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Tariq Musawwir, # 40233-086 v. Federal Bureau of Prisons

April 16, 2013


The opinion of the court was delivered by: Reagan, District Judge:


Plaintiff, currently incarcerated at the United States Penitentiary at Marion ("Marion"), brings this action for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). He also asserts claims under the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc. Plaintiff is serving a 115 month sentence for conspiracy to distribute drugs from within a correctional facility (Doc. 1-1, p. 2).

In his complaint, Plaintiff alleges that he has been confined since May 2011 in Marion's Communications Management Unit ("CMU"), where he is housed separately from general population inmates and his written, telephonic, and electronic mail communications with persons outside the prison are significantly restricted (Doc. 1, pp. 6-9). Further, in-person visitation for CMU inmates is very limited, as is their access to educational and recreational opportunities, in contrast to the privileges enjoyed by general population inmates. He contends that the CMU visitation restrictions are far more harsh than those faced by prisoners in the federal "supermax" prison in Florence, Colorado. As a result of the CMU conditions, Plaintiff's relationships with his minor children and other family members have been irreparably harmed beyond what would be expected by incarceration in general population (Doc. 1, p. 6).

Plaintiff was assigned to the CMU as a result of his offense conduct, and was notified that his placement would be "reviewed regularly by [his] unit team" (Doc. 1, p. 10). However, the unit team has informed him that neither they nor the Warden (Defendant Walton) has authority to transfer prisoners out of the CMU (Doc. 1, p. 11). Instead, decisions on CMU placement are made in the Central Office of the Federal Bureau of Prisons ("BOP"), where he alleges Defendant Dodrill is the responsible official, under the ultimate authority of Defendant Attorney General Holder (Doc. 1, pp. 4-5). Not only was Plaintiff not afforded any advance notice or opportunity to be heard prior to his CMU placement, he has no access to any meaningful review process to challenge his continued assignment there. He requests injunctive relief in the form of policy changes within the BOP to put into place a pre-transfer notice and hearing process for prisoners selected for CMU placement, as well as a meaningful program review procedure for inmates seeking transfer out of the CMU (Doc. 1, pp. 22-23).

Plaintiff, like many other CMU inmates, is a practicing Muslim. Outside of the 30 days of Ramadan when daily group prayer is permitted, CMU policy allows Muslim prisoners to engage in group prayer only one time per week, for Friday Jum'ah services (Doc. 1, pp. 13-14). Congregate prayer at other times is prohibited, which impairs Plaintiff's ability to practice a sincere tenet of his school of Islam which mandates group prayer five times per day, in the Arabic language, whenever possible. Plaintiff is subject to disciplinary sanctions if he were to violate the group prayer prohibition. Also banned is the teaching, learning, or speaking of the Arabic language, including praying in Arabic. He contends that these policies violate his First Amendment rights, as well as RFRA and RLUIPA. He seeks injunctive relief pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 702, 706, to require Defendants Holder and Samuels (BOP Director), and Defendant BOP to allow him to practice congregate prayer at least five times daily, and to permit him to teach, learn, speak, and pray in the Arabic language for religious purposes (Doc. 1, pp. 23).

Plaintiff also contends that Defendants Cardona, Neumann, and Rivas (all CMU staff) have repeatedly and intentionally opened Plaintiff's properly addressed incoming legal mail from his attorney of record (Doc. 1, pp. 15-16). Plaintiff complained to former Warden Roal, but the problem has continued. Further, Defendants Rivas and Cruitt (BOP Intelligence Analyst) placed an official "block" on Plaintiff's requests to have contact with six longtime friends, with no notice or opportunity to be heard on the matter. These individuals were not involved in any of Plaintiff's criminal activity. He seeks injunctive relief and damages in connection with this claim.

Finally, Defendants Walton, Cardona, Rivas, Neumann, and Cruitt have retaliated against Plaintiff for filing grievances (Doc. 1, pp. 18-22). Their retaliatory actions include rejecting most of Plaintiff's incoming and outgoing email correspondence; restricting his email privileges without justification or hearing; issuing a false incident report (which resulted in sanctions) against him for attempting to contact two people after Defendants Rivas and Cruitt had approved the addition of those individuals to Plaintiff's contact list; and delaying paperwork for the disciplinary process on other incident reports in order to keep Plaintiff in administrative segregation for extended periods of time. Defendants Rivas, Neumann, and Cardona told Plaintiff that his privileges might be restored if he were to quit filing grievances (Doc. 1, pp. 19-20). Again, Plaintiff seeks injunctive relief and damages.

Merits Review Pursuant to 28 U.S.C. § 1915A

Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated the following colorable federal claims:

Count 1: Due process claim for placement and retention in the CMU, against

Defendants Holder and Dodrill;

Count 2: Unlawful restriction of Plaintiff's right to engage in group prayer in the Arabic language as well as teach, learn, and speak Arabic for religious purposes, under the First Amendment, RFRA, and APA, against Defendants Holder and Samuels;

Count 3: Unconstitutional opening of Plaintiff's incoming ...

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