United States District Court, District of Columbia
[Copyrighted Material Omitted]
For YASSIN MUHIDDIN AREF, Plaintiff: Andrey Spektor, LEAD ATTORNEY, PRO HAC VICE, Gregory Silbert, PRO HAC VICE, Kavita Christina Desai, PRO HAC VICE, WEIL, GOTSHAL & MANGES, LLP, New York, NY; Alexis Agathocleous, PRO HAC VICE, New York, NY; Eileen Hren Citron, WEIL, GOTSHAL & MANGES, LLP, Washington, DC; Rachel Meeropol, PRO HAC VICE, New York, NY; Shayana Devendra Kadidal, New York, NY.
For DANIEL MCGOWAN, Plaintiff: Shayana Devendra Kadidal, LEAD ATTORNEY, New York, NY; Alexis Agathocleous, PRO HAC VICE, New York, NY; Eileen Hren Citron, WEIL, GOTSHAL & MANGES, LLP, Washington, DC; Gregory Silbert, PRO HAC VICE, Kavita Christina Desai, PRO HAC VICE, WEIL, GOTSHAL & MANGES, LLP, New York, NY; Rachel Meeropol, PRO HAC VICE, New York, NY.
For KIFAH JAYYOUSI, Plaintiff: Andrey Spektor, LEAD ATTORNEY, PRO HAC VICE, Gregory Silbert, PRO HAC VICE, Kavita Christina Desai, PRO HAC VICE, WEIL, GOTSHAL & MANGES, LLP, New York, NY; Shayana Devendra Kadidal, LEAD ATTORNEY, New York, NY; Alexis Agathocleous, PRO HAC VICE, New York, NY; Eileen Hren Citron, WEIL, GOTSHAL & MANGES, LLP, Washington, DC; Rachel Meeropol, PRO HAC VICE, New York, NY.
For ERIC H. HOLDER, JR., Attorney General of the United States, ERIC H. HOLDER, JR., Attorney General of the United States, D. DODRILL, Assistant Director, Correctional Programs Division, FEDERAL BUREAU OF PRISONS, Defendants: Nathan Michael Swinton, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC; Nicholas P. Cartier, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Timothy Andrew Johnson, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.
For CHARLES E. SAMUELS, JR., Acting Assistant Director, Correctional Programs Division, Defendant: Nathan Michael Swinton, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC; Timothy Andrew Johnson, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.
For LESLIE SMITH, Chief, Counter Terrorism Unit, Defendant: Timothy Andrew Johnson, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.
MEMORANDUM OPINION ON DEFENDANTS' CONSOLIDATED MOTION TO DISMISS
BARBARA J. ROTHSTEIN, UNITED STATES DISTRICT JUDGE.
Granting in Part and Denying in Part Defendants' Consolidated Motion to Dismiss
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.
A. 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).  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 ...