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DC Circuit Court Reverses Dismissal of Suit Challenging CMU Placement

by Derek Gilna

The D.C. Circuit Court of Appeals has overturned portions of a district court’s dismissal of a lawsuit filed by three federal prisoners – Yassin Aref, Kifah Jayyousi and Daniel McGowan – who sought damages as a result of their confinement in Communications Management Units (CMUs). The appellate ruling reversed in part the lower court’s grant of summary judgment to the federal Bureau of Prisons (BOP).

CMUs severely restrict the ability of prisoners to communicate with their outside contacts, including family members, and are frequently used to isolate Muslim prisoners accused of terrorist-related activities. [See: PLN, Sept. 2012, p.26].

According to the D.C. Circuit, “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.” The plaintiffs sought damages “for a variety of injuries ... including the denial of certain educational and professional programming, violations of their constitutional rights and harm to familial relationships.”

The district court held that McGowan’s claims were moot as he had since been released from prison. It then entered summary judgment in favor of the BOP, finding the plaintiffs had no liberty interest in avoiding CMU confinement that supported their due process claims, and their First Amendment rights had not been violated. The Court of Appeals affirmed in part and reversed in part on August 19, 2016.

“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,” the Court wrote.

The D.C. Circuit noted the U.S. Supreme Court had “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....’”

Most significantly, the appellate court held that unlike the result reached by the district court, “appellants have alleged harms qualifying for compensation under the [Prison Litigation Reform Act] because their injuries were neither mental nor emotional in nature and so do not require a showing of physical injury.”

Pursuant to the PLRA, “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).

Noting there was a circuit split on that issue, the appellate court quoted Amaker v. Haponik, 98 CIV 2663, 1999 WL 76798 at *7 (S.D.N.Y. February 17, 1999): “If Congress had intended to apply Section 1997e(e)’s restriction to all federal civil suits by prisoners, it could easily have done so simply by dropping the qualifying language ‘for mental or emotional injury.’”

Although the Court of Appeals reversed the grant of summary judgment with respect to due process claims involving the plaintiffs’ CMU confinement, it affirmed the dismissal of the First Amendment retaliation claim. The case remains pending on remand. See: Aref v. Lynch, 833 F.3d 242 (D.C. Cir. 2016).  


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Related legal case

Aref v. Lynch