United States District Court, C.D. Illinois
December 21, 2005.
OMAR ABDEL-FATAH AL-SHISHANI, Plaintiff,
FEDERAL BUREAU OF PRISONS, et.al., Defendant.
The opinion of the court was delivered by: HAROLD BAKER, District Judge
This cause is before the court for merit review of the
plaintiff's claims. The court is required by 28 U.S.C. § 1915A to
"screen" the plaintiff's complaint, and through such process to
identify and dismiss any legally insufficient claim, or the
entire action if warranted. A claim is legally insufficient if it
"(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or (2) seeks monetary relief from a
defendant who is immune from such relief." The plaintiff
participated in the hearing by telephone conference call.
The plaintiff brings this lawsuit pursuant to 42 U.S.C. § 1983,
42 U.S.C. § 1981 and state law. The plaintiff has named six
defendants including the Federal Bureau of Prisons, Pekin Federal
Correctional Institution Warden Rick Veach, Associate Warden Jack
Atherton, Captain David Gonzales, Lieutenant Guy Pagli and staff
member Mohammed Zantout.
The plaintiff has divided his complaint into seven counts. He
first alleges that Defendants Veach, Allerton, and Gonzales
discriminated against him in violation of 42 U.S.C. § 1981.
During the hearing, the plaintiff also identified Defendant Pagli
as one of the individuals who discriminated against him. The
plaintiff says the defendants inaccurately labeled the plaintiff
has a terrorist based only on his ethnicity and imposed many
unfair restrictions on the plaintiff. The plaintiff also says he
was repeatedly placed in solitary confinement for no reason and
without benefit of a hearing. Lastly, he says the defendants told
other inmates that he was a terrorist which lead to assaults by
The court finds that the plaintiff has stated a violation of
42 U.S.C. § 1981. The plaintiff has also stated a violation of his
due process rights based on receiving punishment without a
hearing, and his Eighth Amendment rights based on the defendants
failure to protect him.
The plaintiff's second count alleges that the defendants
prevented him from practicing his religion with other Muslims due
to fears about a terrorist uprising. The plaintiff states that
his claim is pursuant to the "Religious Freedom Restoration Act."
However, this act was found unconstitutional. The plaintiff is proceeding pro se and the
court will interpret this as a claim pursuant to the Religious
Land Use and Institutionalized Persons Act (RLUIPA).
The plaintiff's remaining counts are all violations of Illinois
State Law. Count III is an allegation of defamation claiming that
the defendants told other inmates he was a terrorist which lead
to verbal and physical injury. Count IV alleges that the
defendants intentionally inflicted emotional distress. Count V
alleges that the defendants were negligent because they placed
him in physical danger by telling other inmates he was a
terrorist and then allowed other inmates to attach the plaintiff.
The plaintiff's final count is actually a motion for a
temporary and permanent injunction. The plaintiff is asking the
court to issue an order to stop the defendants from continuing
their behavior and to prevent the defendants from transferring
the plaintiff. The motion is denied. "A preliminary injunction is
an extraordinary remedy that is only granted where there is a
clear showing of need." Cooper v. Salazar, 196 F.3d 809, 813
(7th Cir. 1999). The plaintiff has failed to demonstrate that
a preliminary injunction is appropriate in this case. See.
Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1014-15 (7th
Lastly, the court notes that the Federal Bureau of Prisons is
not a proper defendant for an action pursuant to § 1983 or state
law. Therefore, the court will dismiss this defendant.
On November 28, 2005 the court entered a Deficiency Order in
this case. The plaintiff was advised that he had not provided
U.S. Marshals service forms for each of the six defendants and
had not provided copies of the complaint for each of the
defendants. The plaintiff was given 21 days to comply with the
court's order. He was advised that failure to comply with the
order could result in the dismissal of his lawsuit.
The plaintiff has filed a document entitled "Ex Parte Notice of
Compliance." The plaintiff says he previously submitted these
documents with his complaint. He states he submitted five copies
of his complaint. There are six defendants. The plaintiff must
provide a copy of the complaint for each defendant in addition to
one copy for the court and a copy to return to the plaintiff. The
plaintiff must provide three more copies.
The plaintiff also claims he sent in U.S. Marshals service
forms for each defendant. As the court has previously advised the
plaintiff, these documents were not received by the court. This
will be the final opportunity for the plaintiff to provide the
necessary documents to the court. The plaintiff must provide
copies of his complaint and the service forms within 14 days or
his case will be dismissed. IT IS THEREFORE ORDERED that:
1) The court finds that the plaintiff's complaint
states the following claims for the purposes of
a) The defendants discriminated against the
plaintiff in violation of 42 U.S.C. § 1981.
b) The defendants violated the plaintiff's due
process rights when he was punished without a
c) The defendants violated the plaintiff's Eighth
Amendment rights when they failed to protect him from
d) The defendants violated the plaintiff's rights
pursuant to the Religious Land Use and
Institutionalized Persons Act.
e) The defendants violated Illinois state law
including defamation, intentional infliction of
emotional distress and negligence.
The claims are against the defendants in their
individual capacities only.
2) The clerk of the court is directed to dismiss
Defendant Federal Bureau of Prisons for failure to
state a claim upon which relief can be granted. Any
other intended claims not stated in paragraph one are
dismissed for failure to state a claim upon which
relief can be granted.
3) The plaintiff's motion for an injunction is
4) The plaintiff must comply with the court's
November 28, 2005 deficiency order within 14 days of
this order or his case will be dismissed.
5) A copy of this order shall be served upon the
defendants with the complaint. The defendants shall
file a response to the claims identified in this
6) This case is referred to the Magistrate Judge for
consideration of the plaintiff's motion to proceed in
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