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Yassin Muhiddin Aref et al v. Eric Holder et al

March 30, 2011


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos.: 9, 19, 29



This matter is before the court on the defendants' motion to dismiss and supplemental motion to dismiss. The plaintiffs are a group of federal prisoners who are or were incarcerated in specially designated Communication Management Units ("CMUs") established at the Federal Correctional Institutions ("FCI") in Terre Haute, Indiana ("Terre Haute CMU") and Marion, Illinois ("Marion CMU") as well as two spouses of the prisoners. They contend that the defendants -- the United States Attorney General, the Federal Bureau of Prisons ("BOP"), the Director of the BOP and the Assistant Director of the BOP's Correctional Programs Division -- violated their constitutional rights by designating them to the CMUs. The plaintiffs also allege that the defendants violated the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., by failing to engage in notice and comment rulemaking prior to establishing the CMUs.

In their initial motion to dismiss, the defendants contend that the plaintiffs have failed to sufficiently plead their constitutional claims, that the plaintiffs' APA claim is moot and that plaintiff Royal Jones lacks standing. In their supplemental motion for partial dismissal, the defendants argue that plaintiff Avon Twitty's claims are moot because he is not currently designated to a CMU. For the reasons discussed below, the court grants in part and denies in part the defendants' initial motion to dismiss and grants the defendants' supplemental motion to dismiss.

The matter is also before the court on the motion to intervene filed by four inmates at the Terre Haute CMU ("applicants") who are not currently parties in this action. Because the current plaintiffs adequately represent the interests of the applicants, the court denies the applicants' motion to intervene.


A. Communication Management Units

The BOP established the Terre Haute CMU in 2006 and the Marion CMU in 2008. Compl., Ex. A ("BOP Terre Haute CMU Institution Supplement") at 1; see also id., Ex. B ("BOP Marion CMU Institution Supplement") at 1.*fn1 The BOP describes the CMUs as follows:

The CMU is 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.

The CMU is a self-contained general population housing unit where inmates reside, eat, and participate in all educational, recreational, religious, visiting, unit management, and work programming . . . . Additionally, the unit contains a range of cells dedicated to segregated housing of those inmates in need of being placed in administrative detention or disciplinary segregation status.

BOP Terre Haute CMU Institution Supplement at 1. 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.

Compl., Ex. F ("Notice to Inmates") at 1.

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. BOP Terre Haute CMU Institution Supplement at 2. All communication during the visits must be in English and the visits are live-monitored by BOP staff and are subject to recording. Id. at 2-3. CMU inmates are currently afforded eight visitation hours per month and no single visit may last more than four hours.*fn2 Compl. ¶ 57. Visiting hours are from 8:30 a.m. to 2:30 p.m. Sunday through Friday. Id.

CMU inmates are entitled to at least one phone call per month lasting at least three minutes. BOP Terre Haute CMU Institution Supplement at 2 (citing 28 C.F.R. §§ 540.100(b), 540.101(d)). With the exception of legal phone calls, id., CMU inmates are allowed two fifteen-minute phone calls per week,*fn3 Compl. ¶ 65. Both the inmate and the call recipient must speak in English only. BOP Terre Haute CMU Institution Supplement at 2. The calls are live-monitored by BOP staff and subject to recording. 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. Id. at 1. An inmate may appeal his "transfer to [a CMU], or any conditions of his confinement, through the [BOP's] Administrative Remedy Program, 28 C.F.R. §§ 542.10 through 542.18, and corresponding policy." Id. at 5.

B. The Plaintiffs

1. Yassin Aref

Yassin Aref is an Iraqi refugee who is serving a fifteen-year sentence for money laundering, providing material support for terrorism, conspiracy and making a false statement to the FBI. Compl. ¶¶ 16, 107. Prior to his convictions he served as an Imam of the Masjid-As-Salam Mosque in Albany, New York. Id. ¶ 104. His conviction arose from his participation in a loan transaction that would have helped to finance the purchase of a surface-to-air missile to a terrorist group called Jaish-e-Mohammed ("JEM"). Id. ¶ 107.

At the time his incarceration began in 2007, the BOP classified Aref as a "low security" inmate. Id. ¶¶ 107, 112. He has no disciplinary history and "has never received an infraction of any kind at a BOP facility." Id. ¶ 110. Aref was transferred from the Rensselaer County Jail in Troy, New York to the Terre Haute CMU in May 2007. Id. ¶ 113. After arriving at the CMU, he received a Notice of Transfer purporting to explain the reasons for his transfer:

Your current offense of conviction includes Providing Material Support & Resources to a Foreign Terrorist Organization, & Conspiracy to Use a Weapon of Mass Destruction. Your offense conduct included significant communication, association and assistance to Jaish-e-Mohammed (JeM), a group which has been designated as a foreign terrorist organization.

Id. Aref challenged his designation to the CMU through the prison's grievance system, arguing that the Notice of Transfer "mischaracterized his offense conduct." Id. ¶ 114. He applied for a transfer and was eventually sent to the Marion CMU. Id. ¶ 116.

2. Avon Twitty

In 1984, Avon Twitty was sentenced to a term of imprisonment of twenty years to life for murder and three to ten years for carrying a pistol without a license. Id. ¶¶ 17, 127. He was designated to the Terre Haute CMU in May 2007. Id. ¶ 132. On October 20, 2010, Twitty was placed in a halfway house in Washington, D.C. Defs.' Supplemental Mot. to Dismiss on Mootness Grounds ("Defs.' Suppl. Mot.") at 2. He was paroled on January 21, 2011. Pls.' Notice Regarding Change in Confinement Status of Avon Twitty ("Pls.' 1st Notice") at 1.

3. Daniel McGowan & Jenny Synan

Daniel McGowan*fn4 is a former member of the Earth Liberation Front ("ELF"), Compl. ¶ 18, a domestic terrorist organization, Defs.' Mot. at 4. In 2006, he pled guilty to two counts of arson and, in 2007, he was sentenced to seven years of incarceration. Compl. ¶ 151. Like Aref, McGowan has been classified by the BOP as "low security" and has had no disciplinary history during his incarceration. Id. ¶¶ 154, 159.

In August 2008, McGowan was transferred to the Marion CMU. Id. ¶ 160. Ten days after the transfer, he received a Notice of Transfer stating as follows:

Your offense conduct included acts of arson, destruction of an energy facility, attempted arson, and conspiracy to commit arson. You have been identified as a member and leader in the Earth Liberation Front (ELF) and Animal Liberation Front (ALF), groups considered domestic terrorist organizations. Your offense conduct included communicating in code and teaching others how to commit crimes of arson. Your actions had the primary purpose to influence and affect the conduct of government, commerce, private business and others in the civilian population by means of force, violence, sabotage, destruction of property, intimidation and coercion. Your contact with persons in the community requires heightened controls and review.


McGowan administratively appealed his transfer. Id. ¶¶ 162, 164. This effort ultimately proved unfruitful. Id. In October 2010, McGowan was transferred from the CMU into the general population at the Marion facility. Defs.' Suppl. Mot. at 2. He was, however, transferred to the Terre Haute CMU on February 24, 2011. Defs.' Notice Regarding Govt's Supplemental Mot. To Dismiss ("Defs.' Notice") at 1.

4. Royal Jones

Royal Jones was convicted of solicitation of bank robbery, which also constituted a probation violation for an earlier gun possession conviction. Compl. ¶ 184. He was sentenced in 2007 to ninety-four months of incarceration. Id. ¶¶ 184-85. Jones has had "no serious disciplinary infractions" and only "one minor communications[-]related infraction" during this period of incarceration. Id. ¶ 186.

Jones was transferred to the Marion CMU in June 2008. Id. ΒΆ 189. His Notice of Transfer, which he received shortly after ...

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