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Second Circuit Allows Muslim Prisoners’ Bivens Claims to Proceed

Although Muslim prisoners held at the harsh U.S. military prison in Guantanamo Bay, Cuba have received more publicity, conditions of confinement for prisoners of Middle-Eastern descent in domestic prisons have also been abusive. So abusive, in fact, that the Second Circuit Court of Appeals allowed a lawsuit filed by Muslim prisoners housed at the Metropolitan Detention Center (MDC) in New York to proceed, affirming in part and reversing in part a dismissal of the case by a federal district court.

According to the appellate court, “This case raises a difficult and delicate set of legal issues concerning individuals who were caught up in the post-9/11 investigation even though they were unquestionably never involved in terrorist activity. Plaintiffs are eight male, ‘out of status’ aliens who were arrested on immigration charges and detained following the 9/11 attacks.” [See: PLN, July 2010, p.46].

The plaintiffs alleged that then-Attorney General John Ashcroft, FBI Director Robert Mueller, Immigration and Naturalization Service Director James Ziglar, MDC Warden Dennis Hasty and former MDC Warden James Sherman committed or caused “discriminatory and punitive” acts against them. Most of the plaintiffs were held in detention from three to eight months.

After reviewing the pattern of behavior of the defendants, the appellate court concluded in its June 17, 2015 decision “that a Bivens remedy is available for Plaintiffs’ conditions of confinement claims, under both the Due Process and Equal Protection Clauses of the Fifth Amendment, and Fourth Amendment unreasonable and punitive strip searches claim,” while denying the plaintiffs’ religious free-exercise claim as not allowable under Bivens. The “Fifth Amendment’s Due Process Clause forbids subjecting pretrial detainees to punitive restrictions or conditions,” noted the Second Circuit, citing Bell v. Wolfish, 441 U.S. 520 (1979).

While held at the MDC, the plaintiffs were subjected to conditions that included placement “in tiny cells for over 23 hours a day”; being strip-searched whenever they were removed from their cells; “provided with ‘meager and barely edible’ food”; denied sleep due to bright lights that “were left on in their cells for 24 hours a day” and guards kicking their cell doors during the night; denied recreation; “‘denied access to basic hygiene items like toilet paper, soap, towels, toothpaste, [and] eating utensils’”; and not allowed to move around their unit or freely use the telephone and commissary, or access MDC handbooks “which explained how to file complaints about mistreatment.”

Additionally, the Court of Appeals found that staff at MDC had “subjected the 9/11 detainees to frequent physical and verbal abuse. The abuse included slamming the 9/11 detainees into walls; bending or twisting their arms, hands, wrists, and fingers; lifting them off the ground by their arms; pulling on their arms and handcuffs; stepping on their leg restraints; restraining them with handcuffs and/or shackles even while in their cells; and handling them in other rough and inappropriate ways.”

The Court concluded that “Plaintiffs’ well-pleaded allegations, in conjunction with the OIG [Office of Inspector General] Report’s documentation of events [showing prisoner abuse] render plausible the claim that by the beginning of November 2001 Ashcroft knew of, and approved, the MDC Plaintiffs’ confinement under severe conditions, and that Mueller and Ziglar complied with Ashcroft’s order notwithstanding their knowledge that the government had no evidence linking the MDC Plaintiffs to terrorist activity.” The appellate court also held the defendants were not entitled to qualified immunity on most of the claims.

“If there is one guiding principle to our nation it is the rule of law,” the Second Circuit wrote. “It protects the unpopular view, it restrains fear-based responses in times of trouble, and it sanctifies individual liberty regardless of wealth, faith, or color. The Constitution defines the limits of the Defendants’ authority; detaining individuals as if they were terrorists, in the most restrictive conditions of confinement available, simply because these individuals were, or appeared to be, Arab or Muslim exceeds those limits.”

The dissent argued that the plaintiffs should not be able to “pursue money damages on policy-challenging Fifth Amendment claims for punitive and discriminatory confinement claims against Ashcroft, Mueller, Ziglar, Hasty, and Sherman, and an attendant policy-challenging Fourth Amendment claim for unreasonable strip searches against defendants Hasty and Sherman.”

The case remains pending following remand; six of the original plaintiffs who settled or withdrew their claims against the federal government have been replaced by other plaintiffs from the Middle East, North Africa or South Asia who were housed at MDC following the 9/11 attacks and subjected to similar abusive conditions of confinement. See: Turkmen v. Hasty, 789 F.3d 218 (2d Cir. 2015), rehearing en banc denied. 

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Related legal case

Turkmen v. Hasty