915 F.Supp.2d 314 (E.D.N.Y. 2013), 02-CV-2307, Turkmen v. Ashcroft

Docket Nº:02-CV-2307.
Citation:915 F.Supp.2d 314
Opinion Judge:JOHN GLEESON, District Judge.
Party Name:Ibrahim TURKMEN, Akhilsachdeva, Ahmer Iqbal Abbasi, Anser Mehmood, Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, and Purna Raj Bajracharya on behalf of themselves and all others similarly situated, Plaintiffs, v. John ASHCROFT, former Attorney General of the United States, Robert Mueller, Director of the Federal Bureau of Investigation, James W.
Attorney:Center For Constitutional Rights, New York, N.Y. by Rachel Anne Meeropol, George Gardner, William P. Quigley, Sunita Patel, Michael Winger, Attorneys for Plaintiffs. Neil H. MacBride, United States Attorney for the Eastern District of Virginia, Alexandria, VA by Dennis C. Barghaan, Jr., Attorney ...
Case Date:January 15, 2013
Court:United States District Courts, 2nd Circuit, Eastern District of New York
 
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915 F.Supp.2d 314 (E.D.N.Y. 2013)

Ibrahim TURKMEN, Akhilsachdeva, Ahmer Iqbal Abbasi, Anser Mehmood, Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, and Purna Raj Bajracharya on behalf of themselves and all others similarly situated, Plaintiffs,

v.

John ASHCROFT, former Attorney General of the United States, Robert Mueller, Director of the Federal Bureau of Investigation, James W. Ziglar, former Commissioner of the Immigration and Naturalization Service, Dennis Hasty, former Warden of the Metropolitan Detention Center (MDC), Michael Zenk, former Warden MDC, James Sherman, former MDC Associate Warden for Custody; Salvatore Lopresti, former MDC Captain; Joseph Cuciti, former MDC Lieutenant, Defendants.

No. 02-CV-2307.

United States District Court, E.D. New York.

January 15, 2013

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Center For Constitutional Rights, New York, N.Y. by Rachel Anne Meeropol, George Gardner, William P. Quigley, Sunita Patel, Michael Winger, Attorneys for Plaintiffs.

Neil H. MacBride, United States Attorney for the Eastern District of Virginia, Alexandria, VA by Dennis C. Barghaan, Jr., Attorney for Defendant John Ashcroft.

Ronald C. Machen, Jr., United States Attorney for the District of Columbia, Washington, DC, by R. Craig Lawrence, Attorney for Defendant Robert Mueller.

Law Offices of William Alden McDaniel, Jr., Baltimore, MD by William Alden McDaniel, Jr., Attorney for Defendant James Ziglar.

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Crowell & Moring LLP, Washington, DC by David Bell, Michael L. Martinez, Attorneys for Defendant Dennis Hasty.

Duval & Stachenfeld LLP New York, N.Y. by Joshua Klein Attorneys for Defendant Michael Zenk.

Shaw Bransford Veilleux & Roth, P.C., Washington, DC by Debra L. Roth, Attorneys for Defendant James Sherman.

Joseph Cuciti, United States Department of Homeland Security, New York, NY, Defendant Pro Se.

MEMORANDUM AND ORDER

JOHN GLEESON, District Judge.

Plaintiffs Ibrahim Turkmen, Akhil Sachdeva, Ahmer Iqbal Abbasi, Anser Mehmood, Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, and Purna Raj Bajracharya bring this putative class action against John Ashcroft, Robert Mueller, James Ziglar, Dennis Hasty, Michael Zenk, James Sherman, Salvatore Lopresti, and Joseph Cuciti. Plaintiffs were arrested and detained by federal authorities in connection with the investigation of the terrorist attacks of September 11, 2011. They bring six Bivens claims and a seventh claim under 42 U.S.C. § 1985, all arising out of their allegations of discriminatory and punitive detention. The defendants have now moved to dismiss. For the reasons set forth below, the defendants' motions are granted in part and denied in part.

Specifically, the claims based on the alleged harsh conditions of confinement and unlawful strip searches (Claims One, Two and Six) shall proceed against Hasty, Zenk, Sherman, Lopresti, and Cuciti. To the extent they are alleged against Ashcroft, Mueller and Ziglar,1 the allegations are insufficient and the claims are therefore dismissed as against them. As for the claimed deprivation of the plaintiffs' free exercise rights (Claim Three), I hold that the Bivens damages remedy is extended to this context and that the claim shall proceed against Hasty, Zenk, Sherman, Lopresti, and Cuciti. It is insufficiently pled against Ashcroft, Mueller and Ziglar and is therefore dismissed as against them. The claims based on the alleged communications blackout and interference with counsel (Claims Four and Five) are dismissed as to all defendants on the ground of qualified immunity. Finally, the conspiracy claim (Claim Seven) shall proceed, but only to the extent that the underlying objects of the conspiracy (Claims One through Six) have survived the motion. Thus, it is dismissed as against Ashcroft, Mueller and Ziglar and shall proceed to the extent it alleges a conspiracy by the remaining defendants to commit the civil rights violations alleged in Claims One, Two, Three and Six.

In sum, the case against Ashcroft, Mueller and Ziglar is dismissed in its entirety. Only Claims Four and Five (and the part of Claim Seven that alleges a conspiracy to commit the wrongs charged in Claims Four and Five) are dismissed as against the other defendants. Counsel for the remaining parties are directed to appear before Chief Magistrate Gold for a status conference on January 30, 2013 at 2:00 PM.

BACKGROUND

A. Factual Allegations

1. Overview

The plaintiffs are eight male, non-United States citizens who were arrested on

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immigration charges following the terrorist attacks on September 11, 2001 (" 9/11 attacks" ). They were held in immigration custody for periods ranging from three to eight months after receiving final orders of removal or grants of voluntary departure. All but two are Muslims of Middle Eastern, North African, or South Asian origin; the others, natives of India and Nepal, are Hindu. Plaintiffs bring this putative class action on behalf of themselves and a class of male non-citizens who are Arab or Muslim, or were perceived by the defendants to be Arab or Muslim,2 and were (1) arrested by the Immigration and Naturalization Service (" INS" ) or the Federal Bureau of Investigation (" FBI" ) after September 11, 2001, and charged with immigration violations; (2) treated as " of interest" to the government's terrorism investigation; (3) detained under a blanket " hold-until-cleared" policy, pursuant to which they were held without bond until cleared of terrorist ties by the FBI; and (4) confined in the Metropolitan Detention Center (" MDC" ) or the Passaic County Jail (" Passaic Jail" ). I refer to the putative class as the " Detainees."

The Complaint names the following individuals as defendants: (1) John Ashcroft, the former Attorney General of the United States, Robert Mueller, the Director of the FBI, and James W. Ziglar, the former Commissioner of the INS (collectively, the " DOJ defendants" ); (2) Dennis Hasty and Michael Zenk, both former wardens of the MDC; and (3) James Sherman, Salvatore Lopresti, and Joseph Cuciti, all former MDC officials of a rank below warden. I refer to Hasty, Zenk, Sherman, Lopresti, and Cuciti collectively as the " MDC defendants."

2. The Treatment of the Detainees 3

In the aftermath of the 9/11 attacks, the defendants acted together to create and implement a series of policies and practices relating to the identification, detention, and treatment of Arab and Muslim noncitizens who had violated immigration laws ( i.e., the Detainees). I refer to this series of policies and practices in the aggregate as the " detention policy." Pursuant to the detention policy, the Detainees were rounded up and detained on their immigration violations so government officials could question them in connection with the ongoing investigation of the 9/11 attacks (the " PENTTBOM investigation" ); they were treated as " of interest" to the PENTTBOM investigation, which meant that they were deemed to be potential terrorists despite the fact that they had been arrested based on immigration violations, not on suspicion of terrorist activity; they were subject to a hold-until-cleared policy, under which they were held for lengthy periods of times— often for months after they were ordered removed from the country— until the FBI affirmatively cleared them of suspicion of wrongdoing; and they were held until their release in extremely restrictive conditions of confinement. The only aspect of the detention policy challenged in the Complaint is the confinement of the Detainees in harsh conditions (" harsh confinement policy" ).

The harsh confinement policy, which was created by the DOJ defendants, was a

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directive to hold the Detainees in restrictive conditions under which they would feel maximum pressure to cooperate with the PENTTBOM investigation. Although this policy mandated that the Detainees' ability to contact the outside world be limited, it did not specify the precise conditions in which they would be held. Rather, the harsh confinement policy was a general mandate, and the exact manner of its implementation was to be determined by officials at the facilities in which the Detainees were held.4

The harsh confinement policy was expressly directed at Arab and Muslim noncitizens who had violated immigration laws: It mandated restrictive conditions specifically for Arab and Muslim individuals. In other words, it was discriminatory on its face. This is not to say that no non-Arabs and non-Muslims were held in harsh conditions of confinement as a result of the investigation following the 9/11 attacks. Other individuals may have been held in such conditions pursuant to other policies or for other reasons. However, the harsh confinement policy expressly applied to Arab and Muslim individuals, dictating that those detained under the policy be held in harsh conditions of confinement— not because of any suspected links to terrorism, but because of their race, national origin, and/or religion.

The harsh confinement policy was implemented by the MDC defendants in the following way: The Detainees (the " MDC Detainees" ) were placed in that facility's Administrative Maximum Special Housing Unit (the " ADMAX SHU" ). There, they were confined in tiny cells for over 23 hours a day, provided with meager and barely edible food, and prohibited from moving around the unit, using the telephone freely, using the commissary, accessing MDC...

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