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Zachary Chesser, # 76715-083, Also Known As Abu Talhah v. J. S. Walton

May 10, 2013

ZACHARY CHESSER, # 76715-083, ALSO KNOWN AS ABU TALHAH PLAINTIFF,
v.
J. S. WALTON, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate in the United States Penitentiary in Marion ("Marion"), brings this action pro se 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). Plaintiff was previously granted leave to proceed in forma pauperis (Doc. 10), and he has tendered his initial partial filing fee as ordered. Plaintiff is serving a twenty-five-year sentence for communicating threats, soliciting others to threaten violence, and providing material support to terrorists. His claims arose during his incarceration in Marion's communications management unit*fn1 ("CMU").

Plaintiff filed his original complaint in this matter on November 21, 2012 (Doc. 1). While his complaint was under review, Plaintiff filed a number of other motions, including a motion for leave to amend the complaint (Doc. 17). The Court granted the motion on March 19, 2013 (Doc. 18). Plaintiff followed with a motion for reconsideration on March 29, 2013, in which he asked the Court to reinstate Defendant Basler as a party to this action (Doc. 20). As set forth herein, the Court is granting this motion as well. Accordingly, this threshold order addresses Plaintiff's amended complaint (Doc. 19), as modified by Plaintiff's motion for reconsideration (Doc. 20). Because the amended complaint supersedes the original complaint and renders it void, this threshold order addresses only those allegations set forth in Plaintiff's amended complaint (Doc. 19). See Flannery v. Recording Indus. Ass'n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004) (citing Fuhrer v. Fuhrer, 292 F.2d 140, 144 (7th Cir. 1961)). In the amended complaint, Plaintiff alleges that forty-one defendants infringed on his constitutional rights by "play[ing] a role in crafting or enforcing a ban on Islamic congregational prayer" in Marion's CMU (Doc. 19, p. 6). Plaintiff asserts claims against the United States, its attorney general,*fn2 numerous past*fn3 and present*fn4 Federal Bureau of Prisons ("BOP") officials, and numerous past*fn5 and present*fn6 Marion officials. He alleges that the ban on Islamic congregational prayer violates his rights under the First Amendment, the Fifth Amendment, and the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq. (Doc. 19, pp. 2, 13-14). In addition, he raises conspiracy claims under 42 U.S.C. §§ 1985 and 1986, a state tort claim for intentional infliction of emotional distress, and a retaliation claim (Doc. 19, p. 2). Plaintiff seeks declaratory relief, as well as a preliminary and permanent injunction requiring Defendants to allow Muslims within the CMU to engage in group prayer five times each day (Doc. 19, p. 14). He seeks compensatory and punitive damages.

Specifically, Plaintiff alleges that he is a Muslim and is currently housed in Marion's CMU (Doc. 19, pp. 2, 9).The CMU houses inmates who are "deemed to require additional monitoring of their communication" (Doc. 19, p. 7). The unit is subject to constant audio and video surveillance (Doc. 19, p. 8). Although inmates are housed in individual cells, they are allowed out each day from 5:45 a.m. until 9:45 p.m.*fn7 While out of their cells, prisoners in the CMU may engage in a variety of group activities, which include watching television, playing cards, playing sports, and conversing. They can even discuss and defend criminal behavior and radical groups, like the Taliban or Al-Qaeda (Doc. 19, p. 7).

As an adherent to the Hanbali school of Islam, Plaintiff believes that he is required to pray five times each day for approximately five minutes each time (Doc. 19, p. 8). Plaintiff also sincerely believes that these prayers must be offered in congregation with other Muslims (Doc. 19, pp. 7-8). According to current BOP policy,*fn8 Islamic group prayer in the CMU is effectively prohibited, with the exception of two hours each Friday and throughout the Islamic holy month of Ramadan*fn9 (Doc. 19, pp. 7, 9, 11).

Defendants enforce the ban by issuing incident reports to Muslims under two sets of circumstances (Doc. 19, p. 10). When Defendants actually catch Muslims engaged in group prayer, they issue incident reports for participation in an "unauthorized gathering." When Defendants strongly suspect that Muslims are engaging in group prayer but cannot prove it, they issue incident reports for being in an "unauthorized location."

The only inmates who have been given incident reports for being in "unauthorized gatherings" are Muslims who are caught praying together or suspected of doing so (Doc. 19, p. 10).

The ban does not apply to CMU prisoners of other faith groups, such as Jews or Christians. Non-Muslim CMU inmates regularly gather in groups to pray together or to hold religious services with one another.

The ban imposed by Defendants substantially burdens Plaintiff's sincerely held religious beliefs and practices (Doc. 19, p. 13). Plaintiff was disciplined on four separate occasions for engaging in congregate prayer with other Muslims or for being suspected of this activity (Doc. 19, p. 11). Twice, he was written incident reports for being in an "unauthorized gathering." On two other occasions, he was issued incident reports for both rule violations but was ultimately found guilty only of being in an "unauthorized location" due to a lack of evidence that he was actually praying in a group.

Plaintiff sets forth specific allegations against only three of the forty-one defendants, including Defendants Roloff, Cardona, and Neumann. Plaintiff alleges that Defendant Roloff allows Jewish inmates to pray in congregation (Doc. 19, p. 10). Plaintiff alleges that Defendants Cardona and Neumann threatened him with permanent placement in isolation if he sent a religious email he was composing and then moved him to the worst cell in the unit after suspecting him of participating in group prayer (Doc. 19, pp. 12-13). Plaintiff prepared an email offering a "dramatic narrative of his efforts to pray in a group" and stored it in his "drafts" folder. On or around June 5, 2012, Defendants Cardona and Neumann called Plaintiff into their office and threatened him with permanent placement in isolation if he sent the email. In fear of retaliation, Plaintiff agreed to delete the email. After Defendant Cardona observed Plaintiff praying in his cell at the same time other Muslims were doing the same, Defendant Cardona moved Plaintiff from his cell near other Muslims to "arguably the worst cell in the entire unit," i.e., the one that was closest to the guard's office (Doc. 19, p. 13).

Plaintiff alleges that the ban on group prayer substantially burdens his religious practices.

It is not reasonably related to a neutral government interest, nor would lifting the ban seriously harm prison operations. Plaintiff has no alternative means of exercising his sincerely held religious beliefs. The ban does not represent the least restrictive means of furthering a compelling government interest. It is the result of a conspiracy by Defendants to deprive Plaintiff of his rights (Doc. 19, p. 14). Plaintiff alleges that, as such, the ban violates the Free Exercise Clause and Establishment Clause of the First Amendment. It violates RFRA. It also violates his equal protection rights under the Fifth Amendment. He raises a conspiracy claim, a retaliation claim, and a state law tort claim for intentional infliction of emotional distress. 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 cognizable federal claims under the First Amendment (Count 1) and RFRA (Count 2) and a state tort claim for intentional infliction of emotional distress (Count 3) against Defendants Holder, Samuels, Jr., and Walton for unlawfully restricting Plaintiff's right to engage in group prayer with other Muslims.*fn10 Plaintiff has also asserted a colorable equal protection claim under the Fifth Amendment (Count 4) against Defendants Holder, Samuels, Walton, and Roloff. Finally, Plaintiff has articulated an actionable retaliation claim against Defendants Cardona and Neumann (Count 5).

These claims fail against all other defendants. Because vicarious liability is inapplicable to Bivens actions, an individual cannot be held liable unless the individual caused or participated in an alleged constitutional deprivation. Sheik-Abdi v. McClellan, 37 F.3d 1240, 1240 (7th Cir. 1994); Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986). Plaintiff "must plead that each Government-official defendant, through the official's own actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Plaintiff's amended complaint contains very few allegations pertaining to specific actions taken by any particular defendants. Even construing the amended complaint liberally in Plaintiff's favor as the ...


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