The ruling by the U.S. District Court for the District of Columbia noted factual differences regarding the circumstances of the prisoner plaintiffs in the case.
Prisoner Yassin Aref was serving a fifteen-year sentence for “money laundering, providing material support for terrorism, conspiracy, and making a false statement to the FBI.” Initially classified as low security, he was eventually assigned to the CMU at Terre Haute and, after filing a grievance and requesting a transfer, was sent to the Marion CMU.
Avon Twitty, initially serving a sentence for murder and a firearms violation, was designated to the Terre Haute CMU but paroled in 2011, and his case was dismissed as being moot.
Prisoner Daniel McGowan was accused of domestic terrorism; like Aref, McGowan was classified as low security. He was transferred to the Marion CMU, filed an administrative appeal and was then sent to the CMU at Terre Haute. He was named as a plaintiff in the suit along with his wife, Jenny Synan, who had not been charged with any criminal wrongdoing.
Kifah Jayyousi was also convicted of terrorism offenses and initially classified as low security by the Bureau of Prisons (BOP); he was transferred to the Terre Haute CMU. He sued along with his wife, Hedaya Jayyousi, who had not faced any criminal charges.
Prisoner Royal Jones was convicted of solicitation of bank robbery and a probation violation, and despite his excellent disciplinary record was transferred to the Marion CMU. His administrative attempts to appeal the transfer were unsuccessful, but a lawsuit that he filed against the BOP convinced prison officials to transfer him out of the CMU into the general population at Marion.
A CMU is classified by the BOP as a “self-contained general population housing unit where inmates reside, eat, and participate in all educational, recreational, religious, visiting, unit management, and work programming....” A prisoner can be placed in a CMU for the following reasons: “current offenses of conviction, or offense conduct, including association, communication, or involvement, related to international or domestic terrorism....”
According to the district court, “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 by telephone ... CMU inmates are currently afforded eight visitation hours per month, and no single visit may last more than four hours.... CMU inmates are entitled to at least one phone call per month lasting at least three minutes....With the exception of legal phone calls, CMU inmates are allowed two fifteen-minute calls per week....” Within five days of being transferred to a CMU, a prisoner may administratively appeal his or her transfer pursuant to BOP policy, as set forth in 28 C.F.R. §§ 542.10 to 542.18.
The plaintiffs alleged in their complaint, filed in 2010, 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 ... [they] also alleged 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.’” They further raised equal protection violations, stating there was “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, and based upon their religion, national origin, and perceived political and/or ideological beliefs.”
The plaintiffs argued that the “prolonged and complete denial of any opportunity for physical contact with their loved ones” constituted cruel and unusual punishment. They also alleged violations of APA rules governing notice and comment rulemaking prior to setting up the CMUs. According to the district court, “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 ... and an order requiring the defendants to provide the plaintiffs with the same communication privileges as ‘all other general population prisoners.’”
The court held that plaintiff Jones had standing to pursue his claim, as he had been removed from a CMU and placed in general population, and “plainly stated facts that ... demonstrate a realistic threat that he might be redesignated to a CMU.” However, the district court granted the defendants’ supplemental motion for partial dismissal as to Twitty, based on the fact that Twitty had been released to a halfway house and was no longer in a CMU.
The court also granted the defendants’ motion to dismiss the substantive due process claims, finding that the First Amendment does not provide a right to “family integrity” based upon restrictions on the plaintiffs’ communications. The court applied the test set forth in Turner v. Safley, 482 U.S. 78 (1987), holding that “the plaintiffs have not adequately alleged that CMU restrictions are not rationally related to the legitimate penological interest in monitoring the communication of high-risk inmates....”
The district court did, however, rule in the plaintiffs’ favor by agreeing that they plausibly alleged a liberty interest protected by procedural due process. As noted in Hatch v. Dist. of Columbia, 184 F.3d 846 (D.C. Cir. 1999) [PLN, Dec. 2000, p.31], “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.”
The court noted the disparity in phone calls allowed to CMU prisoners in comparison with general population prisoners, and found the plaintiffs had plausibly alleged that they had a liberty interest in avoiding designation to a CMU and the restrictions resulting from such a designation. The district court also agreed that the plaintiffs had well-pleaded their contention that BOP administrative remedies and periodic reviews related to their CMU confinement were “illusory,” and the BOP Notices of Transfer were “vague and generic” and provided “no notice at all.”
The court found that the plaintiffs’ Eighth Amendment claims did not adequately allege that they had been denied “the minimum civilized measures of life’s necessities” as required to sustain a claim for cruel and unusual punishment. Such necessities are typically “shelter, health care, and personal security,” according to Inmates of Occoquan v. Barry, 844 F.2d 828 (D.C. Cir. 1988).
The court allowed the plaintiffs’ retaliation claims to proceed, noting that they had adequately pleaded an inference that the alleged retaliatory acts occurred shortly after the filing of a grievance, and that the prisoner’s disciplinary record until that point was clean. The court dismissed the plaintiffs’ First and Fifth Amendment discrimination claims for failure to state a claim “that is plausible on its face.” The APA claims were dismissed without prejudice.
The case remains pending on the plaintiffs’ remaining claims. See: Aref v. Holder, 774 F.Supp.2d 147 (D.D.C. 2011).
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Related legal case
Aref v. Holder
|Cite||774 F.Supp.2d 147 (D.D.C. 2011)|