factor is not a least-restrictive-means test, but “if an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.” Id. at 89. Based on the arguments presented supra, see Section III(B)(iii), Plaintiffs have adequately alleged that de minimis alternatives exist to allow Plaintiffs to exercise their First and Fifth Amendment rights. The BOP already provides such opportunities to the vast majority of prisoners in a way which is economically feasible. And Defendants’ unsubstantiated concerns about contact visits, MTD at 31, are easily addressed by continuing to search prisoners and visitors before and after visits. In conclusion, Plaintiffs have plainly stated plausible claims for relief for violation of their First Amendment and Fifth Amendment substantive due process rights. As such, dismissal is inappropriate.
51

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 63 of 83
IV. PLAINTIFFS HAVE ADEQUATELY PLED CRUEL AND UNUSUAL PUNISHMENT ARISING FROM THE HARSH CMU RESTRICTIONS. Plaintiffs’ fourth cause of action challenges the totality of ways in which CMU
designation – and Plaintiffs’ resultant isolation from the outside world – works a deprivation of the essential human need for meaningful contact with one’s family. See Inmates of Occoquan v. Barry, 844 F.2d 828, 836 (D.C. Cir. 1998), citing Rhodes v. Chapman, 452 U.S. 337, 348 (1981) (the Eighth Amendment prohibits deprivation of “essential human needs.”).
A valid claim of cruel and unusual punishment involves both objective and subjective components: plaintiffs must allege conditions of confinement that “involve the wanton and unnecessary infliction of pain” or are “grossly disproportionate to the severity of the crime warranting imprisonment.” Rhodes, 452 U.S. at 347. They must also allege “deliberate indifference” to the harmful impact of these conditions by prison officials. Wilson v. Seiter, 501 U.S. 294, 303 (1991). Plaintiffs have adequately alleged both prongs, and thus dismissal is inappropriate.
A. CMU Designation Deprives Plaintiffs of the Essential Human Need for Meaningful Contact with Their Families.
The maintenance of close and meaningful family relationships is an essential need, and is a part of the minimal civilized measure of life’s necessities. See Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed essential, basic civil rights of man . . . far more precious . . . than property rights”) (citations omitted). “[C]onditions of confinement may establish an Eighth Amendment violation ‘in combination’ when each would not do so alone . . . when they have a mutually reinforcing effect that produces the deprivation of a single, identifiable human need.” Wilson, 501 U.S. at 304. Thus, in deciding whether Plaintiffs have
52

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 64 of 83
stated a claim, the court must look to the combined impact of the CMU restrictions on the essential human need for family contact.
Plaintiffs have been designated to the CMU for the express purpose of restricting their access to the outside world. Compl. ¶¶ 1-2, 36. Not only are they denied all physical contact with loved ones, including children and spouses, but the opportunity for non-contact visitation is greatly circumscribed. Id. at ¶¶ 41, 46, 52-57. Where they might seek to compensate for the restrictive visitation policy by greater telephone communication, they have been limited to one or two short calls per week. Id. at ¶¶ 64-65. As explained below, these restrictions are arbitrary and lack penological purpose.
B. CMU Designation Involves Unnecessary and Wanton Infliction of Pain. In protecting the minimal civilized measure of life’s necessities, the Eighth Amendment prohibits “unnecessary and wanton” infliction of pain, including psychological pain. Chandler v. D.C. Dep’t of Corr., 145 F.3d 1355, 1360 (D.C. Cir. 1998). The CMU’s denial of the essential human need for family contact works such “unnecessary and wanton” pain. Mr. Aref, for example, was designated to the Terre Haute CMU in May 2007. Compl. ¶ 16. For two and a half years he received only one 15 minute telephone call per week, and four hours of non-contact visitation a month. Id. at ¶¶ 52, 64. He is serving a 15 year sentence and, as his designation to the CMU was based entirely on his offense conduct, he expects to serve the entirety of that sentence at the CMU. Id. at ¶¶ 44, 83, 113. A 15-year ban on all physical contact with one’s children, combined with extremely limited telephone access, uncontrovertibly causes psychological pain. Id. at ¶¶ 45, 62, 123-125.
“The Eighth Amendment prohibits punishment that is ‘totally without penological justification.’” Campbell-El v. District of Columbia, 881 F. Supp. 42, 43 (D.D.C. 1995), quoting Rhodes, 452 U.S. at 346 (equating punishment without penological justification to unnecessary
53

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 65 of 83
and wanton infliction of pain). Thus, while some conditions are so harsh they may not be imposed even with penological purpose, in other cases the existence or lack of a legitimate purpose is determinative. See, e.g., Overton, 539 U.S. at 136-37 (denying Eighth Amendment claim because two-year visitation ban for repeated substance abuse violations served the legitimate penological purpose of effecting prison discipline); Women Prisoners of the D.C. Dep’t of Corr. v. District of Columbia, 899 F. Supp. 659, 674-75 (D.D.C. 1995) aff’d in part, r’vd in part, 93 F.3d 910 (D.C. Cir. 1996) (initially holding that a ban on contact visitation with children combined with inadequate child placement counseling violated the Eighth Amendment, but reversing based on a new declaration by the Director of the D.C. Department of Corrections identifying significant security risks in the visitation program to D.C. General Hospital, including escape, assaults, and passing of contraband).
As the Supreme Court recognized in Overton, incarceration necessarily limits access to one’s family, as do legitimate security concerns and discretionary decisions of skilled prison administrators. Thus in Women Prisoners, the Court vacated the portion of its order holding that lack of child visitation violated the Eighth Amendment based on the Director’s sworn evaluation of the security risks involved in a particular visitation program. By contrast, Plaintiffs allege restrictions that serve no penological purpose. Compl. ¶¶ 41-43, 62, 68; see also Section III(B), infra. Purposeless imposition of pain violates the Eighth Amendment. See Inmates, DC Jail v. Jackson, 416 F. Supp. 119, 123 n. 3 (D.D.C. 1976) (“The Court does, of course, realize that there may be valid security reasons for prohibiting contact visits in correctional institutions. Such a determination must, however, be the result of a reasoned analysis of the relevant factors, which the defendants’ practice is clearly not”). As the parties have not had the opportunity for
54

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 66 of 83
discovery, the time is not yet ripe for Defendants to produce evidence, assuming any exists, to contradict these well-pled allegations.
C. CMU Designation Imposes Arbitrary or Disproportionate Punishment. Plaintiffs also state an Eighth Amendment claim because they have been arbitrarily (or discriminatorily) subjected to psychological pain. Compl. at ¶¶ 77-79, 92-95. And even if CMU restrictions are imposed in response to specific acts, see MTD at 35-36, 38, that response may be disproportionate and thus also unlawful. Conditions which pass Eighth Amendment scrutiny when applied evenhandedly are unconstitutional if imposed arbitrarily. See Overton, 539 U.S. at 137 (“If the withdrawal of all visitation privileges were permanent or for a much longer period, or if it were applied in an arbitrary manner to a particular inmate, the case would present different considerations”) (emphasis added); Furtado v. Bishop, 604 F.2d 80, 88 (1st Cir. 1979) (segregation amounts to cruel and unusual punishment when imposed arbitrarily and without basis; collecting cases); Dawson v. Kendrick, 527 F. Supp. 1252, 1308-09 (S.D.W.V. 1981) (courts will intervene when restrictions are imposed arbitrarily or in a punitive or discriminatory fashion; collecting cases); Laaman v. Helgemoe, 437 F. Supp. 269, 321 (D.N.H. 1977) (prison officials must “apply a visitation policy with an even hand, and the deprivation of a visit or visits to a specific individual calls for a justification greater than that demanded by the Constitution for the formation of the overall policy”). The question of whether CMU restrictions are imposed arbitrarily on Plaintiffs is not susceptible to dismissal on the pleadings. Plaintiffs have plausibly alleged that they have been singled out for CMU designation for discriminatory and/or retaliatory reasons, Compl. ¶¶ 77-79, 92-95, and that is enough to entitle them to discovery. Black v. Warden, 467 F.2d 202, 203-204 (10th Cir. 1972) (denying motion to dismiss Eighth Amendment claim based on arbitrary
55

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 67 of 83
segregation); compare Bazzetta v. McGinnis, 148 F. Supp. 2d 813, 816-818 (E.D. Mich. 2001) (describing full bench trial that resulted in the Overton decision); see also, Williams v. Frank, 06CV-1051, 2007 U.S. Dist. LEXIS 78687 at *14 (E.D. Wis. Oct. 23, 2007) (denying Eighth Amendment claim based on visitation restriction because plaintiff failed on summary judgment to provide evidence the restriction was imposed arbitrarily); Ricco v. Conner, 146 Fed. Appx. 249, 251, 255 (10th Cir. 2005) (denial under similar circumstances).
Defendants appear to argue that Plaintiffs’ designation to the CMU, and the resulting pain they must endure, is not arbitrary, but rather is based on the “reason” stated in each Plaintiff’s notice of transfer. MTD at 21, 35-36, 38. As this assertion contradicts Plaintiffs’ allegations, it may not be considered upon a motion to dismiss. But even if the restrictions on Plaintiffs’ communication are imposed in reaction to a specific incident or series of incidents, that punishment may very well be disproportionate, and thus violate the Eighth Amendment regardless. The Supreme Court has repeatedly warned that punishment may not be “grossly disproportionate to the severity of the crime warranting imprisonment.” Rhodes, 452 U.S. at 347. This Court and others have applied this principle to strike down prison conditions that are disproportionate to a given disciplinary infraction. See Fulwood v. Clemmer, 206 F. Supp. 370, 379 (D.D.C. 1962) (placement in restrictive “Special Treatment Unit cell” for six months, and subsequent denial of general population privileges, including access to programming and Saturday visits, held disproportionate to disciplinary infraction arising from unauthorized and offensive religious preaching); Chapman v. Pickett, 586 F.2d 22, 27 (7th Cir. 1978) (“Punishment which is disproportionate to the offense committed constitutes cruel and unusual punishment, whether imposed without or within prison walls”); Leslie v. Doyle, 868 F. Supp. 1039, 1043 (N.D. Ill. 1994). Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978), provides a
56

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 68 of 83
helpful analogy to the present case. There, a class of prisoners challenged their designation to HHouse, the disciplinary wing of a Georgia prison. Like the CMU, H-House was a “prison within a prison,” id. at 119, to which “problem prisoners” were designated indefinitely, without meaningful explanation or criteria for transfer back to general population. Id. at 119, 122-23. Also like the CMU, some prisoners were transferred because they appeared to be leaders within their original prison, and H-House allowed prison officials to isolate them and thus prevent their influence over other prisoners. Id. at 122. Finding Eighth Amendment violations, the court held that H-House disproportionately and capriciously inflicted pain upon prisoners. Id. at 125. The across-the-board ban on contact visitation contributed to the court’s holding, as it was based not on security needs but on economic and administrative convenience. Id. at 131.
It is impossible to discount a disproportionality claim here, as the alleged “reason” for Plaintiffs’ transfers is not clear. According to Defendants, Mr. Jones and Mr. Twitty, for example, were designated to the CMU based on their alleged involvement in “recruitment and radicalization . . . through extremist, violence oriented indoctrination methods to intimidate or coerce others.” Compl. at Exh. E. This alleged “reason” is so vague as to defy comparison to precedent. Cf. Chapman, 586 F.2d at 28 (contrasting appropriate punishment for an inmate who refused to shave his beard with that proportional to masterminding a large-scale escape attempt). Plaintiffs must be allowed the discovery necessary to undertake meaningful proportionality review, especially as Plaintiffs’ alleged misbehavior here seems tied to their religious observation and teachings. Id. (striking down lengthy period of solitary confinement for prisoner’s failure to perform work – touching pork on kitchen detail – “especially when viewed in light of the facts that the refusal was based on religious grounds”).
57

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 69 of 83
In the face of Plaintiffs’ allegations of arbitrary, unnecessary and disproportionate infliction of psychological pain, the few cases (all pro se) relied on by Defendants provide little support for dismissal. See MTD at 32-33. In Perez v. Federal Bureau of Prisons, 229 Fed. Appx. 55 (3d Cir. 2007), a federal prisoner was limited to one telephone call per week based on the BOP’s finding that his conviction as a leader/organizer of a criminal conspiracy that utilized the telephone to further criminal activity presented a security risk to the institution and community. Perez’s right to visit with his family was not limited, nor did he allege that the restrictions were imposed on him arbitrarily, or without penological purpose. Id. at 57. It is thus inapposite. Saleem v. Helman, No. 96-2502, 1997 U.S. App. LEXIS 22572, *1 (7th Cir. Aug. 21, 1997) challenged the denial of a prisoner’s request for a conjugal visit with his wife without any allegations that the plaintiff’s access to phone calls or non-conjugal, contact visitation was restricted in any way. Ricco v. Conner, 146 Fed. Appx. 249, 251 (10th Cir. 2005), is similarly irrelevant, as it involved a five-year denial of visitation as punishment for a prisoner’s third stealing offense within a three month period. In dismissing the plaintiff’s Eighth Amendment claim, the court specifically relied on the absence of any “indication that the prison officials acted in an arbitrary manner” and the prisoner’s continued access to his family through normal telephone privileges. Id. at 255.
D. Evolving Standards of Decency Finally, even if Defendants were correct that precedent does not support an Eighth Amendment challenge to arbitrary and wanton denial of contact visits and telephone access (and they are not), that does not end the inquiry. The nature of the Eighth Amendment belies blind reliance on precedent, because punishment that was once lawful may become “incompatible with ‘the evolving standards of decency that mark the progress of a maturing society.’” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citation omitted); see, e.g., Graham v. Florida, 130 S. Ct.
58

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 70 of 83

2011, 2021 (2010) (“To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions . . . . The standard itself remains the same, but its applicability must change as the basic mores of society change”) (internal citations omitted). Uniquely “flexible and dynamic,” Rhodes, 452 U.S. at 345, quoting Gregg v. Georgia, 428 U.S. 153, 171 (1976), the Eighth Amendment “is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.” Weems v. United States, 217 U.S. 349, 378 (1910).
Objective evidence indicates that contemporary standards of decency have evolved in the arena of contact visitation. A 1950s-era survey of 99.3 percent of all male prisoners in the United States discloses the relative rarity of contact visitation during that time. See Eugene Zemans & Ruth Shonle Cavan, Marital Relationships of Prisoners, 49 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 51 (1958). While every prison allowed some spousal visitation, the prisoner and his spouse were separated by a partial (17 prisons) or complete (17 prisons) barrier in 34 of the 46 prisons surveyed. Id. at 52. No physical contact at all was allowed at 21 prisons; 24 permitted one simple embrace or handshake. Id. at 53.
Fifty years ago contact visitation was the exception, rather than the norm. The story today is vastly different. Every single State correctional department allows for contact visitation for general population prisoners.6 Compare Estelle, 429 U.S. at 97 (surveying State legislation

6

Alabama: http://www.doc.state.al.us/docs/AdminRegs/AR303.pdf at 13; Alaska:

http://www.correct.state.ak.us/corrections/pnp/pdf/810.02.pdfl at 3; Arizona:

http://www.azcorrections.gov/Policies/900/0911.pdf at 27; Arkansas: http://www.adc.arkansas.gov/

adcar_pdf/AR865.pdf at 3; California: http://government.westlaw.com/linkedslice/search/default.asp?

tempinfo=find&RS=GVT1.0&VR=2.0&SP=CCR-1000 at title – 15: section – 3107; Colorado:

http://www.doc.state.co.us/conduct-and-dress; Connecticut: http://www.ct.gov/doc/LIB/doc/PDF/

AD/ad1006atta.pdf; Delaware: http://doc.delaware.gov/BOP/Visitation.shtml; Florida:

https://www.flrules.org/gateway/RuleNo.asp?ID=33-601.728; Georgia: http://www.dcor.state.ga.us/pdf/

Visitation_Policy.pdf at 15; Hawaii: http://hawaii.gov/psd/search?SearchableText=visitation; Idaho:

http://www.idoc.idaho.gov/our_facilities/visiting_conduct.htm: Illinois: http://www.idoc.state.il.us/

59

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 71 of 83
and model standards on provision of medical care to prisoners). That the CMU stands alone in
imposing a blanket ban on contact visitation for general population prisoners, in the face of a rare
50-state consensus, is compelling evidence of cruel and unusual punishment in violation of the
Eighth Amendment. See Coker v. Georgia, 433 U.S. 584, 595-96 (1977) (that Georgia is the
only state authorizing death penalty for rape of adult women “weighs very heavily” against
constitutionality of that punishment).
subsections/visitationrules/visitation.pdf at 4; Indiana: http://www.in.gov/idoc/files/Visitation.pdf at 19; Iowa: http://www.doc.state.ia.us/documents/OffenderVisiting.pdf at 11; Kansas: http://www.doc.ks.gov/ facilities/lcf/inmate-visiting/visiting-conduct; Kentucky: http://www.corrections.ky.gov/ksr/visit/; Louisiana: no written policy: phone inquiry to Department of Corrections confirmed availability of contact visitation; Maine: http://www.maine.gov/corrections/Policies/PrisonerVisitation.pdf at 6; Maryland: http://www.dpscs.state.md.us/locations/prisons.shtml; Massachusetts: http://www.mass.gov/ ?pageID=eopssubtopic&L=5&L0=Home&L1=Law+Enforcement+%26+Criminal+Justice&L2=Prisons& L3=State+Correctional+Facilities&L4=State+Correctional+Facilities+Visiting+Policies&sid=Eeops; Michigan: http://www.prisontalk.com/forums/archive/index.php/t-26725.html; Minnesota: http://www.corr.state.mn.us/offenders/documents/StatewideVisitingRoomRulesEnglishforweb.pdf at 4; Mississippi: http://www.mdoc.state.ms.us/visitation.htm; Missouri: no written policy; phone inquiry to Department of Corrections confirmed availability of contact visitation; Montana: http://www.cor.mt.gov/ Facts/visitors.mcpx; Nebraska: http://www.corrections.nebraska.gov/pdf/ar/mail/AR%20205.02.pdf; Nevada: http://www.doc.nv.gov/ar/pdf/AR719.1.pdf at 17; New Hampshire: http://www.nh.gov/nhdoc/ documents/7-09_Visiting.pdf at 5; New Jersey: http://www.state.nj.us/corrections/pdf/cia_visitation/ NJSP.pdf at 3; New Mexico: no written policy: phone inquiry to Department of Corrections confirmed availability of contact visitation; New York: http://www.docs.state.ny.us/FamilyGuide/ FamilyHandbook.html#visig; North Carolina: http://www.doc.state.nc.us/DOP/visitation/; North Dakota: http://www.nd.gov/docr/family/visitation.html; Ohio: http://www.drc.ohio.gov/web/ drc_policies/documents/76-VIS-01.pdf at 10; Oklahoma: http://www.doc.state.ok.us/Offtech/ 030118d.pdf; Oregon: http://www.oregon.gov/DOC/OPS/PRISON/osp_Visiting.shtml# Physical_Contact_With_Inmates; Pennsylvania: http://www.portal.state.pa.us/portal/server.pt?open= space&name=Dir&psname=SearchResult&psid=0&cached=true&in_hi_userid=2&control=OpenSubFold er&subfolderID=9534&DirMode=1; Rhode Island: http://www.doc.ri.gov/faq/policies/24.033%20DOC.pdf at 7; South Carolina: http://www.doc.sc.gov/family/VisitationRules.jsp; South Dakota: http://doc.sd.gov/about/faq/visitation.aspx; Tennessee: http://www.tennessee.gov/correction/pdf/50701.pdf at 8; Texas: http://www.tdcj.state.tx.us/publications/cid/Offender%20Rules%20and%20Reg%20% 288-13-08%29.pdf at 2; Utah: http://corrections.utah.gov/visitation_facilities/visiting_rules.html; Vermont: http://www.doc.state.vt.us/about/policies/rpd/327.01%20Inmate%20Visits.pdf/view? searchterm=visitation at 4; Virginia: no written policy; phone inquiry to Department of Corrections confirmed availability of contact visitation; Washington: http://www.doc.wa.gov/facilities/prison/ default.asp (links to policy at individual prisons); West Virginia: http://www.wvdoc.com/wvdoc/ PrisonsandFacilities/tabid/36/Default.aspx; Wisconsin: http://www.wi-doc.com/index_adult.htm; Wyoming: http://doc.state.wy.us/institutions/visitors.html.
60

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 72 of 83
E. Plaintiffs Have Adequately Pled Deliberate Indifference by Defendants. Defendants do not dispute that Plaintiffs have met the second half of the Eighth Amendment test: that prison officials acted with “deliberate indifference” to Plaintiffs psychological pain and injury. In the context of unconstitutional conditions, deliberate indifference requires that a prison official know of and disregard an excessive risk to inmate health and safety. Farmer v. Brennan, 511 U.S. 825 (1994). Plaintiffs have pled that Defendants “willfully and maliciously” subjected Plaintiffs to cruel, inhumane and degrading conditions. Compl. ¶ 268. They have further pled that Defendants are aware of the importance of contact visitation, and reasonable access to visits and telephone calls, id. at ¶¶ 37, 63, yet created a policy allowing for Plaintiffs to be arbitrarily denied these fundamental outlets. Id. at ¶ 75. No more is required at the pleading stage. See Chandler v. D.C. Dep’t of Corr., 145 F.3d 1355, 1361 (D.C. Cir. 1998) (noting that plaintiff pled “with sufficient particularity that” that prison officials “acted with intent to harm him or in knowing disregard of his mental anguish and risk of being killed. Further inquiry may reveal that the correctional officers lacked the necessary intent, but such a conclusion is unwarranted at this stage of the litigation.”) For the above reasons, Defendants’ motion to dismiss claim four should be denied. V. PLAINTIFFS HAVE ADEQUATELY PLED A VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT, AND RECENT EFFORTS TO CORRECT THIS VIOLATION ARE INCOMPLETE. Plaintiffs validly state a claim for violation of the Administrative Procedure Act (“APA”) because the Institution Supplements that established the CMUs are substantive rules within the meaning of the APA, but were not issued in accordance with APA procedures. While Defendants have begun the process of correcting this error, their actions are incomplete.
61

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 73 of 83
A. The CMU Institution Supplements Consist of Substantive Rules that Must Be Promulgated through Notice and Comment Rulemaking.
The APA requires federal agencies, including the BOP, to follow notice and comment rulemaking procedures before promulgating any legislative rule. 5 U.S.C. § 553(b). It also requires federal agencies to publish in the Federal Register any “substantive rules of general applicability adopted as authorized by law.” 5 U.S.C. § 552(a)(1)(D). “Failure to provide the required notice and to invite public comment . . . is a fundamental flaw that normally requires vacatur of the rule.” Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 199 (D.C. Cir. 2009) (internal quotation marks omitted).
Plaintiffs have adequately alleged that the CMU Institution Supplements were issued in violation of the APA. Compl. ¶¶ 240-49. The Institution Supplements are “rules” as defined by the APA because they are “agency statements of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describ[e] the organization [or] procedure . . . of an agency.” Id. at ¶ 240; see also Exhs. A, B; cf. 5 U.S.C. § 551(4). This is readily apparent because they prescribe new and detailed requirements governing, inter alia, prisoners’ written correspondence, telephone communication and visitation within the CMUs. Compl. at Exhs. A, B. Yet these rules were issued without notice of proposed rulemaking or opportunity for public comment, and were never published. Id. at ¶¶ 244-48.
Moreover, the government itself initially recognized that the CMUs could be established only through notice and comment rulemaking, but chose not to continue the rulemaking process after receiving unfavorable comments. Id. at ¶¶ 235-39. In 2006, the BOP published a notice of a proposed rulemaking (“NPRM”) aimed at restricting the communications of prisoners charged or convicted of terrorism. Limited Communication for Terrorist Inmates, 71 Fed. Reg. 16,520 (proposed Apr. 3, 2006) (to be codified at 28 C.F.R. pt. 540). Just like the Institution
62

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 74 of 83

Supplements that Defendants now describe as interpretive, the NPRM proposed sharp restrictions on telephone calls and visitation for certain prisoners. Id. After commentators roundly criticized the proposed regulation in June 2006, calling it “poorly conceived, almost certainly unconstitutional, and entirely unnecessary,” Compl. ¶ 237, the BOP abandoned the rulemaking process. Id. at ¶ 238. But less than six months later, and without ever taking final action on the NPRM, it quietly issued the Terre Haute CMU Institution Supplement without notice and comment procedures. Approximately fifteen months after that, it did the same with the Marion CMU Institution Supplement. Id. at ¶ 239.
Tellingly, the abandoned NPRM, which proposed restrictions essentially indistinguishable from those in the CMU Institution Supplements, explicitly recognized the need for regulatory action to impose the contemplated restrictions: “The proposed regulation would give the [BOP] authority for imposing limits and restrictions on the communications of inmates in the [BOP’s] custody based on criteria or evidence, either from outside sources . . . or from internal sources.” 71 Fed. Reg. at 16,521 (emphasis supplied). The NPRM also observed that the proposed regulation “constitute[d] significant regulatory actions” within the meaning of Executive Order 12,866, and so had been reviewed by the Office of Management and Budget.7 Id. at 16,522 (internal quotation marks omitted).
Contradicting this prior position, Defendants now contend that “[t]he CMU Institution Supplements are not ‘rules’ within the meaning of the APA, but are akin to interpretive rules or agency policy statements” that are exempt from notice and comment requirements. MTD at 40. It is “well-established that an agency may not escape the notice and comment requirements . . .

7

A “significant regulatory action” is defined as a rule that (1) has a material economic impact; (2)

is inconsistent or interferes with action by another agency; (3) materially alters the budgetary impact of

entitlements or other government programs; or (4) “raise[s] novel legal or policy issues.” Exec. Order

No. 12,866, 58 Fed. Reg. 51,735 (Sept. 30, 1993) § 3(f) (emphasis added).

63

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 75 of 83
by labeling a major substantive legal addition to a rule a mere interpretation.” Appalachian Power Co. v. EPA, 208 F.3d 1015, 1024 (D.C. Cir. 2000). Rather, it is for a court to determine whether the putative interpretation or policy statement “carries the force and effect of law,” in which case it is a “substantive” or “legislative” rule that must be promulgated in accordance with the APA. Id. (citation omitted).
The government attempts to answer this question by means of a mechanical and superficial discussion of the four factors for identifying substantive rules articulated in American Mining Congress v. Mine Safety & Health Administration, 995 F.2d 1106 (D.C. Cir. 1993). See MTD at 40-43. Properly applied, these factors show that the Institution Supplements are indeed rules subject to the APA, as demonstrated below. But since American Mining, the D.C. Circuit has on several occasions provided a more direct means of distinguishing between substantive rules and interpretive rules or policy statements. This approach leaves no doubt as to the character of the Institution Supplements here. “[T]he crucial distinction . . . is that a substantive rule modifies or adds to a legal norm based on the agency’s own authority.” Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 95 (D.C. Cir. 1997). Put differently, the “distinction [is] between rulemaking and a clarification of an existing rule.” Sprint Corp. v FCC, 315 F.3d 369, 374 (D.C. Cir. 2003). A mere clarification of an already binding legal norm does not require notice and comment, but “an agency’s imposition of requirements that affect subsequent agency acts and have a future effect on a party before the agency triggers the APA notice requirement.” Id. at 373 (internal quotation marks and alteration omitted). “[W]hen an agency changes the rules of the game . . . more than a clarification has occurred. To conclude otherwise would intolerably blur the line between when the APA notice requirement is triggered and when it is not.” Id. at 374.
64

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 76 of 83
The Institution Supplements at issue undoubtedly “change[d] the rules of the game” and imposed new requirements with “future effects” on the regulated parties. They established for the first time that “visiting between [CMU] inmates and persons in the community . . . will be . . . conducted using non-contact facilities,” as well as “live-monitored by staff,” “subject to recording,” and “in English-only.” See Compl. Exh. A at 2-3; see also Exh. B at 2. They imposed new and binding restrictions on calls and letters as well as other novel conditions and requirements. Id. Indeed, in the rare instances where the Institution Supplements did not change the previously applicable rules, they specifically so stated. Exh. A at 2 (“Unmonitored legal calls are not affected, and will continue to be managed according to national policy.”).
Nor do the Institution Supplements interpret, or purport to interpret, the particular language of a statute or existing regulation. They never quote or attempt to tie the results they prescribe to the specific terms of any pre-existing rule of law. See, e.g., Paralyzed Veterans of America v. D.C. Arena, L.P., 117 F.3d 579, 588 (D.C. Cir. 1997)(“The distinction between an interpretative and substantive rule . . . likely turns on how tightly the agency’s interpretation is drawn linguistically from the actual language of the statute or rule. If the statute or rule to be interpreted is itself very general . . . and the ‘interpretation’ really provides all the guidance, then the latter will more likely be a substantive regulation”) (internal citation omitted). Rather, they are sources of law in themselves.
For similar reasons, the Institution Supplements are not mere policy statements setting forth the agency’s position on an already-governing legal norm. They are binding pronouncements newly authorizing the establishment of the CMUs. They do not suggest that the BOP could exercise discretion to establish a CMU in the future; rather, they repeatedly use the word “will” to describe polices and conditions that are to be applied. See Compl. Exhs. A, B,
65

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 77 of 83
passim; Gen. Elec. Co. v. EPA, 290 F.3d 377, 383 (D.C. Cir. 2002) (holding that a document cannot qualify as a mere statement of policy if it “appears on its face to be binding”; a binding intent is strongly evidenced “[i]f the document is couched in mandatory language, or in terms indicating that it will be regularly applied”). Substantive rules, such as these, may be promulgated only in accordance with the APA. Id.
The American Mining factors confirm this result. Three of those factors are satisfied here, and the presence of any one is sufficient to require notice and comment rulemaking. American Mining, 995 F.2d at 1112. First, “in the absence of the rule there would not be an adequate legislative basis” for the agency’s conduct. Id. As the D.C. Circuit has explained, this factor “is another way of asking whether the disputed rule really adds content to the governing legal norms.” Syncor, 127 F.3d at 96. No other instrument sets forth, even in general terms, the unique set of restrictions that the CMU Institution Supplements prescribe. Defendants resist this conclusion because, they note, Congress has vested “control and management” of prisons in the Attorney General, and “the BOP,” in turn, “is granted broad authority and discretion for the management and regulation of all federal penal and correctional institutions.” MTD at 40-41. But this could show, at most, that the BOP had the requisite authority to promulgate a rule establishing the CMUs – not that the substantive legal norms governing the CMUs were already set forth in other statutes or regulations. Indeed, Defendants never state what specific statutory or regulatory language is supposedly interpreted by the Institution Supplements, and nor could they. The unavoidable conclusion is that the Institution Supplements are substantive rules. See Syncor, 127 F.3d at 96 (“[W]e think the government misreads American Mining Congress. We never suggested in that case that a rule that does not purport to interpret any language in a statute or regulation could be thought an interpretative rule.”)
66

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 78 of 83
Second, the Institution Supplements “invoked [the BOP’s] general legislative authority.” American Mining, 995 F.2d at 1112. As in Syncor, they use “wording consistent only with the invocation of its general rulemaking authority to extend [the BOP’s] regulatory reach.” Syncor, 127 F.3d at 95 (“[t]his Institution Supplement establishes guidelines and procedures for the operation and security of the [CMU]”); Exh. A, at 1; Exh. B at 1 (emphasis supplied).
Third, “the rule effectively amends a prior legislative rule.” American Mining, 995 F.2d at 1112. Indeed, the BOP’s now-abandoned NPRM specifically noted some of the changes made by the “proposed regulation” to the existing regulatory scheme: “Unlike 28 CFR part 501, the proposed regulations allow the Bureau to impose communication limits upon request from [the] FBI or [BOP] . . . [based upon] evidence which does not rise to the same degree of potential risk to national security or risk of acts of violence or terrorism which would warrant the Attorney General’s intervention [under Part 501].” Limited Communication for Terrorist Inmates, 71 Fed. Reg. at 16,521 (emphasis added). In addition to the many other restrictions and features that are wholly unique to CMUs, this self-avowed expansion of authority establishes that the Institution Supplements amend prior rules. Kotz v. Lappin, 515 F. Supp. 2d 143 (D.D.C. 2007), on which Defendants rely, MTD at 40, 43, is not to the contrary. The BOP Program Statement held exempt from APA procedures in Kotz merely clarified how the agency would exercise its discretionary statutory authority under 18 U.S.C. § 3621(e), and was thus not a substantive legal norm.
Accordingly, Plaintiffs have plausibly alleged an APA violation. B. Because the BOP Still Has Not Finalized and Published a Regulation
Providing for the CMUs, Plaintiffs’ APA Claim Is Not Moot. Defendants argue in passing that the APA claim is moot because “on April 6, 2010, the agency published a proposed rule seeking to describe and codify the procedures governing the
67

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 79 of 83
CMUs.” MTD at 43. But this is not the first time that the BOP has started notice and comment procedures in connection with CMUs. It never finished those procedures in 2006, and it has not yet finished them now. Compl. ¶¶ 238, 248. It has not responded to the hundreds of comments submitted in response to the notice, or issued and published a final rule in the Federal Register. Until it completes all of the steps required by the APA, it remains in non-compliance. Plaintiffs’ APA claim is therefore not moot. VI. ROYAL JONES HAS STANDING TO SUE DEFENDANTS BECAUSE HE
FACES A REAL AND IMMEDIATE THREAT OF CMU REDESIGNATION. Defendants’ final argument in support of dismissal attacks the standing of one Plaintiff. MTD at 9. But even though Mr. Jones was transferred to the general population of USP Marion in March 2010, he faces a realistic danger of redesignation to the CMU. Standing consists of three elements: (1) an injury in fact, that is (2) fairly traceable to the Defendant, and (3) likely redressable by the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Mr. Jones alleges facts that satisfy all three elements. Under the first factor, the injury or threat of injury alleged must be “real and immediate,” not “conjectural” or “hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). “Past wrongs [are] evidence bearing on ‘whether there is a real and immediate threat of repeated injury.’” Id. (citation omitted). Furthermore, “personal experience” that an injury is “if not certain, definitely likely,” can demonstrate injury in fact. Biggerstaff v. FCC, 511 F.3d 178, 183 (D.C. Cir. 2007). Plaintiffs need only “‘demonstrate a realistic danger of sustaining a direct injury as a result’ of the government action at issue.” Id. (quoting Pennell v. City of San Jose, 485 U.S. 1, 8 (1988)). Mr. Jones was initially designated to the CMU after a threat by BOP staff that he would be “sent east” if he did not stop filing complaints regarding prison conditions. Compl. ¶ 188. When he did not heed that warning, the threat was realized. Id. at ¶¶ 188-89. While at the CMU,
68

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 80 of 83
Mr. Jones filed a pro se lawsuit in December of 2008, raising many claims similar to those in the instant case. Id. He was subsequently told by CMU staff that he had “upset the big shots,” and that unless he dropped the suit, things would “get bad” for him. Id. He was also promised that if he withdrew the complaint, he would be transferred to FCI Herlong, where he could see his children and grandchildren. Id. Mr. Jones dismissed the action in August 2009. Id.
Several months later, Mr. Jones was transferred out of the CMU to the general population in USP Marion. Id. at ¶ 196. He was given no written or verbal explanation for the transfer, but was told that if he misbehaved or engaged in the conduct that originally led to his CMU designation, he would immediately be sent back to the CMU. Id. Mr. Jones was warned again by CMU officials upon his transfer to cease complaining about the CMU, and has disregarded that warning by filing the instant lawsuit. Id. at ¶ 197.
Mr. Jones’s experience demonstrates that the threat of redesignation is “a realistic danger,” Biggerstaff, 511 F.3d at 183, and is not, as Defendants contend, based on speculation or conjecture. MTD at 9. BOP officials have realized their threats to Mr. Jones in the past. His present fears are the type of “prediction of injury based on experience” of past wrong that evidences “a real and immediate threat of repeated injury.” Biggerstaff, 511 F.3d at 183 (citation omitted).
Moreover, Mr. Jones faces the threat of redesignation to the CMU because his transfer to general population came with a warning that, if he engaged in the conduct that originally led to his CMU designation, he would be returned there. Compl. ¶ 196. But Mr. Jones has never been told what that conduct was. Id. at ¶¶ 190, 196. Because he does not know what behavior to avoid, and it appears that his original designation was related to protected First Amendment activity, see id. at ¶ 188, Section II(A)(1), redesignation is a real danger.
69

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 81 of 83
In support of their contention that Mr. Jones faces no real or immediate threat of redesignation, Defendants cite Whitmore v. Arkansas, 495 U.S. 149 (1990). MTD at 9-10. But Whitmore is of absolutely no aid to them. In that case, a prisoner on death row sought appellate review of another prisoner’s death sentence, hypothesizing that if he obtained federal habeas corpus relief, then was retried, then was reconvicted, then was resentenced to death, he would be able to challenge that sentence on appeal by invoking the comparative heinousness of the other prisoner’s crimes. Id at 156. The Court rejected as “too speculative” Whitmore’s allegation that failure to review another prisoner’s case would result in future injury. Id. Mr. Jones’s position is readily distinguishable from Whitmore. He has already been designated to the CMU once for undisclosed reasons, and has been directly warned that he faces redesignation should BOP officials decide that he has reengaged in that undisclosed conduct. Compl. ¶ 196. Moreover, he has entered the present litigation in spite of direct warnings that he should stop complaining about the CMU. Id. at ¶ 197. Unlike in Whitmore, there is nothing unrealistic or speculative about Mr. Jones’s fears.
Mr. Jones also satisfies the remaining two elements. The concrete and definite threat of injury he suffers is directly traceable to Defendants’ actions, and Defendants do not argue otherwise. Finally, the threat of injury is redressable by this Court. Relief affording Plaintiffs the same opportunities for communication as all other general population prisoners in the BOP would eliminate the harm Mr. Jones faces if he is redesignated to the CMU. Alternatively, an order by this court to house Mr. Jones at a BOP facility appropriate to his security classification would eliminate his well-grounded fear of redesignation. Thus, Mr. Jones has standing.
CONCLUSION For the reasons stated above, Defendants’ motion to dismiss should be denied.
70

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 82 of 83

Dated: New York, NY September 8, 2010

Respectfully submitted,
By: /s/ Alexis Agathocleous__________ ALEXIS AGATHOCLEOUS, pro hac vice RACHEL MEEROPOL, pro hac vice SHAYANA D. KADIDAL (D.C. Bar No. 454248)
CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 Tel: (212) 614-6478 Fax: (212) 614-6499 aagathocleous@ccrjustice.org
GREGORY SILBERT ANNIE CASTELLANI KAVITA DESAI WEIL, GOTSHAL & MANGES, LLP 767 Fifth Avenue New York, NY 10153 Tel: (212) 310-1000 Fax: (212) 310-8007 gregory.silbert@weil.com
KENNETH A. KREUSCHER Portland Law Collective, LLP 1130 SW Morrison Street, Suite 407 Portland, OR 97205 Tel: 503-228-1889 Fax: 503-223-4518 kenneth@portlandlawcollective.com
Attorneys for Plaintiffs

71

Case 1:10-cv-00539-RMU Document 23 Filed 09/08/10 Page 83 of 83
Certificate of Service I certify that on September 8, 2010 I caused the foregoing OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS to be served by first class mail on the pro se Applicants listed below. Dated: September 8, 2010
/s/Alexis Agathocleous_________ ALEXIS AGATHOCLEOUS William Oscar Harris #40743050 FCI Terre Haute, CMU PO Box 33 Terre Haute, IN 47808 Rex Russell Dean Landers #05177046 FCI Terre Haute, CMU PO Box 33 Terre Haute, IN 47808 Ralph William Taylor #31628048 FCI Terre Haute, CMU PO Box 33 Terre Haute, IN 47808 Daniel John Riley #14528052 FCI Terre Haute, CMU PO Box 33 Terre Haute, IN 47808
72

 
 Case 1:10-cv-00539-RMU Document 29 Filed 11/09/10 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

YASSIN MUHIDDIN AREF, et al.

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 10-0539 (RMU)

)

)

ERIC HOLDER, et al.

)

)

)

Defendants.

)

)

DEFENDANTS’ SUPPLEMENTAL MOTION TO DISMISS ON MOOTNESS GROUNDS

Pursuant to Federal Rule of Civil Procedure 12(b)(1) and the Court’s November 2, 2010

Minute Order, Defendants hereby respectfully request that the Court dismiss all of the claims in

the Complaint brought by Avon Twitty and Daniel McGowan regarding their designation to and

confinement in a Communications Management Unit (“CMU”). Twitty and McGowan have

recently been released from the CMU and thus are no longer subject to the CMU’s

communication restrictions. As a consequence, their constitutional claims for declaratory and

injunctive relief arising out of their designation to and confinement in a CMU are now moot. For

the same reason, their claims that Defendants violated the Administrative Procedure Act by

establishing the CMUs without notice and comment rulemaking are also moot. Finally, the

claims of Jenny Synan are moot because her claims are based entirely on the impact of the

CMU’s communication restrictions on her ability to communicate with her husband, Daniel

McGowan. The reasons in support of Defendants’ Supplemental Motion are further set forth in

the attached Memorandum of Points and Authorities.

1

Case 1:10-cv-00539-RMU Document 29 Filed 11/09/10 Page 2 of 9

Dated: November 9, 2010

Respectfully submitted,
TONY WEST Assistant Attorney General
RONALD C. MACHEN JR. United States Attorney
VINCENT M. GARVEY Deputy Branch Director Federal Programs Branch
________/s/_______________ NICHOLAS CARTIER (D.C. Bar # 495850) Trial Attorney U.S. Department of Justice Civil Division/Federal Programs Mail: P.O. Box 883 Washington, D.C. 20044 Street: 20 Massachusetts Ave., N.W. Washington, DC 20001 Ph: (202) 616-8351 Fax: (202) 616-8470 Email: nicholas.cartier@usdoj.gov
Attorneys for Defendants

2

Case 1:10-cv-00539-RMU Document 29 Filed 11/09/10 Page 3 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

YASSIN MUHIDDIN AREF, et al.

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 10-0539 (RMU)

)

)

ERIC HOLDER, et al.

)

)

)

Defendants.

)

)

DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR SUPPLEMENTAL MOTION TO DISMISS ON MOOTNESS GROUNDS
INTRODUCTION

This action is brought by five federal prison inmates (“Plaintiffs”) and two spouses

(“Family Plaintiffs”) arising out of Plaintiffs’ designation to a “Communications Management

Unit” (CMU), which is a self-contained general prison population unit that is used by the Bureau

of Prisons (“Bureau” or “BOP”) to monitor the communications of high-risk prisoners. See

Defendants’ Memorandum In Support of Their Motion Dismiss (“MTD”) at 4-7 (Dkt No. 19).

Defendants have filed a motion to dismiss the complaint based on lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted.1 See generally MTD.

1 Plaintiffs allege that their transfer to the CMU violated their procedural due process rights, and that they were designated to a CMU in retaliation for engaging in protected First Amendment activities, such as filing grievances, and/or because they are Muslim. Compl.¶¶ 253, 273. They also allege that the restrictions on communications imposed in the CMU violate their substantive due process rights to family integrity, their First Amendment rights to freedom of speech and association, and constitute cruel and unusual punishment. Id. ¶¶ 258, 261, 268. Finally, they allege that the Bureau was required under the Administrative Procedure Act (“APA”) to provide notice and comment rulemaking before establishing the CMUs. Id. ¶¶ 276-281.
1

Case 1:10-cv-00539-RMU Document 29 Filed 11/09/10 Page 4 of 9
Since the completion of the briefing on Defendants’ motion to dismiss, subsequent events have provided further grounds for dismissing the claims of two of the Plaintiffs on mootness grounds.
On October 19, 2010, Daniel McGowan was released from the CMU at the United States Penitentiary in Marion, Illinois (“USP Marion”), and was transferred to the non-CMU general prison population at USP Marion. Declaration of Milt Neuman ¶ 3 (Exhibit A). McGowan’s release arose in connection with a routine program review and was based on “the length of time he had been confined within the unit without incident, having maintained clear conduct, and his overall positive activities and program participation.” Id. at ¶ 4 ; see also MTD at 7-8 (explaining that CMU’s Unit Team conducts regular reviews of an inmate’s designation to the CMU to determine whether continued placement is appropriate).
In addition, on October 20, 2010, Avon Twitty was transferred from the CMU at the Federal Correctional Complex in Terre Haute, Indiana (“FCC Terre Haute”) to a halfway house known as a Community Corrections Center (“CCC”) in the Washington, D.C. area. See Declaration of Cory Shepherd (“Shepherd Decl.”) ¶ 3 (Exhibit B).2 Twitty became eligible for placement in a CCC because he completed the majority of his sentence, and is currently scheduled to be released from BOP custody in January 2011. Id. (citing 18 U.S.C. § 3624(c)(1)).3
2 The Court may consider the attached declarations of BOP Case Managers Milt Neuman and Cory Shepherd for purposes of determining whether the claims of Twitty and McGowan are moot. See Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992) (In reviewing a motion to dismiss for lack of subject matter jurisdiction, the court may, where necessary, “consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts”). 3 18 U.S.C. § 3624(c)(1) provides that “[t]he Director of the Bureau of Prisons shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a
2

Case 1:10-cv-00539-RMU Document 29 Filed 11/09/10 Page 5 of 9
As set forth below, because Twitty and McGowan seek only future-looking equitable remedies, and have neither sought damages nor purport to represent a class of CMU inmates, their release from the CMU moots their claims. In addition, because the claims of one of the Family Plaintiffs, Jenny Synan, are based entirely on the alleged impact the CMU communication restrictions have on her marital relationship with Plaintiff McGowan, her claims must be dismissed as well.4
ARGUMENT I. Plaintiffs’ Constitutional Claims Seeking Equitable Relief Arising Out of Their
Transfer To And Confinement In A CMU Are Moot In Light Of Their Release From The CMU. Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies. Spencer v. Kemna, 523 U.S. 1, 7 (1998). The case-or-controversy requirement demands that, at all stages of the case, “the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Id. (internal quotation marks omitted) (emphasis added). Thus, where intervening events after the filing of a lawsuit prevent a court from ordering any relief, the case is moot. See Murphy v. Hunt, 455 U.S. 478, 481-82 (1982) (plaintiff’s constitutional challenge to the lack of pretrial bail that sought declaratory and injunctive relief was moot following his conviction, since at that point the “question was no longer live because even a favorable decision on it would not have entitled [Plaintiff] to bail”). Applying these mootness principles, decisions in this Circuit hold that lawsuits challenging prison conditions and that seek only equitable relief become moot once the prisoner reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community. Such conditions may include a community correctional facility.” 4 Family Plaintiffs join in Plaintiffs’ claims that the CMU’s communication restrictions violate the Due Process Clause and the First Amendment. Compl. ¶¶ 256-265.
3

Case 1:10-cv-00539-RMU Document 29 Filed 11/09/10 Page 6 of 9
is transferred to a facility with different conditions. According to the D.C. Circuit, “[n]ormally, a prisoner’s transfer or release from a prison moots any claim he might have for equitable relief arising out of the conditions of his confinement in that prison.” Scott v. District of Columbia, 139 F.3d 940, 941 (D.C. Cir. 1998); Cameron v. Thornburgh, 983 F.2d 253, 254-257 (D.C. Cir. 1993) (transfer from one federal prison to another mooted prisoner’s claim for injunctive relief with respect to conditions at pre-transfer prison); see also Dorman v. Thornburgh, 955 F.2d 57, 58 (D.C. Cir. 1992) (prisoner’s claim for injunctive or declaratory relief regarding prison conditions “becomes moot once prisoner is no longer subject to those conditions”).
In this case, the equitable claims of Plaintiffs Twitty and McGowan are moot because their alleged prior constitutional injuries cannot be remedied by the future-looking injunctive and declaratory relief they seek. In Twitty’s case, he has been transferred to a CCC, or halfway house, in Washington, D.C., see Shepherd Decl.¶ 3, while McGowan has been transferred to the main general prison population at USP Marion, Neuman Decl. ¶ 3. Therefore, because they have been transferred out of the CMU and are no longer subject to the CMU’s communication restrictions, they have already received the injunctive relief sought in their Complaint.5 Id.
Likewise, Plaintiffs do not possess a cognizable interest in receiving a declaratory judgment that their transfer to and confinement in a CMU violated the Constitution. See Compl.,
5 The Complaint’s prayer for relief requests that the Court “[o]rder Defendants to transfer each Plaintiff from the CMU to the general population at a federal prison appropriate for each Plaintiffs’ security classification or provide each Plaintiff with due process to ensure their designation to the CMU was appropriate and devoid of discriminatory animus . . . .” Compl., Prayer for Relief (b) (emphasis in original). In addition, the Complaint requests that the Court “[o]rder Defendants to award Plaintiffs the same opportunities for communication as all other general population prisoners in the BOP, i.e. 300 phone minutes a month, and contact visitation pursuant to the rules of the facility to which they are designated . . . .” Id., Prayer for Relief(c). Plaintiffs have received the requested relief since they have been transferred from the CMU and are no longer subject to the CMU’s communication restrictions. See Shepherd Decl. ¶ 3; Neuman Decl. ¶ 3.
4

Case 1:10-cv-00539-RMU Document 29 Filed 11/09/10 Page 7 of 9
Prayer for Relief (a) (seeking declaratory order that, inter alia, “Defendants’ actions violate Plaintiffs’ First, Fifth and Eighth Amendment rights . . .”); see also supra note 1 (describing nature of Plaintiffs’ claims). The D.C. Circuit has made clear that all equitable claims, including claims for declaratory relief, are mooted once a prisoner is no longer subject to the conditions that formed the basis of her lawsuit. See Dorman, 955 F.2d at 58 (prisoner’s claim for injunctive or declaratory relief regarding prison conditions “becomes moot once prisoner is no longer subject to those conditions”); Scott, 139 F.3d at 941 (transfer of prisoner to different facility normally moots “any claim he might have for equitable relief” relating to conditions of confinement at pre-transfer facility).
In light of this precedent, the constitutional claims of Plaintiffs Twitty and McGowan, as well as the claims of McGowan’s wife, Jenny Synan, are now moot. II. Plaintiffs’ APA Claim Is Also Moot Given Their Release From The CMU.
Plaintiffs’ Complaint contends that the BOP violated the APA by establishing the CMUs without providing for a period of notice and comment rulemaking. Compl. ¶¶ 276-282. Even if the Court were to find a procedural defect under the APA with respect to the establishment of the CMUs, however, it could not redress any alleged injuries to Twitty and McGowan for the simple reason that they are no longer confined to the CMUs. 6 Any finding by the Court with respect to their APA claim would have no practical effect on these two Plaintiffs. See Renal Physicians Ass’n v. Dep’t of Health and Human Serv., 422 F. Supp. 2d 75, 85 (D.D.C. 2006) (to establish standing to challenge lack of notice and comment rulemaking under APA, plaintiff “must still 6 Defendants have previously explained why the BOP was not required to engage in notice and comment rulemaking under the APA before establishing the CMUs, and why this claim is moot in light of the fact that the BOP has published a proposed rule in the Federal Register, has received comments from interested parties, and is now analyzing those comments in anticipation of publishing a final rule. See MTD at 39-43 (Dkt. No. 19); Defendants’ Reply In Support of Their Motion to Dismiss at 34-39 (Dkt. No. 27).
5

Case 1:10-cv-00539-RMU Document 29 Filed 11/09/10 Page 8 of 9
demonstrate that it is likely, not speculative, that the [C]ourt can redress the injury”) (internal
quotation marks and citation omitted), aff’d Renal Physicians Ass’n v. Dep’t of Health and
Human Serv., 489 F.3d 1267, 1278-79 (D.C. Cir. 2007) (stating that, in a procedural-injury case
involving an alleged failure to provide notice and comment rulemaking under the APA, “the
plaintiff must still show that the agency action was the cause of some redressable injury to the
plaintiff”); see also Spencer, 523 U.S. at 7 (to avoid mootness, “plaintiff must have suffered, or
be threatened with, an actual injury traceable to the defendant and likely to be redressed by a
favorable judicial decision”) (internal quotation marks omitted). As a result, their APA claim is
moot as well.7
CONCLUSION
For the aforementioned reasons, Defendants respectfully request that the Court grant their
Supplemental Motion To Dismiss all of the claims of Avon Twitty, Daniel McGowan and Jenny
Synan with prejudice.
7 None of the claims in this case fall within the exception to mootness for claims “capable of repetition, yet evading review.” See Weinstein v. Bradford, 423 U.S. 147, 148-49 (1975). First, Plaintiffs cannot show that confinement in a CMU is “in its duration too short to be fully litigated prior to its cessation or expiration.” Spencer, 523 U.S. at 17 (internal quotation marks omitted). Here, two of the five Plaintiffs remain in the CMU where they have been, respectively, since May 2007 (Aref, Compl. ¶16) and June 2007 (Jayyousi, Compl. ¶ 22). Second, there is no “reasonable expectation” or “demonstrated probability” that Twitty and McGowan will be returned to the CMU. Spencer, 523 U.S. at 17; Murphy, 455 U.S. at 482 (internal quotation marks omitted). In addition, Plaintiffs’ claims do not fall within the exception to mootness for cases involving a “voluntary cessation of allegedly illegal conduct,” where the defendant remains “free to return to his old ways” once the case is dismissed. United States v. W.T. Grant Co., 345 U.S. 629, 630-632 (1953). This exception has no applicability here because Defendants have not ceased to operate the CMUs. Furthermore, Twitty and McGowan were released from the CMU in accordance with normal prison procedures, see supra at 2, not to escape legal scrutiny. Thus, the concerns underlying the voluntary cessation doctrine are inapplicable in this case. See City News and Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001) (explaining that voluntary cessation exception to mootness “traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior”).
6

Case 1:10-cv-00539-RMU Document 29 Filed 11/09/10 Page 9 of 9

Dated: November 9, 2010

Respectfully submitted,
TONY WEST Assistant Attorney General
RONALD C. MACHEN JR. United States Attorney
VINCENT M. GARVEY Deputy Branch Director Federal Programs Branch
________/s/_______________ NICHOLAS CARTIER (D.C. Bar # 495850) Trial Attorney U.S. Department of Justice Civil Division/Federal Programs Mail: P.O. Box 883 Washington, D.C. 20044 Street: 20 Massachusetts Ave., N.W. Washington, DC 20001 Ph: (202) 616-8351 Fax: (202) 616-8470 Email: nicholas.cartier@usdoj.gov
Attorneys for Defendants

7

 
 Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

Yassin Muhiddin AREF, et al., )

)

Plaintiffs,

)

)

v.

)

Case No. 1:10-cv-00539-RMU

)

(Argument Requested, Renewing Prior Request)

)

Eric HOLDER, et al.,

)

)

Defendants.

)

______________________________)

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ SUPPLEMENTAL MOTION TO DISMISS

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 2 of 20

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................................................................................. ii
ARGUMENT..................................................................................................................... 1
I. Defendants Have Not Met the “Heavy Burden” Required to Establish Mootness. ............................................................................................................... 2
A. Plaintiffs Face Redesignation to the CMU. ............................................... 4
B. Transfer from the CMU Has Not Completely and Irrevocably Eradicated the Effects of the Alleged Violation. ....................................... 8
II. If There Is Any Question as to the Continued Existence of a Live Controversy, this Court Should Order Limited Jurisdictional Discovery............ 13
CONCLUSION................................................................................................................ 14

i

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 3 of 20
TABLE OF AUTHORITIES
Albritton v. Kantor, 944 F. Supp. 966 (D.D.C. 1996) .........................................................2 Barnett v. Rodgers, 410 F.2d 995 (D.C. Cir. 1969).............................................................5 Black v. Warden, 467 F.2d 202 (10th Cir. 1972)...............................................................11 Brooks v. Frank, No. 08-00504, 2009 U.S. Dist. LEXIS 38089
(D. Haw. May 1, 2009) ..................................................................................................8 Burns v. Pa. Dep't of Corr., 544 F.3d 279 (3d Cir. 2008) ...................................................7 Cameron v. Thornburgh, 983 F.2d 253 (D.C. Cir. 1993) ....................................................5 Caribbean Broad. Sys. Ltd. v. Cable & Wireless PLC, 148 F.3d 1080
(D.C. Cir. 1998) ...........................................................................................................14 Preiser v. Newkirk, 422 U.S. 395 (1975)...........................................................................11 City of L.A. v. Lyons, 461 U.S. 95 (1983) ............................................................................8 City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982) .........................................2 Daker v. Wetherington, 469 F. Supp. 2d 1231 (N.D. Ga. 2007) .........................................5 Davidson v. Stanley, No. 02-190, 2003 U.S. Dist. LEXIS 13520
(D.N.H. Aug. 4, 2003) .................................................................................................11 Davis v. Grant Park Nursing Home LP, 639 F. Supp. 2d 60 (D.D.C. 2009) ....................13 Dorman v. Thornburgh, 955 F.2d 57 (D.C. Cir. 1992)........................................................5 Farouki v. Petra Int'l Banking, Corp., 683 F. Supp. 2d 23 (D.D.C. 2010) .......................13 Foretich v. United States, 351 F.3d 1198 (D.C. Cir. 2003) ...............................................12 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc.,
528 U.S. 167 (2000)...................................................................................................2, 4 Fund for Animals v. Jones, 151 F. Supp. 2d 1 (D.D.C. 2001).....................................2, 4, 8 Inmates of Occoquan v. Barry, 650 F. Supp. 619 (D.D.C. 1986), vacated on other
grounds, 844 F.2d 828 (D.C. Cir. 1988)........................................................................4
ii

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 4 of 20 Inmates of the Bucks County Corr. Facility v. County of Bucks, No. 02-7377,
2004 U.S. Dist. LEXIS 30547 (E.D. Pa. Dec. 20, 2004) ...............................................8 Nat'l Black Police Ass'n v. District of Columbia, 108 F.3d 346 (D.C. Cir. 1997).....2, 8, 13 Navab-Safavi v. Broad. Bd. of Governors, 650 F. Supp. 2d 40 (D.D.C. 2009).................13 Nichols v. Laundrieu, No. 79-3094, 1980 U.S. Dist. LEXIS 17630 (D.D.C. Sep.
12, 1980) ........................................................................................................................6 Payne Enterprises Inc., v. United States, 837 F.2d 486 (D.C. Cir. 1988) .......................7, 8 Shahid v. Freeman, No. 85-5876, 1987 U.S. App. LEXIS 3082
(D.C. Cir. Jan. 8, 1987)..................................................................................................4 Scott v. District of Columbia, 139 F.3d 940 (D.C. Cir. 1998) ............................................5 Spencer v. Kemna, 523 U.S. 1 (1998)................................................................................13 Vitek v. Jones, 445 U.S. 480 (1980).................................................................................3, 6 West v. Cunningham, 456 F.2d 1264 (4th Cir. 1972) ..................................................10, 11
iii

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 5 of 20

ARGUMENT By supplemental motion, Defendants ask this Court to dismiss all of Plaintiffs McGowan, Synan and Twitty’s claims.1 Since the filing of this lawsuit, Defendants have voluntarily chosen to remove Mr. McGowan2 and Mr. Twitty from the CMU. On this basis, Defendants would deny to Mr. McGowan and Mr. Twitty the possibility of attaining the relief they sought in bringing this case, including a declaration that Defendants violated Mr. McGowan and Mr. Twitty’s First, Fifth, and Eighth Amendment rights by designating them to the CMU and holding them in restrictive conditions of confinement for 26 and 40 months, and an injunction forbidding the BOP from continuing to subject the men to unlawful treatment. Defendants have not met the heavy burden required to establish mootness. Their decision to transfer Mr. McGowan and Mr. Twitty from the CMU was voluntary and subject to reversal, and Mr. McGowan and Mr. Twitty thus face redesignation to the CMU. Moreover, it does not provide them with all requested relief, and has not completely and irrevocably eradicated the effects of Plaintiffs’ prolonged CMU designation. For these reasons, and based on the information provided by Plaintiffs McGowan and Twitty in the attached declarations, Defendants’ supplemental motion must be denied. See Declaration of Daniel McGowan, (“McGowan Decl.”), attached as Exhibit A; Declaration of Avon Twitty, (“Twitty Decl.”), attached as Exhibit B. In the alternative, should a question as to the existence of a live controversy remain, this Court should allow limited jurisdictional discovery.

1

Defendants’ motion is limited to a discussion of the changed circumstances of Plaintiffs

McGowan and Twitty, as is Plaintiffs’ response. However, Plaintiffs also take this opportunity to alert

the Court to the recent transfer of Plaintiff Jones from the general population at USP Marion to general

population at FCI Oxford, a medium security prison, and the transfer of Plaintiff Jayyousi from the CMU

at FCI Terre Haute to the CMU at USP Marion.

2

Plaintiffs agree with Defendants that Ms. Synan’s claims rise and fall with those of Daniel

McGowan, her husband.

1

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 6 of 20
I. Defendants Have Not Met the “Heavy Burden” Required to Establish Mootness. Defendants’ motion arises primarily from their own voluntary cessation of illegal activity
in response to litigation, but they have failed to meet the “heavy burden” of persuading the court that the “stringent” voluntary cessation standard has been met. See Fund for Animals v. Jones, 151 F. Supp. 2d 1, 5 (D.D.C. 2001). A case is moot when “the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Id. (internal citations and quotation marks omitted). In itself, a “defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)); see also Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997) (“generally voluntary cessation of challenged activity does not moot a case”). Rather, to establish mootness, a defendant must show: (1) that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur;” and (2) that “interim relief and events have completely and irrevocably eradicated the effects of the alleged violation.” Fund for Animals, 151 F. Supp. at 5 (quoting Friends of the Earth, 528 U.S. at 189 and Albritton v. Kantor, 944 F. Supp. 966, 974 (D.D.C. 1996)).
Defendants’ removal of Plaintiffs McGowan and Twitty from the CMU, after Plaintiffs’ initiation of this lawsuit challenging that designation, amounts to voluntary cessation of illegal activity, and is thus analyzed under the strict standard described above. A skeptical analysis of Defendants’ actions is especially warranted here as the available evidence strongly suggests that the transfers were a direct result of this litigation. With the sole exception of Mr. Jones’ transfer from the CMU on the eve of Plaintiffs’ filing of this case (at a point when Defendants must have
2

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 7 of 20
been aware litigation was pending), not a single CMU prisoner was transferred to a general population unit prior to initiation of this lawsuit. Since initiation of this lawsuit, by contrast, seven prisoners (excluding Mr. Twitty) have been transferred to general population units. See Complaint (“Compl.”) (Docket # 5) at ¶ 196; McGowan Decl. at ¶ 6; Twitty Decl. at ¶ 4.
Despite this powerful circumstantial evidence, Defendants all but ignore the voluntary cessation standard, arguing in a footnote that it does not apply because Plaintiffs were released from the CMU “in accordance with normal prison procedures.” Defendants’ Supplemental Motion to Dismiss on Mootness Grounds (hereinafter “Def. Supp. Mot.”) at 6 n. 7. But simply saying this does not make it so, especially as the only evidence Defendants marshal is the word of BOP employees who lacked the authority to order Plaintiffs’ transfers. See id. at Exhs. A, B. According to the BOP’s own “policy,” the unit team may recommend a prisoner’s transfer from the CMU, but the Warden, the Counter Terrorism Unit, and the Regional Director must all concur for a transfer to occur. Compl. at ¶ 89. The regional director has final say. Id. The declarations attached to Defendants’ motion say nothing about what led to the regional director’s decision to accept the unit teams’ recommendation to transfer Mr. McGowan and Mr. Twitty this time around, when prior unit team recommendations were disregarded by the region. See McGowan Decl. at ¶ 2; Twitty Decl. at ¶ 2.
While it is true that Defendants have only voluntarily ceased their allegedly unlawful conduct as to a few Plaintiffs, see Def. Supp. Mot. at 6 n.7, that is of no moment. Each Plaintiff as an individual has the right to a day in court that cannot be circumvented by Defendants’ voluntary and uncertain actions. See, e.g., Vitek v. Jones, 445 U.S. 480, 486 (1980) (applying voluntary cessation standard to find that a prisoner’s procedural due process challenge was not moot where State continued to employ the challenged policy but plaintiff had been transferred
3

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 8 of 20

from the unit). To hold otherwise would allow a defendant to cherry pick between plaintiffs, transferring those for whom it seeks to avoid judicial review, while retaining others.
As Defendants’ motion is based on their own voluntary cessation of illegal activity in reaction to litigation, they must meet a “heavy burden” of persuading the court that the “stringent” voluntary cessation standard has been met. See Fund for Animals, 151 F. Supp. at 5. This they have failed to do.
A. Plaintiffs Face Redesignation to the CMU. Although Plaintiffs McGowan and Twitty have been transferred out of the CMU, they remain in Defendants’ custody,3 and Defendants remain “free to return to [their] old ways” by redesignating Plaintiffs to the CMU. See Friends of the Earth, 528 U.S. at 189; Inmates of Occoquan v. Barry, 650 F. Supp. 619 (D.D.C. 1986), vacated on other grounds, 844 F.2d 828 (D.C. Cir. 1988). Defendants have given no indication that they have modified their finding that Plaintiffs require heightened communications management, nor removed it from Plaintiffs’ central file. Defendants continue to defend the legality of the CMUs, and operate them without due process attached to designation. And Defendants have transferred Plaintiffs in reaction to litigation, without explanation, and without any guarantee against redesignation to the CMU. Thus, redesignation is an objectively reasonable possibility. To establish mootness, Defendants must show with absolute clarity that Plaintiffs will not be redesignated to the CMU. See, e.g., Shahid v. Freeman, No. 85-5876, 1987 U.S. App. LEXIS

3

Mr. Twitty is currently being held at a Community Corrections Center (CCC) in Washington,

D.C. See Twitty Decl. at ¶ 1; Def. Supp. Mot. at 2. Community Corrections is “an integral component of

the Bureau’s correctional programs.” See BOP, Community Corrections, available at

http://www.bop.gov/locations/cc/index.jsp. “The BOP’s community-based programs are administered by

staff of the Correctional Programs Division (CPD) in Central Office (in Washington, DC), community

corrections regional management teams in each of the BOP's six regional offices, and the employees of 22

community corrections management (CCM) field offices serving specific judicial districts within their

regions.” Id.

4

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 9 of 20
3082, at *1 n.1 (D.C. Cir. Jan. 8, 1987) (“The key factor in determining whether appellant’s claims for injunctive relief are moot is whether either party claimed that [the prisoner plaintiff] might be returned to the Lorton facility”) (unpublished decision); Barnett v. Rodgers, 410 F.2d 995, 997 n.1 (D.C. Cir. 1969) (prisoner-plaintiffs’ transfer from a D.C. jail to a Virginia prison did not moot their challenge to the jail’s failure to provide them with a pork-free diet as prisonerplaintiffs might be returned to the jail); Daker v. Wetherington, 469 F. Supp. 2d 1231, 1241 (N.D. Ga. 2007) (denying mootness challenge to prisoners’ claim of interference with religious exercise despite claimed revision of relevant policy because revision not shown to be state-wide, and defendants provided no assurance that plaintiff would not be subject to a similar policy if transferred to another prison). Defendants’ motion and accompanying declarations are completely silent as to this question, and thus the Court must retain jurisdiction over Plaintiffs’ claims.
The precedent upon which Defendants rely is not to the contrary, as none of the cases they cite include any analysis of voluntary cessation or the possibility of redesignation to challenged conditions. See Def. Supp. Mot. at 4, citing Scott v. District of Columbia, 139 F.3d 940 (D.C. Cir. 1998) (making no mention of voluntary cessation or any allegation that prisoner plaintiff might be transferred back to prison in question); Cameron v. Thornburgh, 983 F.2d 253 (D.C. Cir. 1993) (same); Dorman v. Thornburgh, 955 F.2d 57 (D.C. Cir. 1992) (same).
Indeed, Mr. McGowan and Mr. Twitty both fear redesignation to the CMU, and this fear is objectively reasonable. See McGowan Decl. at ¶ 13, Twitty Decl. at ¶¶ 13-15. Defendants designated Plaintiffs to the CMU based on their (unsupported) finding that Plaintiffs’ “transfer to [the CMU] for greater communication management is necessary to the safe, secure, and orderly operation of Bureau institutions, or protection of the public.” Compl. at Ex. E. To date,
5

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 10 of 20
Plaintiffs have no indication that Defendants have modified this finding, nor removed it from Plaintiffs’ central file. See McGowan Decl. at ¶ 9, Twitty Decl. at ¶ 9. Defendants have not even explained why security needs no longer require that Plaintiffs be held in the CMU. See McGowan Decl. at ¶ 2. As long as Defendants’ finding that Plaintiffs pose a security risk and require monitoring remains in official BOP records, it is reasonable to assume that they face redesignation to a CMU. Cf. Vitek, 445 U.S. at 486 (plaintiff faced possible recurrence of allegedly unlawful placement because State continued to credit its finding that plaintiff was mentally ill, and posed a threat to his own and others’ safety). Indeed, Mr. Twitty was directly told that he faces the possibility of redesignation if while at his Community Corrections program he engages in the conduct that resulted in his initial designation to the CMU – even though that alleged conduct has never been disclosed. See Twitty Decl. at ¶¶ 13, 14.
Here, the possibility of recurrence is also high because Defendants continue to defend the legality of the challenged lack of process associated with CMU designation. See Defendants’ Motion to Dismiss (Docket # 19). The possibility of recurrence faced by both men is heightened given the substantive claims at the core of Plaintiffs’ challenge: that the BOP has refused to disclose the factual basis for Plaintiffs’ CMU placement, has failed to implement procedures to ensure that CMU designation is based on legitimate criteria, and has instead facilitated an unchecked pattern of retaliatory and discriminatory designations. See Compl. at ¶¶ 92-102. Where an agency acts without process or legitimate criteria, recurrence is always possible.
In Nichols v. Laundrieu, No. 79-3094, 1980 U.S. Dist. LEXIS 17630, *2 (D.D.C. Sep. 12, 1980), for example, this Court considered a Section 8 tenant’s procedural due process challenge to the Department of Housing and Urban Development’s (HUD’s) decision, without hearing or meaningful notice, to alter the plaintiff’s eligibility from a three-bedroom to a two-
6

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 11 of 20
bedroom unit. After the case was filed, HUD granted the plaintiff a voluntary waiver to remain in her three-bedroom home, and then sought dismissal on mootness grounds. Id. at *2-3. The Court denied defendant’s motion even after HUD published a handbook setting forth considerable procedural safeguards for Section 8 rent reductions, finding no assurance that HUD would not undertake the same allegedly wrongful action in future years because the handbook did not have the force of law. Id. at 4.
In the present case, even more than in Nichols, there is a high possibility of recurrence because the challenged lack of process remains, and Defendants continue to defend its legality. See Defendants’ Motion to Dismiss (Docket # 19). All that has changed is its present application to certain plaintiffs. See Payne Enterprises Inc., v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988) (challenge to practice of delaying response to FOIA request not mooted by release of specific documents that prompted suit). Finally, because Plaintiffs do not know exactly what they did to earn CMU placement in the first place, they cannot modify their behavior to avoid redesignation. See McGowan Decl. at ¶ 8, Twitty Decl. at ¶ 14.
While Defendants have voluntarily removed Plaintiffs McGowan and Twitty from the CMU, they have done so in reaction to litigation, without explanation, and without any guarantee against redesignation to the CMU. These voluntary and uncertain actions do not even approach the “formidable burden that a party alleging mootness must bear.” Burns v. Pa. Dep’t of Corr., 544 F.3d 279, 284 (3d Cir. 2008). Defendants say nothing in their motion, memorandum of law, or affidavits about the possibility of redesignation to the CMU. But even were they to swear against recurrence, a past history of consistent violations belies a finding of mootness. See id. (denying mootness challenge to procedural due process claim arising from a prison disciplinary proceeding because defendants’ promise that sanction would not be imposed came late in the
7

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 12 of 20
game, was not sworn or notarized, and failed to detail basis for authority); see also Payne Enters., 837 F.2d at 491-92; Fund for Animals, 151 F. Supp. 2d at 7. A finding of mootness requires much more definitive action. Compare Nat’l Black Police Ass’n, 108 F.3d at 449 (finding claim moot where District enacted legislation amending the challenged policy) with City of L.A. v. Lyons, 461 U.S. 95, 100-101 (1983) (administrative moratorium banning challenged police practice did not ensure the practice would not recur).
Finally, the possibility of recurrence is especially potent for Plaintiff McGowan, who is to serve three more years in BOP custody, see Compl. at ¶ 18, and has merely been moved to a different unit in the same prison facility, USP Marion. See McGowan Decl. at ¶ 5; see also Brooks v. Frank, No. 08-00504, 2009 U.S. Dist. LEXIS 38089, *11-12 (D. Haw. May 1, 2009) (prisoner’s claim for injunctive relief not moot upon transfer from section of prison that included the challenged condition to another section of same prison); Inmates of the Bucks County Corr. Facility v. County of Bucks, No. 02-7377, 2004 U.S. Dist. LEXIS 30547, *8 (E.D. Pa. Dec. 20, 2004) (prisoner’s claim not moot upon transfer to facility one quarter mile away, as prisoner remained in custody of same director, who had authority to reassign her to location of challenged conditions).
B. Transfer from the CMU Has Not Completely and Irrevocably Eradicated the Effects of the Alleged Violation.
Defendants have also failed to show that their voluntary transfer of Plaintiffs McGowan and Twitty out of the CMU has “completely and irrevocably” eradicated the effects of Plaintiffs’ illegal designation to and retention within that unit. Fund for Animals, 151 F. Supp. 2d at 5 (citation omitted). Mr. McGowan continues to be held in a facility with an inappropriately high level of security; his communications continue to be routed through the Counter-terrorism Unit in West Virginia; and the harmful effects of the years he spent at the CMU linger. Moreover,
8

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 13 of 20
Mr. McGowan and Mr. Twitty both face the possibility of adverse treatment within and outside the BOP due to the retention in BOP files of their CMU designation, and its underlying rationale. Finally, their protected First Amendment activities continue to be chilled even though they have been transferred out of the CMU.
For Plaintiff McGowan, the weakness in Defendants’ argument is quite clear. He remains incarcerated in a medium security facility, subject to the conditions and restrictions that adhere to such a setting, despite the fact that he is classified as a low security prisoner. See McGowan Decl. at ¶ 5. Prior to CMU designation, he was held in a low security prison; and there can be no denying that his current placement at Marion is a direct result of his CMU designation. Id. As long as he remains at a medium security prison, the effects of his CMU designation linger. Indeed, Mr. McGowan specifically requested transfer to the general population at a federal prison appropriate for his security classification in the Prayer for Relief. See Compl. at 76. Thus, Defendants’ assertion that “Plaintiffs have already received the injunctive relief sought in their Complaint,” Def. Supp. Mot. at 4, is incorrect.
Moreover, at USP Marion, all of Mr. McGowan’s mail and telephone contact requests are being routed through the Counter-terrorism Unit in West Virginia, and all his mail and telephone calls continue to be monitored by that unit. See McGowan Decl. at ¶ 15. Upon information and belief, BOP policy requires this heightened monitoring of all prisoners ever designated to the CMU, even after their transfer away from the unit. Id. Although Plaintiffs do not claim that heightened monitoring, or placement of a low security prisoner in a medium security prison present constitutional claims in themselves, these conditions are cognizable lingering effects of CMU designation, and argue against mootness.
9

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 14 of 20
Other effects of CMU placement linger as well. At USP Marion, Mr. McGowan currently has access to the same number and type of visits and telephone calls as other prisoners. While this will undoubtedly assist Mr. McGowan in repairing the serious damage done to his relationships by the restrictive policies he was subjected to at the CMU, Defendants have not shown, nor even argued, that the effects of two years without physical contact or frequent telephone access have disappeared. Mr. McGowan’s sentencing judge recommended he serve his time close to his family at FCI Fort Dix, New Jersey. Id. at ¶ 18. Mr. McGowan’s transfer to a facility with easier and more frequent family access would allow Mr. McGowan and his family to repair the harm done to their relationships. Id. at ¶ 16. Despite this clear path, the BOP has given no indication that Mr. McGowan will ever be transferred back to a low security prison. This is another direct impact of his CMU designation.
In addition, Mr. McGowan and Mr. Twitty both face the possibility of adverse treatment within and outside the BOP due to the retention in BOP files of their CMU designation, and its underlying rationale. See Twitty Decl. at ¶¶ 5, 9, 10, 12 (information about Mr. Twitty’s designation to the CMU has been shared with Community Corrections, the Parole Commission, and the Federal Bureau of Investigation (FBI), and may have resulted in his inclusion on the Terrorist Screening Center’s no-fly list); McGowan Decl. at ¶ 10 (Mr. McGowan believes his CMU designation has resulted in his placement on a terrorist watch-list or the no-fly list).
The case West v. Cunningham, 456 F.2d 1264 (4th Cir. 1972), is instructive on this issue, as it involved a prisoner’s challenge to placement in a maximum security unit without process. After two and a half years in the restrictive unit, the prisoner was returned to general population and defendants sought to dismiss his procedural due process challenge as moot. Id. at 1264-65.
10

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 15 of 20
The court denied dismissal based on the “possibility” that the prisoners’ time in segregation might lead to an adverse legal consequence. Id. at 1265. The court stated:
If, as [the plaintiff] alleges, he has been punished in an arbitrary manner, without a hearing, without specification of the charges against him and without an opportunity to defend himself, and when the adverse consequences of the disciplinary action are continuing, redress, when it is practicable, should be granted. Although the relief originally sought is no longer available, we should not shrink from doing whatever is possible to erase any lingering prejudice to [the plaintiff] from the allegedly unconstitutional activities of the prison administrators. To this end, plaintiff should have an opportunity to prove the allegations in the complaint and show his entitlement to appropriate relief. Id. at 1265-66; see also, Black v. Warden, 467 F.2d 202, 204 (10th Cir. 1972) (procedural due process challenge to placement in isolation unit not mooted by transfer out of unit because “there may be a continuing effect in the penal institutions from the use of records maintained concerning this punishment. Unless such disciplinary records are expunged and not to be used against Black, we may not dismiss the matter as moot on the showing made to us, despite the transfer of custody”) (citations omitted). Here, the BOP has declined to take any steps, such as expungement or transfer to an appropriate facility, to mitigate the effects of the challenge conduct or limit its impact on Plaintiffs. Cf. Preiser v. Newkirk, 422 U.S. 395 (1975) (challenge to transfer of prisoner to maximum security prison without process mooted by transfer of prisoner to minimum security prison, and placement of notation in prisoner’s file indicating that the challenged transfer should have no bearing on future parole board determinations); Davidson v. Stanley, No. 02-190, 2003 U.S. Dist. LEXIS 13520, *12-13 (D.N.H. Aug. 4, 2003) (consent to court order, proposed expungement of challenged prison program requirement, and letter to parole board appeared to constitute effective amelioration).
11

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 16 of 20
As such, Plaintiffs McGowan and Twitty are still subject to the reputational harms associated with CMU designation – including being labeled as management problems, and individuals who require enhanced monitoring and security measures. This lingering reputational harms means that there is still a live controversy that can be redressed by this Court. See, e.g., Foretich v. United States, 351 F.3d 1198, 1214 (D.C. Cir. 2003). A declaratory judgment that the BOP was “wrong to single [them] out” and subject them to the CMU deprivations without due process would “give redress for [their] reputational injuries.” Id. at 1216.
Finally, Mr. McGowan and Mr. Twitty’s protected First Amendment activity has been, and continues to be, chilled as a result of their CMU designation. As explained at length in prior briefing and supra, McGowan and Twitty have not received any meaningful explanation of why they were designated to the CMU in the first place, nor why they were finally transferred away. See Plaintiffs’ Memorandum in Opposition to Motion to Dismiss (Docket # 23) at 21-22; McGowan Decl. at ¶ 8; Twitty Decl. at ¶ 14. Both have alleged, and both continue to believe, they were transferred as a result of protected First Amendment speech and conduct, including discussion of social and political issues, and religious activity within prison. McGowan Decl. at ¶ 11; Twitty Decl. at ¶ 15. Both are currently chilled from engaging in such protected activity out of fear that they might be redesignated to the CMU. See McGowan Decl. at ¶ 13 (Mr. McGowan has ceased to speak out on social justice issues and write blogs and articles for fear that resuming prior advocacy might result in his redesignation to the CMU); Twitty Decl. at ¶ 15 (Mr. Twitty has kept silent about his religious beliefs and his Muslim faith in situations where he would ordinarily speak about them as he fears this is in part what resulted in his CMU designation and he fears redesignation). This chill is yet another continued adverse effect of Plaintiffs’ CMU designation, and should be alleviated by declaratory and injunctive relief.
12

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 17 of 20

II. If There Is Any Question as to the Continued Existence of a Live Controversy, this Court Should Order Limited Jurisdictional Discovery. Defendants’ mootness argument is jurisdictional in nature, as Article III of the United
States Constitution requires that a “case or controversy” subsist through all stages of federal judicial proceedings. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). Thus, federal courts lack jurisdiction to hear moot cases. Nat’l Black Police Ass’n, 108 F. 3d at 349. As Plaintiffs have demonstrated above, Defendants have not met their heavy burden of establishing mootness.4 However, should this Court be inclined to disagree, and as an alternative to dismissing Plaintiffs’ claims, Plaintiffs McGowan, Twitty and Jones5 respectfully seek leave to conduct limited jurisdictional discovery to establish: (1) the likelihood of Plaintiffs’ re-designation to the CMU; and (2) any continuing adverse effects of CMU designation.
Jurisdictional discovery is appropriate to supplement jurisdictional allegations. See Farouki v. Petra Int’l Banking, Corp., 683 F. Supp. 2d 23, 28 (D.D.C. 2010). Such a request may be made by motion, or in response to a motion to dismiss. See Navab-Safavi v. Broad. Bd. of Governors, 650 F. Supp. 2d 40, 50 (D.D.C. 2009). This Circuit’s standard for permitting jurisdictional discovery is “quite liberal,” Davis v. Grant Park Nursing Home LP, 639 F. Supp. 2d 60, 75 n.12 (D.D.C. 2009) (citation omitted); discovery is justified when plaintiffs have a

4

Plaintiffs’ counsel puts the Court and Defendants on notice that there are additional individuals

currently incarcerated in both the Marion and Terre Haute CMUs, who were designated to those CMUs

for alleged reasons similar and/or identical to Plaintiffs, including other CMU prisoners who were not

convicted of crimes related to terrorism. These individuals have expressed interest in joining in this

litigation. If appropriate, Plaintiffs may seek leave in the future to amend the complaint to add those

individuals.

5

The question of whether Plaintiff Royal Jones has standing was addressed in Defendants’ initial

Motion to Dismiss and Plaintiffs’ original Memorandum in Opposition to that motion. Although

Plaintiffs bear the burden of alleging standing, Mr. Jones’ situation does bear some similarities to that of

the Plaintiffs addressed in this briefing – Mr. McGowan in particular. Should Mr. McGowan and Mr.

Twitty be granted limited jurisdictional discovery to resolve the question of mootness, that opportunity

should also be extended to Mr. Jones.

13

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 18 of 20

good faith basis for believing the results will supplement jurisdictional questions. See Caribbean

Broad. Sys. Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998).

Here, Plaintiffs propose to take limited discovery directed solely to the question of

mootness. Toward that end, proposed document requests and a 30(b)6 deposition notice are

attached as Exhibit C.

CONCLUSION

For the reasons stated above, Defendants’ supplemental motion to dismiss should be

denied.

Dated: New York, NY November 23, 2010

Respectfully submitted,

By: /s/ Rachel Meeropol

__________

RACHEL MEEROPOL, pro hac vice

ALEXIS AGATHOCLEOUS, pro hac vice

SHAYANA D. KADIDAL

(D.C. Bar No. 454248)

CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 Tel: (212) 614-6432 Fax: (212) 614-6499 aagathocleous@ccrjustice.org

GREGORY SILBERT ANNIE CASTELLANI KAVITA DESAI WEIL, GOTSHAL & MANGES, LLP 767 Fifth Avenue New York, NY 10153 Tel: (212) 310-1000 Fax: (212) 310-8007 gregory.silbert@weil.com

14

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 19 of 20 KENNETH A. KREUSCHER Portland Law Collective, LLP 1130 SW Morrison Street, Suite 407 Portland, OR 97205 Tel: 503-228-1889 Fax: 503-223-4518 kenneth@portlandlawcollective.com Attorneys for Plaintiffs
15

Case 1:10-cv-00539-RMU Document 30 Filed 11/23/10 Page 20 of 20
Certificate of Service I certify that on November 23, 2010 I caused the foregoing OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS to be served by first class mail on the pro se Applicants listed below. Dated: November 23, 2010
/s/Rachel Meeropol_________ RACHEL MEEROPOL William Oscar Harris #40743050 FCI Terre Haute, CMU PO Box 33 Terre Haute, IN 47808 Rex Russell Dean Landers #05177046 FCI Terre Haute, CMU PO Box 33 Terre Haute, IN 47808 Ralph William Taylor #31628048 FCI Terre Haute, CMU PO Box 33 Terre Haute, IN 47808 Daniel John Riley #14528052 FCI Terre Haute, CMU PO Box 33 Terre Haute, IN 47808
16

 
 Case 1:10-cv-00539-BJR-DAR Document 110 Filed 05/01/13 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

YASSIN MUHIDDIN AREF, et al., Plaintiffs,
v. ERIC HOLDER, et al.,
Defendants.

Civil Action No. 10-539 (BJR)

ORDER DISMISSING CASE This matter is before the Court upon a sua sponte review of the record. Because the Court finds that Plaintiff Royal Jones failed to comply with this Court’s Order or otherwise prosecute his case, his claims are dismissed without prejudice. Plaintiff Royal Jones, a federal prisoner, has brought suit against the Bureau of Prisons and various individuals. Plaintiff is no longer represented by his former counsel and previously indicated his desire to have the Court appoint counsel. The Court entered an Order on February 13, 2013, directing Plaintiff Jones to file an application in forma pauperis, or, alternatively, to provide notice to the Court of his intention to proceed pro se. See Order (Feb. 13, 2013). The Court warned Plaintiff Jones that failure to timely comply by March 1, 2013 would result in the dismissal of his claims. Id. On March 1, 2013, the Court extended Plaintiff Jones’ time to comply till March 8, 2013, after he represented to chambers that the Clerk had mailed the February 13, 2013 order to an incorrect address. See Minute Order (Mar. 1, 2013). The Court reminded Plaintiff Jones that it was his responsibility to alert the Court of future address changes. Additionally, the Court ordered the Clerk to mail a copy of the Minute Order to Plaintiff Jones’ updated address. See Minute Order (Mar. 1, 2013).

1

Case 1:10-cv-00539-BJR-DAR Document 110 Filed 05/01/13 Page 2 of 2
A district court has “inherent power to dismiss a case sua sponte” if a plaintiff fails to prosecute, comply with the rules, or with a court order. Peterson v. Archstone Communities LLC, 637 F.3d 416, 418 (D.C. Cir. 2011); see also Link v. Wabash R. Co., 370 U.S. 626, 633 (1962) (acknowledging a district court’s authority to dismiss a complaint for failure to prosecute).
The record reflects that Plaintiff Jones, although granted an extension until March 8, 2013, has not filed an in forma pauperis application nor in any way indicated his intent to prosecute this case pro se. Accordingly, the Court dismisses Plaintiff Royal Jones’ claims in this matter.
For the foregoing reasons, it is hereby ORDERED that Plaintiff Royal Jones’ claims are DISMISSED.
SO ORDERED. May 1, 2013
BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE
2

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

YASSIN MUHIDDIN AREF, et al., Plaintiffs,
v. ERIC HOLDER, et al.,
Defendants.

Civil Action No. 10-539 (BJR)
MEMORANDUM OPINION ON DEFENDANTS’ CONSOLIDATED MOTION TO DISMISS

GRANTING IN PART AND DENYING IN PART DEFENDANTS’ CONSOLIDATED MOTION TO DISMISS
Plaintiffs Yassin Aref, Kifah Jayyousi, and Daniel McGowan are or were inmates at facilities operated by the Bureau of Prisons (“BOP”) and were confined to Communications Management Units (“CMUs”), in which their ability to communicate with the outside world was seriously restricted. Plaintiffs allege violations of their First Amendment rights, claiming that they were kept in the CMUs in retaliation for engaging in protected First Amendment activities. Plaintiffs also allege violations of the Fifth Amendment’s guarantee of Due Process. Plaintiffs Aref, Jayyousi, and McGowan sue BOP and Defendants Eric Holder, Attorney General of the United States, Charles E. Samuels, Director of the BOP, D. Scott Dodrill, Assistant Director of the BOP Correctional Programs Division, and Leslie S. Smith, Chief of the BOP Counter Terrorism Unit, in their official capacity, and Plaintiffs Jayyousi and McGowan sue Defendant Smith in his individual capacity. Defendants now move to dismiss the First Amendment claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The motion will be granted in part and denied in part. Because Plaintiff Daniel McGowan has been released from BOP custody, his claims against Defendants in their official-capacity will be dismissed as moot. Because Plaintiff

1

Kifah Jayyousi has alleged a plausible claim for retaliation for engaging in protected First
Amendment activity, his claim against Defendants in their official capacity will proceed. And
because the Prison Litigation Reform Act (“PLRA”) bars claims by prisoners for mental or
emotional injury suffered while in custody, Plaintiffs McGowan and Jayyousi’s claims against
Defendant Leslie Smith in his individual capacity for monetary damages will be dismissed.
I. BACKGROUND
A. Communications Management Units
The BOP established CMUs at the Federal Correctional Institutions in Terre Haute,
Indiana, and Marion, Illinois, in 2006 and 2008, respectively. Aref v. Holder, 774 F. Supp. 2d.
147, 152–53 (D.D.C. 2011) (Urbina, J.) (“Aref I”). According to the BOP, CMUs were
“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 [BOP]
facilities, and protect the public.” Id. at 153. An inmate may be placed in a CMU because
(a) [t]he inmate's current offense(s) of conviction, or offense conduct, included association, communication, or involvement, related to international or domestic terrorism; (b) [t]he inmate's current offense(s) of conviction, offense conduct, or activity while incarcerated, indicates a propensity to encourage, coordinate, facilitate, or otherwise act in furtherance of, illegal activity through communication with persons in the community; (c) [t]he inmate has attempted, or indicates a propensity, to contact victims of the inmate's current offense(s) of conviction; (d) [t]he inmate committed prohibited activity related to misuse/abuse of approved communication methods while incarcerated; or (e) [t]here is any other evidence of a potential threat to the safe, secure, and orderly operation of prison facilities, or protection of the public, as a result of the inmate's unmonitored communication with persons in the community.
Id. (alterations in original). “With the exception of attorney visits, all visits with inmates housed
in CMUs are ‘non-contact’ visits, meaning that the visit takes place in a room with a partition
2

separating the inmate from the visitor and both must communicate using a telephone.” Id. Furthermore, with the exception of legal phone calls, CMU inmates are limited to two fifteenminute phone calls per week. Id. “Within five calendar days of being transferred into a CMU, an inmate must be provided a ‘Notice to Inmate of Transfer to [CMU]’ stating the reasons for his placement in the CMU. An inmate may appeal his transfer to [a CMU], or any conditions of his confinement, through the [BOP's] Administrative Remedy Program . . . .” Id. (internal quotation marks omitted).
B. History of Case Plaintiffs Yassin Muhiddin Aref, Avon Twitty, Daniel McGowan, Jenny Synan, Royal Jones, Kifah Jayyousi, and Hedaya Jayyousi filed this suit on April 1, 2010. Plaintiffs Aref, Twitty, McGowan, Jones, and Kifah Jayyousi were prisoners assigned to CMUs, while Plaintiffs Synan and Hedaya Jayyousi were married to Plaintiffs McGowan and Kifah Jayyousi, respectively. See Aref I, 774 F. Supp. 2d at 154–56. Plaintiffs’ complaint alleged a variety of claims, including that their procedural due process rights were violated because they did not receive adequate Notices of Transfer or an opportunity to challenge their designation to the CMUs; that their placement in the CMUs violated their substantive due process and First Amendment rights to “family integrity;” that the CMUs’ conditions constituted cruel and unusual punishment in violation of the Eighth Amendment; that Plaintiffs Jones and McGowan were transferred into CMUs in retaliation for protected First Amendment activity; and that Plaintiffs Aref, Kifah Jayyousi, and Jones were transferred to CMUs because they are Muslim and therefore were unlawfully discriminated against in violation of the First and Fifth Amendment. See id. at 156–57, 161–71.
3

This case was assigned to Judge Urbina of this district, who, upon Defendants’ motion, dismissed all but the procedural due process and retaliation claims. See Aref I, 774 F. Supp. 2d at 161–71. Judge Urbina also dismissed Plaintiff Twitty’s claims as moot because “he is no longer in BOP custody,” as Twitty had been “placed in a halfway house in October 2007 and paroled in January 2011.” Id. at 160–61. The case was transferred to the undersigned on November 5, 2012, and Plaintiffs Aref, Kifah Jayyousi, and McGowan filed an amended complaint on November 20, 2012. See First Am. Compl. (Dkt. #88-1).1 In addition to the procedural due process claim, see id. ¶¶ 228–32, the amended complaint reformulates Plaintiffs’ First Amendment retaliation claims. Specifically, Plaintiffs McGowan and Jayyousi each bring a retaliation claim for declaratory and injunctive relief against all the Defendants in their official capacities, and each also bring a claim for monetary relief against Defendant Leslie S. Smith in his individual capacity. See id. ¶¶ 228–40. The three remaining plaintiffs seek a declaration that Defendants’ actions violated Plaintiffs’ First and Fifth Amendment rights, an injunction that they either be transferred from the CMU to the general prison population or be afforded due process to ensure that their designation to the CMU was “appropriate and devoid of discriminatory animus,” and an injunction that they be afforded the same opportunities for communication as general population prisoners. Id. at 69–70. Plaintiffs also seek attorney’s fees and costs. Id. at 70. Finally, Plaintiffs McGowan and Jayyousi seek “compensatory and punitive damages” from Defendant Smith in his individual capacity “in an amount to be determined at trial.” Id.
On February 19, 2013, the Court denied Defendants’ motion for summary judgment on one of Plaintiff McGowan’s retaliation claims. See Mem. Order (Feb. 19, 2013) (Dkt. #101).
1 Plaintiff Jones was also party to the amended complaint, but this Court dismissed him from the case on May 1, 2013 for failing to comply with the Court’s Order or otherwise prosecute his case. See Order Dismissing Case (Dkt. #110).
4

II. FACTS
A. Plaintiff Jayyousi
Plaintiff Kifah Jayyousi was convicted in August 2007 of conspiracy to murder, kidnap
and maim in a foreign country and conspiracy to provide material support to a terrorist
organization. First Am. Compl. ¶ 179. 2 Jayyousi was sentenced to twelve years and eight months
imprisonment. Id. After Jayyousi began serving his sentence in the general prison population,
Defendant Leslie Smith recommended that Jayyousi be designated to a CMU. Id. ¶ 185. In June
2008, Jayyousi was transferred to the Terre Haute CMU. Id. ¶ 187. Upon arriving at the CMU,
he was a given a written Notice of Transfer, which stated:
Your current offenses of conviction are for Conspiracy to Commit Murder in a Foreign Country; Conspiracy to Kidnap, Maim, and Torture; and Providing Material Support to a Terrorist Organization. You acted in a criminal conspiracy to raise money to support mujahideen operations and used religious training to recruit other individuals in furtherance of criminal acts in this country as well as many countries abroad. Your offense conduct included significant communication, association and assistance to al-Qaida, a group which has been designated as a foreign terrorist organization
Id.
In August 2008, Jayyousi served as a Muslim prayer leader and gave a sermon
transcribed by the BOP. Id. ¶ 189. According to the transcription, Jayyousi stated in the sermon
in part:
My brothers in this place, as you are aware this concentrated Muslim community, this Muslim community is a Prison and is not a prison. . . . This is a very unique prison and even BOP employees and some of the CO's and some of the Officers wonder where did this place come from. It's like a place that fell from some hell, some evil created this place because it does not belong to anything that BOP has done in the past 300 year history and you know what is happening here. . . . [E]ach one of you have been brought[,] whether your case was started with a fabrication or the reason that brought you here was the fabricator[, y]ou were
2 “When ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Atherton v. Dist. of Columbia Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (internal quotation marks omitted).
5

brought here because you are Muslim and we have our response to that, has to be to stand firm, stand strong, to stand steadfast. . . . [T]hey turned a few[] good American citizens into [criminals]. . . . [Y]ou are not the target, I am not the target, it is not US vs. Jayyousi, it is US vs. [I]slam. . . . John McCain is a presidential can[d]idate and in two months he could be our president where was he 20 years ago? He was being to[rtu]red in a Vietnamese prison for many years with no hope . . . [H]e stood fast he stayed firm he came through[. I]f the people of (Minion?) are doing this shouldn't we as beli[e]vers do the same. There is a famous story of . . . Nelson Mandel[]a . . . [S]omeone comes [with] an offer to you; oh you will get out but hey we would like to . . . ask you to help us get more people into the CMU[,] entrap more Muslims and get them in jail; tarnish the image of Islam in America. Mandel[]a refused them. . . . There was another story of Admiral Jim Scotsdale. . . . Admir[a]l Jim Scotsdale was the highest ranking US officer to be Captain in Vietnam[;] he was shot down. He was a three star General and they tortured him for eight years. . . . . [H]e said that if you want to survive a very bad situ[]ation like that and we are not being tortured here except psychologically but if you want to survive he said retain faith that you will prevail at the end. It is hard but it is the way which Allah created us. . . . [Y]ou are going to return to your lord to meet him with your hard work and the hardships that you have faced and done in this life; this is why we mart[y]r. . . .[Y]ou have to brave this life you have to face this life and remember that no matter what happens to us . . . [it] is what Allah has pre-ordained . . . .
Memorandum from John Bair, Intelligence Analyst (Apr. 12, 2011) at 4901–03 (Dkt. #111-2).3
For giving the sermon, Jayyousi was charged with a disciplinary infraction, “Encouraging a
Group Demonstration.” First Am. Compl. ¶¶ 190–91. After a disciplinary hearing, the charge
was dismissed and expunged from Jayyousi’s record. Id. ¶ 191.
In October 2010, Jayyousi was transferred from the Terre Haute CMU to the Marion
CMU. First Am. Compl. ¶ 194. In February 2011, the Marion CMU Unit Manager wrote a
memorandum requesting that Jayyousi be transferred out of the CMU. Id. ¶ 195. The
memorandum stated that “[s]ince his arrival in the Terre Haute CMU and continuing while at
USP Marion, Jayyousi has maintained clear conduct and a good rapport with staff and other
inmates. . . . [Staff has] noted no continuation of actions which precipitated his placement in the
3 “[W]here a document is referred to in the complaint and is central to plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment.” Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999), aff'd, 38 F. App'x 4 (D.C. Cir. 2002) (citing Greenberg v. The Life Insurance Company of Va., 177 F.3d 507, 514 (6th Cir.1999)).
6

CMU.” Id. In a subsequent memorandum, Defendant Smith opposed this recommendation.
Smith’s memorandum stated:
While in [the] CMU, inmate Jayyousi was the rotational Muslim prayer leader for Jumah prayer. During one such prayer, which was directly observed by staff, inmate Jayyousi made statements which were aimed at inciting and radicalizing the Muslim inmate population in [the] CMU. Characteristics, behaviors and unacceptable activities which describe an individual involved in prison radicalization and recruitment were displayed by inmate Jayyousi and included: a charismatic individual, who makes highly inflammatory commentaries which elicit violence, terrorism or intimidation, and speech that disrespects or condemns other religious, ethnic, racial, or regional groups. Inmate Jayyousi’s comments encouraged activities which would lead to a group demonstration and are detrimental to the security, good order, or discipline of the institution. Specifically, inmate Jayyousi claimed the inmates were sent to CMU because they were Muslim, and not that they were criminals. Inmate Jayyousi purported that the unit was created by something evil, and not even the staff understood or accepted the purpose of the unit. Inmate Jayyousi directed the Muslim inmates to stand together in response to being sent to CMU, that Muslims should not compromise their faith by cooperating with the government and Muslims should martyr themselves to serve Allah and meet hardships in their lives. Claiming Muslim inmates in CMU are being tortured psychologically, inmate Jayyousi further purported that criminal cases against Muslim inmates were fabricated, intended to destroy good U.S. citizens and to tear them away from their families.
Id. ¶ 197. Jayyousi remained in the CMU until May 2013, when he was transferred to the general
prison population. Id. ¶ 201; Declaration of Kerry P. Kemble, Assistant Administrator,
Residential Reentry Management Branch, Federal Bureau of Prisons (June 7, 2013) ¶ 6 (Dkt.
#113-1).
Jayyousi alleges that the restrictions placed on his visitation and telephone access were
“extremely painful and onerous,” requiring him to “struggle[] to maintain a close relationship
with his wife and children.” Id. ¶¶ 200–03. Jayyousi alleges that designation to the CMU has
caused him “significant psychological and emotional harm.” Id. ¶ 204.
B. Plaintiff McGowan
Plaintiff Daniel Gerard McGowan pled guilty in November 2006 to conspiracy and two
counts of arson. First Am. Compl. ¶ 125. McGowan was sentenced to seven years in prison. Id. ¶
7

125. After McGowan began serving his sentence in an ordinary facility, Defendant Smith recommended that he be designated to a CMU. Id. ¶ 134. In March 2010, the warden of the Marion facility and the Unit Manager at the Marion CMU recommended that McGowan be transferred from the CMU to the general population. Id. ¶ 142. Defendant Smith opposed this recommendation, and McGowan remained in the CMU. Id. ¶¶ 143–44. In August 2010, CMU staff again recommended that McGowan be transferred from the CMU to the general population. Id. ¶ 145. In October 2010, McGowan was transferred from the CMU to the general population. Id. In February 2011, Defendant Smith recommended that McGowan be redesignated to a CMU. Id. ¶ 146. McGowan was then transferred to the CMU at the Terre Haute facility. Id. ¶ 147. As described in more detail below, in December 2012 McGowan was transferred from prison to a halfway house and in June 2013 was released altogether from BOP custody.
McGowan alleges that his placement in the CMU “limit[ed] his ability to receive information regarding developments in progressive causes” and “interfere[d] with his ability to maintain a meaningful relationship with his family.” First Am. Compl. ¶¶ 150–53. He also alleges that the “complete lack of physical contact has also proved detrimental to [his] mental, emotional and physical health.” Id. ¶ 156.
C. Plaintiff Aref Plaintiff Yassin Aref was convicted in 2007 of money laundering, material support to a terrorist organization, conspiracy, and making a false statement to the FBI. First Am. Compl. ¶ 105. He was sentenced to 15 years imprisonment. Id. Aref began serving his sentence in an ordinary facility, but was later transferred to the Terre Haute CMU. Id. ¶ 110. Aref was transferred to the Marion CMU in March 2009 and then was transferred to the general population in April 2011. Id. ¶ 114.
8

Aref alleges that his confinement in the CMU “severely interfered with his ability to maintain a meaningful relationship with his family.” First Am. Compl. ¶ 116–22. Aref alleges that his designation to the CMU “also had a profound effect on his psychological and emotional health.” Id. ¶ 123. III. STANDARD OF REVIEW
The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” In re Interbank Fund. Corp. Sec. Litig., 668 F. Supp. 2d 44, 47–48 (D.D.C. 2009) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Moreover, ambiguities must be resolved in favor of the plaintiffs, giving them the benefit of every reasonable inference drawn from the well-pleaded facts and allegations in their complaint. See id. (citing Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)).
To survive a Rule 12(b)(6) motion, the complaint must plead sufficient facts, taken as true, to provide “plausible grounds” that discovery will reveal evidence to support the plaintiff's allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 678 (2009). Moreover, a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does the complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (internal quotation marks omitted).
When a party files a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), “the plaintiffs bear the burden of proving by a preponderance of the evidence that the
9

Court has subject matter jurisdiction.” Biton v. Palestinian Interim Self–Gov't Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004). Because subject matter jurisdiction focuses on a court's power to hear the plaintiffs’ claim, a Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority. Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). A plaintiff's factual allegations in the complaint will bear closer scrutiny in resolving a 12(b)(1) motion than resolving a 12(b)(6) motion for failure to state a claim. See id. at 13–14. IV. ANALYSIS
A. McGowan’s Official-Capacity Claims Are Moot As noted, Plaintiffs McGowan and Jayyousi each allege both individual-capacity and official-capacity claims against Defendants. McGowan has been released from BOP custody and Jayyousi has been transferred from the CMU to the general prison population, raising the issue of whether their official-capacity claims for injunctive relief have now become moot.4 The Court finds that McGowan’s release requires dismissal of his official-capacity claims, but Jayyousi’s transfer does not. A party moves to dismiss a claim for mootness under Federal Rule of Civil Procedure 12(b)(1). Aref I, 774 F. Supp. 2d at 159–60 (citing Comm. in Solidarity with People of El Salvador v. Sessions, 929 F.2d 742, 744 (D.C. Cir. 1991); Super Sack Mfg. Corp. v. Chase Packaging Corp., 57 F.3d 1054, 1060 (Fed. Cir. 1995); Am. Historical Ass'n v. Peterson, 876 F. Supp. 1300, 1308 (D.D.C. 1995)). “A case is moot when ‘the issues presented are no longer live
4 McGowan and Jayyousi’s individual-capacity claims for monetary damages do not raise the issue of mootness, since damages could be recovered regardless of their current status. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 370–71 (1982) (“Given respondents’ continued active pursuit of monetary relief, this case remains definite and concrete, touching the legal relations of parties having adverse legal interests.” (internal quotation marks omitted)); Qassim v. Bush, 466 F.3d 1073, 1077 (D.C. Cir. 2006) (“[W]hile damages claims may survive release from incarceration, equitable claims do not.”).
10

or the parties lack a legally cognizable interest in the outcome.’” Id. at 160 (quoting City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000)). “Courts must evaluate mootness ‘through all stages’ of the litigation in order to ensure that a live controversy remains.” Id. (quoting 21st Century Telesis Joint Venture v. FCC, 318 F.3d 192, 198 (D.C. Cir. 2003)). “An intervening event may render a claim moot if (1) there is no reasonable expectation that the conduct will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violations.” Id. (citing Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 631 (D.C. Cir. 2002); Sellers v. Bureau of Prisons, 959 F.2d 307, 310 (D.C. Cir. 1992)). But a “‘defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.’” Id. at 161 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). In order for this exception to apply, “‘the defendant's voluntary cessation must have arisen because of the litigation.’” Id. (quoting Pub. Util. Comm'n of Cal. v. FERC, 100 F.3d 1451, 1460 (9th Cir. 1996)).
1. McGowan’s Release from BOP Custody On December 11, 2012, prior to the filing of the parties’ briefing regarding this motion to dismiss, Plaintiff McGowan was released from prison and transferred to a Residential Reentry Center, commonly known as a “halfway house.” See Declaration of Kerry P. Kemble (Feb. 11, 2013) ¶ 8 (Dkt. #99-1). On April 4, 2013, McGowan was taken into custody at a detention center because he published an article on an Internet website about his detention in a CMU. See Declaration of Kerry P. Kemble (May 22, 2013) ¶ 4 (Dkt. #112-1). About a day later, McGowan was released from the detention center when BOP officials realized that McGowan had been detained pursuant to a BOP regulation that had been rescinded after a federal court found that it was unconstitutional. See id. ¶¶ 5–6; Jordan v. Pugh, 504 F. Supp. 2d 1109, 1126 (D. Colo.
11

2007).5 On June 5, 2013, after completion of briefing on this motion to dismiss, McGowan was released altogether from BOP custody. See Kemble June 7, 2013 Declaration ¶ 4. McGowan is under the supervision of the U.S. Probation Office for a term of three years and is no longer under BOP control or subject to BOP rules or regulations. Id. ¶ 5.
Defendants contend that McGowan’s claims for equitable relief have been rendered moot by his release. The Court agrees. Judge Urbina previously ruled that Plaintiff Twitty’s equitable claims became moot when he was placed in a halfway house and subsequently paroled. See Aref I, 774 F. Supp. 2d at 159–61. The same logic applies to McGowan’s official-capacity claims. Under the law of the case doctrine, “the same issue presented a second time in the same case in the same court should lead to the same result,” Kimberlin v. Quinlan, 199 F.3d 496, 500 (D.C. Cir. 1999) (emphasis and internal quotation marks omitted), and there is no meaningful distinction between McGowan’s present situation and Plaintiff Twitty’s. While on supervision by the U.S. Probation Office, McGowan is beyond the reach of the BOP and is several meaningful steps away from being returned to the restrictions of the CMU. Likewise, there is no allegation that McGowan was released because of this litigation, and so the “voluntary cessation exception” is similarly inapplicable. See Aref I, 774 F. Supp. 2d at 161. Accordingly, McGowan’s claims for equitable relief against defendants in their official-capacity are now moot and will be dismissed.
2. Jayyousi’s Transfer from the CMU Defendants do not argue that Jayyousi’s official-capacity claims are moot due to his transfer from the CMU into the general prison population. And, indeed, the claims are not, in fact, moot. Judge Urbina previously found that Plaintiff Jones, who was also transferred out of the CMU, had “demonstrate[d] a realistic threat that he might be redesignated to a CMU.” Aref I,
5 After McGowan was released, a “case note” was issued prohibiting McGowan from “writing articles, [or] appearing in any type of [media] without prior BOP approval.” Kemble May 22, 2013 Declaration ¶ 7. This note was subsequently removed after the BOP realized that it too was inconsistent with BOP regulations. Id.
12

774 F. Supp. 2d at 158-59. Judge Urbina found that Jones “was placed in the CMU because of the nature of his underlying conviction and because of his alleged efforts to radicalize other inmates,” and “it appears entirely plausible that Jones will be redesignated to the CMU for the very reasons that he was sent there in the first place.” Id. So, too, for Plaintiff Jayyousi, who was placed in the CMU because of the nature of his conviction and was held there due to his “statements which were aimed at inciting and radicalizing the Muslim inmate population in [the] CMU.” First Am. Compl. ¶¶ 187, 197.
B. Jayyousi’s Official-Capacity First Amendment Claim “A prisoner alleging a First Amendment claim of retaliation must allege that (1) he engaged in conduct protected under the First Amendment; (2) the defendant took some retaliatory action sufficient to deter a person of ordinary firmness in plaintiff's position from speaking again; and (3) a causal link between the exercise of a constitutional right and the adverse action taken against him.” Aref I, 774 F. Supp. 2d at 169 (citing Banks v. York, 515 F. Supp. 2d 89, 111 (D.D.C.2007); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001); Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)). “To satisfy the causation link, a plaintiff must allege that his or her constitutional speech was the ‘but for’ cause of the defendants' retaliatory action.” Id. (citing Hartman v. Moore, 547 U.S. 250, 256 (2006)). Jayyousi contends that, although his initial designation to the CMU was based on the nature of his conviction, his continued designation there was in retaliation for his religious and political speech — specifically, the prayer he led while in the CMU. See Pls.’ Opp. at 4–5. Defendants argue that this claim should be dismissed because Jayyousi’s speech was not protected by the First Amendment. See Mot. at 17–19. Furthermore, Defendants contend that Jayyousi has not plausibly alleged that his continued placement in the CMU did not advance
13

legitimate penological goals. See id. at 13–17. Given the presumption in favor of the Plaintiff that exists on a motion to dismiss, the Court will deny Defendants’ motion with respect to Jayyousi’s official-capacity First Amendment claim.
“‘[L]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. In the First Amendment context a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974) (internal quotation marks omitted). Therefore, in considering “a First Amendment retaliation claim, [courts] examine whether the prisoner engaged in speech in a manner consistent with legitimate penological interests.” Watkins v. Kasper, 599 F.3d 791, 794–95 (7th Cir. 2010) (citing Turner v. Safley, 482 U.S. 78 (1987)). Speech that is inconsistent with legitimate penological interests may be “unprotected as a matter of law.” Id. at 797; see also Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 131–32 (1977); Pilgrim v. Luther, 571 F.3d 201 (2d Cir. 2009); Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 864 (5th Cir. 2004); Goff v. Dailey, 991 F.2d 1437 (8th Cir. 1993); Nickels v. White, 622 F.2d 967 (8th Cir. 1980).
Defendants argue that Jayyousi’s retaliation claim must be dismissed because Defendant Smith articulated legitimate penological reasons for keeping Jayyousi in the CMU. Defendants contend that a prisoner bringing a First Amendment retaliation claim must show that the retaliatory action did not advance legitimate penological goals. And Defendants maintain that Smith provided legitimate penological reasons for keeping Jayyousi in the CMU by citing his convictions for terrorism and the statements he made in the sermon. Defendants also argue that
14

“it is not plausible that Mr. Smith’s concerns about security were merely a pretext and that he was in fact motivated by a disagreement with Jayyousi’s speech.” Defs.’ Reply at 15.
The problem with Defendants’ argument is that Jayyousi has alleged that he was actually kept in the CMU in retaliation for his religious and political speech, not for any legitimate penological reason. See First Am. Compl. ¶ 7 (“Plaintiffs’ CMU designation was discriminatory, retaliatory, and/or punitive in nature and not rationally related to any legitimate penological purpose or substantiated information. Instead, it was based on their religion and/or perceived political beliefs, or in retaliation for other protected First Amendment activity.”). Defendants accurately cite cases indicating that “[t]o state a claim for retaliation, the plaintiff must allege that ‘he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals.’” Byrd v. Moseley, 942 F. Supp. 642, 645 (D.D.C. 1996) (quoting Barnett v. Centoni, 31 F.3d 813, 815–16 (9th Cir. 1994) (per curiam)); see also Rizzo v. Dawson, 778 F.2d 527, 532 (9th. Cir. 1985) (“For [plaintiff] to state a cause of action, therefore, he must do more than allege retaliation because of the exercise of his first amendment rights in bringing and assisting in civil rights litigation; he must also allege that the prison authorities’ retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals.”). But here Jayyousi has made just such an allegation.
Jayyousi accurately notes that the question is not whether he could have been kept in the CMU for a legitimate penological reason, but whether he actually was. “An ordinarily permissible exercise of discretion may become a constitutional deprivation if performed in retaliation for the exercise of a First Amendment right.” Toolasprashad v. BOP, 286 F.3d 576, 585 (D.C. Cir. 2002) (internal quotation marks omitted). The fact that Smith offered legitimate
15

penological reasons for Jayyousi’s continued placement in the CMU does not settle the issue, since Jayyousi has alleged that the reasons were pretextual. As the D.C. Circuit has stated with respect to consideration of a First Amendment retaliation claim at the summary judgment stage, “even if [Defendants] provide an objectively valid reason for their actions in this case, the District Court must still inquire into whether there is a disputed issue of fact as to whether [Defendants] were actually motivated by an illegitimate purpose.” Kimberlin, 199 F.3d at 502; see also Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (“[P]rison officials may not defeat a retaliation claim on summary judgment simply by articulating a general justification for a neutral process, when there is a genuine issue of material fact as to whether the action was taken in retaliation for the exercise of a constitutional right.”). At the motion to dismiss stage, the Court must accept, so long as it is plausible, Jayyousi’s claim that the penological reasons offered for his continued placement in the CMU were pretextual and that he was actually kept there in retaliation for his religious and political speech.
Furthermore, contrary to Defendants’ protests, Jayyousi’s claim is plausible. As Defendants note, Judge Urbina did reject Plaintiffs’ claim that Defendants discriminated against them on the basis of religion in part because “Aref and Jayyousi were convicted of terrorismrelated offenses . . . — a fact which provides an ‘obvious alternative explanation’ for their designation to a CMU.” Aref I, 774 F. Supp. 2d at 170 (quoting Iqbal, 129 S. Ct. at 1951). But even if his convicted offense explains Jayyousi’s initial placement in the CMU, it fails to explain his continued designation in the unit despite prison officials’ recommendation that he be removed. Granting Jayyousi “the benefit of all inferences that can be derived from the facts alleged,” Sparrow, 216 F.3d at 1113, the other officials presumably knew of Jayyousi’s convicted offense, yet they nonetheless recommended that he be transferred out of the CMU. The
16

BOP’s continued holding of Jayyousi in the CMU despite this recommendation provides enough “by way of factual content to ‘nudge’ his claim of [retaliation] ‘across the line from conceivable to plausible.’” Iqbal, 556 U.S. at 683 (quoting Twombly, 550 U.S. at 570).
Jayyousi’s claim also survives dismissal in light of the content of the sermon that he gave and the BOP’s treatment of that sermon. As transcribed, Jayyousi’s speech does not obviously “confront institutional authority,” Freeman, 369 F.3d at 864, as the speech or actions did in the cases cited by Defendants. Defendant Smith stated that the sermon “made statements which were aimed at inciting and radicalizing the Muslim inmate population,” “elicit[ing] violence, terrorism or intimidation” and “disrespect[ing] or condemn[ing] other religious, ethnic, racial, or regional groups.” First Am. Compl. ¶ 197. While the sermon was arguably inflammatory, it does not, on its face, advocate “violence, terrorism or intimidation” or “disrespect or condemn other religious, ethnic, racial, or regional groups.” One interpretation of a large portion of the sermon as transcribed is that it is dedicated to an inspirational comparison with U.S. government officials John McCain and Jim Scotsdale, as well as Nelson Mandela. The sermon therefore does not provide an “obvious alternative explanation,” Iqbal, 129 S. Ct. at 1951, for Jayyousi’s continued placement in the CMU. Indeed, again granting Jayyousi the benefit of all inferences, there is arguably a disparity between the actual content of the sermon and Smith’s description of it. Thus Jayyousi’s claim of retaliation will survive the motion to dismiss.
Of course, Defendants may well have actually been motivated by legitimate penological goals in deciding that Jayyousi’s continued placement in the CMU was justified. And since a plaintiff bears the “burden of proving a constitutional violation,” in a retaliation case he bears the “burden of proving the pertinent motive.” Crawford-El v. Britton, 523 U.S. 574, 588, 600 (1998). Accordingly, in order for his claim to survive the summary judgment stage of this litigation,
17

Jayyousi will be required to “identif[y] affirmative evidence from which a [finder-of-fact] could find that he has carried his burden of proving the pertinent motive.” Kimberlin, 199 F.3d at 498. Moreover, a “mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the [finder-of-fact] could reasonably find for the plaintiff,” and “if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–255 (1986). It may be very difficult for Jayyousi to produce such evidence here. Nonetheless, he must be afforded that opportunity. Accepting the allegations of the complaint as true, Jayyousi’s allegations are sufficient to withstand a motion to dismiss.
C. McGowan and Jayyousi’s Individual-Capacity Claims Defendant Smith contends that McGowan and Jayyousi’s individual-capacity claims against him should be dismissed pursuant to the Prison Litigation Reform Act. The PLRA states that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e).6 Smith argues that McGowan’s and Jayyousi’s claims for monetary relief should be dismissed because Plaintiffs allege only mental or emotional injury and no physical injury. The Court agrees. Plaintiffs appear to concede that claims in whole paragraphs of their complaint are barred by the PLRA. See Pls.’ Opp. at 33 (“To the extent that Plaintiffs have pled emotional injury, see, e.g., [First Am. Compl.] ¶¶ 156, 204, Defendants are correct that the PLRA bars compensatory
6 The PLRA applies to Plaintiff McGowan’s claim despite his subsequent release from BOP custody because he “brought” the claim while “confined in a jail, prison, or other correctional facility.” 42 U.S.C. § 1997e(e); see Banks v. York, 515 F. Supp. 2d 89, 106 n.7 (D.D.C. 2007) (citing cases); see also Talamantes v. Levya, 575 F.3d 1021, 1024 (9th Cir. 2009) (collecting cases). Furthermore, after the filing of Defendants’ motion, this provision was amended to include an additional exception for “the commission of a sexual act.” See Violence Against Women Reauthorization Act of 2013, Pub. L. 113-4, § 1101(a), 127 Stat. 134. This addition has no relevance here.
18

damages for this harm.”). Plaintiffs argue, however, that they have alleged other injuries that are neither mental nor emotional, and their compensatory and punitive damage claims for these injuries are not barred by the PLRA. Plaintiffs contend that these injuries “includ[e] lost educational opportunity, ruptured family relations, restrictions on liberty, and chilled First Amendment speech and activity.” Pls.’ Opp. at 33. Plaintiffs argue that they sustained monetary damages from the lack of educational programming available to CMU inmates as well as lasting harm to their family relations. Plaintiffs also maintain that their loss of liberty and infringement of their First Amendment rights are distinct injuries. Plaintiffs contend that they likewise may recover punitive damages. Further, plaintiffs argue that even if the Court were to find that they are barred from recovering compensatory and punitive damages, dismissal of their individualcapacity claims would still not be warranted because they can collect nominal damages.
Plaintiffs’ claim of “lost educational opportunity” is too speculative to provide a valid basis for compensatory damages. Plaintiffs state only that they “fear that their post-release prospects will be . . . compromised” by the possibility that they will be denied “the opportunity to participate in release preparation programming.” First Am. Compl. ¶ 68. But it is not clear either that Plaintiffs will actually be unable to participate in this programming or that such a contingency would actually have an effect on their employment prospects. Plaintiffs claim that denial of such programming “has a significant negative impact on Plaintiffs’ ability to gain placement a halfway house,” id., but of course Plaintiff McGowan was placed at just such a facility, and Plaintiff Jayyousi, having been released from the CMU, presumably has access to the programming, see id. (“The BOP requires that all eligible prisoners receive the opportunity to engage in release preparation programming to facilitate their ability to gain employment postrelease.”). In any event, Plaintiffs have failed to articulate that they were actually harmed by the
19

denial of educational opportunities while in the CMU. The claim may not proceed based on the “fear” that they might be harmed by the possibility that they might not receive the programming.
Plaintiffs have also failed to articulate how their other alleged injuries constitute compensable harms, apart from nominal damages, that are distinct from “mental or emotional injury.” Plaintiffs claim that their placement in the CMU has inflicted harm on their “family relations” that is “a category of harm separate from mental and emotional distress,” but their only support for this proposition is a treatise from the 19th century. See Pls.’ Opp. at 34. Plaintiffs’ argument seems to be that the violation of their constitutional rights — be it their right to see their family, their First Amendment rights, or their “loss of liberty” — must be compensable, even without any harm that they can articulate or quantify. Yet the Supreme Court has been clear that “damages based on the abstract ‘value’ or ‘importance’ of constitutional rights are not a permissible element of compensatory damages.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 310 (1986); see also id. at 309 (“[D]amages must always be designed ‘to compensate injuries caused by the constitutional deprivation.’” (quoting Carey v. Piphus, 435 U.S. 247, 265 (1978)).
Contrary to Plaintiffs’ brief, D.C. Circuit case law confirms that “our inquiry of course must not wander from the quantum of injury to protected interests into a consideration of the ‘inherent value’ of the constitutional right;” “the court must bear in mind that injury that is not reasonably quantifiable is to be compensated with nominal damages.” Hobson v. Wilson, 737 F.2d 1, 61–62 (D.C. Cir. 1984). In other words, even with respect to the violation of one’s constitutional rights, the plaintiff must articulate how that violation actually causes him injury, or else receive only nominal damages. Claiming mental or emotional injuries is generally fair game for constitutional violations. See Hobson, 737 F.2d at 62 (“In reaching its conclusion, the court
20

or jury may consider, as elements of compensable injury for emotional distress, humiliation and personal indignity, emotional pain, embarrassment, fear, anxiety and anguish.” (footnotes omitted)). But when the PLRA applies, claims for mental or emotional injuries are barred, even if they spring from constitutional violations. See Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C. Cir. 1998) (“[Section] 1997e(e) precludes claims for emotional injury without any prior physical injury, regardless of the statutory or constitutional basis of the legal wrong.”). In this Circuit, punitive damages are also not available under the PLRA when the only compensable harms are mental or emotional. Id. at 1348 (“Nor do we think the punitive claim can survive. . . . [Section 1997e(e)] simply prevents suits ‘for’ mental injury without prior physical injury. . . . [M]uch if not all of Congress's evident intent would be thwarted if prisoners could surmount § 1997e(e) simply by adding a claim for punitive damages and an assertion that the defendant acted maliciously.”).
With respect to nominal damages, the Court notes that plaintiffs’ complaint makes no mention of seeking nominal damages. Plaintiffs contend only that they “have sought nominal damages through their broad prayer for relief,” Pls.’ Opp. at 36 n.7, not that their complaint actually references nominal damages specifically. Plaintiffs are correct that the court in Yniguez v. State, 975 F.2d 646, 647 n.1 (9th Cir. 1992), found that a complaint’s request for “all other relief that the Court deems just and proper under the circumstances” was “sufficient to permit the plaintiff to pursue nominal damages.” The complaint here contains similar language. See First Am. Compl. at 69–70 (“Plaintiffs respectfully request the Court . . . Order such other relief as this Court deems just and proper.”).
As the Court understands it, however, the law in this Circuit is that, in order for a prisoner to avoid dismissal under the PLRA of a claim based only on mental or emotional injury, a
21

request for nominal damages must actually be specifically pled in the complaint. In Davis v. District of Columbia, 158 F.3d at 1345, the court affirmed dismissal of a prisoner’s constitutional claims when he “alleged resulting emotional and mental distress, but no other injury.” Although “[a]t oral argument the issue of a possible claim for nominal damages arose,” the court found “nothing in his complaint that can survive the pleading stage” because the plaintiff “never sought nominal damages.” Id. at 1349. Accordingly, since similarly here Plaintiffs’ complaint does not seek nominal damages, the possibility of a claim for nominal damages cannot save Plaintiffs’ individual-capacity claims.
To be sure, Davis noted not only that the plaintiff “never sought nominal damages,” but also that neither “his [n]or amicus’s submissions to this court ever mentioned a claim to nominal relief.” Davis, 158 F.3d at 1349. Although here Plaintiffs have raised the issue of nominal damages in their “submissions to this court” (i.e., in their briefs), the Court does not believe this is sufficient to save their individual-capacity claims. In coming to the conclusion that it would be “inappropriate” to confront the nominal damages issue by “strain[ing] to find inferences that are not available on the face of the complaint or in the briefs submitted to this Court,” 158 F.3d at 1349, the Davis court approvingly cited Coates v. Illinois State Bd. of Educ., 559 F.2d 445, 447 (7th Cir. 1977). And in Coates, the court focused on what was actually in the complaint itself, stating clearly that “we will not strain to find inferences favorable to the plaintiffs which are not apparent on the face of this civil rights complaint.” Id. Applying the same principle here means looking at what is actually sought by Plaintiffs’ complaint, and nominal damages are not.
Because Plaintiffs’ claims against Defendant Smith in his individual capacity are barred by the PLRA, the Court need not consider Defendant Smith’s argument that the claims against him should be dismissed because of qualified immunity.
22

V. CONCLUSION For the reasons explained above, the Court finds as follows: (1) Plaintiff McGowan’s claims against Defendants in their official capacity are moot, and the motion to dismiss will be granted with respect to these claims. (2) Plaintiff Jayyousi has alleged a plausible claim of retaliation against Defendants in their official capacity, and the motion to dismiss will be denied with respect to this claim. (3) Plaintiffs McGowan and Jayyousi’s claims against Defendant Leslie Smith in his individual capacity are barred by the PLRA, and the motion to dismiss will be granted with respect to these claims. A separate Order consistent with this opinion will follow. July 12, 2013
BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE
23

 
 Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 1 of 20

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

YASSIN MUHIDDIN AREF, ET AL., Plaintiffs v.
ERIC H. HOLDER, JR., ET AL., Defendants.

Civil Action No. 10-0539 (BJR) MEMORANDUM OPINION

I. INTRODUCTION Before the Court are Cross-Motions for Summary J udgment brought b y [138] Plaintiffs Yassin M uhiddin A ref and K ifah J ayyousi and [145] Defendants E ric H . H older, J r., D . S cott Dodrill, a nd the Federal B ureau of P risons (“BOP”). Upon c onsideration of t he pa rties’ arguments, the relevant case law, and the entire record, the Court denies Plaintiffs’ Motion for Summary Judgment and grants Defendants’ Motion for Summary Judgment.
II. BACKGROUND A. Communication Management Units The B OP e stablished C ommunications Management U nits ( “CMUs”) at t he F ederal Correctional Institutions in T erra H aute, Indiana, a nd M arion, Illinois, i n 2006 a nd 2008, respectively. Aref v. Holder, 774 F. Supp. 2d. 147, 152–53 (D.D.C. 2011) (Urbina, J.) (“Aref I”). According t o t he BOP, C MUs w ere “ established t o hous e i nmates w ho, due t o t heir c urrent offense of c onviction, of fense c onduct, or other ve rified i nformation, r equire i ncreased monitoring of communication between inmates and persons in the community in order to protect the safety, security, and orderly operation of [BOP] facilities, and protect the public.” Id. at 153. An inmate may be placed in a CMU because of:
1

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 2 of 20
(a) [ t]he i nmate's cu rrent o ffense(s) conviction, or of fense c onduct, i ncluded association, communication, or involvement, related to international or domestic terrorism; (b) [ t]he i nmate's current of fense(s) o f c onviction, of fense c onduct, or activity while i ncarcerated, i ndicates a p ropensity t o en courage, co ordinate, f acilitate, o r otherwise a ct in f urtherance o f, ille gal a ctivity th rough c ommunication w ith persons in the community; (c) [t]he inmate has attempted, or indicates a propensity, to contact victims of the inmate's current offense(s) of conviction; (d) [ t]he inmate c ommitted p rohibited a ctivity r elated to mis use/abuse o f approved communication methods while incarcerated; or (e) [ t]here i s any o ther evidence o f a p otential threat t o t he s afe, s ecure, an d orderly operation of prison facilities, or protection of the public, as a result of the inmate's unmonitored communication with persons in the community. Id. (alterations in original).
While in a CMU, inmates are separated from other general population inmates and live in
a “self-contained general population housing unit where inmates reside, eat, and participate in all
educational, recreational, religious, unit m anagement, and work programming” within t he uni t.
Defs.’ S tatement o f M aterial Facts ( “SUF”) a t ¶ 9. S imilarly t o general popul ation i nmates,
inmates in a CMU t ypically are not confined to their cells (except at ni ght and during security
checks) and have access to common areas for up to sixteen hours per day. Id. at ¶¶ 11-12.
CMU inmates f ace r estriction of t heir telephone and e -mail u sage and i n t he t ime and
manner of visitation, discussed in more detail below. “With the exception of attorney visits, all
visits with inmates housed in CMUs are ‘non-contact’ visits, meaning that the visit takes place in
a room with a partition separating the inmate from the visitor and both must communicate using
a t elephone.” Aref I, 77 4 F. S upp. 2d at 153. All social communication b y inmates in C MU,
whether visitation, phone calls, or e-mail, is monitored by prison staff. Defs.’ SUF ¶¶ 17-23.
“Within five calendar days of being transferred into a CMU, an inmate must be provided
a ‘Notice to Inmate of Transfer to [CMU]’ stating the reasons for his placement in the CMU. An
2

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 3 of 20
inmate m ay appeal hi s t ransfer t o [ a C MU], or a ny conditions of hi s confinement, t hrough t he [BOP's] Administrative Remedy Program . . . .” Id. (internal quotation marks omitted).
B. Procedural History Plaintiffs Y assin M uhiddin A ref and Kifah J ayyousi, as well as s everal al ready-dismissed plaintiffs, filed this suit on April 1, 2010. On March 8, 2007, Plaintiff Aref was sentenced to a fifteen-year term for money laundering, providing material support for terrorism, conspiracy, and making a false s tatement t o t he F BI. D efs.’ S UF ¶ 1 63. H e w as housed i n a dministrative detention from March 28, 2007, to May 11, 2007. Defs.’ Mot. for Summ. J., Ex. 5 (Miller Decl.) ¶ 14. O n May 11, 2007, Aref was transferred to the CMU at Terra Haute. Id. ¶ 15. O n March 26, 2009, A ref w as t ransferred t o t he C MU a t Marion. Id. He r emained th ere u ntil A pril 1 1, 2011, when he was transferred to general population at Marion. Id. On January 22, 2008, Plaintiff Jayyousi was sentenced to a twelve-year and eight-month term for c onspiracy t o m urder, ki dnap, a nd m aim i n a foreign country, a nd c onspiracy t o pr ovide material support to terrorism. Am. Compl. ¶ 179. Jayyousi was in administrative detention from April 16, 2007, to June 18, 2008. Miller Decl. ¶ 16. On June 18, 2008, Jayyousi was transferred to the CMU at Terra Haute. Id. On October 1, 2010, Jayyousi was transferred to the CMU at Marion. Id. ¶ 18. On May 14, 2013, Jayyousi was transferred to general population at Marion. Id. ¶ 18.
Plaintiffs’ c omplaint a lleged a v ariety o f c laims, in cluding th at th eir p rocedural d ue process r ights w ere v iolated b ecause t hey d id n ot r eceive ad equate Notices o f T ransfer o r an opportunity to c hallenge th eir d esignation to th e C MUs; th at th eir p lacement in t he C MUs violated their substantive due process and First Amendment rights to “family integrity;” that the CMUs’ c onditions c onstituted c ruel a nd unus ual puni shment i n vi olation of t he E ighth
3

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 4 of 20
Amendment; that P laintiffs w ere tr ansferred in to th e C MU in retaliation f or th eir litig ation against t he B OP; and t hat P laintiffs w ere t ransferred t o C MUs b ecause t hey a re M uslim an d therefore were unlawfully discriminated against in violation of the First and Fifth Amendment. See Aref I, 774 F. Spp. 2d at 156–57, 161–71. Plaintiffs sought declaratory relief and injunctive relief, transfer out of the CMUs, and an order requiring Defendants to allow Plaintiffs the same communication privileges as other general population prisoners. Id. at 156.
On M arch 30, 2011, Judge U rbina1 dismissed a ll b ut the pr ocedural due pr ocess a nd retaliation claims. See Aref I, 774 F. Supp. 2d at 161–71. Judge Urbina also dismissed Plaintiff Twitty’s claims as moot because “he is no l onger in BOP custody,” as Twitty had been “placed in a halfway house in October 2007 and paroled in January 2011.” Id. at 160–61. The case was transferred to the undersigned on N ovember 5, 2 012. Plaintiffs Aref, J ayyousi, and McGowan filed an amended complaint on November 20, 2012. See First Am. Compl. [88]. In the amended complaint, Plaintiff Jayyousi alleged that Defendants retaliated against him for his political and religious speech by recommending that he remain in CMU.2 First Am. Compl. ¶ 238.
On J uly 12, 2013, t he C ourt dismissed Plaintiff McGowan’s claims as m oot because of his release from BOP custody and dismissed several other claims against individual Defendants. See Mem. Op. [114]. The Court declined to dismiss Plaintiff Jayyousi’s retaliation claim. Id.
Accordingly, t he i ssues remaining before t he C ourt a re P laintiffs A ref and J ayyousi’s procedural due process claims and Plaintiff Jayyousi’s retaliation claim.
III. PROCEDURAL DUE PROCESS A. Mootness
1 This case was previously assigned to Judge Ricardo M. Urbina of the United States District Court for the District of Columbia. The case was reassigned to the undersigned judge on November 5, 2012. 2 Now-dismissed Plaintiff McGowan also alleged retaliation based on his political speech. Am. Compl. ¶ 237.
4

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 5 of 20
Defendants in itially argue that th is C ourt la cks ju risdiction over P laintiffs’ pr ocedural due process claims because the case is moot. Article III’s case-or-controversy requirement prohibits courts from issuing advisory opinions on decisions based on hypothetical facts or abstract issues. Flast v. Cohen, 392 U .S. 83, 96 ( 1968). “The doctrine of mootness is a logical corollary of the case or c ontroversy requirement . . . .” Better G ov’t A ss’n v . D ep’t of St ate, 780 F .2d 86, 90 (D.C. Cir. 1986). As such, courts must evaluate mootness “through all stages” of the litigation in order t o e nsure t hat a l ive c ontroversy remains. 21st C entury T elesis J oint V enture v . F ed. Commc’ns C omm’n, 31 8 F .3d 192, 198 ( D.C. Cir. 2003) ( citing Friends of t he E arth, I nc. v . Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191 (2000)). Defendants contend that because Plaintiff Aref has been out of the CMU for more than three years, and Plaintiff Jayyousi has been out of the CMU for more than a year, they have received the injunctive relief they sought, and that the declaratory relief sought by the Plaintiffs would, at this point, amount to a mere advisory opinion.
Motions to d ismiss a c laim f or mo otness are f iled under F ederal R ule of C ivil P rocedure 12(b)(1). Comm. in Solidarity with People of El Salvador v. Sessions, 929 F.2d 742, 744 ( D.C. Cir. 1991). A cas e i s moot w hen “the i ssues p resented ar e n o l onger l ive o r t he p arties l ack a legally cognizable in terest in th e o utcome.” City of E rie v . P ap's A .M., 529 U .S. 277, 287 (2000). “An intervening event may render a claim moot if (1) there is no reasonable expectation that t he c onduct w ill r ecur a nd (2) i nterim r elief or events ha ve c ompletely and i rrevocably eradicated t he effects o f t he al leged v iolations.” Aref v. H older, 774 F . Supp. 2d 147, 160 (D.D.C. 2011) (“Aref I”) (citing Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 631 (D.C. Cir. 2002)).
5

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 6 of 20
There are, however, two exceptions to mootness. “ The first pertains to s ituations in which ‘the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration,’ yet t here i s a ‘ demonstrated probability th at th e s ame c ontroversy w ill r ecur involving the same complaining party.’” Am. Bar Ass’n v. FTC, 636 F .3d 641, 647 ( D.C. Cir. 2011) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam)). This is also known as the “cap able o f r epetition, yet evading r eview” e xception t o m ootness. Weinstein v. Bradford, 423 U.S. 147, 149 (1975).
The s econd exception t o m ootness i s voluntary cessation o f t he challenged act ivity by t he defendant, which generally “does not deprive [a court] of power to hear and determine the case.” Am. Ba r As s’n, 636 F.3d a t 648. A “defendant's v oluntary cessation o f a ch allenged p ractice does not deprive a federal court of its power to determine the legality of the practice.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). Under voluntary cessation, a case will be found moot only when (1) “there is no r easonable expectation . . . that the al leged v iolation w ill r ecur,” and ( 2) “i nterim r elief o r ev ents have co mpletely and irrevocably eradicated the effects of the alleged violation.” Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 ( 1979). The d efendant ca rries the bur den of de monstrating t hat t here i s no reasonable expectation that the wrong will be repeated,” and “the burden is a h eavy one.” Am. Bar Ass’n, 636 F.3d at 648 (citation omitted). “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to r ecur.” Friends of t he E arth, 528 U .S. a t 18 9. In or der f or t his e xception t o a pply, “ the defendant's voluntary cessation must have arisen because of the litigation.” Pub. Util. Comm'n of Cal. v. FERC, 100 F.3d 1451, 1460 (9th Cir.1996).
6

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 7 of 20
As bot h parties have addressed t he s tandard for voluntary cessation i n t heir a rguments, t he Court will evaluate the question of mootness through the prism of “voluntary cessation,” and its requirement that mootness is found only when (1) “there is no reasonable expectation . . . that the alleged vi olation will recur,” and (2) “interim relief or events have completely and i rrevocably eradicated the effects of the alleged violation.” See Defs.’ Mot. for Summ. J. at 14 ( discussing the two voluntary cessation factors; Pls.’ Opp’n at 3-10 (same).3 The main point of contention involves w hether t here i s a “r easonable ex pectation . . . t hat t he alleged v iolation w ill r ecur.” Defendants n ote that P laintiffs A ref and J ayyousi a re no l onger i n t he C MU. While it i s undisputed t hat both P laintiffs are s till in BOP c ustody a nd th us remain eligible f or C MU redesignation, Defs.’ Mot., Ex. 3 (Nally Decl.) at ¶ 4,4 Defendants argue that Aref and Jayyousi will not, in fact, be redesignated to the C MU unless s ome n ew ev ent w arranting r edesignation occurs. Defendants r ely on t he de claration of Leslie S mith, C hief of t he B ureau of Prison’s Counter-Terrorism U nit ( “CTU”) who de clares t hat C TU w ill not r ecommend s ending t he plaintiffs back to the CMU based purely on t heir offense conviction; rather, according to Smith, “some ne wly obtained information w ould ha ve t o be pr esented t o t he C TU,” pr ior t o a recommendation5 that Plaintiffs be returned to CMU. Defs.’ Ex. 2 (Smith Decl.) at ¶ 14.
In Wills v . U nited St ates P arole C omm’n., 882 F . S upp. 2d 60 ( D.D.C. 2012) , t he c ourt considered w hether t he p laintiff’s cl aim t hat h e had b een i ncorrectly p laced i n a s ex o ffender
3 In their Reply Defendants challenge for the first time the factual basis of the Courts’ use of the voluntary cessation standard, arguing that Plaintiffs Aref and Jayyousi were released from CMU pursuant to internal review procedures rather t han as a response to litigation. “As t he D.C. Circuit has consistently held, the C ourt should not a ddress arguments raised for the first time in a party’s reply.” Jones v. Mukasey, 565 F. Supp. 2d 68, 81 (D.D.C. 2008). As such, the Court will assume for the sake of its mootness analysis that voluntary cessation applies. 4 In Aref I the court found that the claims of one of the plaintiffs, Twitty, were moot because Twitty was on parole and was no longer in BOP custody and, as such, was not eligible for redesignation to the CMU. 774 F. Supp. 2d 147, 160-61. A t the same time, the court rejected Defendants’ argument that plaintiff Jones lacked standing because he was no longer in the CMU. Here, both Arej and Jayyousi are still in BOP custody. 5 Smith does not make final decisions regarding designation to CMU; rather, it is the Regional Director who makes the ultimate decision regarding whether to approve or deny placement in the CMU. Defs.’ SUF ¶¶ 108-118.
7

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 8 of 20
treatment program was moot when, during the course of litigation, plaintiff was removed from the program with assurances from the defendants that plaintiff would not be redesignated to the program.” Specifically, the defendants in Wills assured the court that they did not “expect” the plaintiff t o be r edesignated “ absent ne w s exual m isconduct,” a nd t hat t hey “ w[ould] not recommend re-imposition of the [program] . . . .” 882 F . Supp. 2d at 70-71. However, as noted by t he co urt, “[ m]ere as surances t hat ch allenged co nduct w ill n ot r ecur, h owever, h ave n ever been e nough t o s ustain t he ‘ heavy’ bu rden bo rne b y de fendants i n i nvoking t he m ootness doctrine.” Id. at 71 (citing United States v. W.T. Grant Co., 345 U .S. 629, 633 ( 1953) (holding that “disclaim[ing] any intention . . . does not suffice to make a case moot”)). Similarly, in In re Ctr. for Auto Safety, 793 F.2d 1346, 1352 (D.C. Cir. 1986), the court looked skeptically on an agency’s pledge that it would cease to issue fuel economy standards in a t ardy manner, labeling such a s tatement a “b ald assertion.” H ere, Smith’s declaration, however well-intentioned, is not a pol icy s tatement or pr oposed B OP r egulation, but m erely S mith’s opi nion t hat he w ill no t “recommend” r edesignation i nto t he C MU a bsent ne w o ffenses. S uch a s tatement i s not sufficient to meet the “heavy burden” that there is no reasonable risk that Plaintiffs will be placed once more in the CMU.
In addition, even if it is true that Smith’s declaration, made for the purposes of this litigation, can be s een a s bi nding t he B ureau of P risons t o a pa rticular pol icy or c ourse of a ction, Defendants still fail to demonstrate mootness because Plaintiffs’ Procedural Due Process claims are premised upon de fects i n t he procedure leading t o t heir de signation t o t he C MU a nd not merely the designation to the CMU itself. The fact that “newly obtained information” would be required for redesignation is of little relevance if, as Plaintiffs allege, the process of designation itself is procedurally flawed. As noted by Defendants themselves, cases are generally only moot
8

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 9 of 20
where “a party has already obtained all the relief that it has sought.” Schmidt v. United States, 749 F .3d 1064, 1068 ( D.C. C ir. 2014) . P laintiffs ha ve not obt ained a ll t he r elief t hey s eek in their complaint. Plaintiffs’ claims are not moot and, as such, the Court has jurisdiction and will consider the merits of Plaintiffs’ claims.
B. Procedural Due Process Claim 1. Legal Standard
The F ifth A mendment states t hat t he g overnment s hall not de prive a ny pe rson “ of l ife, liberty, or p roperty, w ithout due pr ocess of l aw . . . .” U .S. C onst., A mdt. 5. Generally, i n considering t he r equirements of due pr ocess, c ourts f ollow t he t est s et out i n Mathews v . Eldridge, 424 U.S. 319, 335 (1976): identify the private liberty interest that will be affected b y the of ficial a ction, consider t he risk of an e rroneous de privation of t he i nterest t hrough t he procedures being used as well as the value of additional or substitute procedural safeguards, and, finally, consider t he government’s i nterest and t he f iscal a nd a dministrative bur dens t hat additional process would require.
Here, because a prison inmate faces restrictions on his or her liberty as a matter of course, the first p rong o f t he Eldridge test, th at is , th e id entification o f a lib erty in terest, b ecomes a n exceedingly difficult obstacle and one which Plaintiffs in this case are unable to overcome.
An imprisoned plaintiff may establish the existence of a liberty interest by setting forth facts demonstrating that restrictions that have been imposed on him or her constitute an “atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U .S. 472, 484 ( 1995). T he C ourt ha s also r eferred t o this as a n eed to de monstrate a departure from the “basic conditions” of prison. “[T]he touchstone of the inquiry . . . i s . . . the
9

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 10 of 20
nature of t hose c onditions t hemselves ‘ in r elation t o t he or dinary i ncidents of pr ison l ife.’” Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (quoting Sandin, 515 U.S. at 484).
After Sandin the key issue became identifying the baseline for determining what constitutes an “ atypical and s ignificant ha rdship f rom t he or dinary i ncidents of pr ison l ife.” In Hatch v. District o f C olumbia, 1 84 F.3d 846, 847 ( D.C. C ir. 1999), this c ircuit d etermined th at th e baseline for c omparison is “ the us ual c onditions o f a dministrative s egregation,6” or “ the m ost restrictive confinement conditions that prison officials, exercising their administrative authority to e nsure i nstitutional s afety and g ood or der, routinely i mpose on i nmates s erving s imilar sentences” at the same institution. 184 F.3d at 856. A court should look “not only to the nature of t he de privation ( e.g., l oss of pr ivileges, l oss of out -of-cell-time) b ut a lso to its le ngth in evaluating its ‘atypicality’ and ‘significance.’” Id.
2. Conditions in Administrative Detention7 at Marion and Terra Haute The conditions and restrictions in administrative detention are the baseline for comparison of the “ atypicality” of conditions i n t he C MUs. Inmates in a dministrative d etention (solitary confinement) at M arion an d T erra H aute ar e typically housed either alone or with a nother inmate. Defs.’ SUF ¶ 36. T hey typically remain in their cells for 23 hours per day. Id. SUF ¶ 34. They may exercise for five hours a week, usually in one-hour periods. Id. ¶ 38; Pls.’ SUF ¶ 47.8 When inmates in administrative detention do leave their cells, they must do so in restraints. Defs.’ S UF ¶ 37. Inmates i n a dministrative d etention do not h ave a ccess t o T V and do not control whether lights remain on i n their cell. Defs.’ SUF ¶¶ 39-40. Inmates in administrative
6 “Administrative segregation” was defined in Hatch as “a form of solitary confinement commonly used to separate disruptive prisoners.” 184 F.3d at 848. 7 Both parties refer to administrative segregation as administrative detention, and there is no dispute that these designations are synonymous. 8 Defendants’ SUF incorrectly states that inmates in administrative detention may exercise for one hour every five days; however, the declaration of Frank Lara, Defs.’ Opp’n, Ex. 6, which is cited for this proposition, provides the actual amount of exercise as five hours per week. Lara Decl. ¶ 19.
10

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 11 of 20
detention are permitted fewer possessions in their cells than inmates in C MU. Id. ¶ 42. They may not hold prison jobs and usually have no access to educational or recreational programming. Id. ¶¶ 43-45.
Inmates in administrative detention at Terra Haute and Marion receive one 15-minute phone call per month, although prison officials have discretion to provide more, or less, call time. Pls.’ SUF ¶ 41; Defs.’ SUF ¶¶ 46-49. They do not have access to e-mail for social correspondence. Defs.’ SUF ¶ 53.
Currently, visits at T erra H aute ar e n on-contact and are limited to tw o t wo-hour vi sits pe r month, for four hours of visitation per month total Id. ¶¶ 43-44; Defs.’ SUF ¶ 52. Inmates in administrative d etention a t U SP M arion a re a llowed a min imum o f f our hours of non -contact visits per month and may receive more upon request. Pls.’ SUF ¶ 45. Inmates in administrative detention a t Marion are n ot p ermitted t o b e i n t he s ame room a s t heir vi sitors, but i nstead conduct visits through video monitors. Id. ¶ 51
3. Conditions in CMU at Marion and Terra Haute While inmates in CMU face restrictions on their communication with persons outside CMU, “the C MU i s de signed, and i n f act f unctions, a s a g eneral popul ation uni t.” D efs.’ S UF ¶ 7. 9 While inmates in the CMUs are separated from the non-CMU population, CMU “inmates reside, eat, a nd pa rticipate i n all e ducational, r ecreational, r eligious, unit m anagement, a nd w ork programming” within the unit itself. Id. ¶ 9; Pls.’ SUF ¶ 16. Like other general population units, other than at night and during security checks, inmates in the CMUs are not typically confined to
9 Plaintiffs dispute Defendants characterization of the CMUs as similar to general population units. P laintiffs point to t he minutes o f a 2 008 E xecutive S taff M eeting o f t he B OP i n w hich the CMUs a re in cluded in t he lis t o f “[r]estrictive conditions of confinement programs” along with restrictive programs such as the Special Management Unit a nd Administrative M aximum u nit. P ls.’ S UF ¶ 3 8. This a ppears to m ostly be a s emantic d ispute, a s Defendants p rovide ev idence t hat t he CMUs function l ike a g eneral p opulation u nit i n ar eas n ot r elated t o communication. Plaintiffs provide no evidence to the contrary.
11

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 12 of 20
their cells, and have access to common areas up to sixteen hours per day. Defs.’ SUF ¶¶ 11-12. CMU i nmates ha ve a ccess t o e ducational a nd programming oppo rtunities, l egal a nd ot her reading m aterials, religious s ervices, h ealth s ervices ( including m ental h ealth s ervices), commissary items for purchase, exercise equipment, and recreational activities, and may hold a prison job and receive a salary. Id. ¶¶ 13-14. Transfer to the CMUs does not increase the length of incarceration and inmates continue to earn good-conduct sentence credit. Id. ¶ 15. In short, except where communication is concerned, CMUs function like a general population unit.
As of January 3, 2010, CMU inmates may make two fifteen-minute telephone calls per week, or 120 m inutes pe r m onth. P ls.’ S UF ¶ 28. 10 Prior t o January 3, 201 0, phone c alls w ere restricted to 15-minutes per week, or 60 minutes per month. Id. ¶ 27. All calls in CMU are livemonitored a nd m ust t ake pl ace i n E nglish unl ess t hey ha ve be en s cheduled f or s imultaneous translation. Id. ¶¶ 25-26. I nmates i n C MU ha ve a ccess t o e -mail f or s ocial co rrespondence, although their e-mail is screened before it is sent and before it is received at CMU. Id. ¶¶ 29-31.
Prior to January 3, 2010, CMU inmates received four hours of non-contact visits per month, although no vi sits w ere permitted on ni ghts or weekends. Pls.’ SU F ¶ 23. A s of J anuary 3, 2010, a ll C MU i nmates a re a llowed up t o e ight hour s of visitation time p er m onth, S unday through Friday, 8:30 AM to 2:30 PM. Id. ¶ 24. The visits are live-monitored by BOP staff. Id. ¶ 22.
4. Conditions in CMU as Compared to Administrative Detention Plaintiffs c ontend that designation t o t he C MU r epresents an “at ypical an d s ignificant hardship” compared to the “the usual conditions of administrative segregation.” Hatch, 184 F.3d at 856. According t o Plaintiffs “s ome as pects o f C MU co nfinement ar e h arsher t han
10 The Bureau of Prisons has published a Proposed Rule that would limit telephone calls to a single 15-minute call per month. However, according to the record this rule has not yet been finalized or implemented. Pls.’ SUF ¶¶ 2931.
12

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 13 of 20
administrative segregation, and vice versa.” Pls.’ Mot. at 14.11 However, as is obvious from the descriptions of CMU and administrative detention, discussed supra, CMU does not approach the restrictions imposed on inmates in administrative detention. Inmates in CMU face relatively few restrictions in their day-to-day activities; as noted above, CMU functions in many respects “as a general population unit.” Even in terms of communication with persons outside the unit, where inmates in CMU do face restrictions, these restrictions are not as onerous as those restrictions in place for inmates in administrative detention.
Plaintiffs focus on the length of time spent in CMU compared to that spent in administrative detention. There i s no fixed limitation on t he duration of an i nmate’s placement i n the CMU. Pls.’ S UF ¶ 1 7. A ccording to P laintiffs’ e xpert, th e me dian time 12 spent i n C MU b y l ow a nd medium-security i nmates be tween February 1, 2 012 a nd A ugust 2, 2013 , w as 66.78 w eeks, or one year and one-and-a half months. Pls.’ SUF ¶ 48. Plaintiffs’ expert maintains that the median aggregate time spent in administrative detention at Terra Haute during the same period was 1.07 weeks, w hile th e me dian a ggregate time s pent in a dministrative d etention at M arion w as 3.59 weeks. Id. ¶¶ 51, 53. Defendants have also provided estimates of time spent in administrative detention at Terra Haute and Marion. According to Defendants, from February 1, 2012 t hrough
11 Plaintiffs also reference the Tenth Circuit’s statement that the CMUs are “other than [Administrative Maximum Prison] . . . the most restrictive facilities in the federal system.” Rezaq v. Nalley, 677 F .3d 1001, 1009 (10th Cir. 2012). Rezaq, ho wever, c oncerned c onditions i n ADX r ather t han t he CMUs t hemselves, a nd c ontained no substantive discussion of the actual conditions of confinement at the CMUs. In addition, the Tenth Circuit held that there was no liberty interest in transfer to the Administrative Maximum Prison, which appears to impose equivalent to administrative detention. Because the Tenth Circuit explicitly stated th at the CMUs were not as restrictive as ADX, Rezaq provides little support for Plaintiffs’ claims. 12 Plaintiffs argue that the median measurement, rather than mean, should be used to calculate relative duration o f confinement i n C MU a nd a dministrative d etention because t heir e xpert b elieves “that t he median i s t he p referred unit to measure central tendency.” Pls.’ SUF ¶ 54. Plaintiffs’ expert also ran his analysis using the mean and stated that, compared to the median time in CMU, the mean was “about the same . . . the pattern was virtually the same.” Pls. Mot. for Summ. J., Ex. 26 (Beveridge Dep. at 40).
13

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 14 of 20
August 2, 2013, 24% of low and medium-security inmates13 in administrative detention spent at
least one month there, 13% spent at least two months there, 7% spent at least three months, and
4% s pent a t l east f our m onths. 52% of i nmates i n a dministrative de tention s pent l ess t han one
month there.
On close analysis, P laintiffs’ argument is that the length of time an inmate is placed in the
CMU, which c an num ber i n t he years, elevates the co mparatively l ess-restrictive conditions of
the CMU to a level of hardship equal to or greater than administrative detention at either Marion
or T erra H aute. Plaintiffs’ ar gue t hat, w hen co nsidering t he b aseline s et b y Hatch, t his C ourt
should compare the median length of stay in administrative detention, one to three weeks, to the
median length of stay in the CMUs, sixty-seven weeks. Plaintiffs argue that such a comparison
illustrates that designation to the CMU is “atypical and significant” because of the limitations on
visitation and phone time.
Plaintiffs’ argument is unpersuasive. Here, the only factor that establishes that designation to
the C MU i s equally harsh or harsher th an a dministrative d etention is th e typical length of
designation to the CMU. While designation to the CMU for a long period of time clearly carries with it d eprivations as t o vi sitation a nd c ommunication14 compared t o ge neral popul ation status,15 these deprivations are limited in nature. Furthermore, there is no question that CMU is
less restrictive than administrative detention – for example, inmates in the CMU may have jobs,
13 Plaintiffs p rovide median s tay ti me in CMU t hat b oth i ncludes a nd e xcludes high-security p risoners; gi ven t hat most inmates a re lo w a nd medium-security, t he Court finds t hat the l ow a nd medium-security C MU s tatistics provide the best comparator. 14 The Court notes that the need for restrictions on communication was precisely the reason the CMUs were created. 15 Inmates in general population at Marion and Terra Haute are permitted 300 minutes of social telephone time per month. D efs.’ S UF ¶ 20. BOP r egulations specify t hat each inmate s hould b e al lowed at l east four house o f visitation ti me p er m onth, 2 8 C .F.R. § 5 40.43, a nd th at v isits s hould b e c ontact v isits “ unless t here is c lear a nd convincing ev idence t hat s uch co ntact would j eopardize t he s afety o r security o f t he institution,” 2 8 C.F.R. § 540.51(h)(2). Inmates i n general p opulation at T erra H aute ar e p ermitted s even visits p er month, with no s et duration outside of visiting hour, for a maximum of 49 h ours of visitation per month. Pls.’ SUF ¶ 4. I nmates in general popu lation a t M arion a re a llowed vi sitors on Fridays, Saturdays, Sundays, a nd f ederal holidays du ring visiting hours, for a maximum of 42 hours of visitation per month. Id. ¶ 5.
14

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 15 of 20
are not r estricted t o t heir cells for 23 hour s a da y, m ay p articipate i n various prison programs, and so on. These conditions, which are far less restrictive than administrative detention, provide a counterbalance to the deprivations highlighted by Plaintiffs and make it clear that conditions in the C MU a re s ignificantly le ss restrictive th an administrative d etention. Given Hatch’s comparative baseline of administrative detention, the Court finds that Plaintiffs do not possess a liberty interest that is implicated in their designation to the CMUs.
Other courts that have considered what establishes a l iberty interest in a prison setting have reached a similar conclusion. In Henry v. Department of Corrections, 131 F. App’x 847 (3d Cir. 2005) the Third Circuit considered whether a lifetime ban on c ontact visits violated an inmate’s Due Process rights. The court found that “the Due Process Clause does not itself guarantee any interest in . . . any particular form of visitation.” 131 F. App’x at 849. The court went on to hold that even a pe rmanent ba n on c ontact vi sits w as not “ atypical a nd s ignificant” c ompared t o ordinary prison life where loss of visitation privileges is an “ordinary incident[] of prison life.” Id. (quoting Sandin, 515 U .S. a t 484) . Thus, e ven w here P ennsylvania regulations pe rmitted contact v isitations in mo st s ituations, th e c ourt d id n ot f ind a lib erty in terest in a ny p articular form of visitation.
Similarly, in Perez v. Federal Bureau of Prisons, 229 F. App’x 55 (3d Cir. 2007), the Third Circuit considered whether the restriction of an inmate to one telephone call per week (because of his conviction as the leader of a conspiracy that used telephones to further criminal activity) implicated a l iberty i nterest a nd vi olated t he D ue P rocess C lause. T he T hird C ircuit f ound “changes in security classifications and limits on telephone usage are ordinary incidents of prison confinement,” that did not implicate a liberty interest. 229 F. App’x at 58.
15

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 16 of 20
5. Process Due Because t he C ourt f inds t hat designation t o C MU doe s not i nfringe on Plaintiffs’ l iberty interests, it doe s not r each t he que stion of whether t he pr ocess P laintiffs r eceived upon designation to the CMUs was adequate.
IV. RETALIATION Defendants mo ve f or s ummary ju dgment a s to P laintiff J ayyousi’s r etaliation c laim. Plaintiff J ayyousi alleges th at th e C hief o f BOP’s C ounter-Terrorism U nit (“CTU”), L eslie Smith, retaliated against him by recommending that Jayyousi should remain in CMU ss a result of a s peech h e gave on A ugust 15, 2008, w hile s erving a s t he r otational l eader of a pr ayer meeting at the Terra Haute CMU. Stipulation [142] at ¶ 6. Jayyousi argues that his speech was protected by the First Amendment and, as such, his rights were violated by the recommendation that he remain in CMU.
A. General Retaliation Test A pr isoner bringing a First A mendment c laim o f r etaliation mu st establish that ( 1) h e engaged i n c onduct p rotected unde r t he First A mendment; ( 2) t he defendant t ook s ome retaliatory action sufficient to deter a person of ordinary firmness from speaking again; and (3) a causal l ink exists between t he e xercise of a c onstitutional r ight a nd t he a dverse a ction t aken against hi m.” Aref I , 774 F . Supp.2d at 169 ( citing Banks v. Y ork, 515 F .Supp.2d 89, 111 (D.D.C. 2007); Rauser v. Horn, 241 F.3d 330, 3 33 (3d Cir. 2001); Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)). “To satisfy the causation link, a plaintiff must allege that his or her constitutional speech was the ‘but for’ cause of the defendants' retaliatory action.” Id. (citing Hartman v. Moore, 547 U.S. 250, 256 (2006)).
16

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 17 of 20
Because th e C ourt f inds th at P laintiff J ayyousi’s s peech w as n ot p rotected b y th e First Amendment, the Court need not address the second or third factors of the test.
B. First Amendment Claims by Prison Inmates It is w ell-established th at “ lawful i ncarceration br ings about t he ne cessary w ithdrawal or limitation of many privileges and rights, a retraction justified b y the considerations unde rlying our penal s ystem.” Pell v. P rocunier, 417 U .S. 817, 822 (1974). “ In t he F irst A mendment context a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Id. Therefore, in considering “a First Amendment retaliation claim, [courts] examine whether the prisoner engaged in speech in a manner consistent with legitimate penological interests.” Watkins v. Kasper, 599 F.3d 791, 794 –95 (7th Cir. 2010) (citing Turner v. Safley, 482 U.S. 78 (1987)). Speech that is inconsistent with legitimate penological interests may be “unprotected as a matter of law.” Id. at 797.
Turney v. Safley discusses at length the factors a court must consider to determine whether a prisoner ha s a F irst A mendment r ight t o e ngage i n pa rticular s peech: First, “t here m ust b e a ‘valid, r ational connection’ be tween t he p rison [ action] a nd t he l egitimate government in terest put forward to justify it.” Safley, 482 U.S. at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)). S econd, the court must evaluate “whether there are alternative means of exercising the right that remain open to prison inmates.” Safley, 482 U.S. at 90. Third, the court must consider “the i mpact a ccommodation of t he a sserted c onstitutional r ight w ill ha ve on g uards a nd ot her inmates, a nd on t he allocation of p rison r esources generally . . . [ w]hen a ccommodation of an asserted right will have a significant ‘ripple effect’ on f ellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of correctional officials.” Id. at 90.
17

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 18 of 20
Fourth, “t he absence o f r eady alternatives i s evidence o f t he r easonableness of a pr ison regulation.” Id.
The f actors “are i ntended a s guides t o a s ingle r easonableness s tandard . . . [ but] t he f irst factor looms especially large. Its rationality inquiry16 tends to encompass the remaining factors . . . .” Amatel v. Reno, 156 F.3d 192, 196 (D.C. Cir. 1998). Thus, “Safley directs courts to uphold a r egulation, e ven on e c ircumscribing c onstitutionally pr otected i nterests, s o l ong a s i t ‘ is reasonably related to legitimate penological interests.’” Id. (quoting Safley, 482 U.S. at 89).
1. Valid Rational Connection Defendants a ssert t hat P laintiff J ayyousi’s s peech t o ot her C MU i nmates p osed a s ecurity risk, and, therefore, CTU’s recommendation that Jayyousi remain in CMU was justified because it identified “inmate communications that pose[d] a security risk warranting CMU monitoring.” Defs.’ M ot. at 35. Defendants contend that their identification of security risks is a le gitimate government interest. In r esponse, P laintiffs’ c ontend t hat t here w as no “ valid, r ational connection” be tween Smith’s actions and a legitimate government interest because “Smith’s (and other BOP officials’) characterization o f J ayyousi’s s peech i s ex aggerated, i naccurate, a nd pu rposefully de ceptive,” and “ Smith’s c haracterization of Jayyousi’s conviction a nd of fense c onduct . . . i s similarly flawed.” P ls.’ Opp’n at 36-37. In short, Plaintiffs urge the Court to find that Plaintiff Jayyousi did not pos e a s ecurity r isk t hat r equired hi s continued de signation t o C MU. A s a r esult, Plaintiffs c ontend, D efendants ha ve not s et f orth a l egitimate penological interest in P laintiff Jayyousi’s continued designation to CMU.
16 This inquiry being the requirement that “there must be a ‘ valid, rational connection’ between the prison [action] and th e le gitimate government i nterest p ut forward to j ustify it. ” Safley, 482 U .S. a t 89 ( quoting Block v. Rutherford, 468 U.S. at 586).
18

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 19 of 20
Plaintiffs in vite th e C ourt to s ubstitute it s ju dgment f or th at o f p rison a dministrators in determining what constitutes a s ecurity r isk w arranting continued CMU m onitoring. This the Court w ill not do . Smith w rote a le ngthy me morandum d etailing th e p ortions o f J ayyousi’s speech that he found to be “aimed at inciting and radicalizing the Muslim inmate population” in the CMU at Terra Haute. Defs.’ Opp’n, Ex. 4 (Pottios Decl.), Ex. E at 004614. Smith expressed concern a bout Jayyousi’s s tatement t hat M uslim i nmates ha d be en pl aced i n t he C MU not because of any action they had taken but simply because they were Muslim. Id. Smith also was concerned about Jayyousi’s statements regarding “why we martyr.” Id. Smith also discussed the offense for which Jayyousi had been convicted, namely, conspiracy to murder, kidnap, and maim in a foreign country, and conspiracy to provide material support to terrorism. Id.; Am. Compl. ¶ 179.
The co urts h ave r epeatedly h eld t hat “[w]e m ust a ccord ‘[p]rison a dministrators . . . w ideranging deference in the adoption and execution of policies and practices that in their judgment are ne eded t o pr eserve i nternal or der a nd di scipline a nd t o m aintain institutional s ecurity.’” Hatim v. Obama, 760 F.3d 54, 59 ( D.C. Cir. 2014) (quoting Bell v. Wolfish, 441 U .S. 520, 547 (1979)). Having examined the speech and the rationale offered by Defendants, the Court finds that Defendants have articulated a valid, rational connection between their recommendation that Jayyousi remain in CMU and a legitimate government or penological interest.
2. Other Turner v. Safley Factors While both Plaintiffs and Defendants address the other Turner v. Safley factors, the Court will not do s o. A s not ed above, t he f actors “are i ntended as guides t o a single r easonableness standard . . . [but] t he f irst f actor l ooms e specially l arge. Its r ationality i nquiry t ends t o encompass t he r emaining f actors . . . .” Amatel v. R eno, 156 F .3d 192, 196 ( D.C. C ir. 1998) .
19

Case 1:10-cv-00539-BJR-DAR Document 161 Filed 03/16/15 Page 20 of 20
Thus, “ Safley di rects c ourts t o uphol d a r egulation, e ven one c ircumscribing c onstitutionally protected interests, so long as it ‘ is reasonably related to legitimate penological interests.’” Id. (quoting Safley, 482 U.S. at 89).
Here, b ecause Defendants h ave ad vanced a l egitimate p enological i nterest i n l imiting Plaintiff J ayyousi’s s peech, w hich t hey determined w as a s ecurity risk, i t makes little s ense to inquire how Defendants c ould ha ve accommodated s aid s peech. Defendants h ave al ready articulated the imp act accommodation of t he s peech when they d etermined th at “Jayyousi’s comments encouraged activities which would lead to a group demonstration and are detrimental to the security, good order, or discipline of the institution.” Pottios Decl., Ex. E at 004614.
V. CONCLUSION Having considered the parties’ arguments, the relevant case law, and the entire record, the Court finds that Plaintiffs have failed to establish that designation to the CMU is an “atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). As such, their Procedural Due Process claim fails. Further, the Court finds th at P laintiff Jayyousi h as f ailed to e stablish th at h is c onduct w as p rotected b y th e F irst Amendment and, as such, his retaliation claim fails. An order consistent with this memorandum opinion will issue separately. Signed on March 16, 2015.
BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE 20

 
 Case 1:10-cv-00539-BJR-DAR Document 101 Filed 02/19/13 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

YASSIN MUHIDDIN AREF, et al., Plaintiffs,
v. ERIC HOLDER, et al.,
Defendants.

Civil Action No. 10-539 (BJR) MEMORANDUM ORDER

DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF MCGOWAN’S 2008 RETALIATION CLAIM
This matter is before the Court upon consideration of Defendants’ motion seeking summary judgment as to Plaintiff McGowan’s 2008 retaliation claim. Defendants argue that Plaintiff McGowan was required under the Prisoner Litigation Reform Act (“PLRA”) to exhaust his administrative remedies prior to bringing suit, but failed to do so. Because the Court finds that Plaintiff McGowan exhausted his administrative remedies with respect to the 2008 retaliation claim, Defendants’ motion is DENIED.

I. BACKGROUND1

Plaintiff Daniel McGowan is one of four federal prisoners that brought suit against the

Bureau of Prisons (“BOP”), the Chief of the BOP’s Counter Terrorism Unit, the Assistant

Director of the BOP’s Correctional Programs Division, the BOP Director, and the Attorney

General of the United States (collectively, “Defendants”). In 2007, Plaintiff McGowan was

sentenced to 7 years of imprisonment after pleading guilty to conspiracy and arson. Am.

Compl. ¶ 16. He was initially designated to the general prison population. In 2008, Plaintiff

1

A thorough presentation of the factual allegations can be found in the March 30, 2011

memorandum opinion granting in part and denying in part Defendants’ motion to dismiss. See

Mem. Op. (March 30, 2011), Dkt. No. 37.

1

Case 1:10-cv-00539-BJR-DAR Document 101 Filed 02/19/13 Page 2 of 9

McGowan was transferred to a Communication Management Unit (“CMU”), a unit apart from
the general population unit that, according to the Government, is designed to house inmates
whose communications with the public require enhanced monitoring. According to Plaintiffs,
CMU prisoners are not allowed to have any physical contact with visiting friends and families,
and the prisoner’s access to phone calls and prison programming is severely restricted. Am.
Compl. ¶ 2.
The Notice of Transfer that the BOP provided to McGowan stated that the reason for his
transfer to the CMU was as follows:
Your of fense c onduct i ncluded a cts of a rson, de struction of a n e nergy f acility, attempted arson, and conspiracy to commit arson. Y ou have been identified as a member a nd l eader i n t he E arth Liberation F ront ( ELF) and A nimal Liberation Front ( ALF), gr oups c onsidered dom estic t errorist or ganizations. Y our offense conduct i ncluded c ommunicating in c ode a nd t eaching ot hers how t o c ommit crimes of arson. Your actions had the primary purpose to influence and affect the conduct of government, c ommerce, pr ivate bu siness a nd ot hers i n t he c ivil population b y m eans of f orce, vi olence, s abotage, de struction of pr operty, intimidation and coercion. Y our contact with persons in the community requires heightened controls and review.
Am. Compl. ¶ 135 (quoting from Notice of Transfer, Sept. 3, 2008).
After receiving the Notice of Transfer, on September 11, 2008, Plaintiff McGowan
submitted a formal grievance known as a “Request for Administrative Remedy”2 (identified as
Administrative Remedy Number 508242), which read as follows:
I contend t hat m y pl acement i n t he C ommunications M anagement U nit ( CMU) violates m y C onstitutional r ights. T he C MU was e stablished i n vi olation of Federal Regulations and thus, subjects me to due process violations. I request that

2

The B OP’s A dministrative R emedy P rogram i s t he means b y w hich an inmate ‘ seeks

formal review of an i ssue relating t o any aspect of his own confinement.’ 28 C .F.R. §

542.10(a). . . . [ T]he inmate may submit a formal written administrative remedy request.

28 C.F.R. § 542.14( a). If t he i nmate i s not satisfied with t he Warden’s r esponse at t his

first level of the process, he ‘may submit an appeal to the Regional Director,’ and if he is

not sorry satisfied with the Regional Director’s response, he ‘may submit an appeal to the

General Counsel’ at BOP’s central office. 28 C.F.R. § 542.15(a).

Morton v. Bolyard, 810 F. Supp. 2d 112, 118 (D.D.C. 2011) (internal alterations omitted); see also Def.’s Mot, Plumley Decl. ¶ 3.
2

Case 1:10-cv-00539-BJR-DAR Document 101 Filed 02/19/13 Page 3 of 9

the [ CMU] be t erminated or br ought i nto c ompliance of pr oper F ederal Regulations and that I be transferred to a low-security prison.

Def.’s Mot., Ex. B. In response, the Warden explained that she understood Plaintiff McGowan’s

complaint to be that his placement in the CMU “violates [his] constitutional rights and [that he

was] r equest[ing] t o be pl aced i n a l ow s ecurity i nstitution.” Def.’s M ot., E x. B . A fter

explaining the purpose of CMU placement, and that it would not have any effect on the length of

his incarceration nor alter his ability to earn good-conduct sentence credit, the Warden concluded

that P laintiff M cGowan’s “placement i n t he C MU doe s not vi olate [ his] c onstitutional r ights.”

Id.

On September 28, 2008, Plaintiff McGowan appealed the Warden’s decision, stating

that the reason for the appeal was that his placement in the CMU “violates [his] constitutional

rights.” Id. The appeal was denied, explaining that Plaintiff McGowan “ha[d] provided

insufficient evidence that [his] rights are being violated in any way.” Id. Yet a second appeal

was filed, on February 14, 2009, in which Plaintiff McGowan again stated that his CMU

placement “is a violation of [his] constitutional rights,” and “is not appropriate.” Id. The second

appeal was also denied.

In addition to Administrative Remedy Number 508242, Plaintiff McGowan made a

second Request for Administrative Remedy (identified as Administrative Remedy Number

509775) in which he challenged the BOP’s characterization of his offense conduct as given in the Notice of Transfer.3 See Def.’s Mot., Ex. C. In other words, Plaintiff McGowan disputed the

accuracy of reasons given for his CMU placement. Id. This request was denied and Plaintiff

McGowan appealed. His appeal was also denied, and the BOP explained that Plaintiff

McGowan’s “allegation that [he is] inappropriately housed in the CMU” was repetitive of his

3

Throughout his time in BOP custody, Plaintiff McGowan submitted a total of nineteen Requests

for Administrative Remedy, but only the two described herein relate to whether Plaintiff

McGowan successfully exhausted his administrative remedies for his claim that his CMU

placement in 2008 was retaliatory.

3

Case 1:10-cv-00539-BJR-DAR Document 101 Filed 02/19/13 Page 4 of 9

Administrative Remedy Number 508242 and would not be responded to again at the regional appeal level. Id. Plaintiff McGowan appealed that decision to the National Inmate Appeal Administrator who broadly described Plaintiff McGowan’s argument on appeal as “claim[ing] [that the CMU placement] violates [his] rights.” The Administrator concluded that Plaintiff McGowan had been “appropriately designated to the CMU” based on his “involvement in arson and [his] association with the Earth Liberation Front and Animal Liberation Front documented in [his] Pre-Sentence Investigation Report.” Id.
In August 2010, Plaintiff McGowan was transferred out of the CMU and back into the general prison population. However, in February 2011, he was transferred back to the CMU after he was accused of “circumvent[ing] inmate communication monitoring by having documents mailed to him under the guise of attorney-client privileged communication.” Am. Compl. ¶ 146. To date, Plaintiff McGowan remains at the CMU.
In 2010, Plaintiff McGowan, along with three other federal prisoners, commenced this suit. 4 Plaintiff McGovern alleges, among other things, that “[b]y recommending that Plaintiff McGowan be designated [in 2008]. . . to the CMU on the basis of his protected political speech and beliefs, rather than any misconduct in prison, [the Chief of the BOP’s Counter Terrorism Unit] unlawfully retaliated against Plaintiff McGowan,” thereby violating his First Amendment right to freedom of speech (hereinafter, “2008 retaliation claim”). Am. Compl. § 237. Defendants move for summary judgment as to Plaintiff McGovern’s 2008 retaliation claim, arguing that he failed to exhaust his administrative remedies. Should the Court find that Plaintiff McGovern did not initially exhaust, his 2008 retaliation claim would likely be dismissed because, at this juncture, Plaintiff McGovern cannot exhaust his administrative remedies. With

4

In March 2011, Judge Ricardo Urbina, to whom this case was previously assigned, granted in part

the Defendants’ motion to dismiss. The matter was reassigned to Judge Richard Roberts, and

then reassigned to the undersigned Judge in November 2012.

4

Case 1:10-cv-00539-BJR-DAR Document 101 Filed 02/19/13 Page 5 of 9
the motion ripe for consideration, the Court turns to the parties’ arguments and the relevant legal standards.
II. ANALYSIS A. Exhaustion of Administrative Remedies Under the PLRA Under the PLRA, “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 USCS § 1997e(a). This mandatory “exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 534 U.S. 516, 519-20, 524 (2003). “Even if an inmate believes that seeking administrative relief from the prison would be futile and even if the grievance system cannot offer the particular form of relief sought, the prisoner nevertheless must exhaust the available administrative process.” Kaemmerling v. Lappin, 553 F.3d 669, 675 (D.C. Cir. 2008). “Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court. This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record.” Jones v. Bock, 549 U.S. 199, 204 (2007). A defendant may raise a plaintiff’s failure to exhaust as an affirmative defense under the PLRA, id. at 215-16, and, as such, it is the defendant who has the burden of proof, Way v. Johnson, Civil No. 11-1182, 2012 U.S. Dist. LEXIS 138422, at *8 n.3 (D.D.C. Sept. 26, 2012) (quoting Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005)). A plaintiff’s failure to exhaust under the PLRA “is properly raised on a motion for summary judgment, where matters outside the pleadings are considered.” Applewhite v. Bivens, 717 F. Supp. 2d 68, 72 (D.D.C. 2010) (quotations omitted).
5

Case 1:10-cv-00539-BJR-DAR Document 101 Filed 02/19/13 Page 6 of 9
B. The Court Finds that Plaintiff McGowan Exhausted His Administrative Remedies Defendants argue that “none of the administrative remedy requests filed by McGowan
contains an assertion that his 2008 transfer to the CMU was motivated by any retaliatory purpose on the part of the BOP.” Defs.’ Mot. at 7. Instead, Defendants maintain, Plaintiff McGowan’s “grievances are limited to allegations that his procedural due process rights were violated when he was placed in the CMU [], that his Notice to Inmate of Transfer to [CMU] contained inaccurate statements, and that he was improperly denied transfer out of the CMU.” Id. Defendants contend that BOP was not given notice of Plaintiff McGowan’s 2008 retaliatory claim, “including any information regarding the speech or conduct that allegedly triggered BOP’s retaliatory response.” Id. at 9.
In response, Plaintiff McGowan insists that his grievances “more than adequately suffice to exhaust his claim of retaliatory designation to the CMU,” particularly when one considers the liberal pleading standard that should apply to a pro se prisoners’ administrative grievances. Pl.’s Opp’n at 5. Plaintiff McGowan contends that his grievances “plainly alerted BOP officials to the nature of the wrong for which redress was sought.” Id. He points to the fact that his grievances claimed that the CMU designation had occurred in violation of his constitutional rights and that the BOP’s stated explanation for his CMU placement was inaccurate. Id. Plaintiff McGowan concludes that he “made it clear that he was inappropriately and unconstitutionally sent to the CMU, that the purported reasons for that designation were factually erroneous, and that he wanted those errors corrected.” Id. Such grievances, Plaintiff McGowan claims, “gave the BOP all it needed to look into the real reasons [he] was designated to the CMU, and to take appropriate measures to resolve the complaint internally.” Id. (internal quotations omitted).
6

Case 1:10-cv-00539-BJR-DAR Document 101 Filed 02/19/13 Page 7 of 9
“Compliance with prison grievance procedures . . . is all that is required by the PLRA to properly exhaust. The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. at 218 (refusing to impose a requirement that a prisoner-plaintiff must name all of the defendants during the administrative exhaustion stage where the relevant prison’s grievance policy did not require it). “[W]hen an administrative rulebook is silent,” as it is here, “a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.” Strong v. David, 297 F.3d 646, 650 (7th Cir. 2007); see also Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“[T]he grievance must provide administrators with a fair opportunity under the circumstances to address the problem that will later form the basis of the suit.”). “[T]he grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming.” Strong, 297 F.3d at 650.
Plaintiff McGowan filed two grievances, Administrative Remedy Number 508242 and 509775, which respectively alerted BOP to Plaintiff McGowan’s claims that his CMU designation in 2008 was unconstitutional and based on inaccurate facts. The Warden’s response to Administrative Remedy Number 508242 describes Plaintiff McGowan as complaining about the unconstitutionality of his 2008 CMU designation, an understanding echoed at the Regional appeal level. The Regional appeal level went so far as to broadly say that Plaintiff McGowan “ha[d] provided insufficient evidence that [his] rights are being violated in any way.” The Regional appeal decision did not limit his “rights” to his due process rights, leaving this Court to conclude that McGowan’s complaint asserting the unconstitutionality of his CMU designation, as broad as it may have been, was considered and rejected by the BOP.
7

Case 1:10-cv-00539-BJR-DAR Document 101 Filed 02/19/13 Page 8 of 9
Furthermore, Administrative Remedy Number 509775 gave the BOP notice of Plaintiff McGowan’s claim that he had been designated to the CMU for false reasons. Tellingly, in its response to McGovern’s initial appeal of grievance 509775, the BOP remarked that McGovern’s grievance had included an “allegation that he [was] inappropriately housed in the CMU,” and stated that this was repetitive of Administrative Remedy Number 508242 and would not be responded to again. Thus, the BOP interpreted the first grievance (complaining of unconstitutionality of the CMU designation) and the second grievance (complaining of the inaccuracy of the facts in the Notice of Transfer justifying the CMU designation) as complaining of the same thing: that the CMU designation was improper. In sum, the BOP was on notice that Plaintiff McGowan believed that he was placed in the CMU for false and improper reasons that violated his constitutional rights. Given that he filed these grievances pro se and the liberal reading that this Court must accord a complaint filed without the aid of counsel, Plaintiff McGowan did all that was necessary to exhaust his administrative remedies for his 2008 CMU designation retaliation claim.
Plaintiff McGowan did not have to assert with specificity the legal theories under which he believed that the designation was improper. See e.g., Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (explaining that a grievance need not include legal terminology or legal theories if it sufficiently provides notice of the harm being grieved). Therefore, the fact that Plaintiff did not state specifically in his administrative grievances that the 2008 CMU designation was done in retaliation for his speech does not mean he has not exhausted his administrative remedies. See Tennille v. Quintana, 443 F. App’x. 670, 672-73 (3d Cir. 2011) (“Although [the plaintiff’s] administrative grievances did not cite the specific constitutional grounds on which his complaint is based, we conclude that he properly exhausted his administrative remedies.”); Norwood v. Robinson, 436 F. App’x. 799, 800 (9th Cir. Cal. 2011) (determining that the plaintiff exhausted
8

Case 1:10-cv-00539-BJR-DAR Document 101 Filed 02/19/13 Page 9 of 9 his administrative remedies for retaliation even though “the grievance did not advance the legal theory of retaliation” because “it gave the prison adequate notice of the harm being grieved”). Accordingly, Plaintiff McGowan did not fail to exhaust his administrative remedies. ,
III. CONCLUSION & ORDER For the foregoing reasons, the Court DENIES Defendants’ Motion for Summary Judgment. SO ORDERED. February 19, 2013
BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE
9

 
 Case 1:10-cv-00539-BJR Document 189 Filed 11/01/19 Page 1 of 13
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

YASSIN MUHIDDIN AREF, et al. Plaintiffs, v.
WILLIAM BARR, et al., Defendants.

CASE NO. 1:10-cv--00539 (BJR)
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION Plaintiffs Yassin Muhiddin Aref and Kifah Jayyousi instituted this action against the Bureau of Prisons (“BOP”), several BOP officials, and the Attorney General (collectively “Defendants”) nearly a decade ago.1 Dkt. No. 1. At the time, Plaintiffs were federal prisoners who had been placed in specially designed Communication Management Units (“CMU”) within the federal prison system, which meant that their ability to communicate with the outside world was significantly curtailed. Plaintiffs argue that they were placed in the CMUs without being afforded procedural due process in violation of their Fifth Amendment rights.2 Currently before the Court is Defendants’ motion to dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(1). Dkt. No. 183. Defendants argue that the procedural due
1 As will be explained below, eight individuals initiated this lawsuit; Aref and Jayyousi are the only remaining Plaintiffs. 2 Again, as will be explained below, Plaintiffs alleged several other violations; the Fifth Amendment due process claim is the only remaining claim.
1

Case 1:10-cv-00539-BJR Document 189 Filed 11/01/19 Page 2 of 13
process claim is now moot because both Plaintiffs have since been released from BOP custody. Plaintiffs counter that the claim is not moot because the Amended Complaint includes a request for expungement of CMU-related information from their prison files—material that they allege continues to impact them despite their release from BOP custody. Dkt. No. 184. Plaintiffs argued that should this Court determine that the CMU-designation procedures in place at the time of their placement in the CMU were constitutionally deficient, this Court can order relief for the constitutional violation in the form of expungement of the CMU-related records.
Having reviewed the motion, the opposition thereto, the record of this case, as well as the relevant legal authorities, the Court will grant in part and deny in part Defendants’ motion.
II. BACKGROUND A. Procedural History Plaintiffs initiated this lawsuit on April 1, 2010. Dkt. No. 1. At the time, Plaintiffs were joined by six other individuals who alleged several claims, each related to CMU placement: (1) violation of their procedural due process rights due to inadequate notice and lack of opportunity to be heard; (2) violation of their substantive due process and First Amendment rights to “family integrity”; (3) violation of the Eighth Amendment’s prohibition against cruel and unusual punishment; (4) retaliatory transfer into the CMU in violation of the First Amendment; and (5) unlawful discrimination on the basis of religion in violation of the First and Fifth Amendments. Aref v. Lynch, 883 F.3d 242, 249 (D.C. Cir. 2016). Defendants moved to dismiss the original complaint pursuant to Federal Rule 12(b)(1) and (6), arguing that Plaintiffs had not sufficiently pled their constitutional claims, that some of the claims were moot, and that at least one Plaintiff lacked standing. Aref v. Holder, 774 F. Supp. 2d 147, 153 (D.D.C. 2011). In March 2011, the Honorable Ricardo Urbina dismissed all but the
2

Case 1:10-cv-00539-BJR Document 189 Filed 11/01/19 Page 3 of 13
procedural due process and First Amendment retaliation claims.3 Id. At that point only four Plaintiffs remained in the litigation: Aref, Jayyousi, Daniel McGowan, and Royal Jones. The remaining Plaintiffs filed an amended complaint in November 2011 adding individual-capacity claims (dkt. no. 86) that Defendants moved to dismiss in February 2013 (dkt. no. 99). In July 2013, this Court dismissed the newly added individual-capacity claims as barred by the Prison Litigation Reform Act and dismissed McGowan’s equitable claims as moot. See Aref v. Holder, 953 F. Supp. 2d 133, 138 (D.D.C. 2013). Plaintiffs’ procedural due process claim and their First Amendment retaliation claim remained. Id.
Thereafter, Defendants moved for summary judgment on the procedural due process and retaliation claims.4 Aref and Jayyousi were the only Plaintiffs who remained in the litigation, Jones having been dismissed for failure to comply with Court orders. Dkt. No. 110. In March 2015, this Court granted summary judgment to Defendants, concluding that Aref and Jayyousi lacked a liberty interest sufficient to trigger due process protections under the Fifth Amendment and that Jayyousi’s First Amendment rights were not violated. Plaintiffs timely appealed to the D.C. Circuit and the Circuit Court affirmed in part and reversed in part. Aref v. Lynch, 833 F.3d 242 (D.C. Cir. 2016). Relevant to the instant motion, the D.C. Circuit reversed this Court’s dismissal of the procedural due process claim, holding that federal prisoners do have a liberty interest in avoiding placement in a CMU. Because this Court had not addressed whether Aref and Jayyousi were afforded procedural due process before being placed in the CMU, the D.C. Circuit remanded the issue to be determined in the first instance by this Court. Id. at 301.
3 This case was reassigned to this District Judge in November 2012. Dkt. No. 82 4 Plaintiffs also filed for summary judgment. See Dkt. No. 138.
3

Case 1:10-cv-00539-BJR Document 189 Filed 11/01/19 Page 4 of 13
In accordance with the mandate from the D.C. Circuit, this Court instructed the parties to file a status report as to whether additional briefing was needed before this Court assessed whether the CMU-designation procedures in effect at the time of Plaintiffs’ designation comported with due process. Plaintiffs contended that the issue is fully brief and ready for this Court’s resolution; Defendants countered that supplemental briefing is necessary because this “case is now in a significantly different posture from the time the parties briefed summary judgment in 2012”; specifically, both Aref and Jayyousi have been released from BOP custody. Dkt. No. 173 at 2. After considering the parties’ arguments, the Court instructed the parties to brief the issue. The instant motion to dismiss followed.
B. Factual Background The BOP established CMUs at the Federal Correctional Institutions in Terre Haute, Indiana and Marion, Illinois in 2006 and 2008, respectively. Aref v. Holder, 953 F. Supp. 2d 133, 137 (D.D.C. 2013). According to the BOP, CMUs were “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 [BOP] facilities, and to protect the public.” Id. (quoting Aref v. Holder, 774 F. Supp. 2d 147, 152-53 (D.D.C. 2011)). Thus, CMUs house inmates who require communications monitoring beyond that which can feasibly be provided in the general prison population. Aref v. Lynch, 833 F.3d 242, 247 (D.C. Cir. 2016). A CMU inmate’s ability to communicate with the outside world, including family members, is significantly curtailed. Id. Plaintiff Yassin Aref is an Iraqi refugee convicted of helping a terrorist organization prepare to launch a missile attack on American soil by helping to finance the operation. United
4

Case 1:10-cv-00539-BJR Document 189 Filed 11/01/19 Page 5 of 13
States v. Aref, 285 Fed. Appx. 784, 790 (2d Cir. 2008). He was given a fifteen-year sentence for money laundering, providing material support for terrorism, conspiracy, and making a false statement to the FBI. Aref, 774 F. Supp. 2d at 154. Aref was initially classified as a “low security” inmate but was transferred to the Terre Haute CMU in May 2007. He was later transferred to the Marion CMU. He remained in the Marion CMU until March 2011 when he was transferred to the general prison population where he remained until his release in October 2018. Thereafter, Aref was deported from the United States. See Dkt. No. 187.
Plaintiff Kifah Jayyousi was sentenced to a 152-month term for conspiracy to murder, kidnap, and maim in a foreign country and conspiracy to provide material support to terrorism. Aref, 883 F.3d at 248. Like Aref, Jayyousi was originally classified as a “low security” inmate but was transferred to the Terre Haute CMU in June 2008. Id. In October 2010, he was transferred to the Marion CMU. Id. In March 2013, Jayyousi was transferred to Marion’s general population where he remained until he was released from prison in September 2017. Jayyousi is now under a 20-year term of supervised release. Dkt. No. 184, Ex. 2 at ¶¶ 3-4.
III. STANDARD OF REVIEW Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge the subject-matter jurisdiction of a federal court to hear a claim. A motion to dismiss under Rule 12(b)(1) is properly granted when the court lacks the statutory or constitutional power to adjudicate the case. Cause of Action Institute v. Internal Revenue Service, 390 F. Supp. 3d 84, 91 (D.D.C. 2019). The party asserting jurisdiction bears the burden of proving that subject-matter jurisdiction exists. Id. (quoting Whiteru v. Wash. Metro. Area Transit Auth., 258 F. Supp. 3d 175, 182 (D.D.C. 2017)). When ruling on a Rule 12(b)(1) motion, the court must “treat the complaint’s factual allegations as true” and afford the plaintiff “the benefit of all inferences that can be derived from the facts
5

Case 1:10-cv-00539-BJR Document 189 Filed 11/01/19 Page 6 of 13
alleged”; however, factual allegations receive “closer scrutiny” in the 12(b)(1) context than in the 12(b)(6) context. Delta Air Lines, Inc. v. Exp.–Imp. Bank of U.S., 85 F. Supp. 3d 250, 259 (D.D.C. 2015) (internal quotation marks and citation omitted). Moreover, a court may look to documents outside of the complaint to evaluate whether it has jurisdiction to entertain a claim. Cause of Action Institute, 390 F. Supp. 3d at 91.
IV. DISCUSSION As set forth above, Defendants argue that this Court lacks jurisdiction over this case because Plaintiffs’ procedural due process claims are moot. Article III of the Constitution grants federal courts the authority to adjudicate only actual cases or controversies. Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013); Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 534 (D.C. Cir. 2015) (citation omitted) (federal courts “may only adjudicate actual, ongoing controversies”). As the Supreme Court has noted, “[i]n our system of government, courts have ‘no business’ deciding legal disputes or expounding on law in the absence of such a case or controversy.” Id. (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). The “actual controversy” must exist not only “at the time the complaint is filed,” but through “all stages” of the litigation. Nike, 568 U.S. at 90-91 (quoting Alverez v. Smith, 558 U.S. 87, 92 (2009)). A case is moot when “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.’” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). Thus, a case becomes moot “when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012) (internal quotation marks omitted). However, “[a]s long as the parties have a concrete interest, however small, in the
6

Case 1:10-cv-00539-BJR Document 189 Filed 11/01/19 Page 7 of 13
outcome of the litigation, the case is not moot.” Id. at 307-308 (quoting Ellis v. Railway Clerks, 466 U.S. 435, 442 (1984)).
“Normally, a prisoner’s transfer or release from a prison moots any claim he might have for equitable relief arising out of the conditions of his confinement in that prison.” Scott v. Dist. of Columbia, 139 F.3d 940, 941 (D.C. Cir. 1998). However—and relevant to the instant motion—an exception to this general principle exists if the prisoner seeks equitable relief in the form of expungement of records concerning the conditions of confinement and he alleges “continuing adverse consequences from the challenged [] records.” Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C. 1998). Thus, while the prisoner’s other requests for injunctive relief may be mooted by his release from custody, the request for expungement remains viable for Federal Rule 12(b)(1) purposes so long as he alleges continuing adverse effects from the challenged records. See e.g. Kerr v. Farrey, 95 F.3d 472, 476 (7th Cir. 1996) (inmate’s request for relief from the prison’s mandatory Narcotics Anonymous meetings was mooted by his parole, but he still had standing to pursue request “to have the alleged negative references about his attendance at the NA meetings expunged from his prison records, because any such references may have a continuing adverse impact on him”); Black v. Warden, 467 F.2d 202, 204 (10th Cir. 1972) (procedural due process challenge to placement in isolation while in federal prison not mooted by transfer to state prison because “there may be a continuing effect in the penal institutions from the use of records maintained concerning this punishment”); Freidland v. Otero, 2014 WL 1247992, at *15 (D. Conn. March 25, 2014) (request for injunctive relief pertaining to administrative custody mooted by plaintiff’s removal from “high security status”, but “request for injunctive relief pertaining to the expungement of the disciplinary report” remained viable); Dorn v. Mich. Dep’t of Corr., 2017 WL 2436997 (W.D. Mich. June 6, 2017) (plaintiff’s
7

Case 1:10-cv-00539-BJR Document 189 Filed 11/01/19 Page 8 of 13
declaratory and injunctive requests were mooted by his release from custody but his release did not moot expungement request).
Here, Plaintiffs allege that their request for injunctive relief in the form of expungement of the CMU-related information from their prison records remains a live controversy because they continue to be impacted by the existence of the information in their prison files. Specifically, Plaintiffs allege while there was no formal process for designating a prisoner to the CMU at the time of their designation, it was the practice of BOP’s Counterterrorism Unit to draft a “referral memo” justifying a prisoner’s designation to the CMU. Both Aref and Jayyousi claim that their referral memos contain inaccurate and highly prejudicial information. For instance, Aref’s memo links him to al-Qaeda and other terrorists organizations; Jayyousi’s referral memo links him to al-Qaeda and claims he expressed negative views regarding the United States and other non-Muslim cultures. Both Plaintiffs assert that each time the prison warden recommended that they be returned to the general prison population, the BOP Counterterrorism Unit would oppose the transfer and generate further documentation that was added to their prison records. Plaintiffs charge that these documents also contain highly prejudicial, inflammatory, and inaccurate information.
Plaintiffs allege that not only did the inaccurate and prejudicial information in their prison files cause them to be unjustifiably designated to the CMU for years, but those records still haunt them even after they have been released from BOP custody. For instance, after his release from BOP custody, Aref was transferred to York County Prison while he awaited his deportation proceedings. He claims that he was “treated differently from other detainees, even other detainees with serious criminal records” the entire time he was housed at York County Prison and believes he was treated this way because he was “singled out as being someone extra
8

Case 1:10-cv-00539-BJR Document 189 Filed 11/01/19 Page 9 of 13
dangerous” because of his CMU-related records. Declaration of Yassin Aref dated April 9, 2019, Dkt. No. 184, Ex. 3 at ¶¶ 2, 6. He asserts that he was transported to the prison by a 4-car convey with snipers and further alleges that he was housed in the lockdown unit at the prison for over six months. Aref is fearful that the CMU-related records will follow him once he is removed to Iraq and will continue to affect him there. Id. at ¶ 9. He is also fearful that the records will impact his future ability to travel and/or obtain employment. Id. at ¶ 10.
Jayyousi alleges that he was interviewed by the FBI not long after he was released from BOP custody and that the agents ask him “all sorts of questions about [his] life now, [his] prison time at the CMU and other facilities, and whether [he] is involved in anything political and who [he has] contact with.” Declaration of Kifah Jayyousi dated May 3, 2019, Dkt. No. 184, Ex 2 at ¶ 5. Like Aref, he is also concerned that the existence of the CMU-related records will impact his ability to obtain employment and “return[] to teaching at the university” as an engineer. Id. at ¶ 6. Lastly, Jayyousi is currently serving a 20-year term of supervised release. Dkt. No. 184, Ex. 2 at ¶ 3. He intends to move for modification of the terms of his supervised release and contends that the “erroneous and extremely prejudicial information developed through the flawed CMU designation and review procedures will negatively impact his chances for success.” Dkt. No. 184 at 6. He asserts that the presiding judge will have access to his prison files, including the records related to his designation to the CMU, and the inaccurate information may influence her decision. Id., Ex. 2 at ¶ 4.
Defendants counter that Plaintiffs’ alleged ongoing impact from the CMU-related records amount to nothing more than mere speculation that is insufficient to maintain a live controversy. Defendants argue that Plaintiffs have presented no evidence that Aref’s treatment in the York County Prison or Jayyousi’s visit from the FBI had anything to do with the CMU-related records.
9

Case 1:10-cv-00539-BJR Document 189 Filed 11/01/19 Page 10 of 13
Rather, Defendants point out, the actions were more likely because both Plaintiffs have been convicted of serious terrorism-related offenses. Defendants also dispute that the Counterterrorism Unit documents in Plaintiffs’ prison files are erroneous. As for Jayyousi’s concern that the records will be supplied to the federal judge adjudicating his request to modify his supervised release, Defendants assert that “there is no reason to believe” that such records “would even be before the supervising court.” Dkt. No. 183 at 6. And, if the records were provided to the supervising court, Defendants argue, “there is no reason to believe these records would negatively impact Jayyousi’s chances of receiving a shortened period of supervised release.” Dkt. No. 185 at 7.
The Court finds the D.C. Circuit’s recent decision in Abdelfattah v. U.S. Dep’t of Homeland Sec. instructive. 787 F.3d 524 (D.C. Cir. 2015). Abdelfattah involved a Jordanian citizen who had spent several years trying to obtain permanent resident status in the United States. At some point in the process, he discovered that the Department of Homeland Security (“DHS”) had a file on him that included documents he felt were both prejudicial and inaccurate. He sued DHS alleging that the creation and maintenance of the file violated his constitutional rights and impacted his ability to find employment and obtain permanent resident status. Among other claims for relief, he sought expungement of DHS’s file.
At some point after he instituted the lawsuit, the plaintiff was granted permanent resident status and found work as a software engineer. DHS moved to dismiss the lawsuit, arguing that the plaintiff’s claim was moot because he had achieved the two things he claimed the file’s existence prohibited him from doing. Abdelfattah countered that the expungement claim remained viable because the DHS records may still “lead to future deprivation of his rights.” The D.C. Circuit concluded that the expungement claim remained viable. In doing so, the Circuit
10

Case 1:10-cv-00539-BJR Document 189 Filed 11/01/19 Page 11 of 13

Court rejected DHS’ argument that Abdelfattah’s allegations of future harm “were mere speculation.” Id. at 535.
Here, Plaintiffs—like the plaintiff in Abdelfattah—allege that the government has created and is maintaining documents that are both inaccurate and highly prejudicial to them. They assert—like the plaintiff in Abdelfattah—that the continued existence of the records may impact them in the future. Drawing all reasonable inferences in favor of Plaintiffs as the Court is required to do on a motion to dismiss, the Court concludes that Jayyousi alleges sufficient ongoing consequences from the continued existence of the CMU-related documents such that his request for expungement constitutes a live controversy. Jayyousi alleges that he has been interviewed by the FBI at least once since his release from BOP custody and further alleges that the CMU-related records will impact his request to modify the terms of his supervised release. He submits deposition testimony from a BOP official who suggests that information gathered on inmates such a Jayyousi is shared with outside government agencies. See Dkt. No. 184, Ex. 1, Deposition of David Schiavone, dated August 8, 2013. Thus, Jayyousi’s procedural due process claim is not moot. Abdelfattah, 787 F.3d at 534-35.5,6

5

Even though Defendants bring this motion pursuant to Federal Rule 12(b)(1), they argue

in a footnote that this Court should treat the motion as one for summary judgment and require

that Plaintiffs set forth by affidavit or other specific evidence that supports their claim of injury.

First, as set forth above, Jayyousi has done so. Second, even if this were a motion for summary

judgment, the Court is still required to draw all reasonable inferences in favor of Plaintiffs as the

non-moving party. Banks v. District of Columbia, 377 F. Supp. 2d 85, 89 (D.D.C. 2005) (citing

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (the court must “draw all

reasonable inferences in favor of the nonmoving party, and it may not make credibility

determinations or weigh the evidence”)).

6

Nor is Jayyousi’s mootness argument foreclosed by any prior decision by this Court.

Defendants are correct that earlier in this litigation the Court found the claims of two individuals

previously involved in this lawsuit moot after their release from BOP custody. See Aref v.

Holder, 774 F. Supp. 2d 147, 160-61 (D.D.C. 2011) and Aref v. Holder, 953 F. Supp. 2d 133,

143-44 (D.D.C. 2013). However, the issue before the Court at the time was whether the doctrine

of voluntary cessation was applicable to the individuals’ claims; the issue of expungement was

11

Case 1:10-cv-00539-BJR Document 189 Filed 11/01/19 Page 12 of 13
In reaching this conclusion, the Court does not determine at this time that Jayyousi is entitled to the remedy of expungement. “A court does not fashion equitable remedies without first finding a violation of an established legal right has occurred or is imminent.” Abdelfattah, 787 F.3d at 536. Nevertheless, Jayyousi has sufficiently alleged that the continued existence of the CMU-related documents has ongoing consequences on him to keep alive the question of whether there was a procedural due process violation.
However, the Court concludes that Aref’s claims of future harm by the existence of the CMU-related records are simply too remote and speculative to maintain a live controversy as to him. Aref was deported, presumably to Iraq, after Defendants’ filed the instant motion. Dkt. No. 187. Therefore, not only is he no longer in BOP custody, he is now beyond the reach of all United States government agencies. It is a stretch too far for this Court to infer that CMU-related documents will negatively impact Aref in Iraq.
not raised. Thus, this Court is not bound by prior mootness decisions made on other grounds. Cf, United States v. Miller, 890 F.3d 317, 326 (D.C. Cir. 2018) (“Law-of-the-case doctrine applies only to issues upon which decisions were actually rendered, and is inapposite where an issue merely went unraised.”). Defendants also argue that Jayyousi lacks standing to seek the remedy of expungement and/or is not entitled to expungement even if the due process claim is not moot. See Dkt. No. 183 at 5-7, 8-11. These arguments are nothing more than a repackaging of Defendants’ mootness argument and are rejected for the same reasons.
12

Case 1:10-cv-00539-BJR Document 189 Filed 11/01/19 Page 13 of 13 V. CONCLUSION
For the foregoing reasons, the Court HEREBY GRANTS IN PART AND DENIES IN PART Defendants’ motion to dismiss. Dkt. No. 183. Plaintiff Aref is HEREBY DISMISSED from this case.
Dated this 1st day of November 2019.
A
Barbara Jacobs Rothstein U.S. District Court Judge
13

 
 Case 1:10-cv-00539-BJR Document 211 Filed 06/25/20 Page 1 of 9

1

2

3

4

5

6

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

7

)

8 YASSIN MUHIDDIN AREF, et al.

)

)

9

Plaintiffs,

)

)

)

10

)

WILLIAM BARR, et al.

)

11

)

Defendants,

)

12

) ____________________________________)

Case No. 1:10-cv-00539-BJR
ORDER REGARDING MOTIONS TO INTERVENE AND RELATED MOTIONS

13

I. INTRODUCTION

14

Nearly a decade ago, Kifah Jayyousi and seven other federal inmates initiated this action

15 against the Bureau of Prisons (“BOP”), several BOP officials, and the Attorney General

16 (collectively “Defendants”), alleging that their placement in a specially-designed Communication

17 Management Unit (“CMU”) within the federal prison violated their procedural due process rights.

18 Since then, this matter has been through several rounds of dispositive motions, appealed to the

19 D.C. Circuit Court, and remanded to this Court for further proceedings. Mr. Jayyousi is now the

20 only remaining plaintiff in this action. See First. Am. Compl. (“FAC”), Dkt. No. 86.

21

Currently before the Court are four pro se motions to intervene brought by federal inmates

22 Melvin Fagan, Donte R. Harris, Montgomery C. Akers, and Carlos Brutus (“Potential

23 Intervenors”). See Fagen Mot. to Intervene (“MTI”), Dkt. No. 191; Harris MTI, Dkt. No. 192;

24

25

1

Case 1:10-cv-00539-BJR Document 211 Filed 06/25/20 Page 2 of 9

1 Akers MTI, Dkt. No. 193; Brutas MTI, Dkt. No. 196. Each seeks permissive intervention, while

2 Mr. Akers, alone, also seeks to intervene as a matter of right. See Akers MTI at 1, ¶ 2. Having

3 reviewed the motions, the opposition thereto, the record for the case, and the relevant legal

4 authorities, the Court will deny the motions to intervene. The reasoning for the Court’s decision

5 follows.1

6

II. BACKGROUND

7

This matter has a long procedural history, most of which is not relevant to the current

8 motions and will not be restated here.2 Instead, it is sufficient to say that Mr. Jayyousi was an

9 inmate at the FCI in Terre Haute, Indiana and at various times during his confinement, he was

10 housed in the CMU. Mr. Jayyousi was placed in the CMU pursuant to BOP procedures that were 11 in effect until February 23, 2015, at which point the procedures were modified. Mr. Jayyousi’s 12 procedural due process claim challenges his assignment to the CMU under the old procedures; it 13 does not implicate the revised procedures. The parties have fully briefed Mr. Jayyousi’s due 14 process claim and the matter is finally—after nearly a decade—ripe for review.

15

The Potential Intervenors are current inmates serving a sentence of confinement at the

16 federal BOP facility in Marion, Illinois and are or have been housed in the CMU at that facility.

17 Each alleges that he was not afforded procedural due process before being placed in the CMU. See

18 Dkt. No. 197. Defendants oppose the motions, arguing that the motions are “untimely, would

19 interject new issues into the case, require additional factual development, and, as a consequence, 20 delay the resolution of the parties’ cross-motions for summary judgment.” Defs.’ Resp. to Putative

21
1 On the same day Mr. Jayyousi filed his response with the Court, he moved for leave to file Exhibit A of his response
22 under seal. See Pl.’s Mot. to Seal. The documents comprising Exhibit A were produced by Defendants pursuant to the
“Attorneys Eyes Only” provision of the January 26, 2012 Protective Order agreed to by the parties. See Dkt. No. 62
23 at 5. Defendants do not object to the motion to seal. See Dkt. No. 198-1. As such, the Court grants this motion.
2 For a complete recitation of the procedural and factual background of this case, see Court’s order granting in part
24 and denying in part Defendants’ motion to dismiss, Dkt. No. 189.

25

2

Case 1:10-cv-00539-BJR Document 211 Filed 06/25/20 Page 3 of 9

1 Intervenors’ MTIs (“Defs.’ Resp.”) at 1–2, Dkt. No. 199.

2

III. MOTIONS TO INTERVENE

3

A. Permissive Intervention

4

The Potential Intervenors seek leave to intervene as plaintiffs in this action pursuant to

5 Federal Rule 24. See FED. R. CIV. P. 24. They challenge their past and present placements in the

6 CMU, implicating both BOP’s former procedures for CMU designation (i.e. the procedures that

7 Mr. Jayyousi challenges) and its current procedures that went into effect after February 23, 2015.

8 See 28 C.F.R. 540.200 et. seq. Federal Rule of Civil Procedure 24(b) governs permissive 9 intervention and provides that the Court “may permit” a party to intervene if that party “has a claim 10 or defense that shares with the main action a common question of law or fact.” FED. R. CIV. P. 11 24(b)(1)(B). Permissive intervention is an “‘inherently discretionary enterprise,’ and the Court

12 enjoys considerable latitude under Rule 24(b).” Sierra Club v. Van Antwerp, 523 F. Supp. 2d 5,

13 10 (D.D.C. 2007) (quoting EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1046–48 (D.C. 14 Cir. 1998)). In exercising this discretion, the Court weighs three factors set out in the Rule: (1) 15 whether the motion to intervene is timely; (2) whether the applicant’s claim shares a question of

16 law or fact in common with the main action; and (3) whether intervention will unduly delay or

17 prejudice adjudication of the original parties’ rights. FED. R. CIV. P. 24(b); Sierra Club v.

18 McCarthy, 308 F.R.D. 9, 11 (D.D.C. 2015); In re Vitamins Antitrust Litig., 2001 WL 34088808,

19 at *2 (D.D.C. Mar. 19, 2001).

20

Defendants argue that the Court should deny the motions to intervene because the

21 intervenors failed to timely file their motions and do not provide good cause for their failure.

22 Defendants also claim that the motions should be denied because the intervenors challenge to the 23 adequacy of BOP’s current procedures raises additional claims separate and distinct from Mr.

24

25

3

Case 1:10-cv-00539-BJR Document 211 Filed 06/25/20 Page 4 of 9

1 Jayyousi’s challenge of BOP’s past procedures.

2

Mr. Jayyousi does not object to the intervention motions to the extent that their approval

3 does not cause delay in resolving the pending motion for summary judgment. He argues, however,

4 that if allowed to intervene, their claims should be limited to BOP’s past procedures and that the

5 Potential Intervenors should not be allowed to challenge their recent CMU redesignations and

6 continued placements because such claims raise different questions of law and fact than those of

7 Mr. Jayyousi. Such claims, he argues, would require additional discovery and significantly delay

8 the resolution of this case, including the pending summary judgement motions before the Court.

9

The Court finds that intervention is not appropriate at this point in the litigation. While the

10 Potential Intervenors’ claims involving their initial placements implicate common questions of law

11 and fact to those of Mr. Jayyousi, their differences still predominate. These differences will

12 unnecessarily complicate, confuse, and delay the case if the Court were to permit intervention. See

13 FED. R. CIV. P. 24(b)(3) (allowing a court to deny permissive intervention if intervention would

14 cause undue delay, complexity, or confusion in a case). As a general matter, BOP’s determination

15 of an inmate’s CMU designation is a fact-intensive process. While it is true that the Potential

16 Intervenors advance claims challenging their initial CMU placements under the BOP’s old

17 procedures, additional discovery regarding their designations to the CMU would nevertheless be

18 necessary should the Court allow them to intervene. First, the parties will likely need to depose the

19 Potential Intervenors and the relevant BOP personnel, as they did in Mr. Jayyousi’s case, in order

20 to determine how the old procedures were applied to each of them and whether BOP’s application

21 designating them to the CMU was in violation of their due process rights. Additional discovery

22 would also be necessary to determine any factual differences between Mr. Jayyousi’s initial CMU

23 placement and each of the Potential Intervenors’ original CMU designations. The parties would,

24

25

4

Case 1:10-cv-00539-BJR Document 211 Filed 06/25/20 Page 5 of 9

1 therefore, seek to obtain relevant BOP records involving the claimants’ criminal histories and their

2 current placements. As such, further factual development with respect to their claims will cause

3 significant undue delay, dragging on the resolution of this decade long case.

4

Allowing the Potential Intervenors to intervene for the limited purpose of joining Mr.

5 Jayyousi’s pending motion for summary judgment would also add unnecessary complexity to the

6 current case. As noted above, Mr. Jayyousi challenges the procedures used by BOP to designate

7 him to the CMU in order to expunge the information created through this process. The Potential

8 Intervenors allege that they are still suffering from the effects of their initial CMU placements

9 determined under BOP’s old procedures for CMU designation. They do not raise the issue of

10 expungement. See Akers MTI at 2 (alleging he “was sent to the CMU and placed in this Unit for

11 retaliatory purposes and with information . . . that was void of truth and validity as a rationale”);

12 Fagan Mot. to Withdraw Unrelated Claims at 1 (contending “he continues to suffer from the initial

13 transfer to the CMU”); Harris MTI at 8 (claiming he “is still having to suffer from the effects of

14 initial placement in 2010”). Even if they had raised the subject of expungement, the issue is not

15 yet ripe for this Court to decide, as the Potential Intervenors remain incarcerated unlike Mr.

16 Jayyousi who is no longer in BOP custody. Because the issue of expungement is central to Mr.

17 Jayyousi’s remaining claim and not to the potential intervenors, intervention would complicate the

18 resolution of this case and the remedial phase should the Court rule in his favor.

19

Lastly, Potential Intervenors present additional legal and factual questions that are not at

20 issue in Mr. Jayyousi’s case. While originally designated under the old procedures, the Potential

21 Intervenors allege that they continue to suffer from the effects of their initial CMU designations

22 under BOP’s new procedures. See Harris MTI at 4 (alleging that “the original reasons for CMU

23 placement are regurgitated at every team review” and are the “justification [used] to deny [a]

24

25

5

Case 1:10-cv-00539-BJR Document 211 Filed 06/25/20 Page 6 of 9

1 petitioner[‘s] discharge[] from the CMU”); Fagan Mot. to Withdraw Unrelated Claims at 1

2 (claiming “he continues to suffer from the initial transfer to the CMU”); Akers MTI at 2; 5 (arguing

3 that “there is no rational or legitimate penological reasoning for . . . [his] continued placement in

4 the CMU Unit to date” and challenging BOP’s transfer procedures as he “has never been ‘put in’

5 for transfer from this unit in over (9) years”).

6

While the Potential Intervenors attempt to limit their challenges to their initial CMU

7 placements under the old rules to avoid raising new issues involved under the new BOP 8 procedures, allowing them to intervene will, nonetheless, add unnecessary complexity to this case.3

9 To determine the merits of these allegations, the Court would not only need to review the claims

10 surrounding the initial CMU designations of these claimants but would also need to examine the

11 history of their continued CMU placements and the transfer procedures used to reach these

12 decisions and whether the alleged defects of their initial transfers have carried over to their current 13 placements.4 Therefore, their grievances are inextricably intertwined with BOP’s current

14 procedures and are different from those of Mr. Jayyousi’s Complaint, which challenges only

15 BOP’s pre-existing rules for designating a prisoner to the CMU. See 28 C.F.R. 540.200 et. seq.

16 Unlike the Potential Intervenors, Mr. Jayyousi alleges that, at the time of his designation in 2010,

17 BOP created inaccurate and highly prejudicial documents to arbitrarily place him in the CMU and

18 seeks injunctive relief in the form of expungement of any CMU-related documents. As such, the

19 Court concludes that allowing the claimants to intervene will not only cause undue delay to this

20

21
3 On March 30, 2020, Mr. Fagan filed a supplemental motion, seeking to withdraw any claims from his intervention
motion that are unrelated to those challenging his initial 2011 CMU designation. The parties do not object to this
22 motion. As such, the Court grants Mr. Fagan’s motion to withdraw and considers only the claims related to Mr. Fagan’s
initial 2011 CMU placement.
23 4 Mr. Fagan admits that his claim challenging his initial placement is central to the question of whether “he continues
to suffer from . . . [his] initial transfer to the CMU.” See Fagan Mot. to Withdraw Unrelated Claims at 1. As such, the
24 Court cannot evaluate these claims separately.

25

6

Case 1:10-cv-00539-BJR Document 211 Filed 06/25/20 Page 7 of 9

1 decade long case but will add significant complexity by introducing entirely new issues to the

2 current case. For the reasons above, the motions of Mr. Fagan, Mr. Harris, Mr. Akers, and Mr.

3 Brutas for permissive intervention will be denied. See also Securities & Exch. Comm’n v. Everest

4 Mgmt. Corp., 475 F.2d 1236, 1240 (2d Cir. 1972) (“the complicating effect of the additional issues

5 and the additional parties outweighs any advantage of a single disposition of the common issues.”).

6

B. Intervention as of Right

7

As stated above, Mr. Akers also seeks to intervene in this action as a matter of right. Federal

8 Rule of Civil Procedure 24(a) sets forth the requirements for intervention as of right. See FED. R.

9 CIV. P. 24(a); Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003). It provides

10 that,

11

[o]n timely motion, the court must permit anyone to intervene who . . . claims an

interest relating to the property or transaction that is the subject of the action, and

12

is so situated that disposing of the action may as a practical matter impair or impede

the movant’s ability to protect its interest, unless existing parties adequately

13

represent that interest.

14 FED. R. CIV. P. 24(a)(2).

15

The D.C. Circuit has identified four prerequisites to intervene as of right: “(1) the

16 application to intervene must be timely; (2) the applicant must demonstrate a legally protected

17 interest in the action; (3) the action must threaten to impair that interest; and (4) no party to the

18 action can be an adequate representative of the applicant’s interests.” Deutsche Bank Nat’l Trust

19 Co. v. FDIC, 717 F.3d 189, 192 (D.C. Cir. 2013) (citing Karsner v. Lothian, 532 F.3d 876, 885

20 (D.C. Cir. 2008)).

21

Defendants argue that the Court should deny Mr. Akers’ motion to intervene as of right

22 because his motion is untimely and fails to provide any reasons why Mr. Jayyousi’s counsel would

23 not adequately be able to represent the interests he has in this case. See Defs.’ Resp. at 6.

24

25

7

Case 1:10-cv-00539-BJR Document 211 Filed 06/25/20 Page 8 of 9

1

Mr. Akers argues that his motion is timely, alleging that BOP has “been involved in

2 ongoing deprivation in . . . [his] ability to contact this Court to Intervene or prosecute . . . [his]

3 claims with the aid of licensed counsel until now.” Akers MTI at 5. He also alleges that “the

4 existing Plaintiff’s counsel have not adequately represented . . . [his] interests as a similarly situated

5 [sic] person in the CMU”. Id.

6

When determining timeliness, the Court “must weigh whether any delay in seeking

7 intervention ‘unfairly disadvantage[s] the original parties.’” Roane v. Leonhart, 741 F.3d 147, 151

8 (D.C. Cir. 2014) (quoting Nat’l Res. Defs. Council v. Costle, 561 F.2d 904, 908 (D.C. Cir. 1977)).

9 Here, Mr. Akers filed his motion on December 26, 2019, seeking to intervene in proceedings that

10 have been ongoing for over a decade. Mr. Akers claims his motion is timely because the BOP has

11 impaired his “ability to contact this Court to Intervene.” Akers MTI at 5. However, he fails to

12 provide any evidence to support this assertion. As stated above, allowing Mr. Akers to intervene

13 would necessitate additional discovery for new factual development, carrying substantial risk of

14 disadvantaging the original parties by delaying the current proceedings. See Roane, 741 F.3d at

15 152. His motion is untimely.

16

As indicated, supra, one requisite for intervention as of right is that Mr. Akers have a

17 legally protected interest that would be impaired if he were not allowed to intervene. See FED. R.

18 CIV. P. 24(a)(2). Mr. Akers has not demonstrated such an interest. As discussed, supra, Mr.

19 Akers does not share any common questions of law or fact with those of Mr. Jayyousi; and, thus,

20 does not have any legally-protected interests here. The Court, therefore, concludes that its decision

21 in the current action will not affect Mr. Akers’ legally-protected interests and will not preclude

22 him from separately challenging his initial CMU designation, determined under BOP’s old

23 procedures for CMU placement, and its effects on BOP’s current CMU transfer decisions.

24

25

8

Case 1:10-cv-00539-BJR Document 211 Filed 06/25/20 Page 9 of 9

1

Therefore, the Court denies Mr. Akers’ motion to intervene as a matter of right.

2

IV. CONCLUSION

3

For the foregoing reasons, the Court rules as follows:

4

1. Potential Intervenor Melvin Fagan’s Motion to Intervene [Dkt. No. 191] is DENIED;

5

2. Potential Intervenor Donte Rolando Harris’s Motion to Intervene [Dkt. No. 192] is

6

DENIED;

7

3. Potential Intervenor Montgomery Carl Akers’ Motion to Intervene [Dkt. No. 193] is

8

DENIED; having denied Mr. Akers’ intervention motion, the Court hereby DENIES

9

his Motion for Order to Show Cause and Temporary Injunction [Dkt. No. 208] as moot;

10

4. Potential Intervenor Carlos Brutus’s Motion to Intervene [Dkt. No. 196] is DENIED;

11

5. Plaintiff Jayyousi’s Motion for Leave to File Exhibit A Under Seal [Dkt. No. 198] is

12

GRANTED;

13

6. Potential Intervenor Melvin Fagan’s Motion to Withdraw Unrelated Claims [Dkt. No.

14

204] is GRANTED.

15 IT IS SO ORDERED.

16

DATED this 25th day of June, 2020.

17 _______________________________

18

BARBARA J. ROTHSTEIN

UNITED STATES DISTRICT JUDGE

19

20

21

22

23

24

25

9

 
 Case 1:10-cv-00539-BJR Document 212 Filed 10/13/20 Page 1 of 15

1

2

3

4

5

6

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

7

)

8 YASSIN MUHIDDIN AREF,

)

KIFAH JAYYOUSI et al.,

)

9

)

Case No. 1:10-cv-00539-BJR

Plaintiffs,

)

10

)

ORDER DENYING PLAINTIFF’S

)

MOTION FOR SUMMARY

11

)

JUDGMENT AND GRANTING

DEFENDANTS’ MOTION FOR

12

SUMMARY JUDGMENT

WILLIAM BARR, et al.,

)

13

)

Defendants,

)

14 ____________________________________)

15

I. INTRODUCTION

16

This matter comes before the Court on remand from the D.C. Circuit for resolution of a

17 single remaining procedural due process claim, brought by the sole remaining plaintiff in this case,

18 Kifah Jayyousi. Over a decade ago, Jayyousi and a number of other now-dismissed plaintiffs

19 initiated this action against the Federal Bureau of Prisons (“BOP”), several BOP officials, and the

20 Attorney General (collectively “Defendants”). At the time, Jayyousi was a federal prisoner. Along

21 with his fellow plaintiffs, he claimed, inter alia, that the process under which he was designated

22 to a segregated unit known as the Communication Management Unit (“CMU”) within the federal

23 prison system did not provide constitutionally guaranteed safeguards, in violation of his right to

1

Case 1:10-cv-00539-BJR Document 212 Filed 10/13/20 Page 2 of 15

1 due process. See First Am. Compl. (“FAC”), Dkt. No. 86.

2

On March 16, 2015, this Court held that “Plaintiffs do not possess a liberty interest that is

3 implicated in their designation to the CMUs,” and dismissed Plaintiffs’ due process claims. Mem.

4 Op. at 15, Dkt. No. 161. The Court also noted that “[b]ecause the Court finds that designation to

5 CMU does not infringe on Plaintiffs’ liberty interests, it does not reach the question of whether the

6 process Plaintiffs received upon designation to the CMUs was adequate.” Id. at 16. On appeal, the

7 D.C. Circuit reversed, finding that although the question “is admittedly a close call,” the indefinite

8 and atypical nature of the designation “pushes CMU designation over the . . . threshold” articulated

9 by the Supreme Court. Aref v. Lynch, 833 F.3d 242, 257 (D.C. Cir. 2016) (citing Sandin v. Conner,

10 515 U.S. 472, 473 (1995)). The circuit court remanded the case for further proceedings on whether

11 Plaintiffs had received the process they were due.

12

Before the Court, therefore, is a single issue that the Court did not have occasion to reach

13 in its March 16, 2015 ruling: whether Defendants followed constitutionally sufficient procedures

14 in designating Jayyousi to confinement in the CMU. Jayyousi claims, in sum, that Defendants

15 failed to provide him adequate notice of the transfer, an opportunity to rebut the grounds for the

16 designation, or meaningful periodic review of his placement in the CMU. Having reviewed the

17 briefs filed in support of and opposition to the motions, the exhibits attached thereto, the record of

18 the case, and the relevant legal authorities, the Court concludes that the process by which Jayyousi

19 was designated to the CMU was constitutionally adequate, and grants Defendants’ motion for

20 summary judgment, for the reasons that follow.

21

22

23

2

Case 1:10-cv-00539-BJR Document 212 Filed 10/13/20 Page 3 of 15

1

II. BACKGROUND

2

A. Communication Management Units (“CMUs”)

3

The BOP established CMUs at the Federal Correctional Institutions in Terra Haute,

4 Indiana, and Marion, Illinois, in 2006 and 2008, respectively. Decl. of David Schiavone, ¶ 20, Dkt.

5 No. 149. The CMUs were intended to address a perceived deficiency in the Department of Justice’s

6 ability to monitor inmates with terrorism-related convictions and their communications with

7 contacts outside of prison. Id. ¶ 2. Defendants have described the CMUs as “self-contained general

8 population housing unit[s],” in which a prisoner is allowed to reside, eat, and participate in all

9 activities within the unit, much as in general population. Id. ¶6. Once an inmate is transferred to a

10 CMU, however, his communications with the outside world are highly restricted and closely

11 monitored. For example, phone calls and visits are limited, and must be “conducted in English,

12 live-monitored, and recorded by BOP.” Aref v. Lynch, 833 F.3d at 247.

13

As of June 2008, when Jayyousi was designated to the CMU, there was no written policy

14 outlining either the criteria or the process for designation. See Dep. of David Schiavone, 37:8-11,

15 Pls.’ Ex. 36, Dkt. No. 138; 30(b)(6) Dep. of David Schiavone, 25:5-10, Pls.’ Ex. 12 (“Q. So is it

16 accurate to say that prior to April 6th, 2010, the BOP did not have written documentation of CMU

17 criteria available either to the public or for use for -- for internal BOP purposes? A. That would be

18 accurate, yes.”). Instead, at that time, the BOP’s Counter Terrorism Unit (“CTU”) had the

19 discretionary authority to identify and evaluate appropriate candidates, and to forward

20 recommendations on to various officials for comment. See Schiavone Dep., 53:11-16; Schiavone

21 Decl. ¶ 20. The recommendations ultimately reached the final decision-maker, the North Regional

22 Director, who at the time of Jayyousi’s designation was Michael Nalley. Nalley was tasked with

23 reviewing the recommendations and making the final determination, based largely on his

3

Case 1:10-cv-00539-BJR Document 212 Filed 10/13/20 Page 4 of 15

1 “experience and expertise.” See Schiavone 30(b)(6) Dep. at 89:23-90:4 (“The Regional Director

2 has to document a decision in order for it to be communicated for the designation to be made, but

3 the reasons, that would be up to the Regional Director is what he felt was pertinent to include in

4 that decision.”).

5

The BOP eventually articulated criteria for reviewing a CMU prisoner’s continued

6 designation in a policy memorandum dated Oct. 14, 2009. See Memorandum from D. Dodrill,

7 Assistant Director of the Correctional Programs Division (“Dodrill Memo”), Pls. Ex. 46. The

8 Dodrill Memo called for regular review of an inmate’s CMU placement to “determine whether

9 CMU designation remains necessary,” and outlined several factors for consideration, including,

10 relevant to Plaintiff Jayyousi’s claim, whether “[t]he inmate’s current offense(s) conviction, or

11 offense conduct, included association, communication, or involvement, related to international or

12 domestic terrorism.” Id. at 1-2. Although on its face the Dodrill memo pertained to continued

13 designation, Defendants have testified that the criteria outlined in that memo are the same as those

14 used for initial designation. See Schiavone Decl., ¶ 17. The BOP put criteria for initial CMU

15 designation in writing on April 6, 2010, when it issued a proposed rule for public notice and

16 comment. See 80 Fed. Reg. 3168 (Jan. 22, 2015), Pls.’ Ex. 15, at 196.1

17

B. Plaintiff Jayyousi’s Designation to the CMU

18

In 2008, Jayyousi was sentenced to a 152-month term for conspiracy to murder, kidnap,

19 and maim in a foreign country and conspiracy to provide material support to terrorism. FAC ¶ 179.

20 He and his co-conspirators were found to have communicated in code and posed as a charitable

21 organization to further these goals. See United States v. Jayyousi, 657 F.3d 1085, 1091–92 (11th

22
1 The final rule did not go into effect until February 23, 2015, almost a decade after the first CMU opened, and after
23 Jayyousi had been transferred out. See Aref, 833 F.3d at 248, n.1. Because Plaintiff is challenging only the
procedures under which he was designated, the final rule is not at issue in this case.

4

Case 1:10-cv-00539-BJR Document 212 Filed 10/13/20 Page 5 of 15

1 Cir. 2011). Although he was originally classified as a “low security” prisoner, he was transferred

2 to the Terre Haute CMU in June 2008. Decl. of Ralph Miller ¶ 16, Defs.’ Ex. 5.

3

Within several days of his placement in the CMU, Jayyousi received a Notice of Transfer,

4 outlining the basis for his designation. See Notice of Transfer, Pls.’ Ex. 60. The Notice stated:

5

Your current offenses of conviction are for Conspiracy to Commit Murder in a

Foreign Country; Conspiracy to Kidnap, Maim, and Torture; and Providing

6

Material Support to a Terrorist Organization. You acted in a criminal conspiracy to

raise money to support mujahideen operations and used religious training to recruit

7

other individuals in furtherance of criminal acts in this country as well as many

countries abroad. Your offense conduct included significant communication,

8

association and assistance to al-Qaida, a group which has been designated as a

foreign terrorist organization. Id.

9

Jayyousi challenged the designation through BOP’s administrative appeal process,

10

claiming that information contained in his Notice of Transfer was inaccurate. See Regional

11

Administrative Remedy Appeal, Pls.’ Ex. 61. Nalley denied the appeal and informed Jayyousi that

12

his placement in the CMU was deemed necessary in light of his terrorism convictions, and stated

13

“you maintained significant communication and association with foreign terrorist organizations.”

14

Id.

15

Over the next five years, Jayyousi’s CMU designation was subject to a number of periodic

16

reviews, approximately every six months. His requests for transfer were denied, until May 14,

17

2013, when his request was approved by the Regional Director without explanation. Id. He was

18

then transferred to the general prison population, where he remained until his release from prison

19

in September 2017. Miller Decl. ¶ 18. Jayyousi is currently serving a 20-year term of supervised

20

release. Sposato Decl. ¶¶ 3-4, Dkt. No. 184, Ex. 2.

21

22

23

5

Case 1:10-cv-00539-BJR Document 212 Filed 10/13/20 Page 6 of 15

1

C. Procedural History2

2

In April 2010, Jayyousi, along with eight other federal prisoners who had been placed in

3 CMUs, filed this action. Plaintiffs argued, among other things, that designation to the CMUs took

4 place without due process, in violation of their Fifth Amendment rights. By 2014, the Court had

5 dismissed all plaintiffs but Jayyousi and Yassin Aref from the case. In 2015, this Court granted

6 Defendants’ motion for summary judgment and dismissed these two remaining Plaintiffs,

7 concluding among other things that they lacked a liberty interest sufficient to trigger due process

8 protections under the Fifth Amendment. See Mem. Op., Dkt. No. 161. Plaintiffs appealed to the

9 D.C. Circuit, which reversed the dismissal of the due process claim, holding that federal prisoners

10 “have a liberty interest in avoiding transfer into the CMU.” Aref v. Lynch, 833 F.3d at 268, 257

11 (designation triggers liberty interest because “it is exercised selectively; the duration is indefinite

12 and could be permanent; the deprivations—while not extreme—necessarily increase in severity

13 over time.”). Noting that the record on appeal was incomplete regarding what process Plaintiffs

14 were due and actually afforded, the circuit court remanded Plaintiffs’ claims to this Court to

15 determine “whether the government’s procedures comport with due process as applied to

16 appellants.” Id. at 268-69.

17

In September 2017, Jayyousi was released from BOP custody, and Defendants filed a

18 motion to dismiss, contending that his procedural due process claim was therefore moot.3 Plaintiff

19 responded that his claims continued to present a live controversy, as one of the remedies he sought

20

21

2 This case has a long and complex procedural history, much of which is not directly relevant to the issues presented in these motions. That history is laid out in more detail in the Court’s November 1, 2019 Order Granting in Part and

Denying in Part Defendants’ Motion to Dismiss, Dkt. No. 189, pp. 2-4.
22
3 Defendants also sought dismissal of Jayyousi’s one remaining co-Plaintiff Aref, who had also been released from

BOP custody, but had been deported from the U.S., presumably to Iraq. The Court granted Defendants’ motion as to
23 Aref, concluding that his “claims of future harm by the existence of the CMU-related records are simply too remote

and speculative to maintain a live controversy as to him.” Order at 12, Dkt. No. 189.

6

Case 1:10-cv-00539-BJR Document 212 Filed 10/13/20 Page 7 of 15

1 was expungement from his record of any reference to his designation to the CMU. This Court

2 agreed, and denied Defendants’ Motion to Dismiss, ruling that Jayyousi’s claim was not moot

3 because he “alleges sufficient ongoing consequences from the continued existence of the CMU-

4 related documents [in his record] such that his request for expungement constitutes a live

5 controversy.” Order at 11, Dkt. No. 189.

6

The Court has observed, and the parties agree, that Jayyousi’s challenge is to the actual

7 procedures that were used in both his initial and his continuing designation to the CMU—not to

8 Defendants’ designation policy and procedures generally in place at the time, and not to the new

9 rules as they exist today. See Trans. of Feb.14, 2019 Status Conf., Dkt. No. 188, 6:1-3; 9:16-18.

10 On this question, the parties agree that briefing is complete. See Nov. 4, 2019 Minute Order (giving

11 parties opportunity to submit additional briefing, which neither party did).

12

III. LEGAL STANDARD

13

Summary Judgment is appropriate where “there is no genuine dispute as to any material

14 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is

15 ‘material’ if it might affect the outcome of the case.” Anderson v. Liberty Lobby, Inc., 477 U.S.

16 242, 248 (1986). A dispute of material fact is genuine only if there is sufficient evidence for a

17 reasonable fact finder to find for the non-moving party. See Anderson, 477 U.S. at 248. A movant

18 is entitled to judgment “as a matter of law” where the nonmoving party “has failed to make a

19 sufficient showing on an essential element of her case with respect to which she has the burden of

20 proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant “bears the initial

21 responsibility of informing the district court of the basis for its motion, and identifying those

22 portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together

23

7

Case 1:10-cv-00539-BJR Document 212 Filed 10/13/20 Page 8 of 15

1 with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material

2 fact.” Id. (internal quotation marks omitted).

3

IV. DISCUSSION

4

A. Jayyousi’s Procedural Due Process Claim

5

The Fifth Amendment to the Constitution guarantees that no individual is “deprived of life,

6 liberty, or property, without due process of law.” U.S. CONST. amend. V. Assessment of an

7 alleged procedural due process violation comprises two steps. First, a court must determine

8 whether the government’s conduct in question impairs a liberty interest protected by the Due

9 Process Clause. See Sandin v. Conner, 515 U.S. 472, 484 (1995). Because the circuit court has

10 already determined it does in this case, the Court turns to the second step: determining what process

11 is due, and whether such process has been afforded. See Wilkinson v. Austin, 545 U.S. 209 (2005).

12

In a prison context, “the requirements of due process are flexible and [call] for such

13 procedural protections as the particular situation demands.” Wilkinson, 545 U.S. at 224 (alteration

14 in original, internal quotation marks omitted). In evaluating the sufficiency of the process afforded

15 in this context, courts balance the three concerns outlined by the Supreme Court in Mathews v.

16 Eldridge: First, the private interest that will be affected by the official action; second, the risk of

17 an erroneous deprivation of such interest through the procedures used; and finally, the

18 Government’s interest, including the function involved and the fiscal and administrative burdens

19 that the additional or substitute procedural requirement would entail. 424 U.S. 319, 335 (1976).

20

In balancing these three competing considerations, the Court is mindful of the D.C.

21 Circuit’s admonition that Jayyousi is “challenging fundamentally predictive judgments in an area

22 where administrators are given broad discretion and the government’s legitimate interests in

23 maintaining CMUs must be accorded substantial weight. Because the cardinal principle in due

8

Case 1:10-cv-00539-BJR Document 212 Filed 10/13/20 Page 9 of 15

1 process analysis is flexibility—i.e., attention to relevant context and consideration of competing

2 interests—only minimal process is likely due.” Aref v. Lynch, 833 F.3d at 258. The Court now

3 turns to whether that “minimal process” was given.

4

1. Private Interest Affected by Official Action

5

The first Mathews factor calls upon the Court to consider “the private interest that will be

6 affected by the official action.” Wilkinson, 545 U.S. at 224 (quoting Mathews, 424 U.S. at 335).

7 The Court begins with the premise that Jayyousi’s “private interest is considerably lessened

8 because of his status as an inmate.” Isby v. Brown, 856 F.3d 508, 525 (7th Cir. 2017) (citing Hewitt

9 v. Helms, 459 U.S. 460, 473 (1983)). “The private interest at stake here, while more than minimal,

10 must be evaluated, nonetheless, within the context of the prison system and its attendant

11 curtailment of liberties.” Wilkinson, 545 U.S. at 225. Furthermore, although the D.C. Circuit

12 determined that this lawsuit does implicate a cognizable liberty interest sufficient to trigger a due

13 process analysis, it must be noted that “CMU confinement involves significantly less deprivation

14 than administrative segregation,” more commonly known as solitary confinement. Aref v. Lynch,

15 833 F.3d at 256, 257 (“Whether a liberty interest exists here is admittedly a close call.”). This is

16 because, among other things, “CMU inmates are allowed in common spaces with other CMU

17 inmates for sixteen hours a day. They have access to educational and professional opportunities,

18 can keep as many possessions as inmates in the general population, and have no added restrictions

19 on exercise.” Id.

20

Accordingly, the weight of the interest in this case must be assessed as something less than

21 that in Wilkinson and other solitary confinement cases, in which inmates are subjected to “extreme

22 isolation,” and deprived “of almost any environmental or sensory stimuli and of almost all human

23 contact.” Id.; see also Incumaa v. Stirling, 791 F.3d 517 (2015) (involving designation to

9

Case 1:10-cv-00539-BJR Document 212 Filed 10/13/20 Page 10 of 15

1 segregated unit in which plaintiff confined to cell 24 hours a day, subjected to strip searches, served

2 smaller portions of food than inmates in the general population, and denied educational

3 opportunities and mental health treatment).

4

2. Risk of Erroneous Deprivation

5

The second factor to be weighed under Mathews v. Eldridge is “the risk of an erroneous

6 placement under the procedures” that BOP used in designating Plaintiff to the CMU and “the

7 probable value, if any, of additional or alternative procedural safeguards” to reduce the risk.

8 Wilkinson, 545 U.S. at 225 (citing Mathews, 424 U.S. at 335). The three traditional hallmarks of

9 fair process in this context include “notice of the factual basis” for the deprivation; “a fair

10 opportunity for rebuttal”; and periodic review of the exigency of ongoing confinement. Wilkinson,

11 545 U.S. at 225. The record reveals that Jayyousi was accorded all three.

12

a. Notice of Transfer

13

It is undisputed that Jayyousi received a Notice of Transfer within hours of his designation

14 to the CMU. See Notice of Transfer, Pls.’ Ex. 61. That Notice included the “factual basis” of his

15 designation: specifically, that he had “acted in a criminal conspiracy to raise money to support

16 mujahideen operations and used religious training to recruit other individuals in furtherance of

17 criminal acts,” and that his “offense conduct included significant communication, association and

18 assistance to al-Qaida, a group which has been designated as a foreign terrorist organization.” Id.

19 at 1. Regional Director Nalley confirmed that these facts formed the basis of his decision to

20 designate Jayyousi to the CMU, and under standards later memorialized in the Dodrill Memo,

21 these facts met the criteria for CMU designation. See Decl. of Michael Nalley, Defs.’ Ex. 2, ¶ 10

22 (Jayyousi’s Notice of Transfer “accurately summarized the reasons why I ordered [his] placement

23 in a CMU.”); Dodrill Memo, Pls.’ Ex. 46 at 1-2 (one factor in designation was whether “[t]he

10

Case 1:10-cv-00539-BJR Document 212 Filed 10/13/20 Page 11 of 15

1 inmate’s current offense(s) conviction, or offense conduct, included association, communication,

2 or involvement, related to international or domestic terrorism”). Plaintiff complains that the Notice

3 contained some, but perhaps not all, of the reasons for his designation. The standard in this context,

4 however, is not so exacting. As the Supreme Court has held, the Due Process Clause requires that

5 “[a]n inmate must merely receive some notice of the charges against him.” Hewitt, 459 U.S. at 476

6 (emphasis added). That the “some notice” standard was met here can hardly be denied.

7

b. Opportunity for Rebuttal

8

Defendants also provided Jayyousi an opportunity to rebut his designation, which he

9 availed himself of within weeks of his transfer. See Regional Administrative Remedy Appeal

10 (“Admin. App.”), Pls.’ Ex. 61. In the context of a prisoner contesting an administrative

11 segregation, all that is required is that the inmate be given “an opportunity to present his views to

12 the prison official charged with deciding whether to transfer him,” and that “the the decisionmaker

13 reviews the charges and then-available evidence against the prisoner.” Hewitt, 459 U.S. at 476. In

14 his appeal, Jayyousi claimed “the information used as a basis for my transfer to CMU [is] not

15 correct.” Admin. App. at 11. The record reveals that in response to the appeal, Defendants

16 reviewed available information related to Jayyousi’s terrorism-associated conviction, and found it

17 sufficient to support CMU placement. As the written Response to the appeal noted, Jayyousi’s

18 designation was made in reliance on, among other things, the terrorism enhancement associated

19 with his sentencing, and the presentence report, which “clearly define[d his] association with

20 terrorism.” Id. at 12. The appeal was reviewed and denied by the warden, by acting North Regional

21 Director Charles Lockett, and by administrator of National Inmate Appeals, who determined that

22 Jayyousi had been “appropriately designated to the CMU.” Id. at 5, 9. Lockett’s written Response

23 referred to Jayyousi’s offense conduct, including conspiracy to provide support to terrorism and

11

Case 1:10-cv-00539-BJR Document 212 Filed 10/13/20 Page 12 of 15

1 terrorists, and communication with foreign terrorist organizations. Id. The process by which

2 Jayyousi appealed his designation provided him a chance to “present his views.” The

3 decisionmakers reviewed the charges and “then-available evidence.” This process was

4 constitutionally sufficient. Hewitt, 459 U.S. at 476.

5

c. Periodic Review

6

Finally, the Court concludes that Defendants’ “periodic review” of Jayyousi’s designation

7 to the CMU met the standard for the “informal and nonadversary” and “minimal procedural

8 process” required by the Constitution. Isby, 856 F.3d at 525, citing Westefer v. Neal, 682 F.3d 679,

9 684–86 (7th Cir. 2012); Black v. Parke, 4 F.3d 442, 448 (6th Cir. 1993). As courts have made

10 clear, while periodic review is constitutionally required to “keep[] administrative segregation from

11 becoming a pretext for indefinite confinement,” “broad discretionary authority is necessary

12 because the administration of a prison is at best an extraordinarily difficult undertaking.” Hewitt,

13 459 U.S. at 467, 477 n.9 (“[Periodic] review will not necessarily require that prison officials permit

14 the submission of any additional evidence or statements. The decision whether a prisoner remains

15 a security risk will be based on facts relating to a particular prisoner . . . and on the officials’

16 general knowledge of prison conditions and tensions, which are singularly unsuited for ‘proof’ in

17 any highly structured manner.”). Because “‘a prison’s internal security is ... a matter normally left

18 to the discretion of prison administrators,’ . . . elaborate procedural safeguards like an adversary

19 proceeding [are] unnecessary.” Isby, 856 F.3d at 525 (quoting Hewitt at 474–75). As noted supra

20 § IV.A.1., these relevant precedents arise in the context of a far more restrictive administrative

21 segregation, in which “[i]ncarceration . . . is synonymous with extreme isolation.” Wilkinson, 545

22 U.S. at 214; see also, e.g., Westefer, 682 F.3d at 682 (“Inmates are kept in almost constant

23

12

Case 1:10-cv-00539-BJR Document 212 Filed 10/13/20 Page 13 of 15

1 isolation.”); Isby, 856 F.3d at 515 (“solitary confinement” inmate kept in “prolonged and isolated

2 detainment.”).

3

Here, as outlined in the Dodrill Memo, designation to the CMU was subject to review every

4 six months. Pls.’ Ex. 46; see also Schiavone Decl. ¶¶ 28-32. That memo outlined fairly specifically

5 both the criteria and the procedures by which a CMU inmate’s designation would be reviewed,

6 directing staff to provide inmates with “at least” 48 hours notice before a review, to allow inmates

7 to “personally raise questions and concerns with the Unit Team regarding their placement in the

8 CMU,” and to determine whether the placement remained necessary, relying on “sound

9 correctional judgement and security threat management practices.” Id. at 1. According to the

10 program review policy, and procedures laid out in the Dodrill Memo, Defendants were obligated

11 to conduct a twice-yearly process involving multiple levels of review, beginning with an interview

12 and information-gathering conducted by the unit team. After that,

13

[t]he Unit Team staff will forward their recommendations to the Warden. With the

concurrence of the Warden, recommendations will then be forwarded to the

14

Bureau’s Counter Terrorism Unit (CTU) for review of individual inmate cases. The

CTU will forward the final recommendation to the Regional Director, North

15

Central Region, for further review and consideration. The Regional Director, North

Central Region, has final authority to approve an inmate’s re-designation from a

16

CMU.

17

Inmates denied re-designation from a CMU will be notified in writing by the Unit

Team of the reason(s) for continued CMU designation. Inmates not satisfied with

18

the re-designation decision, or any other aspect of confinement in the CMU, can

appeal the decision or situation through the administrative remedy program.

19

20 Dodrill Memo at 2. That administrative remedy program, as outlined supra § IV.A.2.b., affords an

21 inmate an additional round of appeals. The procedural safeguards of this process are at least as

22 procedurally adequate as those evaluated in Wilkinson, which the Supreme Court held met the

23

13

Case 1:10-cv-00539-BJR Document 212 Filed 10/13/20 Page 14 of 15

1 standard for the “informal and nonadversary periodic review” required by the Constitution. 545

2 U.S. at 217 (approving a three-tiered review conducted annually).

3

It is undisputed that Jayyousi’s designation was reviewed in December 2008, within

4 approximately six months of his original designation, and again on June 18, 2009, on December

5 14, 2009, on May 21, 2010, and so on, approximately every six months, until he was released, in

6 conjunction with the periodic review process, in May 2013. See, e.g., Pls.’ Exs. 127, 128.

7 Plaintiff’s critique demands too much of the review process; the Constitution requires only

8 “minimal procedure” at this stage, and does not require that an inmate be given a review in any

9 “formal” or “structured manner.” Hewitt, 459 U.S. at 477 n.9. It is precisely in this context that

10 courts are repeatedly reminded both that prison officials must be given broad discretion and

11 “flexibility,” and that “only minimal process is likely due.” Aref v. Lynch, 833 F.3d at 258. The

12 Court concludes that these reviews were constitutionally adequate as applied to Jayyousi.

13

Given the three levels of safeguards that Defendants provided in designating and confining

14 Plaintiff to the CMU—notice, opportunity for rebuttal, and periodic review—the Court concludes

15 that the risks of erroneous deprivation in Jayyousi’s case were minimal.

16

3. Government’s Interest; and Burdens and Value of Additional Process

17

The final factor to be weighed under Mathews is the government’s interest, including “the

18 fiscal and administrative burdens that the additional or substitute procedural requirement would

19 entail.” Wilkinson, 545 U.S. at 225. As the D.C. Circuit prescribed in remanding this case, “the

20 government’s legitimate interests in maintaining CMUs must be accorded substantial weight.”

21 Aref v. Lynch, 833 F.3d at 242. This admonition has been repeatedly emphasized in other cases.

22 See, e.g., Isby v. Brown, 856 F.3d at 526 (“[T]he government’s interests . . . are substantial.

23 Maintaining institutional security and safety are crucial considerations in the management of a

14

Case 1:10-cv-00539-BJR Document 212 Filed 10/13/20 Page 15 of 15

1 prison, and, to the extent that an inmate continues to pose a threat to himself or others, ongoing

2 segregation may well be justified.”) (citing Bell v. Wolfish, 441 U.S. 520, 547 (1979)); see also

3 Wilkinson, 545 U.S. at 227 (“In the context of prison management, [the government’s] interest is

4 a dominant consideration.”). Under the circumstances presented by Jayyousi’s challenge to the

5 CMU designation process, it cannot be denied that the government’s interest in this case is

6 “substantial.”

7

V. CONCLUSION

8

Having weighed the three factors outlined in Mathews and successive precedents, the Court

9 concludes that the balance of interests favors upholding the constitutionality of the process as it

10 was applied to the Plaintiff in this case. For the foregoing reasons, the Court concludes that

11 Defendants did not violate Jayyousi’s procedural due process rights in designating and confining

12 him to the CMU, and hereby DENIES Plaintiff’s motion for summary judgment, GRANTS

13 Defendants’ motion for summary judgment, and dismisses this case.

14

IT IS SO ORDERED.

15 DATED this 13th day of October, 2020.
16

17

18

A

19

Barbara Jacobs Rothstein U.S. District Court Judge

20

21

22

23

15

 
 CCR Challenges Experimental Prison Units that Restrict Communication and Forbid Physical Contact with Family Without Due Process
Segregated Federal Units Target Muslims, Activists
CONTACT: press@ccrjustice.org
March 30, 2010, New York – Today, the Center for Constitutional Rights (CCR) filed a lawsuit challenging violations of fundamental constitutional rights, including the right to due process, at two experimental federal prison units called “Communications Management Units” (CMUs). The units are being used overwhelmingly to hold Muslim prisoners and prisoners with unpopular political beliefs.
CCR filed Aref v. Holder in the D.C. District Court on behalf of five current and former prisoners of the units in Terre Haute, IN and Marion, IL; two other plaintiffs are the spouses of prisoners. The CMUs were secretly opened under the Bush administration in 2006 and 2007 respectively and were designed to monitor and control the communications of certain prisoners and to isolate them from other prisoners and the outside world.
Transfers to the CMU are not explained; nor are prisoners told how release into less restrictive confinement may be earned as there is no review process. Lawyers say that because these transfers are not based on facts or discipline for infractions, a pattern of religious and political discrimination and retaliation for prisoners’ lawful advocacy has emerged. The five plaintiffs in Aref were designated to the two CMUs despite having relatively or totally clean disciplinary histories, and none of the plaintiffs have received any communications-related disciplinary infractions in the last decade. Several of the plaintiffs expect to serve the entire remaining duration of their sentences at the CMU.
“These units are an experiment in social isolation,” said CCR Attorney Alexis Agathocleous. “People are being put in these extraordinarily restrictive units without being told why and without any meaningful review. Dispensing with due process creates a situation ripe for abuse; in this case, it has allowed for a pattern of religious profiling, retaliation and arbitrary punishment. This is precisely what the rule of law and the Constitution forbid.”
In addition to heavily restricted telephone and visitation access, CMU prisoners are categorically denied any physical contact with family members and are forbidden from hugging, touching or embracing their children or spouses during visits.

Attorneys say this blanket ban on contact visitation, which is unique in the federal prison system, not only causes suffering to the families of the incarcerated men, but is a violation of fundamental constitutional rights.
Said the 14-year-old daughter of one of the prisoners in the lawsuit, “The thing that hurts the most is that I can hear him but I can never touch him. I haven’t hugged, kissed or held my dad since December of 2007.”
Between 65 and 72 percent of CMU prisoners are Muslim men, a fact that attorneys say demonstrates that the CMUs were created to allow for the segregation and restrictive treatment of Muslims based on the discriminatory belief that such prisoners are more likely than others to pose a threat to prison security.
Others prisoners appear to be transferred to the CMU because of other protected First Amendment activity, such as speaking out on social justice issues or filing grievances in prison or court regarding conditions and abuse.
For more information on Aref v. Holder, visit CCR’s legal case page.
The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.

 
 APPEAL,CLOSED,STAYED,TYPE-L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:10-cv-00539-BJR

AREF et al v. HOLDER et al Assigned to: Judge Barbara Jacobs Rothstein Case: 1:10-cv-00539-BJR Case in other court: USCA, 15-05154
USCA, 20-05368 Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 04/01/2010 Date Terminated: 03/16/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff YASSIN MUHIDDIN AREF

represented by Andrey Spektor WEIL, GOTSHAL & MANGES, LLP 767 Fifth Avenue New York, NY 10153 (212) 310-8950 Fax: (212) 310-8007 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alexis Agathocleous CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway 7th Floor New York, NY 10012 (212) 614-6478 Fax: (212) 614-6499 Email: aagathocleous@ccrjustice.org TERMINATED: 07/20/2017 PRO HAC VICE ATTORNEY TO BE NOTICED

Chauniqua Danielle Young CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway 7th Floor

New York, NY 10012 (212) 614-6483 Fax: (212) 614-6499 Email: cyoung@ccrjustice.org PRO HAC VICE ATTORNEY TO BE NOTICED
Eileen Hren Citron WEIL, GOTSHAL & MANGES, LLP 2001 M Street, NW Suite 600 Washington, DC 20036 (202) 682-7209 Fax: (202) 857-0940 Email: eileen.citron@weil.com ATTORNEY TO BE NOTICED
Gregory Silbert WEIL, GOTSHAL & MANGES, LLP 767 Fifth Avenue New York, NY 10153 (212) 310-8846 Fax: (212) 310-8007 PRO HAC VICE ATTORNEY TO BE NOTICED
Kavita Christina Desai WEIL, GOTSHAL & MANGES, LLP 767 Fifth Avenue New York, NY 10153 (212)310-8587 Fax: (212) 310-8007 PRO HAC VICE ATTORNEY TO BE NOTICED
Lara Veblen WEIL, GOTSHAL & MANGES, LLP 767 Fifth Avenue New York, NY 10153 (212) 310-8947 Fax: (212) 310-8007 PRO HAC VICE

Plaintiff
AVON TWITTY TERMINATED: 11/20/2012 also known as ABDUL ALI

ATTORNEY TO BE NOTICED
Rachel Meeropol CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway 7th Floor New York, NY 10012 (212) 614-6432 Fax: (212) 614-6499 Email: rachelm@ccrjustice.org PRO HAC VICE ATTORNEY TO BE NOTICED
Robyn Lewis WEIL, GOTSHAL & MANGES, LLP 767 Fifth Avenue New York, NY 10153 (212) 310-8291 Fax: (212) 310-8007 PRO HAC VICE ATTORNEY TO BE NOTICED
Shayana Devendra Kadidal CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway 7th Floor New York, NY 10012 (212) 614-6438 Fax: (212) 614-6499 Email: kadidal@ccrjustice.org ATTORNEY TO BE NOTICED
represented by Andrey Spektor (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shayana Devendra Kadidal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff DANIEL MCGOWAN

Alexis Agathocleous (See above for address) TERMINATED: 07/20/2017 PRO HAC VICE
Eileen Hren Citron (See above for address) ATTORNEY TO BE NOTICED
Gregory Silbert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kavita Christina Desai (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel Meeropol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Shayana Devendra Kadidal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexis Agathocleous (See above for address) TERMINATED: 07/20/2017 PRO HAC VICE
Chauniqua Danielle Young (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Eileen Hren Citron (See above for address) ATTORNEY TO BE NOTICED
Gregory Silbert

Plaintiff
JENNY SYNAN TERMINATED: 11/20/2012

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kavita Christina Desai (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lara Veblen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel Meeropol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robyn Lewis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrey Spektor (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shayana Devendra Kadidal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexis Agathocleous (See above for address) TERMINATED: 07/20/2017 PRO HAC VICE
Eileen Hren Citron (See above for address) ATTORNEY TO BE NOTICED
Gregory Silbert

Plaintiff
ROYAL JONES TERMINATED: 05/01/2013

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kavita Christina Desai (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel Meeropol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexis Agathocleous (See above for address) TERMINATED: 07/20/2017 PRO HAC VICE
Andrey Spektor (See above for address) TERMINATED: 10/01/2012 PRO HAC VICE
Eileen Hren Citron (See above for address)
Gregory Silbert (See above for address) TERMINATED: 10/01/2012 PRO HAC VICE
Kavita Christina Desai (See above for address) TERMINATED: 10/01/2012 PRO HAC VICE
Rachel Meeropol (See above for address) TERMINATED: 10/01/2012 PRO HAC VICE
Shayana Devendra Kadidal (See above for address)

Plaintiff KIFAH JAYYOUSI

represented by Andrey Spektor (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shayana Devendra Kadidal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexis Agathocleous (See above for address) TERMINATED: 07/20/2017 PRO HAC VICE
Chauniqua Danielle Young (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Eileen Hren Citron (See above for address) ATTORNEY TO BE NOTICED
Gregory Silbert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kavita Christina Desai (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lara Veblen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel Meeropol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff HEDAYA JAYYOUSI TERMINATED: 11/20/2012
V. Defendant

Robyn Lewis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrey Spektor (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shayana Devendra Kadidal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexis Agathocleous (See above for address) TERMINATED: 07/20/2017 PRO HAC VICE
Eileen Hren Citron (See above for address) ATTORNEY TO BE NOTICED
Gregory Silbert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kavita Christina Desai (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel Meeropol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

ERIC H. HOLDER, JR. Attorney General of the United States

represented by Sophie Kaiser U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20005 (202) 307-2092 Fax: (202) 616-8470 Email: sophie.b.kaiser@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marina Utgoff Braswell U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252-2561 Fax: (202) 252-2599 Email: Marina.Braswell@usdoj.gov TERMINATED: 05/20/2010
Nathan Michael Swinton U.S. DEPARTMENT OF JUSTICE Civil Division - Commercial Litigation Branch 1100 L Street NW Washington, DC 20530 (202) 305-7667 Email: nathan.m.swinton@usdoj.gov TERMINATED: 03/30/2020
Nicholas P. Cartier FEDERAL TRADE COMMISSION Civil Division, Federal Programs Branch 600 Pennsylvania Avenue, NW Ste Cc-9528 Washington, DC 20580 202-326-2014 Email: ncartier@ftc.gov TERMINATED: 03/30/2020
Timothy Andrew Johnson U.S. DEPARTMENT OF JUSTICE

Defendant HARLEY G. LAPPIN Director of the Federal Bureau of Prisons (BOP) TERMINATED: 05/18/2011
Defendant D. SCOTT DODRILL Assistant Director, Correctional Programs Division
Defendant

Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 514-1359 Fax: (202) 616-8470 Email: timothy.johnson4@usdoj.gov TERMINATED: 06/08/2018
represented by Marina Utgoff Braswell (See above for address) TERMINATED: 05/20/2010
Nathan Michael Swinton (See above for address) TERMINATED: 03/30/2020
Nicholas P. Cartier (See above for address) TERMINATED: 03/30/2020
represented by Sophie Kaiser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marina Utgoff Braswell (See above for address) TERMINATED: 05/20/2010
Nathan Michael Swinton (See above for address) TERMINATED: 03/30/2020
Nicholas P. Cartier (See above for address) TERMINATED: 03/30/2020
Timothy Andrew Johnson (See above for address) TERMINATED: 06/08/2018

FEDERAL BUREAU OF PRISONS
Defendant CHARLES E. SAMUELS, JR. Acting Assistant Director, Correctional Programs Division
Defendant THOMAS R. KANE Acting Director of the Federal Bureau of Prisons (BOP) TERMINATED: 11/20/2012 Defendant LESLIE SMITH Chief, Counter Terrorism Unit

represented by Sophie Kaiser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marina Utgoff Braswell (See above for address) TERMINATED: 05/20/2010
Nathan Michael Swinton (See above for address) TERMINATED: 03/30/2020
Nicholas P. Cartier (See above for address) TERMINATED: 03/30/2020
Timothy Andrew Johnson (See above for address) TERMINATED: 06/08/2018
represented by Sophie Kaiser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan Michael Swinton (See above for address) TERMINATED: 03/30/2020
Timothy Andrew Johnson (See above for address) TERMINATED: 06/08/2018
represented by Nathan Michael Swinton (See above for address) TERMINATED: 03/30/2020
represented by Sophie Kaiser (See above for address) LEAD ATTORNEY

Movant WILLIAM OSCAR HARRIS also known as OSCARO EL HARI BEY TERMINATED: 03/30/2011
Movant REX RUSSELL DEAN LANDERS TERMINATED: 03/30/2011
Movant RALPH WILLIAM TAYLOR TERMINATED: 03/30/2011
Movant DANIEL JOHN RILEY TERMINATED: 03/30/2011
Movant JEREMY PINSON TERMINATED: 11/17/2014

ATTORNEY TO BE NOTICED
Timothy Andrew Johnson (See above for address) TERMINATED: 06/08/2018
represented by WILLIAM OSCAR HARRIS R40743050 TERRE HAUTE FCI P.O. BOX 33 TERRE HAUTE, IN 47808 PRO SE
represented by REX RUSSELL DEAN LANDERS R05177-046 TERRE HAUTE FCI P.O. BOX 33 TERRE HAUTE, IN 47808 PRO SE
represented by RALPH WILLIAM TAYLOR R31628-048 TERRE HAUTE FCI P.O. BOX 33 TERRE HAUTE, IN 47808 PRO SE
represented by DANIEL JOHN RILEY R14528-052 DANBURY - CAMP Federal Correctional Institution Camp 33 1/2 Pembroke Road Danbury, CT 06811 PRO SE
represented by JEREMY PINSON 16267 064

Movant ROBERT J. WHITEMAN, JR. TERMINATED: 11/04/2019
Movant MELVIN FAGAN TERMINATED: 06/25/2020
Movant DONTE ROLANDO HARRIS TERMINATED: 06/25/2020
Movant MONTGOMERY CARL AKERS TERMINATED: 06/25/2020

VICTORVILLE U.S. PENITENTIARY Inmate Mail/Parcels P.O. BOX 3900 ADELANTO, CA 92301 PRO SE
represented by ROBERT J. WHITEMAN, JR. Reg. No. 60496-066 MARION U.S. PENITENTIARY Inmate Mail/Parcels P.O. BOX 1000 MARION, IL 62959 PRO SE
represented by MELVIN FAGAN Reg. No. 08072-027 MARION U.S. PENITENTIARY Inmate Mail/Parcels P.O. BOX 1000 MARION, IL 62959 PRO SE
represented by DONTE ROLANDO HARRIS R 37473-083 MARION U.S. PENITENTIARY Inmate Mail/Parcels P.O. BOX 1000 MARION, IL 62959 PRO SE
represented by MONTGOMERY CARL AKERS R02866-081 MARION U.S. PENITENTIARY Inmate Mail/Parcels P.O. BOX 1000

Movant
CARLOS BRUTUS TERMINATED: 06/25/2020

MARION, IL 62959 PRO SE
represented by CARLOS BRUTUS Reg. No. 17682-021 MARION U.S. PENITENTIARY Inmate Mail/Parcels P.O. BOX 1000 MARION, IL 62959 PRO SE

Date Filed 04/01/2010 04/01/2010 04/01/2010
04/01/2010
04/01/2010

# Docket Text
1 MOTION to File under seal by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY. (jf, ) (Entered: 04/05/2010)
2 ORDER granting 1 MOTION to File under seal. Signed by Chief Judge Royce C. Lamberth on April 1, 2010. (See order for full detail) (jf, ) (Entered: 04/05/2010)
3 SEALED MOTION filed by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY. (This document is SEALED and only available to authorized persons.)(zjf, ) (Entered: 04/05/2010)
4 SEALED ORDER re 3 SEALED MOTION filed by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY. (This document is SEALED and only available to authorized persons.)Signed by Chief Judge Royce C. Lamberth on April 01, 2010.(zjf, ) (Entered: 04/05/2010)
5 COMPLAINT against D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC HOLDER, HARLEY LAPPIN ( Filing fee $ 350, receipt number 4616028740) filed by JENNY SYNAN, AVON TWITTY, ROYAL JONES, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, YASSIN MUHIDDIN AREF, DANIEL MCGOWAN. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Additional attachment(s) added on 4/5/2010: # 2 Exhibit A - F) (dr). Modified on 4/5/2010 to add exhibits (dr). (Entered: 04/05/2010)

04/01/2010 04/01/2010 04/19/2010 04/20/2010 04/20/2010
04/22/2010 04/22/2010

SUMMONS (5) Issued as to D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC HOLDER, HARLEY LAPPIN and U.S. Attorney.(jf, ) (Entered: 04/05/2010)
6 NOTICE OF RELATED CASE by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY. Case related to Case No. USDC for the SD of Indiana - 00025. (jf, ) (Entered: 04/05/2010)
9 MOTION to Intervene by WILLIAM OSCAR HARRIS, REX RUSSELL DEAN LANDERS, RALPH WILLIAM TAYLOR, DANIEL JOHN RILEY (rdj) (Entered: 04/20/2010)
7 NOTICE of Appearance by Marina Utgoff Braswell on behalf of D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC HOLDER, HARLEY LAPPIN (Braswell, Marina) (Entered: 04/20/2010)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General April 6, 2010., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to D. SCOTT DODRILL served on 4/6/2010, answer due 6/7/2010; FEDERAL BUREAU OF PRISONS served on 4/6/2010, answer due 6/7/2010; ERIC HOLDER served on 4/6/2010, answer due 6/7/2010; HARLEY LAPPIN served on 4/6/2010, answer due 6/7/2010., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. D. SCOTT DODRILL served on 4/6/2010, answer due 6/7/2010; FEDERAL BUREAU OF PRISONS served on 4/6/2010, answer due 6/7/2010; ERIC HOLDER served on 4/6/2010, answer due 6/7/2010; HARLEY LAPPIN served on 4/6/2010, answer due 6/7/2010 (Attachments: # 1 Affidavit of Service on Eric Holder, # 2 Affidavit of Service on Harley Lappin, # 3 Affidavit of Service on D. Scott Dodrill, # 4 Affidavit of Service on Federal Bureau of Prisons, # 5 Affidavit of Service on United States Attorney)(Kadidal, Shayana) (Entered: 04/20/2010)
10 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Rachel Meeropol, :Firm- Center for Constitutional Rights, :Address- 666 Broadway, 7th Floor, NY NY 10012. Phone No. - (212) 614-6432. Fax No. - (212) 614-6499 by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY (Kadidal, Shayana) (Entered: 04/22/2010)
11 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Alexis Agathocleous, :Firm- Center for Constitutional Rights, :Address- 666

04/26/2010
05/04/2010 05/20/2010 06/01/2010 06/01/2010 06/01/2010 06/02/2010

Broadway, 7th Floor, NY NY 10012. Phone No. - (212) 614-6478. Fax No. - (212) 614-6499 by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY (Kadidal, Shayana) (Entered: 04/22/2010)
MINUTE ORDER granting 10 11 Motions for Leave to Appear Pro Hac Vice. Upon consideration of the motions for pro hac vice admission of Rachel Meeropol and Alexis Agathocleous, it is hereby ORDERED that the motions are GRANTED. SO ORDERED. Signed by Judge Ricardo M. Urbina on 04/23/2010. (EN, ) (Entered: 04/26/2010)
12 RESPONSE re 9 MOTION to Intervene filed by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY. (Meeropol, Rachel) (Entered: 05/04/2010)
13 NOTICE OF WITHDRAWAL OF APPEARANCE as to D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC HOLDER, HARLEY LAPPIN. Attorney Marina Utgoff Braswell terminated. (Braswell, Marina) (Entered: 05/20/2010)
14 NOTICE of Appearance by Nicholas P. Cartier on behalf of D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC HOLDER, HARLEY LAPPIN (Cartier, Nicholas) (Entered: 06/01/2010)
15 Joint MOTION for Extension of Time to Respond to Plaintiffs' Complaint and For Entry of A Briefing Schedule by ERIC HOLDER (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 06/01/2010)
16 REPLY in support of 9 MOTION to Intervene filed by WILLIAM OSCAR HARRIS, REX RUSSELL DEAN LANDERS, DANIEL JOHN RILEY, RALPH WILLIAM TAYLOR. "Leave to file granted as a reply in support of the motion to intervene" by Judge Ricardo M. Urbina (jf) (Entered: 06/02/2010)
MINUTE ORDER granting 15 motion for extension of time. Upon consideration of the joint motion to extend the time for the defendants to respond to the plaintiffs' complaint, it is hereby ORDERED that the motion is GRANTED, and that the defendants shall respond to the plaintiffs' complaint no later than July 14, 2010. In the event the defendants file a motion to dismiss in lieu of an answer, the plaintiffs' opposition is due on or before August 25, 2010, and the defendants' reply is due on or before September 15, 2010. SO ORDERED. Signed

06/02/2010 07/01/2010 07/02/2010
07/02/2010 07/08/2010 07/19/2010 07/19/2010 07/21/2010 07/30/2010

by Judge Ricardo M. Urbina on 06/02/2010. (EN, ) Modified event title on 6/3/2010 (znmw, ). (Entered: 06/02/2010)
Set/Reset Deadlines: Defendants' Answer to the Complaint due by 7/14/2010. Plaintiffs' Opposition to Dispositive Motion due by 8/25/2010. Defendants' Reply to Opposition to Dispositive Motion due by 9/15/2010. (tg, ) (Entered: 06/02/2010)
17 Unopposed MOTION for Extension of Time to File Answer Or Motion to Dismiss by FEDERAL BUREAU OF PRISONS (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 07/01/2010)
MINUTE ORDER granting 17 motion for extension of time. Upon consideration of the defendants' second unopposed motion for an extension of time to respond to the plaintiffs' complaint, it is hereby ORDERED that the motion is GRANTED, and that the defendants shall respond to the plaintiffs' complaint no later than July 21, 2010. In the event the defendants file a motion to dismiss in lieu of an answer, the plaintiffs' opposition is due on or before September 8, 2010, and the defendants' reply is due on or before September 29, 2010. SO ORDERED. Signed by Judge Ricardo M. Urbina on 07/02/2010. (EN, ) (Entered: 07/02/2010)
Set/Reset Deadlines: Defendants' Answer to the Complaint due no later than 7/21/2010. Plaintiffs' Opposition to Dispositive Motions due by 9/8/2010. Defendants' Reply to Oppositions to Dispositive Motions due by 9/29/2010. (tg, ) (Entered: 07/02/2010)
Leave to File Denied by Judge Urbina. Judicial Notice filed non-party Oscaro El Hari. (jf, ) (Entered: 07/08/2010)
18 ENTERED IN ERROR.....RULE 26a1 STATEMENT by WILLIAM OSCAR HARRIS. (jf, ) Modified on 8/2/2010 to include filer and enter in error (dr). (Entered: 07/20/2010)
20 ENTERED IN ERROR.....RULE 26a1 STATEMENT by WILLIAM OSCAR HARRIS. (jf, ) Modified on 7/30/2010 to include filer and enter in error (dr). (Entered: 07/30/2010)
19 MOTION to Dismiss Complaint by ERIC HOLDER (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 07/21/2010)
NOTICE OF CORRECTED DOCKET ENTRY: re 18 Rule 26a1 Statement , and re 20 Rule 26a1 Statement were entered in error because they were filed prematurely. The Motion to intervene is still pending. Intervenors cannot file documents with the court until Motion

08/27/2010 09/07/2010
09/07/2010 09/07/2010 09/08/2010 09/23/2010 09/28/2010 09/28/2010

to intervene has been granted. (dr) Modified on 8/2/2010 to add additional link (dr). (Entered: 07/30/2010)
21 MOTION for Leave to File Excess Pages in Opposition to Defendants' Motion to Dismiss by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY (Agathocleous, Alexis) (Entered: 08/27/2010)
MINUTE ORDER granting 21 motion for leave to file excess pages. Upon consideration of the plaintiffs' motion for leave to file an opposition in excess of 45 pages, it is hereby ORDERED that the motion is GRANTED and the plaintiffs' opposition shall not exceed 70 pages. Furthermore, counsel is reminded that compliance with both the Federal Rules of Civil Procedure, this court's standing order and the Local Rules is mandatory, including Local Civil Rule 7(c). Signed by Judge Ricardo M. Urbina on 09/07/2010. (EN, ) (Entered: 09/07/2010)
22 ENTERED IN ERROR.....MOTION for Order to compel service by DANIEL JOHN RILEY (td, ) Modified on 9/9/2010 (td, ). (Entered: 09/08/2010)
NOTICE OF CORRECTED DOCKET ENTRY: 22 was entered in error and returned to movant Daniel John Riley. Motion has been terminated because document no. 9 motion to intervene is currently pending.(td, ) Modified on 9/9/2010 (td, ). (Entered: 09/09/2010)
23 Memorandum in opposition to re 19 MOTION to Dismiss Complaint filed by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY. (Attachments: # 1 Proposed Order)(Meeropol, Rachel) (Entered: 09/08/2010)
24 MOTION for Extension of Time to File Response/Reply by ERIC HOLDER (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 09/23/2010)
25 NOTICE Of Pending Motion For Extension Of Time To File Defendants' Reply Brief by ERIC HOLDER (Cartier, Nicholas) (Entered: 09/28/2010)
MINUTE ORDER granting 24 motion for extension of time to file response/reply. Upon consideration of the defendants' motion to extend the time to file their reply brief, it is hereby ORDERED that the defendants' motion is GRANTED, and that the defendants shall file their reply no later than October 15, 2010. SO ORDERED. Signed by Judge Ricardo M. Urbina on 09/28/10. (EN, ) (Entered: 09/28/2010)

09/29/2010 10/14/2010 10/15/2010 11/01/2010 11/02/2010
11/02/2010
11/02/2010 11/09/2010 11/23/2010

Set/Reset Deadlines: Defendants' Reply due by 10/15/2010. (tg, ) (Entered: 09/29/2010)
26 Unopposed MOTION for Leave to File Excess Pages for Reply Brief by ERIC HOLDER (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 10/14/2010)
27 REPLY to opposition to motion re 19 MOTION to Dismiss Complaint filed by ERIC HOLDER. (Cartier, Nicholas) (Entered: 10/15/2010)
28 Joint MOTION for Order For Briefing Schedule On Question of Mootness and Joint Notice of Change In Certain Plaintiffs' Confinement Status by ERIC HOLDER (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 11/01/2010)
MINUTE ORDER granting 26 motion for leave to file excess pages. Upon consideration of the defendants' unopposed motion to extend the page limit for their reply brief, it is hereby ORDERED that the motion is GRANTED and that defendants' reply brief shall not exceed forty pages. SO ORDERED. Signed by Judge Ricardo M. Urbina on 11/02/10 nunc pro tunc 10/15/10. (EN, ) (Entered: 11/02/2010)
MINUTE ORDER granting 28 motion for briefing schedule. Upon consideration of the parties' joint motion to set a briefing schedule on the defendants' supplemental motion to dismiss, it is hereby ORDERED that the motion is GRANTED; and it is FURTHER ORDERED that the defendants' shall file their supplemental motion to dismiss on or before November 9, 2010, the plaintiffs' shall file their opposition on or before November 23 2010, and the defendants' shall file their reply on or before December 3, 2010. SO ORDERED. Signed by Judge Ricardo M. Urbina on 11/02/10. (EN, ) (Entered: 11/02/2010)
Set/Reset Deadlines: Defendants' Supplemental Motion to Dismiss due by 11/9/2010. Plaintiffs' Opposition due by 11/23/2010. Defendants' Reply to the Opposition due by 12/3/2010. (tg, ) (Entered: 11/02/2010)
29 Supplemental MOTION to Dismiss on Mootness Grounds by ERIC HOLDER (Attachments: # 1 Exhibit Milt Neuman Declaration, # 2 Exhibit Cory Shepherd Declaration, # 3 Text of Proposed Order)(Cartier, Nicholas) (Entered: 11/09/2010)
30 Memorandum in opposition to re 29 Supplemental MOTION to Dismiss on Mootness Grounds filed by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY.

12/03/2010 02/03/2011 02/03/2011 02/07/2011 02/08/2011 02/08/2011 02/25/2011
03/04/2011

(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order)(Agathocleous, Alexis) (Entered: 11/23/2010)
31 REPLY to opposition to motion re 29 Supplemental MOTION to Dismiss on Mootness Grounds filed by ERIC HOLDER. (Cartier, Nicholas) (Entered: 12/03/2010)
Leave to File Denied by Judge Ricardo M. Urbina. Duty to disclose stipulation in lieu of discovery by Oscar El Hari, Bey. (jf, ) (Entered: 02/03/2011)
Leave to File Denied by Judge Ricardo M. Urbina. Affidavit in support of the order confirming intervention by Oscar El Hari, Bey. (jf, ) (Entered: 02/03/2011)
32 ENTERED IN ERROR.....NOTICE of one Plaintiff's change in status by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY (Meeropol, Rachel) Modified on 2/8/2011 (znmw, ). (Entered: 02/07/2011)
NOTICE OF ERROR re 32 Notice (Other); emailed to rachelm@ccrjustice.org, cc'd 6 associated attorneys -- The PDF file you docketed contained errors: 1. Please refile document, 2. Entered in error; Incorrect format; please refile in accordance with Local Rule 5.1. (znmw, ) (Entered: 02/08/2011)
33 NOTICE Regarding Change in Status of One Plaintiff by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY (Agathocleous, Alexis) (Entered: 02/08/2011)
34 NOTICE re 29 Motion to Dismiss Regarding Daniel McGowan's Redesignation To A Communications Management Unit by ERIC HOLDER, D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN (Attachments: # 1 Declaration)(Cartier, Nicholas) Modified to add link and filers on 2/28/2011 (znmw, ). (Entered: 02/25/2011)
35 NOTICE re 34 in Response to Defendants' February 25, 2011 Notice and Application for a Conference with the Court by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY (Agathocleous, Alexis) Modified to add link on 3/7/2011 (znmw, ). (Entered: 03/04/2011)

03/30/2011 03/30/2011 04/07/2011 04/08/2011 04/08/2011
04/08/2011 04/20/2011 05/13/2011 05/18/2011

36 ORDER granting in part and denying in part 19 the defendants' motion to dismiss; granting 29 the defendants' supplemental motion for partial dismissal; denying 9 the motion to intervene. Signed by Judge Ricardo M. Urbina on 03/30/11. (EN, ) (Entered: 03/30/2011)
37 MEMORANDUM OPINION granting in part and denying in part 19 the defendants' motion to dismiss; granting 29 the defendants' supplemental motion for partial dismissal; denying 9 the motion to intervene. Signed by Judge Ricardo M. Urbina on 03/30/11. (EN, ) (Entered: 03/30/2011)
38 MOTION for Extension of Time to File Answer by ERIC HOLDER, D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN. (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) Modified to add filers on 4/8/2011 (znmw, ). (Entered: 04/07/2011)
NOTICE OF ERROR re 38 Motion for Extension of Time to File Answer; emailed to nicholas.cartier@usdoj.gov, cc'd 5 associated attorneys -- The PDF file you docketed contained errors: 1. Counsel is reminded to select all parties represented in the motion/document in future. (znmw, ) (Entered: 04/08/2011)
MINUTE ORDER granting 38 motion for extension of time to answer. Upon consideration of the defendants' motion to extend the time to respond to the plaintiffs' complaint, it is hereby ORDERED that the defendants' motion is GRANTED, and that the defendants shall respond to the complaint no later than May 13, 2011. SO ORDERED. Signed by Judge Ricardo M. Urbina on 04/08/11. (EN, ) (Entered: 04/08/2011)
Set/Reset Deadlines: Answer to the complaint due by 5/13/2011. (tg, ) (Entered: 04/08/2011)
39 NOTICE Regarding Yassin Aref's Transfer to General Population by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY (Agathocleous, Alexis) (Entered: 04/20/2011)
40 Unopposed MOTION for Extension of Time to File Answer re 5 Complaint, by ERIC HOLDER (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 05/13/2011)
41 ANSWER to 5 Complaint, by ERIC HOLDER, THOMAS R. KANE, CHARLES E. SAMUELS, JR., FEDERAL BUREAU OF PRISONS.(Cartier, Nicholas) Modified to add filers on 5/19/2011 (znmw, ). (Entered: 05/18/2011)

05/19/2011 05/19/2011 05/19/2011 06/23/2011
06/24/2011
06/24/2011 06/24/2011 08/08/2011 08/15/2011 08/17/2011

NOTICE OF ERROR re 41 Answer to Complaint; emailed to nicholas.cartier@usdoj.gov, cc'd 5 associated attorneys -- The PDF file you docketed contained errors: 1. Please select all filers/defendants in future. (znmw, ) (Entered: 05/19/2011)
MINUTE ORDER granting 40 the defendants' unopposed motion for an extension of time to file an answer. SO ORDERED. Nunc pro tunc to 05/18/2011. Signed by Judge Ricardo M. Urbina on 05/19/2011. (EN, ) (Entered: 05/19/2011)
42 STANDING ORDER signed by Judge Ricardo M. Urbina on 5/19/2011. Read the Standing Order carefully, it will govern this case. Failure to follow the Standing Order will result in sanctions. (tg, ) (Entered: 05/19/2011)
43 Unopposed MOTION for Order Setting Initial Status Conference by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN (Attachments: # 1 Proposed Order)(Meeropol, Rachel) (Entered: 06/23/2011)
MINUTE ORDER granting 43 motion for order. Upon consideration of the record in this case and the plaintiff's unopposed motion for a scheduling conference, it is hereby ORDERED that the motion is GRANTED and an initial scheduling conference is scheduled for August 15, 2011 at 2:00 p.m. SO ORDERED. Signed by Judge Ricardo M. Urbina on 06/24/11. (EN, ) (Entered: 06/24/2011)
Set/Reset Hearings: Initial Status Hearing scheduled for 8/15/2011 at 2:00 PM in Courtroom 30, Annex Building, Sixth Floor, before Judge Ricardo M. Urbina. (tg, ) (Entered: 06/24/2011)
44 NOTICE of Appearance by Nathan Michael Swinton on behalf of All Defendants (Swinton, Nathan) (Entered: 06/24/2011)
45 MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order Plaintiffs' Proposed Order, # 2 Text of Proposed Order DOJ Proposed Order)(Meeropol, Rachel) (Entered: 08/08/2011)
Minute Entry for proceedings held before Judge Ricardo M. Urbina: Initial Status Hearing held on 8/15/2011. Scheduling Order forthcoming. (Court Reporter Bryan Wayne) (tg, ) (Entered: 08/15/2011)
46 SCHEDULING ORDER signed by Judge Ricardo M. Urbina on 8/16/2011. Summary judgment motion (10 pages) with respect to whether plaintiff Daniel McGowan failed to exhaust his administrative

09/09/2011 09/14/2011 09/14/2011 09/28/2011

remedies due by 9/9/2011; opposition (10 pages) to motion for summary judgment due by 9/28/2011; reply (5 pages) to opposition to Motion for Summary Judgment due by 10/7/2011. Rule 26 (a) Initial disclosures due 8/29/2011. Initial discovery requests due 9/9/2011. Motions to amend pleadings or join parties due 9/15/2011; Oppositions to motions to amend pleadings or join parties due 9/30/2011; replies to oppositions to motions to amend pleadings or join parties due 10/7/2011. Discovery responses due 11/8/2011. Proponent's Rule 26(a)(2)(B) statement due by 6/15/2012; opponent's Rule 26(a)(2)(B) Rule statement due by 7/15/2012. Completion of fact discovery due by 7/30/2012; expert discovery due by 10/31/2012. Request for admissions due by 7/30/2012. Dispositive motions due by 12/31/2012; oppositions to dispositive motions due by 2/15/2013; replies to oppositions to dispositive motions due by 3/2/2013. An Interim Status Hearing is scheduled for 11/8/2012 at 11:30 AM in Courtroom 30, Annex Building, Sixth Floor, before Judge Ricardo M. Urbina. (tg, ) (Entered: 08/17/2011)
47 MOTION for Summary Judgment regarding Daniel McGowan's retaliation claim for failure to exhaust administrative remedies by ERIC HOLDER, FEDERAL BUREAU OF PRISONS, THOMAS R. KANE, CHARLES E. SAMUELS, JR. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Ex. 1, # 3 Exhibit Ex. 2)(Cartier, Nicholas) Modified to add filers on 9/12/2011 (znmw, ). (Entered: 09/09/2011)
48 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Gregory Silbert, :Firm- Weil, Gotshal & Manges, LLP, :Address- 767 Fifth Avenue, New York, NY 10153. Phone No. - (212) 310-8846. Fax No. (212) 310-8007 by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY (Kadidal, Shayana) (Entered: 09/14/2011)
49 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Kavita Christina Desai, :Firm- Weil, Gotshal & Manges, LLP, :Address- 767 Fifth Avenue, New York, NY 10153. Phone No. - (212) 310-8587. Fax No. - (212) 310-8007 by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY (Kadidal, Shayana) (Entered: 09/14/2011)
50 Memorandum in opposition to re 47 MOTION for Summary Judgment regarding Daniel McGowan's retaliation claim for failure to exhaust administrative remedies filed by ALL PLAINTIFFS. (Attachments: # 1 Statement of Facts in Dispute, # 2 Exhibit, # 3 Text

09/29/2011 10/07/2011 10/11/2011 10/20/2011 10/20/2011
11/08/2011 11/08/2011

of Proposed Order)(Agathocleous, Alexis) Modified filers on 9/29/2011 (znmw, ). (Entered: 09/28/2011)
NOTICE OF ERROR re 50 Memorandum in Opposition; emailed to aagathocleous@ccrjustice.org, cc'd 7 associated attorneys -- The PDF file you docketed contained errors: 1. Select all filers/plaintiffs in future. (znmw, ) (Entered: 09/29/2011)
51 REPLY to opposition to motion re 47 MOTION for Summary Judgment regarding Daniel McGowan's retaliation claim for failure to exhaust administrative remedies filed by ERIC HOLDER, FEDERAL BUREAU OF PRISONS, THOMAS R. KANE, CHARLES E. SAMUELS, JR. (Cartier, Nicholas) Modified to add filers on 10/11/2011 (znmw, ). (Entered: 10/07/2011)
NOTICE OF ERROR re 51 Reply to opposition to Motion; emailed to nicholas.cartier@usdoj.gov, cc'd 7 associated attorneys -- The PDF file you docketed contained errors: 1. Select all filers/defendants in future (znmw, ) Modified text on 10/11/2011 (znmw, ). (Entered: 10/11/2011)
52 MOTION to Withdraw as Attorney and to File Supporting Declaration Under Seal by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Meeropol, Rachel). Added MOTION to Seal Document on 10/21/2011 (znmw, ). (Entered: 10/20/2011)
53 NOTICE of Filing Under Seal by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY re 52 MOTION to Withdraw as Attorney and to File Supporting Declaration Under Seal (Meeropol, Rachel) (Additional attachment(s) added on 10/24/2011: # 1 Declaration (Sealed), # 2 Exhibit to the Declaration (Sealed) various pages are illegible) (jf, ). (Entered: 10/20/2011)
54 REPLY re 52 MOTION to Withdraw as Attorney and to File Supporting Declaration Under Seal MOTION to Seal Document filed by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, DANIEL MCGOWAN, JENNY SYNAN. (Agathocleous, Alexis) (Entered: 11/08/2011)
55 TRANSCRIPT OF PROCEEDINGS before Judge Ricardo M. Urbina held on 8/15/11; Page Numbers: 1 - 19. Date of Issuance:11/7/11. Court Reporter/Transcriber Bryan A. Wayne, Telephone number 202-3543186, Court Reporter Email Address : bryanawayne@verizon.net.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal

11/09/2011 11/09/2011 12/19/2011 01/24/2012 01/26/2012 01/26/2012
01/26/2012

or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 11/29/2011. Redacted Transcript Deadline set for 12/9/2011. Release of Transcript Restriction set for 2/6/2012.(Wayne, Bryan) (Entered: 11/08/2011)
56 NOTICE of Filing Under Seal by ROYAL JONES. "Let this be filed" signed by Judge Ricardo M. Urbina on 11/07/2011 (jf, ) (Entered: 11/09/2011)
57 MOTION to Appoint Counsel, MOTION petitioner concerns by ROYAL JONES. (FILED UNDER SEAL) "Let this be filed" signed by Judge Ricardo M. Urbina on 11/07/2011 (jf, ) (jf, ). (Entered: 11/09/2011)
58 Joint MOTION for Protective Order by ERIC HOLDER (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 12/19/2011)
59 Unopposed MOTION Assign Magistrate Judge for Discovery Matters by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, DANIEL MCGOWAN, JENNY SYNAN (Attachments: # 1 Text of Proposed Order)(Meeropol, Rachel) (Entered: 01/24/2012)
60 ORDER granting 48 Motion for Leave to Appear Pro Hac Vice ; granting 49 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Ricardo M. Urbina on 1/26/2012. (tg, ) (Entered: 01/26/2012)
61 ORDER granting motion to file under seal the Agathocleous Declaration related to 52 MOTION to Withdraw as Attorney and to File Supporting Declaration Under Seal. Signed by Judge Ricardo M. Urbina on 1/26/2012. (tg, ) (NOTE: Sealed declaration filed under docket number 53 ). Modified to add linkage on 1/26/2012 (tg, ). (Entered: 01/26/2012)
62 PROTECTIVE ORDER setting forth procedures for handling confidential material; allowing designated material to be filed under seal. Signed by Judge Ricardo M. Urbina on 1/26/2012. (tg, ) (Entered: 01/26/2012)

04/20/2012 05/07/2012 05/22/2012 06/01/2012
06/01/2012 06/01/2012 06/14/2012 06/22/2012

Case randomly reassigned to Judge Richard W. Roberts. Judge Ricardo M. Urbina no longer assigned to the case. (gt, ) (Entered: 04/20/2012)
63 STATUS REPORT Joint Status Update by FEDERAL BUREAU OF PRISONS. (Cartier, Nicholas) (Entered: 05/07/2012)
64 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Andrey Spektor, :Firm- Weil, Gotshal & Manges LLP, :Address- 767 Fifth Ave., New York, NY 10153. Phone No. - (212) 310-8950. Fax No. (212) 310-8007 by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY (Kadidal, Shayana) (Entered: 05/22/2012)
65 MOTION to Compel Defendants To Remove Redactions, Produce Documents, and to File an Exhibit to a Supporting Declaration Under Seal by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY (Attachments: # 1 Memorandum in Support, # 2 Notice of Filing Under Seal, # 3 Declaration, # 4 Certificate of Service, # 5 Text of Proposed Order)(Agathocleous, Alexis). Added MOTION to Seal Document on 6/4/2012 (znmw, ). (Entered: 06/01/2012)
66 NOTICE of Filing Documents Under Seal, by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY re 65 MOTION to Compel Defendants To Remove Redactions, Produce Documents, and to File an Exhibit to a Supporting Declaration Under Seal (dr) (Entered: 06/04/2012)
67 SEALED Exhibit, re 66 Notice (Other), filed by DANIEL MCGOWAN, AVON TWITTY, HEDAYA JAYYOUSI, ROYAL JONES, YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI, JENNY SYNAN. (This document is SEALED and only available to authorized persons.)(zdr) (Entered: 06/04/2012)
68 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion to Compel by FEDERAL BUREAU OF PRISONS (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) . (Entered: 06/14/2012)
69 Memorandum in opposition to re 65 MOTION to Compel Defendants To Remove Redactions, Produce Documents, and to File an Exhibit to a Supporting Declaration Under Seal MOTION to Seal Document filed by FEDERAL BUREAU OF PRISONS. (Attachments: # 1 Exhibit Smith Declaration, # 2 Exhibit Clancy Declaration, # 3 Exhibit Swinton

07/03/2012 07/03/2012 07/05/2012
07/05/2012 07/05/2012 07/09/2012 07/12/2012 07/16/2012 07/16/2012

Declaration, # 4 Text of Proposed Order)(Cartier, Nicholas) (Entered: 06/22/2012)
MINUTE ORDER: It is hereby ORDERED that that plaintiffs' unopposed motion 59 to refer all discovery disputes to a magistrate judge be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 7/3/12. (lcrwr2) (Entered: 07/03/2012)
MINUTE ORDER: It is hereby ORDERED that the defendants' unopposed motion 68 for an extension of time in which to respond to the plaintiffs' motion to compel be, and hereby is, GRANTED as unopposed nunc pro tunc. Signed by Judge Richard W. Roberts on 7/3/12. (lcrwr2) (Entered: 07/03/2012)
70 REPLY to opposition to motion re 65 MOTION to Compel Defendants To Remove Redactions, Produce Documents, and to File an Exhibit to a Supporting Declaration Under Seal MOTION to Seal Document filed by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY. (Attachments: # 1 Exhibit)(Agathocleous, Alexis) (Entered: 07/05/2012)
MINUTE ORDER: It is hereby ORDERED that the motion 64 by plaintiffs Aref, et al. to admit Attorney Spektor pro hac vice be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 7/5/12. (lcrwr2) (Entered: 07/05/2012)
72 CASE REFERRED to Magistrate Judge Deborah A. Robinson for resolution of Motion 65 . (kb) (Entered: 07/10/2012)
71 MOTION for Leave to File Surreply by D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC HIMPTON HOLDER, JR, THOMAS R. KANE, HARLEY G. LAPPIN, CHARLES E. SAMUELS, JR (Swinton, Nathan) (Entered: 07/09/2012)
Hearing on [Document No. 65] Motion to Compel set for Thursday, 7/26/2012 @ 03:00 PM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (EW) (Entered: 07/12/2012)
73 Consent MOTION to Continue Hearing on Plaintiffs' Motion to Compel by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY (Attachments: # 1 Text of Proposed Order)(Agathocleous, Alexis) (Entered: 07/16/2012)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 7/16/12 granting 73 Motion to Continue; Motion Hearing reset for

07/24/2012
08/22/2012 08/22/2012 09/05/2012
09/24/2012 09/27/2012 09/29/2012

Wednesday, 8/22/2012 @ 10:00 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (EW) (Entered: 07/16/2012)
74 WITHDRAWN PURSUANT TO DOCUMENT NO. 79 and 84 .....Joint MOTION for Scheduling Order Motion to Amend Scheduling Order by ERIC HIMPTON HOLDER, JR (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) Modified on 10/19/2012 (jf, ). Modified on 11/13/2012 to add link (dr). (Entered: 07/24/2012)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 8/22/12 denying as moot 71 Motion for Leave to File. (EW) (Entered: 08/22/2012)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Status hearing and argument for Motion re 65 conducted: Motion taken under advisement (Court Reporter Bowles Reporting.) (lm) (Entered: 08/22/2012)
75 MOTION for Leave to File First Amended Complaint by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY (Attachments: # 1 Memorandum in Support, # 2 Exhibit A Proposed First Amended Complaint, # 3 Exhibit B, # 4 Text of Proposed Order)(Agathocleous, Alexis) (Entered: 09/05/2012)
76 Memorandum in opposition to re 75 MOTION for Leave to File First Amended Complaint filed by ERIC HIMPTON HOLDER, JR. (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 09/24/2012)
77 NOTICE of Appearance by Eileen Hren Citron on behalf of YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, ROYAL JONES, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY (Citron, Eileen) (Entered: 09/27/2012)
MINUTE ORDER: It is hereby ORDERED that the unopposed motion 52 for all current counsel for plaintiff Royal Jones to withdraw as his counsel and to seal the Declaration of Alexis Agathocleous be, and hereby is, GRANTED. The Clerk is directed to file under seal the Declaration of Alexis Agathocleous 53 . It is further ORDERED that the motion 57 of plaintiff Royal Jones for the appointment of counsel be, and hereby is, GRANTED. The Clerk is directed to arrange for the appointment of counsel from the Civil Pro Bono panel to represent plaintiff Royal Jones. Signed by Judge Richard W. Roberts on 9/29/12. (lcrwr2) (Entered: 09/29/2012)

10/01/2012 10/05/2012
10/18/2012 10/23/2012 10/23/2012 11/05/2012 11/08/2012 11/09/2012 11/09/2012

78 REPLY to opposition to motion re 75 MOTION for Leave to File First Amended Complaint filed by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY. (Agathocleous, Alexis) (Entered: 10/01/2012)
MINUTE ORDER: The Court erroneously granted plaintiff Royal Jones's motion 57 to appoint counsel and directed the Clerk to appoint counsel from the Civil Pro Bono Panel. Such an appointment may be made only for a litigant who has been granted leave to proceed in forma pauperis. Local Civil Rule 83.11(b)(3). Therefore, it is hereby ORDERED that the Minute Order entered on 9/29/12 be, and hereby is, VACATED IN PART. The motion to appoint counsel is DENIED WITHOUT PREJUDICE to refiling when and if plaintiff Jones applies for and receives permission to proceed in forma pauperis. Signed by Judge Richard W. Roberts on 10/5/12. (lcrwr2) (Entered: 10/05/2012)
79 NOTICE OF WITHDRAWAL OF MOTION by ERIC HIMPTON HOLDER, JR re 74 Joint MOTION for Scheduling Order Motion to Amend Scheduling Order (Cartier, Nicholas) (Entered: 10/18/2012)
80 RESPONSE re 79 Notice of Withdrawal of Motion filed by YASSIN MUHIDDIN AREF, HEDAYA JAYYOUSI, KIFAH JAYYOUSI, DANIEL MCGOWAN, JENNY SYNAN, AVON TWITTY. (Agathocleous, Alexis) (Entered: 10/23/2012)
81 NOTICE of Defendants' Intent to File Opposition to Plaintiffs' Request to Amend Current Scheduling Order by ERIC HIMPTON HOLDER, JR re 80 Response to Document (Cartier, Nicholas) (Entered: 10/23/2012)
82 Case reassigned to Judge Barbara Jacobs Rothstein. Judge Richard W. Roberts no longer assigned to the case. (ds) (Entered: 11/05/2012)
83 STANDING ORDER. Signed by Judge Barbara Jacobs Rothstein on 11/08/12.(lcbjr2) (Entered: 11/08/2012)
84 Joint MOTION for Order to Amend Current Scheduling Order by ERIC HIMPTON HOLDER, JR (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 11/09/2012)
NOTICE OF WITHDRAWAL OF MOTION re 74 Joint MOTION for Scheduling Order Motion to Amend Scheduling Order by ERIC HIMPTON HOLDER, JR (See Docket Entry 84 to view document). (dr) (Entered: 11/13/2012)

11/20/2012
11/20/2012 11/20/2012 11/21/2012 11/26/2012 11/30/2012 12/03/2012
12/03/2012 12/04/2012

85 ORDER granting 75 Motion for Leave to File First Amended Complaint; denying as moot 84 Joint Motion to Amend the Current Scheduling Order. Defendants' response to the Amended Complaint is due January 18, 2013. Parties are ORDERED to meet and confer within two weeks of this Order. Signed by Judge Barbara Jacobs Rothstein on 11/20/2012. (lcbjr1) Modified on 11/20/2012 to correct the date in the entry (tth). (Main Document 85 replaced on 11/20/2012) (tth). (Entered: 11/20/2012)
Set/Reset Deadlines: response to Amended Complaint due by 1/18/2013. (tth) (Entered: 11/20/2012)
86 AMENDED COMPLAINT against D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC HIMPTON HOLDER, JR, CHARLES E. SAMUELS, JR, LESLIE SMITH filed by ROYAL JONES, YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI, DANIEL MCGOWAN.(rdj) (Entered: 11/21/2012)
AMENDED Summons Issued (1) as to LESLIE SMITH. (mmh) (Entered: 11/21/2012)
87 MEMORANDUM OPINION AND ORDER granting in part and denying in part 65 Motion to Compel Defendants to Remove Redactions, Produce Documents, and to File an Exhibit to a Supporting Declaration Under Seal. Signed by Magistrate Judge Deborah A. Robinson on 11/26/12. (lcdar1) (Entered: 11/26/2012)
AMENDED SUMMONS Issued (3) as to LESLIE SMITH, U.S. Attorney and U.S. Attorney General (mmh) (Entered: 11/30/2012)
88 NOTICE OF FILING REDACTED DOCUMENT to 86 Amended Complaint by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI, DANIEL MCGOWAN (The original PDF Document contained privacy information and was restricted pursuant to the E-Government Act.) (Attachments: # 1 Redacted First Amended Complaint)(Meeropol, Rachel) (Entered: 12/03/2012)
89 Unopposed MOTION for Extension of Time to Complete the Production of Non-Privileged Portions of Certain Non-Party Materials by ERIC HIMPTON HOLDER, JR (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 12/03/2012)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 12/4/12 granting 89 Defendants' Unopposed Motion to Extend the Time to Conduct a Privilege Review and to Produce Non-Privileged Portions of Certain Non-Plaintiff Documents. Defendants shall complete

12/04/2012 12/05/2012 12/07/2012 12/14/2012
12/14/2012 12/14/2012 12/18/2012 01/02/2013 01/14/2013
01/25/2013

production of the materials in question by no later than February 15, 2013. (lcdar1) (Entered: 12/04/2012)
90 NOTICE of Compliance with Court's November 26, 2012 Order by ERIC HIMPTON HOLDER, JR (Attachments: # 1 Exhibit Clancy Declaration, # 2 Exhibit Schiavone Declaration)(Cartier, Nicholas) (Entered: 12/04/2012)
Set/Reset Deadlines: Defendants to complete production of the materials in question by no later than 2/15/2013. (zmm, ) (Entered: 12/05/2012)
91 STATUS REPORT (Joint) by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI, DANIEL MCGOWAN. (Agathocleous, Alexis) (Entered: 12/07/2012)
92 ORDER re 87 Memorandum Opinion and Order, 90 Notice of Compliance with the Court's Order, 65 Motion to Compel Defendants to Remove Redactions, Produce Documents, and to File an Exhibit to a Supporting Declaration Under Seal. Signed by Magistrate Judge Deborah A. Robinson on 12/14/2012. (lcdar1) (Entered: 12/14/2012)
93 NOTICE of Appearance by Timothy Andrew Johnson on behalf of All Defendants (Johnson, Timothy) (Entered: 12/14/2012)
94 Joint MOTION for Scheduling Order by ERIC HIMPTON HOLDER, JR (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 12/14/2012)
95 ORDER granting 94 Joint Motion for Scheduling Order. Signed by Judge Barbara Jacobs Rothstein on 12/18/12.(lcbjr2) (Entered: 12/18/2012)
96 STIPULATION Regarding Service of Process by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI, DANIEL MCGOWAN. (Agathocleous, Alexis) (Entered: 01/02/2013)
Set/Reset Deadlines: response to Amended Complaint due by 2/5/2013; Opposition to Motions to Dismiss due by 3/12/2013. Reply to Dispositive Motions due by 4/2/2013. Expert discovery closes by 10/2/2013. Motion for Summary Judgement due by 12/2/2013. Response due by 1/13/2014. Replies due by 2/3/2014. (tth) (Entered: 01/14/2013)
97 Unopposed MOTION for Extension of Time to Respond to Amended Complaint and File Motion to Dismiss by ERIC HIMPTON HOLDER,

JR (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 01/25/2013)

01/29/2013

MINUTE ORDER granting 97 Defendant's Motion for Extension of Time to Respond to Plaintiff's Amended Complaint. Defendant's response is due 2/12/13; Plaintiff's opposition is due 3/19/13; and Defendant's reply is due 4/9/13. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 1/29/13.(lcbjr2) (Entered: 01/29/2013)

01/30/2013

Set/Reset Deadlines: Defendant's response due by 2/12/2013, Plaintiff's opposition due by 3/19/2013; Defendant's reply due by 4/9/2013. (tth) (Entered: 01/30/2013)

02/11/2013

98 Unopposed MOTION for Leave to File Excess Pages by D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC HIMPTON HOLDER, JR, CHARLES E. SAMUELS, JR, LESLIE SMITH (Attachments: # 1 Text of Proposed Order)(Johnson, Timothy) (Entered: 02/11/2013)

02/12/2013

MINUTE ORDER granting 98 Defendants' Motion for Leave to File Excess Pages. Defendants' Motion to Dismiss and the Plaintiffs' Opposition thereto shall not exceed forty pages. Any reply shall be limited to 25 pages. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 2/12/13.(lcbjr2) (Entered: 02/12/2013)

02/12/2013

99 MOTION to Dismiss by ERIC HIMPTON HOLDER, JR, LESLIE SMITH, CHARLES E. SAMUELS, JR., FEDERAL BUREAU OF PRISONS, D. SCOTT DODRILL (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Text of Proposed Order)(Cartier, Nicholas) Modified filers on 5/17/2013 (znmw, ). (Entered: 02/12/2013)

02/13/2013

100 ORDER setting deadline for Plaintiff Jones' in forma pauperis application or notice of proceeding pro se. Signed by Judge Barbara Jacobs Rothstein on 2/13/13.(lcbjr2) (Main Document 100 replaced on 2/14/2013) (tth). Modified on 2/14/2013 to correct date(s) in the order (tth). (Entered: 02/13/2013)

02/14/2013

Set/Reset Deadlines: application to proceed in forma pauperis or notice due by 3/1/2013. (tth) (Entered: 02/14/2013)

02/19/2013

101 ORDER denying 47 Defendants' Motion for Summary Judgment as to Plaintiff McGowan's 2008 Retaliation Claim. Signed by Judge Barbara Jacobs Rothstein on 2/19/13.(lcbjr2) (Entered: 02/19/2013)

03/01/2013

MINUTE ORDER. The Court previously ordered Plaintiff Royal Jones to file an in forma pauperis application or notice of proceeding pro se

by March 1, 2013, or risk dismissal of his claims. Through telephonic representations, Royal Jones has asked for an extension, explaining that the order was sent to the wrong address. He represented that his current address is: Community Reentry Center, 10007 Landmark Lane Casper, WY 82644. It is hereby ORDERED that Plaintiff Jones' in forma pauperis application or notice of proceeding pro se will be due March 8, 2013. Failure to so file will result in dismissal of his claims. Plaintiff Jones is reminded that while he remains unrepresented by counsel, it is his obligation to alert this Court as to any changes in his address. See LCvR 11.1. FURTHERMORE, the Clerk shall take notice of Plaintiff Royal's correct address and send a copy of this Minute Order there. Signed by Judge Barbara Jacobs Rothstein on 3/1/13.(lcbjr2) (Entered: 03/01/2013)

03/05/2013

Set/Reset Deadline: application to proceed in forma pauperis or notice due by 3/8/2013. (tth) (Entered: 03/05/2013)

03/19/2013

102 Memorandum in opposition to re 99 MOTION to Dismiss filed by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI, DANIEL MCGOWAN. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Agathocleous, Alexis) (Entered: 03/19/2013)

03/29/2013 103 Joint MOTION for Extension of Time to Complete Discovery by ERIC HIMPTON HOLDER, JR (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 03/29/2013)

04/02/2013

MINUTE ORDER granting 103 Joint Motion for Extension of Time to Complete Discovery. The parties shall complete supplemental document productions and provide amended responses, if any, to pending written discovery requests by May 1, 2013. The parties shall also complete the taking of any fact depositions by October 2, 2013. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 4/2/13.(lcbjr2) (Entered: 04/02/2013)

04/03/2013

Set/Reset Deadline: written discovery request due by 5/1/2013. (tth) (Entered: 04/03/2013)

04/08/2013

104 Unopposed MOTION for Leave to File Excess Pages by D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC HIMPTON HOLDER, JR, CHARLES E. SAMUELS, JR, LESLIE SMITH (Attachments: # 1 Text of Proposed Order)(Johnson, Timothy) (Entered: 04/08/2013)

04/09/2013 105 REPLY to opposition to motion re 99 MOTION to Dismiss filed by D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC HIMPTON HOLDER, JR, CHARLES E. SAMUELS, JR, LESLIE

SMITH (Cartier, Nicholas) Modified filers on 5/17/2013 (znmw, ). (Entered: 04/09/2013)

04/11/2013

106 MOTION for Leave to File Surreply by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI, DANIEL MCGOWAN (Attachments: # 1 Exhibit A: Proposed Surreply with Exhibits, # 2 Text of Proposed Order)(Agathocleous, Alexis) (Entered: 04/11/2013)

04/11/2013

107 CERTIFICATE OF SERVICE by ERIC HIMPTON HOLDER, JR re 105 Reply to opposition to Motion to Dismiss. (Cartier, Nicholas) (Entered: 04/11/2013)

04/12/2013

MINUTE ORDER granting 104 Defendant's Unopposed Motion for Leave to File Excess Pages. Defendant's Reply shall not exceed 30 pages. Signed by Judge Barbara Jacobs Rothstein on 4/12/13.(lcbjr2) (Entered: 04/12/2013)

05/01/2013

108 Joint MOTION to Amend/Correct Scheduling Order by D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC HIMPTON HOLDER, JR, CHARLES E. SAMUELS, JR, LESLIE SMITH (Attachments: # 1 Text of Proposed Order)(Johnson, Timothy) (Entered: 05/01/2013)

05/01/2013 109 ORDER granting 108 Motion to Amend Scheduling Order. Signed by Judge Barbara Jacobs Rothstein on 05/1/2013.(lcbjr2) (Entered: 05/01/2013)

05/01/2013 110 ORDER dismissing Plaintiff Royal Jones' claims. Signed by Judge Barbara Jacobs Rothstein on 05/01/2013.(lcbjr2) (Entered: 05/01/2013)

05/02/2013

Set/Reset Deadlines: Discovery due by 11/4/2013; Dispositive Motions due by 1/15/2014; Response to Dispositive Motions due by 2/26/2014; Reply to Dispositive Motions due by 5/17/2014. (tth) (Entered: 05/02/2013)

05/16/2013

MINUTE ORDER granting 106 Plaintiff's Motion for Leave to File a Sur-reply. Any response by Defendants is due on May 23, 2013. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 5/16/13.(lcbjr2) (Entered: 05/16/2013)

05/16/2013

Set/Reset Deadlines: Response due by 5/23/2013 (tth) (Entered: 05/16/2013)

05/16/2013

111 SURREPLY to re 99 MOTION to Dismiss filed by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI, DANIEL MCGOWAN. (znmw, ) (Entered: 05/17/2013)

05/23/2013 112 SURREPLY to 111 Plaintiffs' Surreply filed by ERIC HIMPTON HOLDER, JR. (Attachments: # 1 Declaration)(Cartier, Nicholas) Modified to add link on 5/24/2013 (znmw, ). (Entered: 05/23/2013)

06/18/2013

113 NOTICE by Defendants Regarding Plaintiff Daniel McGowan's Release from BOP's Custody and Plaintiff Kifah Jayyousi's Release from a CMU by ERIC HIMPTON HOLDER, JR (Attachments: # 1 Declaration)(Cartier, Nicholas) (Entered: 06/18/2013)

07/12/2013

114 ORDER granting in part and denying in part 99 Motion to Dismiss. Signed by Judge Barbara Jacobs Rothstein on 7/12/2013. (lcbjr1) (Entered: 07/12/2013)

07/12/2013 115 MEMORANDUM OPINION re: 114 Order. Signed by Judge Barbara Jacobs Rothstein on 7/12/2013. (lcbjr1) (Entered: 07/12/2013)

08/09/2013

116 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Robyn Lewis, :Firm- Weil, Gotshal & Manges LLP, :Address- 767 Fifth Avenue, New York, NY 10153. Phone No. - 212 310-8291. Fax No. 212 310-8007 by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI, DANIEL MCGOWAN (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Citron, Eileen) (Entered: 08/09/2013)

08/09/2013

MINUTE ORDER granting 116 Attorney Robyn Lewis' Motion for Leave to Appear Pro Hac Vice. Signed by Judge Barbara Jacobs Rothstein on 8/9/13.(lcbjr2) (Entered: 08/09/2013)

08/19/2013

117 MOTION for Leave to Appear Pro Hac Vice :Attorney NameChauniqua Danielle Young, :Firm- Center for Constitutional Rights, :Address- 666 Broadway, 7th Floor, New York, NY 10012. Phone No. - 212 614-6483. Fax No. - 212 614-6499 by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI, DANIEL MCGOWAN (Attachments: # 1 Declaration of Chauniqua Danielle Young, # 2 Text of Proposed Order)(Citron, Eileen) (Entered: 08/19/2013)

08/20/2013

MINUTE ORDER granting 117 Motion for Leave to Allow Attorney Young to Appear Pro Hac Vice. Signed by Judge Barbara Jacobs Rothstein on 8/20/13.(lcbjr2) (Entered: 08/20/2013)

08/29/2013 118 Joint MOTION for Extension of Time to Complete Discovery by ERIC H. HOLDER, JR (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 08/29/2013)

09/04/2013 119 ORDER granting in part 118 Motion for Extension of Time to Complete Discovery. Signed by Judge Barbara Jacobs Rothstein on 9/4/13.(lcbjr2) (Entered: 09/04/2013)

09/05/2013

120 Consent MOTION for Reconsideration re 119 Order on Motion for Extension of Time to Complete Discovery by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI (Attachments: # 1 Text of Proposed Order)(Agathocleous, Alexis) (Entered: 09/05/2013)

09/05/2013

Set/Reset Deadlines: Discovery due by 12/4/2013. Dispositive Motions due by 2/17/2014. Response to Dispositive Motions due by 3/17/2014. Reply to Dispositive Motions due by 4/7/2014. (tth) (Entered: 09/05/2013)

09/05/2013

MINUTE ORDER granting 120 Plaintiffs' Unopposed Motion for Reconsideration of the Court's September 4, 2013 Scheduling order. The Court amends its September 4, 2013 Order as follows: Expert reports shall be served by 10/30/13; Rebuttal reports shall be served by 12/2/13; Expert discovery shall close by 12/31/13; Responses to request for admissions are due by 1/15/14. The remainder of the September 4, 2013 order remains in place. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 9/5/13.(lcbjr2) (Entered: 09/05/2013)

09/19/2013

121 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Lara Veblen, :Firm- Weil, Gotshal & Manges LLP, :Address- 767 Fifth Avenue, New York, NY 10153. Phone No. - 212 310 8967. Fax No. 212 310 8007 by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI, DANIEL MCGOWAN (Attachments: # 1 Declaration of Lara Veblen, # 2 Text of Proposed Order)(Citron, Eileen) (Entered: 09/19/2013)

09/24/2013

MINUTE ORDER granting 121 Plaintiffs' Motion for Leave to have Attorney Lara Veblen Appear Pro Hac Vice. Signed by Judge Barbara Jacobs Rothstein on 9/24/13.(lcbjr2) (Entered: 09/24/2013)

10/08/2013 122 MOTION to Stay Case During Lapse in Appropriations by ERIC H. HOLDER, JR (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 10/08/2013)

10/08/2013

MINUTE ORDER. Plaintiffs' opposition to the Government's motion to stay the case is due by 10/9/2013. Any reply is due by 10/10/2013. SO ORDERED. Signed by Judge Barbara J. Rothstein on 10/8/2013. (lcbjr2) (Entered: 10/08/2013)

10/08/2013

Set/Reset Deadlines/Hearings: Plaintiffs' response due by 10/9/2013. Reply due by 10/10/2013. (cdw) (Entered: 10/09/2013)

10/09/2013

123 Memorandum in opposition to re 122 MOTION to Stay Case During Lapse in Appropriations filed by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI. (Attachments: # 1 Text of Proposed Order)(Meeropol, Rachel) (Entered: 10/09/2013)

10/10/2013 124 REPLY to opposition to motion re 122 MOTION to Stay Case During Lapse in Appropriations filed by ERIC H. HOLDER, JR. (Cartier, Nicholas) (Entered: 10/10/2013)

10/15/2013 125 MOTION for Joinder, MOTION to Intervene by JEREMY PINSON (td, ) (Entered: 10/17/2013)

10/18/2013

126 MINUTE ORDER finding as moot 122 Defendant's Motion to Stay. The Court assumes that there was a minor delay in discovery due to the lapse in appropriations. If necessary, parties are to submit a joint proposed scheduling order with any modifications by October 23, 2013. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 10/18/13.(lcbjr2) (Entered: 10/18/2013)

10/21/2013

Set/Reset Deadline: joint proposed scheduling order with any modifications due by 10/23/2013. (tth) (Entered: 10/21/2013)

10/23/2013

127 Joint MOTION to Amend/Correct Scheduling Order by D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC H. HOLDER, JR, CHARLES E. SAMUELS, JR, LESLIE SMITH (Attachments: # 1 Text of Proposed Order)(Johnson, Timothy) (Entered: 10/23/2013)

10/24/2013

MINUTE ORDER granting 127 the Parties Joint Motion to Amend Scheduling Order. The current scheduling order is replaced and the following scheduling order is hereby entered: Fact depositions end 12/23/13; Plaintiffs expert reports due 11/11/13; Defendants expert and rebuttal reports due12/6/13; Plaintiffs rebuttal reports due 12/20/13; Expert discovery closes1/19/14; Requests for admission served by 12/23/13; Responses to requests for admissions exchanged by 2/3/14; Dispositive motions filed by 3/10/14; oppositions filed by 4/7/14; Replies filed by 4/28/14. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 10.24.13.(lcbjr2) (Entered: 10/24/2013)

10/25/2013

Set/Reset Deadlines: Expert Discovery closes: 1/19/2014. Dispositive Motions due by 3/10/2014. Response to Dispositive Motions due by 4/7/2014. Reply to Dispositive Motions due by 4/28/2014. (tth) (Entered: 10/25/2013)

10/29/2013 128 RESPONSE re 125 MOTION for Joinder MOTION to Intervene filed by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI. (Meeropol, Rachel) (Entered: 10/29/2013)

12/23/2013 129 Joint MOTION for Order to amend deadline for close of fact discovery by ERIC H. HOLDER, JR (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 12/23/2013)

01/09/2014 130 Joint MOTION for Order to Amend Scheduling Order by ERIC H. HOLDER, JR (Cartier, Nicholas) (Entered: 01/09/2014)

01/16/2014

MINUTE ORDER finding as moot 129 Joint Motion for Order; granting 130 Joint Motion to Amend Scheduling Order. The deadline for fact depositions is hereby EXTENDED to February 7, 2014. All other deadlines remain in place, as set forth in the Court's Minute Order of 10/24/13. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 1/16/14. (lcbjr4) (Entered: 01/16/2014)

02/07/2014

131 ANSWER to 86 Amended Complaint by ERIC H. HOLDER, JR. Related document: 86 Amended Complaint filed by DANIEL MCGOWAN, ROYAL JONES, YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI.(Cartier, Nicholas) (Entered: 02/07/2014)

02/21/2014

132 Joint MOTION for Order to Stay Case Deadlines by ERIC H. HOLDER, JR (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 02/21/2014)

02/27/2014

MINUTE ORDER granting 132 Motion to Stay. Deadlines for crossmotions for summary judgment temporarily stayed. Joint status report shall be filed no later than 3/14/14. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 2/27/14. (lcbjr1) (Entered: 02/27/2014)

02/28/2014

Case Stayed; Set/Reset Deadlines: Joint Status Report due by 3/14/2014. (tth) (Entered: 02/28/2014)

03/14/2014 133 STATUS REPORT by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI. (Attachments: # 1 Text of Proposed Order)(Meeropol, Rachel) (Entered: 03/14/2014)

03/14/2014 134 STATUS REPORT and Scheduling Motion by ERIC H. HOLDER, JR. (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 03/14/2014)

03/14/2014 135 MOTION for Scheduling Order by ERIC H. HOLDER, JR. (See Docket Entry 134 to view document). (znmw, ) (Entered: 03/17/2014)

03/21/2014 136 (Supplemental) STATUS REPORT of Parties by ERIC H. HOLDER, JR. (Cartier, Nicholas) Modified to add "supplemental" on 3/24/2014 (td, ). (Entered: 03/21/2014)

03/27/2014 137 MOTION for Order for Scheduling Conference by ERIC H. HOLDER, JR (Cartier, Nicholas) (Entered: 03/27/2014)

03/28/2014

MINUTE ORDER granting 137 Motion for Scheduling Conference. Scheduling conference will be held at 2:00 PM on Wednesday, April 9,

2014, in Courtroom 12. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 3/28/2014. (lcbjr1) (Entered: 03/28/2014)

03/28/2014

Set/Reset Hearings: Scheduling Conference set for 4/9/2014 AT 02:00 PM in Courtroom 12 before Judge Barbara Jacobs Rothstein. (tth) (Entered: 03/28/2014)

04/09/2014

Minute Entry for proceedings held before Judge Barbara Jacobs Rothstein: Scheduling Conference held on 4/9/2014. Plaintiff's Motion for Summary Judgment due: 5/21/2014; Defendants' Opposition and Cross Motion due: 5/21/2014; Plaintiff's Reply and Cross Opposition due: 6/25/2014; Defendants' Cross Reply due: 7/16/14. Meet and Confer date: 4/16/2014; Plaintiff's Motion to Compel due 5/2/2014; Defendants' response due: 5/9/2014; Plaintiff's Reply du: 5/14/2014. (Court Reporter: Lisa Griffith) (tth) (Entered: 04/10/2014)

04/11/2014

MINUTE ORDER correcting briefing schedule. Plaintiffs' Motion for Summary Judgment due 4/23/2014; Defendant's Opposition and Cross Motion due 5/21/2014; Plaintiffs' Reply and Cross Opposition due 6/18/2014; Defendant's Cross Reply due 7/9/14. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 4/11/2014. (lcbjr1) (Entered: 04/11/2014)

04/11/2014

Set/Reset Deadlines: Summary Judgment motions due by 4/23/2014. Response to Motion for Summary Judgment and Cross Motion due by 5/21/2014. Reply to Motion for Summary Judgment and Response to Cross Motion due by 6/18/2014. Reply to Cross Motion due by 7/9/2014. (zmm, ) (Entered: 04/11/2014)

04/23/2014

138 MOTION for Summary Judgment by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order, # 4 Exhibit 1-5, # 5 Exhibit 6-8, # 6 Exhibit 9-20, # 7 Exhibit 21-23, # 8 Exhibit 24-29, # 9 Exhibit 30 (part 1 of 2), # 10 Exhibit 30 (part 2 of 2), # 11 Exhibit 31-33, # 12 Exhibit 34 (part 1 of 2), # 13 Exhibit 34 (part 2 of 2), # 14 Exhibit 35-38, # 15 Exhibit 39-54, # 16 Exhibit 55, # 17 Exhibit 56-58, # 18 Exhibit 59, # 19 Exhibit 60-62, # 20 Exhibit 63, # 21 Exhibit 64-70, # 22 Exhibit 71, # 23 Exhibit 72-79, # 24 Exhibit 80-82, # 25 Exhibit 83-86, # 26 Exhibit 87-98, # 27 Exhibit 99-105, # 28 Exhibit 106-121, # 29 Exhibit 122-133, # 30 Exhibit 134-150, # 31 Exhibit 151-162, # 32 Exhibit 163-165, # 33 Exhibit 166, # 34 Exhibit 167-168)(Agathocleous, Alexis) (Entered: 04/23/2014)

04/23/2014

139 SEALED DOCUMENT filed by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI re 138 MOTION for Summary Judgment (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 59 (Part 1 of 2) (unredacted), # 2 Exhibit 59 (Part 2 of 2)

(unredacted), # 3 Exhibit 63 (unredacted), # 4 Exhibit 71 (Part 1 of 2) (unredacted), # 5 Exhibit 71 (Part 2 of 2) (unredacted), # 6 Certificate of Service)(Agathocleous, Alexis) (Entered: 04/23/2014)

04/23/2014

140 NOTICE OF FILING REDACTED DOCUMENT to 138 MOTION for Summary Judgment (Exhibit 71, Docket No. 138-22) by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI (The original PDF Document contained privacy information and was restricted pursuant to the EGovernment Act.) (Attachments: # 1 Exhibit 71 (redacted))(Agathocleous, Alexis) (Entered: 04/23/2014)

05/02/2014

141 MOTION to Compel Production of Documents by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI (Attachments: # 1 Memorandum in Support, # 2 Exhibit A - E, # 3 Text of Proposed Order)(Meeropol, Rachel) (Entered: 05/02/2014)

05/06/2014 142 STIPULATION of Parties by ERIC H. HOLDER, JR. (Cartier, Nicholas) (Entered: 05/06/2014)

05/09/2014

143 Memorandum in opposition to re 141 MOTION to Compel Production of Documents filed by ERIC H. HOLDER, JR. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Cartier, Nicholas) (Entered: 05/09/2014)

05/14/2014

144 REPLY to opposition to motion re 141 MOTION to Compel Production of Documents filed by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI. (Attachments: # 1 Exhibit A)(Agathocleous, Alexis) (Entered: 05/14/2014)

05/21/2014

145 MOTION for Summary Judgment by D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC H. HOLDER, JR (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Swinton, Nathan) (Entered: 05/21/2014)

05/21/2014

146 Memorandum in opposition to re 138 MOTION for Summary Judgment filed by D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC H. HOLDER, JR. (Attachments: # 1 Statement of Facts Response to Plaintiffs' Statement of Material Facts, # 2 Text of Proposed Order)(Swinton, Nathan) (Entered: 05/21/2014)

05/21/2014

147 NOTICE re 145 of Filing of Exhibits in Support of Defendants' Motion for Summary Judgment by D. SCOTT DODRILL, CHARLES E. SAMUELS, JR, LESLIE SMITH (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit,

# 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit, # 36 Exhibit, # 37 Exhibit, # 38 Exhibit)(Swinton, Nathan) Modified on 5/23/2014 (znmw, ). (Entered: 05/21/2014)

05/21/2014

148 NOTICE re 145 of Additional Exhibits in Support of Defendants' Motion for Summary Judgment by D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC H. HOLDER, JR, CHARLES E. SAMUELS, JR, LESLIE SMITH (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Swinton, Nathan) Modified on 5/23/2014 (znmw, ). (Entered: 05/21/2014)

05/21/2014

149 NOTICE re 145 of Additional Exhibit in Support of Defendants' Motion for Summary Judgment by D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC H. HOLDER, JR, CHARLES E. SAMUELS, JR, LESLIE SMITH (Swinton, Nathan) Modified on 5/23/2014 (znmw, ). (Entered: 05/22/2014)

05/22/2014

150 NOTICE re 145 of Additional Exhibit in Support of Motion for Summary Judgment by D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC H. HOLDER, JR, CHARLES E. SAMUELS, JR, LESLIE SMITH (Swinton, Nathan) Modified on 5/23/2014 (znmw, ). (Entered: 05/22/2014)

05/23/2014

151 NOTICE of Filing of Revised Exhibit List and Exhibit in Support of Motion for Summary Judgment by D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC H. HOLDER, JR, CHARLES E. SAMUELS, JR, LESLIE SMITH (Attachments: # 1 Exhibit)(Swinton, Nathan) (Entered: 05/23/2014)

06/18/2014

152 Memorandum in opposition to re 145 MOTION for Summary Judgment and Reply in Support of 138 Plaintiffs' Motion for Summary Judgment filed by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI. (Attachments: # 1 Plaintiffs' Response to Defendants' Statement of Undisputed Material Facts, # 2 Exhibit 1-5, # 3 Exhibit 6, # 4 Exhibit 78, # 5 Exhibit 9, # 6 Exhibit 10-23, # 7 Exhibit 24, # 8 Exhibit 25-28, # 9 Plaintiffs' Exhibit List, # 10 Text of Proposed Order)(Agathocleous, Alexis) (Entered: 06/18/2014)

06/18/2014

153 SEALED DOCUMENT filed by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI re 152 Memorandum in Opposition,, (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 6 (Part 1 of 2), # 2 Exhibit 6 (Part 2 of 2), # 3 Exhibit 9, # 4 Exhibit 24)(Agathocleous, Alexis) (Entered: 06/18/2014)

06/18/2014

154 REPLY to opposition to motion re 138 MOTION for Summary Judgment filed by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI. (See Docket Entry 152 to view document). (znmw, ) (Entered: 06/19/2014)

06/26/2014

155 Consent MOTION for Extension of Time to File Response/Reply in support of Government's Motion for Summary Judgment by ERIC H. HOLDER, JR (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 06/26/2014)

06/30/2014

MINUTE ORDER granting 155 Motion for Extension of Time to File Response/Reply re 145 MOTION for Summary Judgment. Reply due by 7/14/2014. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 6/30/2014. (lcbjr1) (Entered: 06/30/2014)

07/01/2014

Set/Reset Deadlines: Reply due by 7/14/2014. (tth) (Entered: 07/01/2014)

07/11/2014

156 Unopposed MOTION for Leave to File Excess Pages by FEDERAL BUREAU OF PRISONS, ERIC H. HOLDER, JR, LESLIE SMITH (Attachments: # 1 Text of Proposed Order)(Johnson, Timothy) (Entered: 07/11/2014)

07/11/2014

MINUTE ORDER granting 156 Motion for Leave to File Excess Pages. Signed by Judge Barbara Jacobs Rothstein on 7/11/2014. (lcbjr1) (Entered: 07/11/2014)

07/14/2014

157 REPLY to opposition to motion re 145 MOTION for Summary Judgment filed by ERIC H. HOLDER, JR. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Cartier, Nicholas) (Entered: 07/14/2014)

11/17/2014

158 MINUTE ORDER denying 125 Motion for Joinder/Intervention. Movant Pinson has failed to establish right to intervention under Fed. R. Civ. P. 24(a)(2). In particular, Movant's motion is not timely, and movant fails to establish that the plaintiffs cannot adequately represent his interests. Accordingly, the Court DENIES the motion to intervene and for joinder. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 11/17/2014. (lcbjr1) (Entered: 11/17/2014)

11/20/2014 159 CASE DIRECTLY REFERRED to Magistrate Judge Deborah A. Robinson for all discovery motions. (kb) (Entered: 11/21/2014)

11/24/2014

MINUTE ORDER: It is hereby ORDERED that a Status Conference is scheduled for Thursday, December 11, 2014 at 10:30 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. It is FURTHER ORDERED that the parties shall meet and confer in advance of the

hearing in order to resolve or narrow the issues in Plaintiffs' Motion to Compel Production of Documents (Document No. 141). It is FURTHER ORDERED that the parties shall be prepared to advise the court at the status conference of available dates for a hearing on the motion to compel. Signed by Magistrate Judge Deborah A. Robinson on November 24, 2014. (SRH) (Entered: 11/24/2014)

12/01/2014

160 Consent MOTION To Appear at Status Conference Telephonically re Order, Set Hearings,,,, by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI (Attachments: # 1 Text of Proposed Order)(Agathocleous, Alexis) (Entered: 12/01/2014)

12/03/2014

MINUTE ORDER: It is hereby ORDERED that Plaintiffs' Motion to Appear for Status Conference Telephonically (Document No. 160) is GRANTED. Signed by Magistrate Judge Deborah A. Robinson on December 3, 2014. (SRH) (Entered: 12/03/2014)

12/11/2014

Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Telephone Status Conference held on 12/11/2014. Hearing on 141 Motion to Compel Production of Documents scheduled for 10:30 AM on Thursday, January 15, 2015, the date and time requested by counsel, in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (Court Reporter Bowles Reporting Services)(FTR Time Frame: 11:03:34 - 11:28:54, Crtrm 4) (zcmm, ) (Entered: 12/11/2014)

01/15/2015

Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Motion Hearing held on 1/15/2015 re 141 MOTION to Compel Production of Documents filed by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI. For the reasons set forth on the record, it is hereby ORDERED 141 Plaintiffs Motion to Compel Production of Documents is GRANTED. It is FURTHER ORDERED the documents which are the subject of the motion shall be produced by no later than 1/29/2015. (Court Reporter Bowles Reporting Services)(FTR Time Frame: 10:45:34 - 12:14:11, Crtrm 4) (zcmm, ) (Entered: 01/15/2015)

03/16/2015

161 MEMORANDUM OPINION finding as moot 135 Motion for Scheduling Order; denying 138 Motion for Summary Judgment; granting 145 Motion for Summary Judgment. Signed by Judge Barbara Jacobs Rothstein on 3/16/2015. (lcbjr1) (Entered: 03/16/2015)

03/16/2015 162 ORDER AND JUDGMENT in favor of Defendants against Plaintiffs. Signed by Judge Barbara Jacobs Rothstein on 3/16/2015. (lcbjr1) (Entered: 03/16/2015)

05/14/2015

163 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 115 Memorandum & Opinion, 161 Order on Motion for Scheduling Order, Order on Motion for Summary Judgment, by YASSIN

MUHIDDIN AREF, KIFAH JAYYOUSI, DANIEL MCGOWAN. Filing fee $ 505, receipt number 0090-4091550. Fee Status: Fee Paid. Parties have been notified. (Citron, Eileen) (Entered: 05/14/2015)

05/14/2015

164 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 163 Notice of Appeal to DC Circuit Court. (znmw, ) (Entered: 05/14/2015)

05/29/2015

USCA Case Number 15-5154 for 163 Notice of Appeal to DC Circuit Court, filed by DANIEL MCGOWAN, YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI. (md) (Entered: 05/29/2015)

12/02/2015

165 Consent MOTION to correct the docket by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI (Attachments: # 1 Declaration of Rachel Meeropol, # 2 Text of Proposed Order)(Meeropol, Rachel) (Entered: 12/02/2015)

12/02/2015 166 ORDER granting 165 Motion to correct the docket. Plaintiffs are ordered to file Exhibit 55, under seal by 12/9/2015. Signed by Judge Barbara Jacobs Rothstein on 12/02/2015. (mr) (Entered: 12/02/2015)

12/03/2015

167 SEALED DOCUMENT filed by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI re 166 Order on Motion for Miscellaneous Relief, Set/Reset Deadlines, 138 MOTION for Summary Judgment (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Certificate of Service)(Meeropol, Rachel) (Entered: 12/03/2015)

10/12/2016

168 MANDATE of USCA as to 163 Notice of Appeal to DC Circuit Court, filed by DANIEL MCGOWAN, YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI. USCA Case Number 15-5154. (Attachments: # 1 judgment filed August 19, 2016)(zrdj) (Entered: 10/12/2016)

05/15/2017

169 NOTICE OF SUPPLEMENTAL AUTHORITY by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI (Meeropol, Rachel) (Entered: 05/15/2017)

07/20/2017

170 NOTICE OF WITHDRAWAL OF APPEARANCE as to YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI, DANIEL MCGOWAN. Attorney Alexis Agathocleous terminated. (Agathocleous, Alexis) (Entered: 07/20/2017)

04/30/2018 171 NOTICE of Pending Motion by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI (Meeropol, Rachel) (Entered: 04/30/2018)

04/30/2018

172 MINUTE ORDER: Having reviewed Plaintiffs' Notice [Dkt. No. 171], the Court hereby instructs the parties to file a joint status report on or before May 11, 2018. In the status report, the parties shall update the Court on the status of the Plaintiffs and whether additional briefing is required before the Court addresses the remaining issue on remand. Signed by Judge Barbara Jacobs Rothstein on 4/30/18. (Reed, Heather) (Entered: 04/30/2018)

05/01/2018

Set/Reset Deadlines: Parties' Joint Status Report due by 5/11/18. (kk) (Entered: 05/01/2018)

05/10/2018 173 Joint STATUS REPORT by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI. (Meeropol, Rachel) (Entered: 05/10/2018)

06/08/2018

174 NOTICE OF WITHDRAWAL OF APPEARANCE as to D. SCOTT DODRILL, FEDERAL BUREAU OF PRISONS, ERIC H. HOLDER, JR, CHARLES E. SAMUELS, JR, LESLIE SMITH. Attorney Timothy Andrew Johnson terminated. (Johnson, Timothy) (Entered: 06/08/2018)

12/21/2018

175 MINUTE ORDER: Having reviewed the parties' May 10, 2018 joint status report, the DC Circuit's decision in this case, and the record in this case, the Court will hold a hearing in Courtroom 19 in the U.S. District Court for the District of Columbia. Counsel should be prepared to address the issues raised in the May 10, 2018 joint status report, as well as any other matters the parties wish to bring to the Court's attention. The Court proposes that the hearing be held at 10:00am on either January 18, 22, or 23, 2019. The parties shall confer and choose one of these dates, or if these do not work confer on alternative dates. Notify chambers of the selected date or alternatives at 202-354-3331. So ordered. Signed by Judge Barbara Jacobs Rothstein on 12/21/2018 (fdr) (Entered: 12/21/2018)

01/02/2019

176 MINUTE ORDER: In response to the Court's previous minute order, the Court received a voicemail to chambers on 12/26/2018 from Plaintiff's counsel, who stated that the parties conferred on schedules and suggested several hearing dates suitable for all parties. Based on that input the Court sets a hearing for Tuesday, January 29, 2019 at 10:00am in Courtroom 19 in the U.S. District Court for the District of Columbia. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 1/2/2019 (fdr) (Entered: 01/02/2019)

01/02/2019

Set/Reset Hearings: Motion Hearing set for 1/29/2019 at 10:00 AM in Courtroom 19 before Judge Barbara Jacobs Rothstein. (ldc) (Entered: 01/02/2019)

01/23/2019 177 MOTION to Stay January 29, 2019 Hearing by ERIC H. HOLDER, JR (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 01/23/2019)

01/24/2019

MINUTE ORDER granting 177 Defendants' Motion for a Stay of the January 29, 2019 Hearing; directing that Government counsel notify the Court as soon as Congress has appropriated funds for the Department of Justice; directing that within 7 days from the filing of Government's notice, the parties shall file a motion proposing mutually agreeable alternative dates for the hearing; so ordered by Judge Barbara Jacobs Rothstein on 1/24/19. (kk) (Entered: 01/24/2019)

01/29/2019 178 NOTICE of Restoration of Operations by ERIC H. HOLDER, JR (Cartier, Nicholas) (Entered: 01/29/2019)

02/05/2019 179 Joint MOTION for Hearing by ERIC H. HOLDER, JR (Cartier, Nicholas) (Entered: 02/05/2019)

02/07/2019

MINUTE ORDER: granting 179 the Parties' Joint Motion to Schedule a Hearing. Motion Hearing set before Judge Barbara Jacobs Rothstein on 2/14/19 at 10:00 AM in Courtroom 19. SO ORDERED by Judge Barbara Jacobs Rothstein on 2/7/19. (kk) (Entered: 02/07/2019)

02/13/2019 180 NOTICE of Plaintiff Aref's Release from BOP Custody by ERIC H. HOLDER, JR (Attachments: # 1 Declaration)(Cartier, Nicholas) (Entered: 02/13/2019)

02/14/2019

Minute Entry for proceedings held before Judge Barbara Jacobs Rothstein on 2/14/19 : Status Conference held. The parties agree that the Government will file a briefing within 45 days. Plaintiffs' Counsel: Rachel Meeropol; Defendants' Counsel: Nicholas Cartier. Court Reporter: Sara Wick. (kk) (Entered: 02/14/2019)

02/14/2019

MINUTE ORDER: The Court heard from counsel on the status of the case and rules as follows. Plaintiff will provide Defendant with those portions of prison records that they propose be expunged by March 4, 2019. Defendant will respond to Plaintiff's proposal promptly. Defendant will file its motion to dismiss by April 5, 2019. So ordered. Authorized by Judge Barbara J. Rothstein on February 14, 2019. (kk) (Entered: 02/14/2019)

03/27/2019

181 Unopposed MOTION for Extension of Time to File Motion to Dismiss, MOTION for Extension of Time to by FEDERAL BUREAU OF PRISONS, ERIC H. HOLDER, JR (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 03/27/2019)

03/28/2019

182 ORDER granting 181 Motion for Extension of Time to File; Set/Reset Deadlines: Defendants' Motion to Dismiss due by 4/12/2019. Plaintiffs' response due by 5/10/2019. Defendants' reply due by 5/31/2019. Signed by Judge Barbara Jacobs Rothstein on March 28, 2019 (fdr) (Entered: 03/28/2019)

04/12/2019 183 MOTION to Dismiss , MOTION to Dismiss for Lack of Jurisdiction by ERIC H. HOLDER, JR (Attachments: # 1 Declaration, # 2 Declaration, # 3 Text of Proposed Order)(Cartier, Nicholas) (Entered: 04/12/2019)

05/10/2019

184 Memorandum in opposition to re 183 MOTION to Dismiss filed by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI. (Attachments: # 1 Exhibit 1-4, # 2 Text of Proposed Order)(Meeropol, Rachel) (Entered: 05/10/2019)

05/31/2019

185 REPLY to opposition to motion re 183 MOTION to Dismiss filed by FEDERAL BUREAU OF PRISONS. (Cartier, Nicholas) (Entered: 05/31/2019)

06/10/2019 186 MOTION to Intervene by ROBERT J. WHITEMAN, JR. (tth) (Entered: 06/13/2019)

06/13/2019

187 Unopposed STATUS REPORT regarding change in circumstances by YASSIN MUHIDDIN AREF, KIFAH JAYYOUSI. (Meeropol, Rachel) (Entered: 06/13/2019)

08/30/2019

188 TRANSCRIPT OF STATUS CONFERENCE before Judge Barbara Jacobs Rothstein, held on 02/14/2019. Page Numbers: 1-27. Date of Issuance: 08/30/2019. Court Reporter: Sara Wick, telephone number 202-354-3284. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 9/20/2019. Redacted Transcript Deadline set for 9/30/2019. Release of Transcript Restriction set for 11/28/2019.(Wick, Sara) (Entered: 08/30/2019)

11/01/2019 189 ORDER granting in part and denying in part 183 Defendants' Motion to Dismiss. Signed by Judge Barbara Jacobs Rothstein on 11/1/2019. (lcbjr3) (Entered: 11/01/2019)

11/04/2019

190 ORDER denying 186 Motion to Intervene by Robert J. Whiteman, Jr. Signed by Judge Barbara Jacobs Rothstein on 11/4/19. (lcbjr3) (Entered: 11/04/2019)

11/04/2019

MINUTE ORDER: Having ruled on Defendants' motion to dismiss, the Court will now determine the issues remaining in the pending crossmotions for summary judgment (Dkt. 138-1, 146). The Court considers the cross-motions adequately briefed. However, either party may file a request for additional briefing, which request shall not exceed ten pages, and shall be filed no later than next Monday, November 11, 2019. So ordered. Signed by Judge Barbara Jacobs Rothstein on November 4, 2019. (lcbjr3). (Entered: 11/04/2019)

11/05/2019

Set/Reset Deadlines: Parties' requests for additional briefing due by 11/11/19. (kk) (Entered: 11/05/2019)

12/09/2019 191 MOTION to Intervene by MELVIN FAGAN. (Attachment: # 1 Exhibit) (ztth) (Entered: 12/11/2019)

12/12/2019

MINUTE ORDER: The Court is in receipt of a motion by Melvin Fagan seeking to intervene as a plaintiff in this case. Dkt. No. 191. The Court requests that each party submit by January 7, 2020 a brief not to exceed five pages that addresses: (1) the party's views on the Fagan intervention motion; (2) the party's views on next steps if the Court should grant the intervention motion, including whether further discovery would be required and whether the cross motions for summary judgment would remain ripe. So ordered. Signed by Judge Barbara Jacobs Rothstein on December 12, 2019. (lcbjr3) (Entered: 12/12/2019)

12/12/2019

Set/Reset: Parties Brief due by 1/7/2020. (zldc) (Entered: 12/12/2019)

12/16/2019 192 MOTION to Intervene by DONTE ROLANDO HARRIS. (Attachment: # 1 Exhibits) (ztth) (Entered: 12/19/2019)

12/26/2019 193 MOTION to Intervene by MONTGOMERY CARL AKERS. (Attachment: # 1 Exhibits) (ztth) (Entered: 01/02/2020)

01/02/2020

194 Consent MOTION for Extension of Time to File Response/Reply to Intervention Motions re: ECF No. 191, 192, and 193 by ERIC H. HOLDER, JR (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 01/02/2020)

01/03/2020

195 ORDER granting 194 Motion for Extension of Time to File Response re 191 MOTION to Intervene, 192 MOTION to Intervene, and 193 MOTION to Intervene; Set/Reset Deadlines: Parties' Responses due by 1/10/2020. Parties' briefs shall conform to the instructions set forth in the Court's December 12, 2019 Minute Order. Signed by Judge Barbara Jacobs Rothstein on 1/3/2020. (zpt) (Entered: 01/03/2020)

01/09/2020

196 MOTION to Intervene by CARLOS BRUTUS. "Leave to file granted" by Judge Barbara Jacobs Rothstein on 1/9/2020. (ztth) (Entered: 01/09/2020)

01/10/2020 197 RESPONSE re 193 MOTION to Intervene, 191 MOTION to Intervene, 192 MOTION to Intervene filed by KIFAH JAYYOUSI. (Meeropol, Rachel) (Entered: 01/10/2020)

01/10/2020

198 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by KIFAH JAYYOUSI (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A to Plfs Resp to Mot. to Intervene, # 2 Text of Proposed Order, # 3 Certificate of Service)(Meeropol, Rachel) (Entered: 01/10/2020)

01/10/2020

199 RESPONSE re 193 MOTION to Intervene, 196 MOTION to Intervene, 191 MOTION to Intervene, 192 MOTION to Intervene filed by FEDERAL BUREAU OF PRISONS. (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 01/10/2020)

01/29/2020 200 Letter from MONTGOMERY CARL AKERS. "Let this be filed." By Judge Barbara Jacobs Rothstein on 1/29/2020. (ztth) (Entered: 01/29/2020)

02/13/2020 201 Letter from MONTGOMERY CARL AKERS. "Let this be filed" by Judge Barbara Jacobs Rothstein on 2/13/2020. (ztth) (Entered: 02/13/2020)

02/20/2020

NOTICE to Movant MONTGOMERY CARL AKERS : The Court is in receipt of Montgomery Carl Akers's Motion to Intervene [Dkt. No. 193]. (kk) Modified on 2/20/2020 (kk). (Entered: 02/20/2020)

03/05/2020 202 MOTION for Order by MONTGOMERY CARL AKERS. (ztth) (Entered: 03/10/2020)

03/13/2020

MINUTE ORDER: The Court is in receipt of Montgomery Carl Akers motion, Dkt. No. 202, requesting the Clerk of this Court to supply copies of the Plaintiff Jayyousi's response to the pending motions to intervene, Dkt. No. 197. The Court hereby GRANTS the motion and ORDERS that copies of Plaintiff Jayyousi's motion response be sent to Proposed Intervenors Melvin Fagan, Donte R. Harris, Montgomery C. Akers, and Carlos Brutus. Signed by Judge Barbara Jacobs Rothstein on 3/13/20. (ztl) (Entered: 03/13/2020)

03/30/2020 203 NOTICE OF SUBSTITUTION OF COUNSEL by Sophie Kaiser on behalf of All Defendants Substituting for attorney Nicholas P. Cartier & Nathan Michael Swinton (Kaiser, Sophie) (Entered: 03/30/2020)

03/30/2020

204 MOTION to Withdraw Unrelated Claims re 191 MOTION to Intervene by MELVIN FAGAN. (Attachment: # 1 Exhibit) (ztth) (Entered: 04/07/2020)

03/30/2020 205 REPLY to opposition to motion re 193 MOTION to Intervene filed by MONTGOMERY CARL AKERS. (Attachment: # 1 Exhibit) (ztth) (Entered: 04/07/2020)

03/30/2020

206 REPLY to opposition to motion re 191 MOTION to Intervene filed by MELVIN FAGAN. (See Docket Entry 204 to view document) (ztth) (Entered: 04/08/2020)

05/04/2020 207 SUPPLEMENT re 193 MOTION to Intervene filed by MONTGOMERY CARL AKERS. (zrdj) (Entered: 05/06/2020)

06/11/2020

208 MOTION for Order to Show Cause, MOTION for Temporary Injunction by MONTGOMERY CARL AKERS. (Attachment: # 1 Supplement) (ztth) (Entered: 06/18/2020)

06/21/2020 209 Civil Statement from DONTE ROLANDO HARRIS. "Let this be filed" by Judge Barbara Jacobs Rothstein on 6/21/2020. (ztth) (Entered: 06/23/2020)

06/21/2020

210 SUPPLEMENTAL MEMORANDUM re 196 MOTION to Intervene by CARLOS BRUTUS by CARLOS BRUTUS. "Let this be filed" by Judge Barbara J. Rothstein on 6/21/20. (ztth); Modified to add docket entry relationship; modified text on 6/24/2020 (ztth). (Entered: 06/23/2020)

06/25/2020

211 ORDER REGARDING MOTIONS TO INTERVENE AND RELATED MOTIONS. The Court rules as follows: (1) Potential Intervenor Melvin Fagan's Motion to Intervene [Dkt. No. 191] is DENIED; (2) Potential Intervenor Donte Rolando Harris's Motion to Intervene [Dkt. No. 192] is DENIED; (3) Potential Intervenor

Montgomery Carl Akers' Motion to Intervene [Dkt. No. 193] is DENIED; having denied Mr. Akers' intervention motion, the Court hereby DENIES his Motion for Order to Show Cause and Temporary Injunction [Dkt. No. 208] as moot; (4) Potential Intervenor Carlos Brutus's Motion to Intervene [Dkt. No. 196] is DENIED; (5) Plaintiff Jayyousi's Sealed Motion for Leave to File Exhibit A Under Seal [Dkt. No. 198] is GRANTED; and (6) Potential Intervenor Melvin Fagan's Motion to Withdraw Unrelated Claims [Dkt. No. 204] is GRANTED. Signed by Judge Barbara Jacobs Rothstein on 06/25/2020. (Entered: 06/25/2020)

10/13/2020

212 ORDER denying plaintiff's 138 MOTION for Summary Judgment, granting defendants' 145 MOTION for Summary Judgment, and dismissing the case signed by Judge Barbara Jacobs Rothstein on 10/13/2020. (ztnr) (Entered: 10/13/2020)

12/08/2020

213 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 212 Order by KIFAH JAYYOUSI. Filing fee $ 505, receipt number ADCDC7928852. Fee Status: Fee Paid. Parties have been notified. (Meeropol, Rachel) (Entered: 12/08/2020)

12/08/2020

214 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 213 Notice of Appeal to DC Circuit Court. (ztth) (Entered: 12/08/2020)

12/09/2020

USCA Case Number 20-5368 for 213 Notice of Appeal to DC Circuit Court filed by KIFAH JAYYOUSI. (zrdj) (Entered: 12/09/2020)

PACER Service Center Transaction Receipt

04/11/2021 21:51:58

PACER Login:

CRClearinghouse Client Code:

Description:

Docket Report

Search Criteria:

Billable Pages: 30

Cost:

Hudson-Erdman
1:10-cv-00539BJR 3.00

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 15, 2016

Decided August 19, 2016

No. 15-5154

YASSIN MUHIDDIN AREF, ET AL., APPELLANTS

v.

LORETTA E. LYNCH, ATTORNEY GENERAL OF THE UNITED STATES, ET AL., APPELLEES

Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-00539)

Rachel Anne Meeropol argued the cause for appellants. With her on the briefs were Pardiss Kebriaei and Gregory Stewart Silbert. Shayana D. Kadidal entered an appearance.
William R. Stein, Scott H. Christensen, and Elizabeth C. Solander were on the brief for amici curiae The Legal Aid Society of the City of New York, et al. in support of plaintiffs-appellants.
Jonathan Hafetz was on the brief for amicus curiae Seton Hall University School of Law Center for Social Justice in support of appellants.

2
Carleen M. Zubrzycki, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and H. Thomas Byron III, Attorney. Mark B. Stern and Joshua P. Waldman, Attorneys, entered appearances.
Before: BROWN and SRINIVASAN, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge:
Appellants are three federal prisoners who spent several years housed in specially designated Communication Management Units (CMUs), a classification that meant family visits and communications with the outside world were curtailed. Appellants contend their designation to CMUs violated their due process rights. One appellant also alleges his continued CMU placement was in retaliation for protected speech in violation of the First Amendment. Finally, appellants seek damages under the Prison Litigation Reform Act (PLRA) for a variety of injuries allegedly arising out of their confinement in CMUs, including the denial of certain educational and professional programming, violations of their constitutional rights, and harm to familial relationships. The district court granted summary judgment for the government on each claim.
Because we find the duration and atypicality of CMU designation sufficient to give rise to a liberty interest, we reverse the district court and remand for further proceedings to determine whether appellants were afforded sufficient process. With respect to the retaliation claim, we affirm the grant of summary judgment for the government because

3
appellant cannot show his First Amendment rights were violated. Unlike the district court, we hold appellants have alleged harms qualifying for compensation under the PLRA because their injuries were neither mental nor emotional in nature and so do not require a showing of physical injury. We nonetheless uphold the grant of summary judgment because we find the prison official entitled to qualified immunity.
I.
A. Communication Management Units
The CMUs at the heart of this controversy are located at two federal correctional facilities in Terre Haute, Indiana, and Marion, Illinois. They were established in 2006 and 2008, respectively. See Aref v. Holder, 774 F. Supp. 2d 147, 153 (D.D.C. 2011). The Bureau of Prisons (BOP) designed CMUs in response to a problem identified by the Department of Justice: a “deficiency” in the monitoring of inmate communications that allowed several inmates with terrorismrelated convictions to communicate with extremist groups outside the prisons. CMUs thus house inmates who require communications monitoring beyond that which can feasibly be provided in the general population.
CMU inmates have access to more limited and less private communications compared to general population inmates. All visits—aside from attorney visits—must be “non-contact,” meaning a glass wall separates the inmate and visitor and communication takes place via a microphone. See 28 C.F.R § 540.205(a). All visits must be conducted in English, live-monitored, and recorded by BOP. See id. Although BOP regulations allow visitation to be restricted to four one-hour visits each month, id., BOP currently permits up to eight hours a month. CMU inmates are also restricted in

4
the frequency and length of their written correspondence, which is subject to inspection. See id. § 540.203. Finally, except for unmonitored attorney calls, CMU inmates can telephone only immediate family members, and the calls are monitored. Id. § 540.204. Under the regulation, telephonic communication can be limited to no more than three fifteenminute calls per month, id., but BOP currently allows inmates two fifteen-minute calls per week.
Aside from these restrictions, CMUs essentially function as “self-contained general population housing unit[s].” J.A. 108. Inmates typically are not confined to their cells except at night and during security checks. They have access to common areas for up to sixteen hours a day, recreational facilities, exercise equipment, and the library. They can keep personal property in their cells, participate in religious services, receive educational and professional training, and be designated for work assignments.
An inmate can be designated to a CMU for several reasons, including having a conviction offense related to international or domestic terrorism; demonstrating a propensity for using communication channels to further illegal activity outside the prison or to contact victims; abusing approved communication methods; or presenting a potential threat to prison facilities or the public as a result of unmonitored communications with persons outside the prison. See 28 C.F.R § 540.201.1 Designation to a CMU begins when BOP becomes aware of information relevant to any of
1 It bears noting that both CMUs were opened before BOP established any written designation criteria. In April 2010, BOP published a proposed rule for public notice-and-comment. See 80 Fed. Reg. 3168 (Jan. 22, 2015). The final rule entered into effect on February 23, 2015, almost a decade after the first CMU opened. Id.

5
these criteria. See id. § 540.202(a). BOP’s Assistant Director evaluates and approves the designation if, after a review of the evidence, he concludes “designation . . . is necessary to ensure the safety, security, and orderly operation of correctional facilities, or protection of the public.”2 Id. § 540.202(b). Once in the CMU, the inmate receives a written Notice of Transfer (Notice) from the Warden explaining that the placement allows increased communications monitoring, the placement is non-punitive and will not affect the length of incarceration, and continued designation will be reviewed “regularly” with both notice and an opportunity to be heard. Id. § 540.202(c). The inmate also receives “an explanation of the [Assistant Director’s] decision in sufficient detail,” unless the Assistant Director determines that providing this information would jeopardize the safety of the facility or the public. Id. § 540.202(c)(4). Finally, the inmate may challenge his CMU designation through BOP’s administrative remedy program. Id. § 540.202(c)(6).
In 2009—three years after the first CMU opened—BOP instituted periodic review of prisoners, allowing for potential redesignation every six months. See id. § 524.11(a)(2). The
2 Before codification of the CMU regulations, the ultimate decisionmaker was BOP’s Regional Director. The process otherwise has remained essentially the same. Initial consideration begins when an entity (institutional or otherwise) refers a prisoner to BOP’s Counter-Terrorism Unit (CTU). The CTU creates a “designation packet” that includes a summary of the supporting information, a recommendation for or against, and a proposed Notice of Transfer. The packet is sent to the Office of General Counsel to be reviewed for legal sufficiency and then to the Correctional Programs Division. Previously, the Regional Director would distribute the packet to several administrators, allowing each to comment before making his final decision. Now the Assistant Director makes his assessment and decision independently.

6
process begins with the inmate’s Unit Team making an initial determination about whether continued CMU placement is necessary. The inmate must be given notice forty-eight hours before this review, which takes place in person. Id. § 524.11(b)(1). The recommendation considers factors like “whether the original rationale for CMU designation has been mitigated” and “whether the inmate no longer presents a risk.” J.A. 689. The Warden then receives the transfer recommendation for his review. If he agrees, the recommendation is sent to the Counter-Terrorism Unit (CTU) for its independent assessment—which is then forwarded to the Assistant Director3 for a final decision. The inmate is informed in writing of the decision and (at least theoretically) provided an explanation for the result. There is no limitation on the duration of a prisoner’s CMU placement.
B. The Plaintiffs
(1) Yassin Aref. Aref is an Iraqi refugee convicted of helping a terrorist organization prepare to launch a missile attack on American soil by helping to finance the missile’s purchase. United States v. Aref, 285 F. App’x 784, 790 (2d Cir. 2008). He is serving a fifteen-year sentence for money laundering, providing material support for terrorism, conspiracy, and making a false statement to the FBI. Aref, 774 F. Supp. 2d at 154. He was initially classified as a “low security” inmate with no disciplinary record, but he was transferred to the Terre Haute CMU in May 2007. Id. Within a day, he received a one-page Notice stating his designation was because of his terrorism-related conviction and because his “offense conduct included significant communication, association, and assistance to Jaish-e-Mohammed (JeM),” a designated terrorist organization. Id. at 154–55. Aref
3 Previously, the decision-maker was the Regional Director.

7
appealed, arguing he had never made contact with any JeM members; he had instead unknowingly been communicating with an individual cooperating with the government. The Regional Director denied the appeal. After eighteen months, Aref was transferred to the Marion CMU.
In September 2010, three years after Aref’s initial designation, his Unit Team and the Warden recommended him for transfer. This request was denied after the CTU received confidential law enforcement information from the Joint Terrorism Task Force. He was notified about the denial, but the notification provided no explanation. He was again recommended for transfer in March 2011, and this time the CTU agreed. Since April 2011, he has been housed in Marion Prison’s general population.
(2) Kifah Jayyousi. In 2008, Jayyousi was sentenced to a 152-month term for conspiracy to murder, kidnap, and maim in a foreign country and conspiracy to provide material support to terrorism. He and his co-conspirators were found to have communicated in code and posed as a charitable organization to further these goals. See United States v. Jayyousi, 657 F.3d 1085, 1091–92 (11th Cir. 2011). Although he was originally classified as a “low security” prisoner, he was transferred to the Terre Haute CMU in June 2008. Upon arrival, he received a Notice pointing to his terrorism-related conviction and offense conduct—which involved communication and association with al-Qaida—as the basis for his transfer. He appealed administratively, arguing this information was inaccurate; BOP denied his appeal without responding to his factual challenges.
Jayyousi was first considered for redesignation in December 2009, but his Unit Team recommended against it because of the severity of his offense. In October 2010, he

8
was transferred to the Marion CMU. His Unit Team and Warden recommended him for transfer in 2011 based on good conduct. Leslie Smith—then-Chief of BOP’s CTU— disagreed because of a sermon Jayyousi gave as part of a Muslim prayer meeting in which he participated in 2008 while at Terre Haute’s CMU. Although Jayyousi received a disciplinary charge for that incident, he was cleared of any wrongdoing years before Smith considered this request. In March 2013, Jayyousi was again recommended for transfer, which was approved by the Regional Director without explanation. He continues to be housed in Marion Prison’s general population.
(3) Daniel McGowan. McGowan was a member of the Earth Liberation Front, a domestic terrorist organization. Aref, 774 F. Supp. 2d at 155. He was sentenced to a seven year term in 2007 for two counts of arson. Id. McGowan was also originally classified as a “low security” prisoner with no prison disciplinary record. Nonetheless, he was transferred to the Marion CMU in August 2008. He received his Notice ten days later, which cited his offense conduct as involving arson and the “destruction of an energy facility,” as well as communicating in code and teaching others how to commit arson. See id. McGowan appealed, challenging the factual assertions in his Notice as demonstrably false—pointing out he had never been accused or convicted of any crime relating to the destruction of an energy facility. BOP did not respond directly to McGowan’s challenge, denied his appeal, and directed him to his pre-sentence report, which contained no mention of any energy facility.
McGowan was first recommended for transfer in 2010, which the Regional Director denied without explanation. In July 2010, he was again recommended for transfer, which the Regional Director granted without explanation. A few

9
months later, BOP officials determined that McGowan was attempting to circumvent the communication monitoring controls imposed on the general population; he was thus redesignated to the CMU in 2011. He remained in the CMU until his release from prison in December 2012; he was fully released from BOP supervision in June 2013.
C. Procedural History
On April 1, 2010, seven plaintiffs filed suit against BOP, alleging a variety of claims related to their CMU placement: violation of their procedural due process rights due to inadequate notice and lack of opportunity to be heard; violation of their substantive due process and First Amendment rights to “family integrity”; violation of the Eighth Amendment’s prohibition on cruel and unusual punishment; retaliatory transfer into the CMU in violation of the First Amendment; and unlawful discrimination on the basis of religion in violation of the First and Fifth Amendments. See Aref v. Holder, 953 F. Supp. 2d 133, 138 (D.D.C. 2013). Plaintiffs sought declaratory and injunctive relief, transfer out of the CMUs, and an order requiring they be allowed the same communication privileges as other prisoners. See Aref, 774 F. Supp. 2d at 157.
The district court dismissed all but the procedural due process and First Amendment retaliation claims. See id. at 161–71. In November 2012, Aref, Jayyousi, and McGowan filed an amended complaint adding a retaliation claim against defendants in their official capacities and against Leslie Smith in his individual capacity. Aref, 953 F. Supp. 2d at 138. At the motion to dismiss stage, the district court found the PLRA barred plaintiffs’ individual-capacity claims and dismissed

10
McGowan’s equitable claims as moot because he had been released from BOP custody. See id. at 142–44, 147–49.4
Defendants then filed motions for summary judgment on the remaining claims: Jayyousi and Aref’s official-capacity due process claim and Jayyousi’s First Amendment retaliation claim. In March 2015, the district court granted summary judgment in favor of defendants, finding plaintiffs lacked any liberty interest sufficient to trigger due process protections and that Jayyousi’s First Amendment rights were not violated. See Aref v. Holder, No. 10-cv-0539, 2015 WL 3749621 at *1, *8–*9 (D.D.C. Mar. 15, 2015). Plaintiffs timely appealed.5
II.
We review the district court’s grant of summary judgment de novo. See Pharm. Research & Mfrs. of Am. v. Fed. Trade Comm’n, 790 F.3d 198, 204 (D.C. Cir. 2015). In doing so, we must “view the evidence in the light most favorable to the non-moving party, draw all reasonable inferences in his favor, and eschew making credibility determinations or weighing the evidence.” Baumann v. District of Columbia, 795 F.3d 209, 215 (D.C. Cir. 2015). We also review the district court’s dismissal of appellants’ individual-capacity claims de novo. See Kimberlin v. U.S. Dep’t of Justice, 318 F.3d 228, 231 (D.C. Cir. 2003).
4 This case was originally assigned to Judge Urbina of the district court. It was transferred to Judge Rothstein on November 5, 2012, who ruled on this motion to dismiss and the subsequent summary judgment motions. See Aref v. Holder, No. 10-cv-0539, 2015 WL 3749621 at *2 n.1 (D.D.C. Mar. 15, 2015). 5 Leslie Smith passed away on March 16, 2015. The government did not file its notice of death until December 22, 2015—seven months later and after this appeal had begun. See Aref v. Lynch, Dkt. #1554923, at 45.

11
III.
Since this lawsuit’s inception, the government has urged at least some if not all of plaintiff-appellants’ arguments are moot because they were removed from the CMUs years ago. The parties agree McGowan’s official-capacity claims are mooted by his full release from BOP custody, see Aref, 953 F. Supp. 2d at 142–43, so we consider only whether Aref and Jayyousi’s transfer into general population moots their claims.
The mootness doctrine ensures compliance with Article III’s case and controversy requirement by “limit[ing] federal courts to deciding actual, ongoing controversies.” Am. Bar Ass’n v. Fed. Trade Comm’n, 636 F.3d 641, 645 (D.C. Cir. 2011). Accordingly, mootness must be assessed at “all stages” of the litigation to ensure a live controversy remains. 21st Century Telesis Joint Venture v. FCC, 318 F.3d 192, 198 (D.C. Cir. 2003). A case is moot if our decision “will neither presently affect the parties’ rights nor have a more-thanspeculative chance of affecting them in the future.” Am. Bar Ass’n, 636 F.3d at 645.
The government argues that, because it has been years since any appellant was housed in a CMU, the appellants cannot identify any current injury for which this court can provide effective relief. While “[n]ormally[] a prisoner’s transfer or release from a prison moots any claim he might have for equitable relief arising out of the conditions of his confinement in that prison,” Scott v. District of Columbia, 139 F.3d 940, 941 (D.C. Cir. 1998), appellants point to the likelihood of redesignation from general population to a CMU. See, e.g., Aref, 774 F. Supp. 2d at 158 (“McGowan was designated to a CMU, transferred back into the general population and then redesignated to a CMU.”). Appellants have also challenged BOP’s reliance on flawed information

12
used to justify their CMU designations, which remains in their prison files. See Rezaq v. Nalley, 677 F.3d 1001, 1009 (10th Cir. 2012) (holding prisoners’ claims not mooted by transfer out of maximum security facility because, “[e]ven though the new transfer policies may provide adequate process, the case is not moot if the BOP made decisions under the old policies that have ongoing, long-term consequences for the plaintiffs that could be mitigated by an award of prospective relief”).
We need not decide that issue, however, because a defendant’s voluntary cessation of allegedly unlawful conduct can moot a case only if (i) “there is no reasonable expectation . . . that the alleged violation will recur,” and (ii) “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Am. Bar Ass’n, 636 F.3d at 648. The government bears the “heavy” burden of showing it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (emphasis added). We agree with the district court that the government has not met this high bar. Moreover, as the district court observed, appellants are challenging the procedure used for designation—so even if new information would be needed to return them to the unit, they have not “obtained all the relief” they seek in their complaint with respect to the designation process. Schmidt v. United States, 749 F.3d 1064, 1068 (D.C. Cir. 2014). We therefore conclude the voluntary cessation exception applies and proceed to consider appellants’ claims on the merits.6
6 The government also argues voluntary cessation only applies if the cessation came about “because of” the litigation—an argument the district court says the government waived. See Aref, 2015 WL 3749621, at *4 n.3. The government claims the Ninth Circuit has “implied” this requirement. Pub. Utils. Comm’n of Cal. v. FERC, 100 F.3d 1451, 1460 (9th Cir. 1996). But neither this circuit nor

13
IV.
Having found jurisdiction, we turn now to appellants’ due process claim. The Fifth Amendment ensures no individual is “deprived of life, liberty, or property, without due process of law.” U.S. CONST. amend. V. Appellants challenge as inadequate the procedures used to designate them to the CMUs, claiming their transfer and lengthy placement in the units deprived them of their liberty in violation of the Constitution. Outside the penal context, we simply would evaluate the procedures under the now familiar Mathews v. Eldridge balancing test: first identifying the liberty interest at stake, then considering the risk of erroneous deprivation under existing procedures, and finally weighing the
the Supreme Court consistently has required a finding that the cessation was undertaken because of the litigation. See, e.g., Friends of the Earth, Inc., 528 U.S. at 193–94 (assessing voluntary cessation without any indication the plant’s shutdown, years after the case was filed, was a response to the litigation); Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 1006–07 (D.C. Cir. 1997) (analyzing as voluntary cessation an EPA policy change announced before litigation began). A defendant who ceased the challenged conduct for reasons unrelated to the litigation may have an easier time showing the challenged conduct is unlikely to reoccur, but “the cessation of an ongoing activity pending a lawsuit may [also] well imply an intent to renew the activity once the court has dropped out.” Clarke v. United States, 915 F.2d 699, 705–06 (D.C. Cir. 1990). We are therefore unpersuaded by the government’s argument that appellants must prove their transfers were “because of” this litigation. And even if so, circumstantial evidence indicates the transfers may have been motivated at least in part by the pending litigation: not a single prisoner was transferred back into general population during the first three years of the CMU, until a then-named plaintiff was transferred out on the eve of this litigation. All other named plaintiffs subsequently were transferred out during the pendency of this litigation.

14
government’s interest against the burdens any additional process would entail. See 424 U.S. 319, 335 (1976); Lepelletier v. Fed. Deposit Ins. Corp., 164 F.3d 37, 45–46 (D.C. Cir. 1999). This first step is complicated, however, by appellants’ incarceration, which “brings about the necessary withdrawal or limitation of many privileges and rights,” including the protections of due process. Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977).
Evaluating due process claims in this context thus requires us to consider two competing—but significant— realities. First, we must “giv[e] appropriate deference to the decisions of prison administrators and appropriate recognition to the peculiar and restrictive circumstances of penal confinement.” Id. Prison officials face the unenviable task of ensuring the safety and security of large populations of people convicted of crimes and frequently are confronted with novel challenges in doing so. We therefore afford them “broad administrative and discretionary authority over the institutions they manage.” Hewitt v. Helms, 459 U.S. 460, 467 (1983). At the same time, prisoners are “not wholly stripped of constitutional protections” once they pass through the prison gates. Wolff v. McDonnell, 418 U.S. 539, 555 (1974). Guarantees of due process may contract, but they are not eliminated entirely.
A. Liberty Interest
With these broad principles in mind, the Supreme Court in Sandin v. Conner articulated a new test for identifying liberty interests in confinement conditions. See 515 U.S. 472 (1995). Courts previously had looked to state law to determine whether a liberty interest existed; under Sandin, the inquiry now focuses on the nature of the deprivation and its duration. Specifically, the Court held a liberty interest exists

15
only if the conditions amount to an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484. Absent a liberty interest, an inmate is not entitled to any process.
In Sandin, a prisoner challenged the procedure used to place him in disciplinary segregation for thirty days. The Court held this placement did not amount to a liberty interest, noting “disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody.” Id. at 486. The Court observed inmates in that prison’s general population also had “significant amounts” of “lockdown time.” Id. Finally, the Court found the inmate’s confinement would not “inevitably affect” the length of his sentence. Id. at 487. Thus, “a comparison between inmates inside and outside disciplinary segregation” demonstrated his placement there for 30 days “did not work a major disruption in his environment.” Id. at 486.
(1) Precedent Applying Sandin
The Sandin Court did not define the baseline from which to measure what is “atypical and significant” in a particular prison system, so lower court assessments have diverged. See Wilkinson v. Austin, 545 U.S. 209, 223 (2005). In Hatch v. District of Columbia, our circuit adopted a multi-factor approach to determining the appropriate baseline. See 184 F.3d 846, 856–58 (D.C. Cir. 1999). But because the district court and both parties rely on several instructive cases from other circuits, we find it helpful to briefly survey the current state of the law before turning to our own standard.

16
The Third, Sixth, and Tenth Circuits all generally look to administrative confinement as the baseline.7 See, e.g., Griffin v. Vaughn, 112 F.3d 703, 706–08 (3d Cir. 1997) (finding no liberty interest for inmate who, suspected of raping a prison guard, was placed in administrative confinement for fifteen months because inmates can reasonably expect to be placed in administrative confinement during their sentence); Jones v. Baker, 155 F.3d 810, 812–13 (6th Cir. 1998) (finding no liberty interest for inmate placed in administrative segregation for thirty months pending investigation for murder of a prison guard as segregation during investigation is not atypical and was justified); Gaines v. Stenseng, 292 F.3d 1222, 1224–26 (10th Cir. 2002) (remanding to district court to compare conditions in disciplinary segregation to those in administrative segregation).
The Fifth Circuit, on the other hand, has held disciplinary segregation can never implicate a liberty interest unless it “inevitably” lengthens a prisoner’s sentence, see Carson v.
7 The Tenth Circuit has acknowledged some inconsistency in its application: “[w]hen considering whether the conditions, duration or restrictions of confinement are atypical as compared with other inmates, this court has inconsistently used comparisons either with inmates in the same segregation or those in the general prison population.” Jordan v. Fed. Bureau of Prisons, 191 F. App’x 639, 650 (10th Cir. 2006). Notably, regardless of which baseline it has used, the circuit “has never held the conditions, duration or restrictions of the detentions presented on appeal created a liberty interest.” Hill v. Fleming, 173 F. App’x 664, 670 (10th Cir. 2006). The Tenth Circuit also uniquely considers whether the prison action is “reasonably related to legitimate penological interests.” Jordan, 191 F. App’x at 652–53 (finding no liberty interest in five year detention in administrative segregation because “it was commensurate with ongoing security concerns and a pending investigation”).

17
Johnson, 112 F.3d 818, 821 (5th Cir. 1997), and that administrative segregation—being an ordinary incident of prison life—is essentially incapable of creating a liberty interest, see Orellana v. Kyle, 65 F.3d 29, 31–32 (5th Cir. 1995).8 The Seventh Circuit also has adopted a high standard, holding the baseline is not just the conditions of confinement within that particular prison, but those at the harshest facility in the state’s most restrictive prison. See Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997). By contrast, the Fourth Circuit looks to the general population as the baseline. See Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997). And the Second Circuit requires a fact-specific determination that compares the duration and conditions of segregation with conditions in both administrative confinement and the general population. See, e.g., Arce v. Walker, 139 F.3d 329, 336 (2d Cir. 1998); Brooks v. DiFasi, 112 F.3d 46, 48–49 (2d Cir. 1997). As a result, the Second Circuit has found confinements as short as 180 and 305 days create a liberty interest under Sandin. See Colon v. Howard, 215 F.3d 227, 230–31 (2d Cir. 2000) (305 days); Kalwasinski v. Morse, 201 F.3d 103, 106 (2d Cir. 1999) (180 days). In sum, divergences in the baseline often lead to divergences in outcome. We are therefore cautious about relying too heavily on out-of-circuit precedent in evaluating appellants’ claims, except to note that courts are generally hesitant to find a liberty interest in the confinement context.
Our circuit laid out its approach to the comparative baseline in Hatch. The Hatch court examined Sandin’s
8 The Fifth Circuit has found a liberty interest in a few extraordinary cases involving solitary confinement that spans decades. See, e.g., Wilkerson v. Goodwin, 774 F.3d 845, 855 (5th Cir. 2014) (finding liberty interest for prisoner kept in solitary confinement for thirty-nine years given the exceptional duration and restrictive conditions of confinement).

18
language and motivations to conclude a liberty interest arises only when the deprivation “imposes an ‘atypical and significant’ hardship on an inmate in relation to the most restrictive confinement conditions that prison officials . . . routinely impose on inmates serving similar sentences.” 184 F.3d at 856 (emphasis added). Because administrative segregation is most routinely imposed, the court held it constitutes the proper baseline. Id. In doing so, though, the court took pains to emphasize this comparison “does not end our analysis.” Id. We must look “not only to the nature of the deprivation . . . but also to its length” in evaluating atypicality and significance. Id. Since Sandin noted the thirty-day disciplinary segregation at issue “was within the range of confinement to be normally expected for one serving an indeterminate term of [thirty] years to life,” 515 U.S. at 487 (emphasis added), Hatch held atypicality also depends “in part on the length of the sentence the prisoner is serving.” 184 F.3d at 856.
Applying this standard, the Hatch court remanded to the district court for further fact-finding to determine whether the inmate’s segregation for twenty-nine weeks amounted to a liberty interest. Id. at 858. Specifically, the district court was to compare the conditions faced by the inmate (who was segregated due to a disciplinary infraction) to the usual conditions of administrative segregation. Id. And even if the district court concluded those conditions were “no more restrictive” than administrative segregation, it was still required to determine whether confinement for twenty-nine weeks was “atypical” compared to the length of administrative segregation routinely imposed on similarly situated prisoners. Id.
Though our circuit may be unique in considering the duration of confinement relative to similarly situated

19
prisoners, duration itself is widely regarded as a crucial element of the Sandin analysis. See, e.g., Wilkinson, 545 U.S. at 223–24 (considering indefinite duration of confinement and infrequency of review when finding a liberty interest in placement at a particularly harsh supermax prison); HardenBey v. Rutter, 524 F.3d 789, 793 (6th Cir. 2008) (“[M]ost (if not all) of our sister circuits have considered the nature of the more-restrictive confinement and its duration in determining whether it imposes an ‘atypical and significant hardship.’”). Duration is significant precisely because “especially harsh conditions endured for a brief interval and somewhat harsh conditions endured for a prolonged interval might both be atypical.” Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir. 1999); see also Hutto v. Finney, 437 U.S. 678, 686–87 (1978) (“[T]he length of confinement cannot be ignored in deciding whether the confinement meets constitutional standards. A filthy, overcrowded cell and a diet of ‘grue’ might be tolerable for a few days and intolerably cruel for weeks or months.”). Indeed, we have remanded a case for the sole purpose of determining whether “the duration of plaintiff’s administrative segregation . . . impose[d] an atypical and significant hardship,” even when it was “apparent that the conditions of plaintiff’s restraint” could not be considered atypical. Brown v. District of Columbia, 66 F. Supp. 2d 41, 45–46 (D.D.C. 1999), on remand from Brown v. Plaut, 131 F.3d 163 (D.C. Cir. 1997).
We conclude, then, that the proper methodology for evaluating deprivation claims under Sandin is to consider (i) the conditions of confinement relative to administrative segregation, (ii) the duration of that confinement generally, and (iii) the duration relative to length of administrative segregation routinely imposed on prisoners serving similar sentences. We also emphasize that a liberty interest can

20
potentially arise under less-severe conditions when the deprivation is prolonged or indefinite.
Having shown how our circuit’s baseline differs from that of our sister circuits, we now note another important distinction between this case and the usual penal due process case. Like Sandin, the vast majority of penal due process cases involve punitive deprivations, i.e., confinement or privilege restriction for disciplinary purposes or while pending the outcome of an investigation. See, e.g., Skinner v. Cunningham, 430 F.3d 483, 487 (1st Cir. 2005) (“Skinner was a prisoner serving a sentence for murder who had just killed another inmate. It made perfect sense to isolate him pending further investigation.”); Thomas v. Ramos, 130 F.3d 754, 761 (7th Cir. 1997) (“Both temporary confinement and investigative status have been determined to be discretionary segregation and do not implicate a liberty interest.”); Bazzetta v. McGinnis, 430 F.3d 795, 804–05 (6th Cir. 2005) (finding no liberty interest for prisoners subjected to a permanent ban on visitation after two violations of the prison’s drug abuse policy). While an inmate can be designated to a CMU for abusing the prison’s communication system, most were transferred there to ensure prison officials could effectively monitor their communications—not for any punitive purpose. In this way, CMU designation is more analogous to transferring an individual to a harsher prison based on gang status, for instance, than it is to disciplinary segregation.
We do not think this similarity ends the inquiry, however. We recognize the Court held in several pre-Sandin cases that “transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.” Hewitt, 459 U.S. at 468. In Meachum v. Fano, for example, the Court found no liberty interest even when the

21
transfer would “place the prisoner in substantially more burdensome conditions [than] he had been experiencing” because such transfers “are made for a variety of reasons and often involve no more than informed predictions as to what would best serve institutional security or the safety and welfare of the inmate.” 427 U.S. 215, 225 (1976); see also id. at 228 (noting it does not matter if the transfer is “for whatever reason or for no reason at all”). Circuit courts have also consistently held that, “generally speaking, a prisoner has no liberty interest in his custodial classification.” Hernandez v. Velasquez, 522 F.3d 556, 562 (5th Cir. 2008). It follows then that a classification like gang status—and any deprivations that flow from it—cannot de facto constitute a liberty interest. See, e.g., id. at 563–64 (concluding lockdown to prevent gang-violence should be expected as an ordinary incidence of prison life); Adams v. Small, 542 F. App’x 567, 568 (9th Cir. 2013) (holding no liberty interest in classification status as a gang member); Perez v. Fed. Bureau of Prisons, 229 F. App’x 55, 58 (3d Cir. 2007) (“Because changes in security classifications and limits on telephone usage are ordinary incidents of prison confinement,” no liberty interest existed).
This line of pre-Sandin precedent undermines appellants’ arguments. But, most recently, the Supreme Court acknowledged that, while “the Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement,” a lesser liberty interest “in avoiding particular conditions of confinement may arise” if Sandin’s requirements are met. Wilkinson, 545 U.S. at 221–22 (emphasis added). In Wilkinson, inmates who were assigned to Ohio’s Supermax Prison (OSP) on the basis of either their convictions (e.g., organized crime) or their engagement in specific conduct (e.g., leading a prison gang) challenged their transfer as violating due process. The Court

22
concluded these inmates had a liberty interest in avoiding transfer to OSP because OSP prohibited almost all human contact and because placement there was indefinite, subject only to annual review, and disqualified otherwise eligible inmates from parole consideration. See id. at 223–24.
A district court in our circuit also recently found a prisoner plausibly alleged harsh and atypical conditions because “he [had] been segregated from the general population for over six years” after he was formally classified as a “terrorist inmate.” Royer v. Fed. Bureau of Prisons, 933 F. Supp. 2d 170, 190 (D.D.C. 2013).9 The court concluded that, even if the conditions alleged were “no more restrictive” than administrative segregation, the complaint should survive because the conditions were permanent and intended to last for the remainder of his twenty-year sentence—another sixteen-and-a-half years. Id. In doing so, the court distinguished Meachum as relating to the location of an inmate’s confinement rather than to the atypical conditions of that confinement. See id. at 191. We agree. Although appellants’ deprivations are more akin to transfer based on a non-punitive classification than disciplinary segregation, the Sandin framework still guides our analysis of whether these particular conditions can be considered “atypical and significant.”10
9 The case was never resolved on its merits as it was ultimately dismissed as moot after the motion to dismiss stage. 10 The Tenth Circuit has also used its version of the Sandin analysis to evaluate whether inmates—transferred on the basis of their terrorism-related offenses—had a liberty interest in avoiding designation to the Administrative Maximum Prison (ADX). See Rezaq, 677 F.3d at 1013.

23
(2) Appellants’ Due Process Claim
Having examined this legal backdrop, we turn now to appellants’ specific claims. Whether a liberty interest exists here is admittedly a close call. All parties agree CMUs are less extreme in terms of deprivation than administrative segregation. Inmates in administrative segregation must remain in their cells for twenty-three hours a day; they are unable to hold jobs or access most educational opportunities. Their possessions are also limited, and they can exercise only one hour a day, five days a week. By contrast, CMU inmates are allowed in common spaces with other CMU inmates for sixteen hours a day. They have access to educational and professional opportunities, can keep as many possessions as inmates in the general population, and have no added restrictions on exercise. Communication deprivations in administrative segregation are also harsher: those inmates can make only one fifteen-minute phone call per month and are limited to four hours of non-contact visits per month. CMU inmates can make two fifteen-minute calls per week and are allowed two four-hour non-contact visits per month. We therefore conclude CMU confinement involves significantly less deprivation than administrative segregation.
On the other hand, CMU designation is indefinite— lasting years in appellants’ case—and atypical because even though several thousand inmates could be designated to CMUs based on their commitment offenses, only a handful are placed under these restrictions. The main tension, then, is how atypicality, indefiniteness, and the harshness of the depravations should be weighed.
We find three factors significant. Although CMU designation seems analogous to a classification, it is exercised selectively; the duration is indefinite and could be permanent;

24
the deprivations—while not extreme—necessarily increase in severity over time. An inmate placed in administrative segregation may be wholly unable to communicate with his family or the outside world, but that restriction will generally only last for a few weeks. Inmates housed in CMUs, by contrast, may spend years denied contact with their loved ones and with diminished ability to communicate with them. The harms of these deprivations are heightened over time, as children grow older and relationships with the outside become more difficult to maintain. Cf. Wilkerson v. Stalder, 639 F. Supp. 2d 654, 684 (M.D. La. 2007) (“With each passing day its effects are exponentially increased, just as surely as a single drop of water repeated endlessly will eventually bore through the hardest of stones.”).
Admittedly, Sandin’s metric seems more difficult to apply where the transfer involves non-punitive classification rather than disciplinary segregation; and, as Wilkinson acknowledges, the difficulty of establishing an appropriate Sandin baseline has led to widely disparate conclusions about what constitutes an atypical and significant hardship. 545 U.S. at 223. However, as Wilkinson makes clear, Sandin did not eliminate liberty interests created by prison regulations; instead, it focused the inquiry on the condition itself. Sandin determines whether this lesser interest receives protection, but is silent as to its weight in the Mathews balance. Id. What we think pushes CMU designation over the Sandin threshold is its selectivity and duration, not its severity, and BOP’s recognition that some process—however de minimis—is due. Thus, because we find the designation meets Sandin’s requirements, we must consider the sufficiency of BOP’s response.
As a final note, we address the relevance of appellants’ contention that CMUs are viewed as an unusual designation

25
reserved primarily for Muslim individuals convicted of terrorism-related offenses—giving rise to a stigma analogous to sex-offender classification. Appellants rely on Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997), and Chambers v. Colorado Department of Corrections, 205 F.3d 1237 (10th Cir. 2000), to support their claim. But, in those cases, sexoffender classification affected the length of the inmates’ sentences. In Neal, parole eligibility was contingent on successful completion of a lengthy treatment program, 131 F.3d at 825, and, in Chambers, full good time credits were not available to sex offenders, 205 F.3d at 1239. In contrast, CMU designation is not based on any formal status as a “terrorist” and not every CMU inmate is associated with terrorist activities. Additionally, CMU designation has no bearing on the length of an inmate’s sentence. Thus, we do not find stigma to be relevant in this context.11
B. Process Due
We must next examine the question whether the assignment process used by the government is adequate. The district court never reached this question because it concluded
11 Amicus Curiae Seton Hall Center for Social Justice also alleges a liberty interest can be found under the Supreme Court’s “stigma plus” test. To prevail on this claim, appellants must show the government is “the source of the defamatory allegations” and the resulting stigma involved “some tangible change of status vis-à-vis the government.” Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1108–09 (D.C. Cir. 1985). Most important here, the reputationtarnishing statement must be false. See Vega v. Lantz, 596 F.3d 77, 81–82 (2d Cir. 2010) (finding no viable “stigma plus” argument for plaintiff’s sex-offender classification because he had in fact been convicted of a sex offense). All three of these appellants were convicted of terrorism-related activity. They therefore cannot satisfy this test’s defamation requirement.

26
no constitutional liberty interest existed. Aref, 2015 WL 3749621, at *9. Although both sides partially briefed the issue, appellants assert the deficiencies detailed in their briefs were “but a small piece of the voluminous and painstakingly detailed evidence [they] provided to the District Court to demonstrate the risk of erroneous deprivation of liberty.” Appellant Reply Br. 22. We therefore remand this issue for resolution on a further record. We note, however, that appellants are challenging fundamentally predictive judgments in an area where administrators are given broad discretion and the government’s legitimate interests in maintaining CMUs must be accorded substantial weight. Because the cardinal principle in due process analysis is flexibility—i.e., attention to relevant context and consideration of competing interests—only minimal process is likely due. See Hewitt v. Helms, 459 U.S. at 472.
V.
We turn next to appellant Jayyousi’s First Amendment retaliation claim against Leslie Smith, then-Chief of BOP’s CTU, in his official capacity. Jayyousi alleges that Smith retaliated against him by denying his transfer out of the CMU in 2011 because of a sermon he gave as part of a Muslim prayer meeting in August 2008 while housed in the Terre Haute CMU. The government counters Jayyousi’s language could reasonably have been viewed as an attempt to radicalize fellow Muslims, amounting to a potential security threat. To prevail on his retaliation claim, Jayyousi must show: “(1) he engaged in conduct protected under the First Amendment; (2) the defendant took some retaliatory action sufficient to deter a person of ordinary firmness in plaintiff’s position from speaking again; and (3) a causal link between the exercise of a constitutional right and the adverse action taken against him.” Banks v. York, 515 F. Supp. 2d 89, 111 (D.D.C. 2007).

27
Because Jayyousi’s claim fails at the first prong, we need not reach the final two inquiries.
While constitutional protections do not disappear at the prison gate, it is well established that “a prison inmate retains [only] those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). To evaluate whether Jayyousi’s conduct was protected by the First Amendment, we look to the factors laid out by the Supreme Court in Turner v. Safley: (i) whether there was a “valid, rational connection between the prison [action] and the legitimate governmental interest put forward to justify it;” (ii) whether “alternative means of exercising the right . . . remain open to prison inmates;” (iii) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally;” and (iv) whether any “ready alternative” existed. 482 U.S. 78, 89–90 (1987).12 These factors, taken together, allow us to assess whether the
12 The district court considered only the first Turner factor, finding “it [made] little sense” to inquire into the subsequent factors after finding for the government on the first. See Aref, 2015 WL 3749621, at *11. While the first factor is widely recognized as the most important, precedent indicates all four factors must be weighed. See, e.g., Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004) (stating “[t]here are four factors that courts must consider in determining whether a prison regulation is constitutional”); Jacklovich v. Simmons, 392 F.3d 420, 427 (10th Cir. 2004) (“The district court erred in not considering the remaining three Turner factors in the context of summary judgment.”). At least one court has even held a regulation violated the First Amendment because all but the first factor cut against the prison. See Lindell, 377 F.3d at 658–60. The district court’s failure to consider the last three factors can be remedied on appeal.

28
challenged conduct was “reasonably related to legitimate penological interests.” Id. at 89. Our circuit has cast this “reasonable relation” test as “very similar,” if not identical, to rational basis review. Amatel v. Reno, 156 F.3d 192, 198–99 (D.C. Cir. 1998). This flexible standard “ensures the ability of corrections officials to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987).
As an initial note, appellants make much of what, in their eyes, amounted to “excessive deference” on the part of the district court to Smith’s justifications for his actions. See Appellant Br. 36 (“When applying this already deferential Turner standard, the court is not meant to also defer to a defendant’s assertion that there is, in fact, a valid, rational connection between his actions and the legitimate governmental interest.”). Appellants further emphasize the legal standard for summary judgment, which requires courts to draw all reasonable inferences in their favor. See id. at 39– 40. The interplay between Turner and the summary judgment standard is admittedly murky. But the Supreme Court in Beard v. Banks provided some guidance:
We must distinguish between evidence of disputed facts and disputed matters of professional judgment. In respect to the latter, our inferences must accord deference to the views of prison authorities. Unless a prisoner can point to sufficient evidence regarding such issues of judgment to allow him to prevail on the merits, he cannot prevail at the summary judgment stage.
548 U.S. 521, 530 (2006). But the Court also cautioned that Turner “requires prison authorities to show more than a

29
formalistic logical connection between a regulation and a penological objective.” Id. at 536. We agree with the Eighth Circuit that “[a] ‘reasonableness’ standard is not toothless.” Salaam v. Lockhart, 905 F.2d 1168, 1171 (8th Cir. 1990).
With these principles in mind, we turn now to the first Turner factor. This factor, which “looms especially large,” asks whether the prison’s actions bear a rational connection to any legitimate penological interest. Amatel, 156 F.3d at 196. We agree with the district court that Smith could rationally have interpreted Jayyousi’s language during the prayer meeting as an attempt to “radicalize” other prisoners, thereby constituting a continued security risk. Although appellants claim Smith exaggerated the contents of the remarks, several portions rationally could have been considered troubling, particularly when Jayyousi stated “you are here because you are Muslim, not because you are a criminal” and cautioned “it is not U.S. versus Jayyousi; it is U.S. versus Islam.” J.A. 835. Jayyousi also asserted the CMU was created from evil, and that the suffering faced by Muslim inmates is “why we martyr.” J.A. 836. Prison staff were concerned about the sermon at the time it was given, as evidenced by the several emails and follow-ups that ensued. J.A. 1292, 1296, 1298, 1300, 1302. That Jayyousi was cleared of any wrongdoing through the prison disciplinary process does not render it unreasonable for Smith, as the head of BOP’s CTU, to consider the content of Jayyousi’s statements in evaluating his CMU placement—especially the portions that indicated Jayyousi may have been continuing some of the same actions that led to his incarceration. The first factor weighs in favor of the government.
The second Turner factor asks whether prisoners have any alternative means of exercising the right at stake. The right at issue “must be viewed sensibly and expansively.”

30
Thornburgh v. Abbott, 490 U.S. 401, 417 (1989). Turner and O’Lone are particularly instructive. In Turner, the Court “did not require that prisoners be afforded other means of communicating with inmates at other institutions, nor did . . . O’Lone require that there be alternative means of attending the [Muslim] religious ceremony.” Id. Instead, the Turner Court held “it was sufficient if other means of expression . . . remained available” and, in O’Lone, it was sufficient “if prisoners were permitted to participate in other Muslim religious ceremonies.” Id. at 418. Here, the second factor is easily satisfied; Jayyousi had other means of communicating his dissatisfaction still available to him, and he was not prohibited from giving similar sermons in the future.
The third Turner factor looks to the impact accommodation of the asserted right will have on guards and other inmates in the prison. It is unclear, in this context, how BOP could have otherwise accommodated Jayyousi, as he was allowed to pray and free to lead similar prayer meetings in the future. Appellants’ view of “accommodation” would require Smith to entirely disregard the content of Jayyousi’s sermon when evaluating whether he should remain in the CMU. But the government is not required to disregard potentially relevant information when making that sort of security assessment. Appellants additionally argue that Jayyousi’s sermon did not affect allocation of prison resources, but the number of emails generated and the need to conduct the disciplinary hearing undermine that assertion.
Finally, under the fourth factor, we must consider whether Smith had any ready alternatives. Again we find the government’s position persuasive: the CMU exists precisely because inmates who present security risks require heightened monitoring. Given that charge, Smith had no real alternative but to consider all information available about Jayyousi—

31
including the language used during the prayer meeting. And once Smith determined continued monitoring was necessary, the only option available to the government (except, perhaps prolonged confinement in administrative segregation) was to keep Jayyousi in the CMU.
At bottom, appellants are challenging a “disputed matter of professional judgment” rather than disputed matters of fact. We do not require government officials to be perfect in their judgment, merely reasonable. Because all four Turner factors uniformly indicate Smith’s actions here were reasonably related to a legitimate security interest, we affirm the district court’s grant of summary judgment on this claim.
VI.
Finally, we turn to Jayyousi and McGowan’s claims against Smith in his individual capacity. Appellants seek “compensatory and punitive damages” for injuries they suffered during their purportedly retaliatory placements in the CMUs. These injuries include the denial of job-related programming, the stigma of being designated to a “terrorist” unit, the prolonged deprivation of First Amendment rights to political speech, and the undue damage to familial relationships caused by the CMUs’ unique communication restrictions. But before we address the availability of damages in this context, we must answer a threshold jurisdictional question: whether these individual-capacity claims survive Smith’s death in March 2015.13
13 In its briefing, the government acknowledged “[t]here is . . . no defendant to respond to the individual-capacity claims, and government counsel does not represent any party with respect to those claims.” Appellee Br. 1–2. However, the government decided to respond to appellants’ claims against Smith as amicus curiae since “the United States has an interest in the proper

32
A. Mootness
Both sides agree state law determines whether a Bivens action survives the death of a party. See Haggard v. Stevens, No. 2:09–cv–1144, 2010 WL 3658809, at *3–*6 (S.D. Ohio, Sept. 14, 2010) (undertaking an exhaustive survey of law in this area and concluding questions of survivorship are overwhelmingly decided by looking to state law), aff’d 683 F.3d 714 (6th Cir. 2012). They do not agree, however, about which state’s law should govern. We have several options: West Virginia law (where Smith was domiciled and worked), Indiana law (where the Terre Haute CMU is located), or Illinois law (where the Marion CMU is located). The starting point for assessing which state’s law should apply is the law of the forum state. See Haggard v. Stevens, 683 F.3d 714, 718 (6th Cir. 2012); see also Malone v. Corr. Corp. of Am., 553 F.3d 540, 542 (7th Cir. 2009) (“[I]t is a familiar principle that federal courts use the whole law of the forum state, including that state’s choice-of-law rules.”).
The District of Columbia employs the “governmental interest” test to determine which state’s law to apply. See Raflo v. United States, 157 F. Supp. 2d 1, 5 (D.D.C. 2001). This test involves a two-step inquiry: we begin by “identifying the governmental policies underlying the applicable law” and then “determin[e] which state’s policy would be most advanced by having its law applied to the facts of this case.” Id. Courts use four factors to determine which state’s policy is most advanced by application of its laws: “(1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile . . . of
resolution of constitutional claims against its employees.” Id. at 2. The government is entitled to file as amicus without the consent of the parties or leave of court. See 29 C.F.R. § 18.24.

33
the parties; and (4) the place where the relationship is centered.” Id.
We need not determine which state’s law applies with respect to survivorship, however, because the result is the same under all three—appellants’ claims are not extinguished by Smith’s death. See Ind. Code § 34-9-3-1(a); 755 Ill. Comp. Stat. 5/27-6; W. Va. Code § 55-7-8a(a). We proceed to the merits.
B. Damages Under The PLRA
Jayyousi and McGowan contend they are entitled to compensation under the PLRA for a variety of injuries: loss of educational opportunity in the form of release preparation programming, reputational harm, violation of their First Amendment rights, and lasting harm to their familial relationships. The PLRA—in a provision entitled “Limitation on Recovery”—states: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e) (emphasis added). We are thus faced with an issue of first impression for this circuit: whether injuries that are allegedly neither mental nor emotional are compensable under the PLRA without a prior showing of physical injury. Our circuit has addressed Section 1997e(e) once before in Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998). The government and district court both contend Davis controls this issue. We disagree. In Davis, the plaintiff sought compensatory and punitive damages for an alleged violation of his privacy after a prison official opened his sealed medical records and disclosed their contents without his consent. See id. at 1345. While the Davis court assumed without deciding that this intrusion on his privacy

34
amounted to a constitutional violation, it was careful to point out that Davis “alleged resulting emotional and mental distress, but no other injury” when it held his claims for compensatory and punitive damages were foreclosed by the PLRA.14 Id. (emphasis added). Our circuit has therefore never squarely addressed whether actual injuries that are neither mental nor emotional are precluded under the PLRA absent a showing of physical injury. Language in Davis and from other circuits confirms this distinction. See, e.g., id. at 1349 (“[Section] 1997e(e) precludes claims for emotional injury without any prior physical injury, regardless of the statutory or constitutional basis of the legal wrong” (emphasis added)); Cassidy v. Ind. Dep’t of Corr., 199 F.3d 374, 375–77 (7th Cir. 2000) (dismissing claims for mental and emotional harm stemming from an underlying constitutional violation but allowing plaintiff to pursue claims for loss of opportunity, loss of participation in prison activities, loss of access to prison programs and services, and loss of freedom of movement and social context stemming from the same violation).
Circuits have split over the applicability of Section 1997e(e) to claims involving constitutional violations but no physical injury. A majority has held that Section 1997e(e) precludes compensatory damages for any claim that does not include physical harm.15 In doing so, these courts focus on the type of injury asserted. See, e.g., Thompson v. Carter, 284
14 But because the Davis court found other forms of relief (specifically injunctive and declaratory) were still available under Section 1997e(e), the court upheld the constitutionality of the statute under rational basis review. See id. at 1346, 1349. 15 Like Davis, these circuits sidestep concerns about Section 1997e(e) unconstitutionally foreclosing any relief by holding injunctive and declaratory relief remain available regardless of whether the plaintiff can show physical injury.

35
F.3d 411, 417–18 (2d Cir. 2002) (holding a “plaintiff cannot recover damages for mental or emotional injury for a constitutional violation in the absence of a showing of actual physical injury”); Brooks v. Warden, 800 F.3d 1295, 1298 (11th Cir. 2015) (“Because [plaintiff] has not alleged any physical injury resulting from his hospital stay, under the [PLRA], he cannot recover compensatory or punitive damages” for his Eighth Amendment claim). These cases necessarily imply a constitutional violation, absent physical harm, is necessarily a type of “mental or emotional injury.” See, e.g., Allah v. Al-Hafeez, 226 F.3d 247, 250 (3d Cir. 2000) (considering plaintiff’s claim of a First Amendment violation and concluding “the only actual injury that could form the basis for the award he seeks would be mental and/or emotional,” thus barring his claim); Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001) (“The statute limits the remedies available, regardless of the rights asserted, if the only injuries are mental or emotional.”).
Several circuits have taken the opposite approach. These courts view alleged constitutional violations as a type of intangible harm wholly apart from mental or emotional injury. See, e.g., King v. Zamiara, 788 F.3d 207, 213 (6th Cir. 2015), cert. denied, 136 S. Ct. 794 (2016) (“The statute provides that a prisoner may not bring a civil action for mental or emotional injury . . . . It says nothing about claims brought to redress constitutional injuries, which are distinct from mental and emotional injuries.”); Robinson v. Page, 170 F.3d 747, 749 (7th Cir. 1999) (“If the suit contains separate claims, neither involving physical injury, and in one the prisoner claims damages for mental or emotional suffering and in the other damages for some other type of injury, the first claim is barred by the statute but the second is unaffected.”).

36
Both approaches involve some degree of slicing-anddicing claims: one by injury pled and one by relief requested. This is best illustrated by example. Take a prisoner who has alleged a credible violation of his First Amendment right to free exercise but made no showing of physical harm. Rather than dismiss his entire action, the majority view of Section 1997e(e) would bar his claim for compensatory damages but allow his claims for injunctive relief and punitive damages to proceed. The minority view, on the other hand, would look to the type of injury alleged—if, say, the prisoner claimed mental anguish in addition to the substantive constitutional violation, then the first claim would be barred while the second would be eligible for compensatory damages. For the reasons laid out below, we are convinced this narrower reading of the PLRA is the proper one.
While Section 1997e(e) “may well present the highest concentration of poor drafting in the smallest number of words in the entire United States Code,” John Boston, The Prison Litigation Reform Act: The New Face of Court Stripping, 67 BROOK. L. REV. 429, 434 (2001), we nonetheless begin with the statute’s plain language. See, e.g., Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). The government’s preferred interpretation would render the phrase “mental and emotional injury” superfluous. Had Congress intended to graft a physical-injury requirement onto every single claim, the statute could simply have provided: “No Federal civil action may be brought by a prisoner . . . for any injury suffered while in custody without a prior showing of physical injury.” See Zamiara, 788 F.3d at 213; Robinson, 170 F.3d at 749; Amaker v. Haponik, No. 98 CIV. 2663, 1999 WL 76798, at *7 (S.D.N.Y. Feb. 17, 1999) (“If Congress had intended to apply § 1997e(e)’s restriction to all federal civil suits by prisoners, it could easily have done so simply by dropping the qualifying

37
language ‘for mental or emotional injury.’”). The “mental and emotional” language is significant precisely because prisoners can allege types of intangible injury that fall outside that ambit.
Courts that advocate the opposite interpretation of Section 1997e(e) claim the provision’s “clear mandate” is a focus on the type of injury pled rather than the nature of the underlying right. See, e.g., Searles, 251 F.3d at 876. The Tenth Circuit, for instance, cautioned the statute’s plain language forecloses “divorc[ing]” the underlying substantive violation from the resulting injury. Id. But our reading does no such thing; the focus remains on the type of injury alleged, with an understanding that plaintiffs can allege intangible harms that are neither mental nor emotional, i.e., not every non-physical injury is by default a mental or emotional injury.
In the PLRA context, many of our sister circuits have awarded compensatory damages for non-mental and nonemotional injuries. See, e.g., Rowe v. Shake, 196 F.3d 778, 781 (7th Cir. 1999) (“A deprivation of First Amendment rights standing alone is a cognizable injury.”); Cassidy, 199 F.3d at 375–77 (allowing claims of loss of access to prison programs and services); Brooks v. Andolina, 826 F.2d 1266, 1269–70 (3d Cir. 1987) (finding a prisoner entitled to compensatory damages for his unconstitutional placement in punitive segregation including for the loss of visiting, phone, and library privileges). Analogous Supreme Court and circuit precedent supports the view that there can be real harms separate and apart from mental or emotional injury. For instance, in Carey v. Piphus, the Court held that a plaintiff is eligible to recover damages under Section 1983 if he can demonstrate “some actual, if intangible, injury” caused by a constitutional violation. 435 U.S. 247, 264 (1978). Similarly, this court in Hobson v. Wilson instructed “intangible interests

38
must be compensated” as long as they can be shown with “sufficient certainty.” 737 F.2d 1, 62 (D.C. Cir. 1984). The Hobson court even enumerated some examples of “First Amendment compensable rights” separate from any commonlaw mental or emotional harm, such as the restriction of an inmate’s access to books. Id.
Indeed, courts frequently allow plaintiffs in Section 1983 actions to recover damages for constitutional violations that fall outside the domain of common-law injuries. See, e.g., Simmons v. Cook, 154 F.3d 805, 808–09 (8th Cir. 1998) (affirming an award of compensatory damages for Eighth Amendment claim of paraplegic prisoners unconstitutionally placed in solitary confinement); Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997) (finding damages to be an appropriate remedy for the harm caused by fabrication of evidence). Courts have also consistently treated the loss of liberty as an independently cognizable injury, separate from any mental or emotional harm. See, e.g., Heck v. Humphrey, 512 U.S. 477, 484 (1994) (“[A] successful malicious prosecution plaintiff may recover, in addition to general damages, compensation for . . . loss of time and deprivation of the society.”); Dellums v. Powell, 566 F.2d 216, 277 (D.C. Cir. 1977) (affirming damage award for, among other relief, compensation for “the duration of loss of liberty” in a Fourth Amendment case); Kerman v. City of New York, 374 F.3d 93, 128 (2d Cir. 2004) (holding a plaintiff is “entitled to be compensated for [his] loss of liberty” “independently of his claims of physical, mental, emotional, or economic injury”). We therefore conclude there exists a universe of injuries that are neither mental nor emotional and for which plaintiffs can recover compensatory damages under the PLRA.
Our holding also comports with the purpose of the PLRA, as expressed in its legislative history. The Act’s

39
passage was precipitated by an increase in prison litigation, much of it frivolous.16 Examples cited by PLRA proponents ranged from due process cases alleging injuries like a defective haircut to, most famously, an inmate filing a cruel and unusual punishment claim after he was given chunky rather than creamy peanut butter. See 141 CONG. REC. 27,042 (1995) (statement of Sen. Bob Dole). But members of Congress also made it clear that the PLRA was not meant to bar serious, potentially meritorious claims. See id. at 26,553 (statement of Sen. Jon Kyl) (“Prisoners still have the right to seek legal redress for meritorious claims . . . .”); see also id. at 27,044 (statement of Sen. Strom Thurmond) (“This amendment will allow meritorious claims to be filed, but gives the judge broader discretion to prevent frivolous and malicious lawsuits filed by prison inmates.”).
Indeed, we find it hard to believe that Congress intended to afford virtual immunity to prison officials even when they commit blatant constitutional violations, as long as no physical blow is dealt.17 It is especially difficult to see how
16 Notably, although there was a large increase in the absolute number of cases filed from 1975 to 1994 (6,606 cases to 39,065 cases, respectively), Congressional debate failed to account for the exponential growth in the prison population in the interim. The rate of inmate filings actually dropped by approximately seventeen percent during that time period. Jennifer Winslow, Comment, The Prison Litigation Reform Act’s Physical Injury Requirement Bars Meritorious Lawsuits: Was It Meant To?, 49 UCLA L. REV. 1655, 1662–63 (2002). 17 As noted above, circuits that have adopted the broader reading of Section 1997e(e)’s bar support the provision’s constitutionality by emphasizing the availability of alternative forms of relief: namely, injunctive or declaratory relief, punitive damages, and nominal damages. We need not consider the constitutionality question here but simply note the illusory nature, in practice, of such relief.

40
violations of inmates’ First Amendment rights could ever be vindicated, given the unlikelihood of physical harm in that context. Against that backdrop, and a legislative record indicating an intention to still allow awards for meritorious claims, we believe our reading of Section 1997e(e) best aligns with the purposes of the PLRA.
We note also that the PLRA contains several other mechanisms to curb the filing of frivolous suits—making it even less likely Congress intended the physical-injury requirement to bar claims for every serious but non-mental or emotional harm. See 42 U.S.C. § 1997e(a), (d) (requiring the exhaustion of administrative remedies and capping attorneys’ fees for successful claims at 150 percent of damages); 28 U.S.C. § 1915(b)(1), (g) (compelling personal payment of initial filing fees and imposing a limitation on filing in forma pauperis after having three suits previously dismissed). And, of course, courts have always had the power to weed out claims that lack merit at earlier pleading stages, preserving judicial resources. Finally, we point out one additional limitation relevant to appellants’ claims here. Even when a party pleads an injury that is neither mental nor emotional, that harm still must “be shown with sufficient certainty to
Injunctive relief is commonly moot by the time a case is heard and cannot provide relief for past harms. Punitive damages are never awarded as a matter of right, and the standard is understandably high—requiring evil motive or reckless indifference to the rights of others. See Smith v. Wade, 461 U.S. 30, 51–52 (1983). Finally, nominal damages do little to deter repetition of the illegal conduct and do not provide any compensation for actual harms suffered. Cf. Butz v. Economou, 438 U.S. 478, 506 (1978) (“In situations of abuse, an action for damages against the responsible individual can be an important means of vindicating constitutional guarantees.”); see Doe v. District of Columbia, 697 F.2d 1115, 1124 (D.C. Cir. 1983).

41
avoid damages based either on pure speculation or the socalled inherent value of the rights violated.” Hobson, 737 F.2d at 62. When “no value [can] reasonably be placed on the particular injury demonstrated,” then the plaintiff is entitled only to nominal damages. Id. at 63; see also Carey, 435 U.S. at 264 (noting plaintiffs could recover compensatory damages “for racial discrimination, the denial of voting rights and the denial of Fourth Amendment rights” assuming they could prove “some actual, if intangible, injury”); Kerman, 374 F.3d at 130 (“The present case does not involve . . . an attempt to vindicate an abstract societal interest. Rather, it involves an anything-but-abstract physical detention. And although a given person’s loss of time may be difficult to evaluate in terms of dollars, his loss of liberty is not just ‘virtually certain’ to occur; it is inseparable from the detention itself.”).
Having concluded a prisoner may recover compensatory damages under the PLRA if he can show an actual injury— separate from any mental or emotional harm—for which damages can be reasonably ascertained, we note the vast majority of circuits—including the majority of those that have adopted the broader application of Section 1997e(e)—agree the provision does not limit the availability of punitive damages provided a proper showing is made. See, e.g., Searles, 251 F.3d at 879–80; Allah, 226 F.3d at 252–53; Cassidy, 199 F.3d at 376–77; Carter, 284 F.3d at 418. Our circuit has uniquely held that punitive damages are unavailable to plaintiffs who plead only mental or emotional injury, without a showing of physical harm. See Davis, 158 F.3d at 1348 (“Amicus argues that because punitive damages are awarded to punish the tortfeasor rather than to compensate the victim, they are not embraced by § 1997e(e). But § 1997e(e) draws no such distinction. It simply prevents suits ‘for’ mental injury without prior physical injury.”). We have no occasion to reconsider that holding here. Instead, we

42
construe Davis narrowly and hold appellants who allege actual harms that are neither mental nor emotional are entitled to punitive damages if they can show the defendant’s conduct was “motivated by evil motive or intent” or “involve[d] reckless or callous indifference to the federally protected rights of others.” Wade, 461 U.S. at 56.
Finally, every circuit, regardless of its interpretation of Section 1997e(e), agrees that nominal damages are available in this context. See Carter, 284 F.3d at 418 (listing cases). Our court declined to reach this issue in Davis because it found the plaintiff failed to sufficiently plead nominal damages. See Davis, 158 F.3d at 1349. The district court here also concluded these appellants waived their claim to nominal damages by failing to “specifically plead” them in their complaint. Aref, 953 F. Supp. 2d at 149. In doing so, the court below relied entirely on our language in Davis. There, the court felt it could not “strain[] to find inferences that [were] not available on the face of the complaint or the briefs submitted” because “Davis never sought nominal damages” nor did his “submissions to the court ever mention a claim to nominal relief.” Davis, 158 F.3d at 1349. But appellants here made a specific request for nominal damages in their opposition to the government’s motion to dismiss. Brief for Plaintiffs at 36, Aref, et al. v. Holder, et al., No. 10cv-539 (D.D.C. Mar. 19, 2013), ECF No. 102. Moreover, the plaintiff in Davis only requested compensatory and punitive damages; his pleadings did not contain any catch-all prayer for relief. See Complaint, Davis v. District of Columbia, No. 97-cv-00092 (D.D.C. Jan. 14, 1997), ECF No. 1. By contrast, these appellants included a broad prayer for relief in their complaint. See Aref, 953 F. Supp. 2d at 149 (“Plaintiffs respectfully request the Court . . . [o]rder such other relief as this Court deems just and proper.”). We therefore find the reasoning in Davis inapt.

43
The Federal Rules of Civil Procedure even indicate “[e]very other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.” FED R. CIV. P. 54. Thus, we conclude appellants here have made out a sufficient claim for nominal damages. And we join our sister circuits in holding that an inmate who cannot make out “sufficiently certain” claims for compensatory damages is entitled to nominal damages, provided he proves an injury occurred. See Memphis Comm. Sch. Dis. v. Stachura, 477 U.S. 299, 308 n.11 (1986) (“[N]ominal damages . . . are the appropriate means of ‘vindicating’ rights whose deprivation has not caused actual, provable injury.”).
Overall, then, we conclude appellants are eligible to seek compensatory, punitive, and nominal damages under Section 1997e(e). They have asserted the following injuries: the disadvantage of being denied essential reintegration programming provided by BOP; the stigma of being designated to facilities known as “terrorist units;” the prolonged deprivation of First Amendment rights to political speech and activity; and the undue damage to primary family relationships. The district court held these harms to be too speculative and abstract to provide a basis for compensatory or punitive damages. See Aref, 953 F. Supp. 2d at 148–49. We need not evaluate these injuries, however, because we conclude infra that Smith is entitled to qualified immunity. We similarly decline to remand to the district court to consider—in the first instance—whether nominal damages would be appropriate.
C. Qualified Immunity
Having concluded the PLRA does not bar appellants’ claims, we turn at last to the question whether Smith is

44
entitled to qualified immunity. Appellants can prevail only if they show “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). For a right to have been “clearly established,” it must have been “clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). The Supreme Court has cautioned us not to define the right at too high a level of generality; instead, we must examine the right in its “particularized” context. See Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012). Jayyousi and McGowan allege their continued confinement to the CMU (and, in McGowan’s case, his redesignation) was retaliatory action taken in violation of the First Amendment. At the outset, we note “the right in question [here] is not the general right to be free from retaliation for one’s speech, but the more specific right to be free” from retaliation in this particular, penological context. Id.
Especially in the context of prison security, we cannot— and do not—require public officials to be perfect in their assessments. Indeed, qualified immunity is intended to allow “government officials breathing room to make reasonable but mistaken judgments about open legal questions.” Lane v. Franks, 134 S. Ct. 2369, 2381 (2014); see also Malley v. Briggs, 475 U.S. 335, 341 (1986) (observing that qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law”). We evaluate appellants’ arguments against this backdrop.
With respect to Jayyousi’s claim, as previously discussed, appellants have failed to make out an adequate case that his First Amendment rights were violated—much less that it would have been clear to any reasonable officer in

45
Smith’s position that denying Jayyousi’s transfer request on the basis of his sermon given during the prayer meeting would violate the First Amendment. McGowan’s claims are similarly untenable. Appellants point first to McGowan’s initial placement in the CMU in 2008, contending it was retaliation for protected political speech. But Smith had several reasons for recommending the placement; most notably, that McGowan’s conviction involved domestic terrorist activity and that he continued to communicate with individuals outside the prison involved in extreme environmental advocacy. While the First Amendment may protect this sort of speech and association generally, those protections are less robust in the prison context. See Pell, 417 U.S. at 822 (“[L]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.”). Moreover, placement in the CMU did not force McGowan to give up all methods of communication; it merely limited the frequency and amount. Even assuming McGowan could make out a First Amendment violation (an unlikely prospect), he certainly cannot show Smith violated any clearly established right when he recommended designation to the CMU.
Appellants then point to Smith’s decision to redesignate McGowan to the CMU in 2011, alleging it was illegal retaliation for McGowan’s exercise of protected speech. But—after being returned to the general population— McGowan asked his wife to have his attorney send him lawenforcement sensitive documents, in an apparent attempt to circumvent communications monitoring. It was reasonable for an officer in Smith’s position to consider this attempted end-run around the prison’s monitoring systems when deciding whether redesignation would be prudent. Yet again, even if McGowan could make out a First Amendment

46
violation here, he cannot meet the high bar of showing an official in Smith’s position would have known his actions violated a clearly established right. Smith is therefore entitled to qualified immunity on all of appellants’ individual-capacity claims.18
VII.
In sum, we hold appellants’ claims were not mooted by their transfer out of the CMU and they have a liberty interest in avoiding transfer into the CMU. We therefore reverse the grant of summary judgment on this claim and remand to the district court to determine whether the government’s procedures comport with due process as applied to appellants.
With respect to Jayyousi’s First Amendment retaliation claim, we hold he failed to establish any constitutional violation and so cannot prevail. Appellants’ individualcapacity claims against Lieutenant Smith survive his death and, moreover, constitute claims for actual though intangible harms that are neither mental nor emotional. Although these claims are eligible to be brought under the PLRA, they too fail because Smith is entitled to qualified immunity. For the foregoing reasons, we affirm the district court’s grant of summary judgment on both these claims.
So ordered.
18 Because we hold Smith is entitled to qualified immunity, and therefore uphold the district court’s order dismissing all claims against him, we need not consider the parties’ arguments regarding substitution of a representative for the deceased.