Aref v. Holder

• Decision Date: 12 July 2013
• Docket Number: Civil Action No. 10–539(BJR).
• Citation: 953 F.Supp.2d 133
• Parties: Yassin Muhiddin AREF, et al., Plaintiffs, v. Eric HOLDER, et al., Defendants.
• Court: U.S. District Court — District of Columbia

953 F.Supp.2d 133

Yassin Muhiddin AREF, et al., Plaintiffs,

v.Eric HOLDER, et al., Defendants.

Civil Action No. 10–539(BJR).

United States District Court,

District of Columbia.

July 12, 2013.

Andrey Spektor, Kavita Christina Desai, Gregory Silbert, Weil, Gotshal & Manges, LLP, Alexis Agathocleous, Rachel Meeropol, Shayana Devendra Kadidal, New York, NY, Eileen Hren Citron, Weil, Gotshal & Manges, LLP, Washington, DC, for Plaintiffs.

Nathan Michael Swinton, Nicholas P. Cartier, Timothy Andrew Johnson, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION ON DEFENDANTS' CONSOLIDATED MOTION TO DISMISS

Granting in Part and Denying in Part Defendants' Consolidated Motion to Dismiss

BARBARA J. ROTHSTEIN, District Judge.

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 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. BACKGROUNDA. 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 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 fifteen-minute 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.

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).

II. FACTSA. 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[,]...