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Amawi v. Walton

United States District Court, Seventh Circuit

September 23, 2013

MOHAMMAD ZAKI AMAWI, # XXXXX-XXX, Plaintiff,
v.
J.S. WALTON, et al., Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, 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 Administrative Procedure Act ("APA"), 5 U.S.C. §§ 553, 702, 706. Plaintiff is serving a 20-year sentence for conspiracy to kill, kidnap, maim or injure persons outside of the United States, conspiring to provide material support to terrorists, and distributing information regarding explosives (Doc. 1, p. 12). He was sentenced in the Northern District of Ohio in October 2009.

Plaintiff names a total of 33 Defendants in this action. His claims all arise out of his confinement in Marion's Communications Management Unit ("CMU"). He asserts violations of his rights to procedural due process and equal protection, conspiracy to deprive him of those constitutional rights, and violation of the APA. He also brings a state law claim for intentional infliction of emotional distress (Doc. 1, pp. 17, 22-23). The Defendants include Eric Holder (Attorney General of the United States), the Federal Bureau of Prisons ("BOP"), numerous current[1] and past[2] Marion officials, and current[3] and past[4] BOP officials.

Plaintiff's factual allegations are as follows. He has been confined since January 2010 in Marion's CMU, to which he also refers as the "Muslim Control Unit" (Doc. 1, pp. 11-12). Plaintiff is a Muslim. Defendants Lappin, Dodrill, Conley, Holder, Kane, Nalley, Nelson, Schiavone, Cruitt, Colt, Capaldo, Simmons, Falls, Hollingsworth, and Smith all approved his placement in the CMU in December 2009. Inmates may be placed in the CMU if their offense involved "association, communication, or involvement, related to international or domestic terrorism, " among other reasons (Doc. 1, p. 13). Defendants Hollingsworth, Kelly, Neumann, Rivas, Parent, and Julian notified Plaintiff that he was designated to the CMU "because he is a Muslim and a terrorist, '" and because he is an Arab (Doc. 1, pp. 14, 19). They told him that for these reasons, he would remain in the CMU for his entire sentence. Plaintiff's initial transfer to the CMU was also approved by Defendants Baney and Howard, in addition to the above Defendants.

Prisoners in the CMU are subject to increased restrictions and monitoring of their communications with other inmates and persons outside the prison. Plaintiff was told by Defendants Kelly, Hollingsworth, Parent, Julian, Neumann, and Rivas that he would be limited to only two visits per month of four hours each. He would have only one 15-minute phone call per week, which must be approved in advance by Defendant Rivas or another member of Plaintiff's "Unit Team" (Doc. 1, pp. 13-14). In addition, he has no contact with inmates in the general population, has no access to the prison mailroom, and has only limited opportunity for a prison job. In addition, jobs in the CMU offer lower pay than is available in other areas of the prison. In contrast, general population inmates may make 300 minutes worth of phone calls per month, have contact visits, have access to a variety of jobs including higher paid positions, may participate in construction and other trade programs, and may access the mailroom, religious services, and psychological services. Plaintiff alleges that inmates in the federal supermax prison at Florence, Colorado, have four times more visits than Marion CMU inmates are allowed. He argues that the conditions in the CMU are so harsh and extreme that Defendants were required to afford him procedural due process protections, both prior to his CMU placement, and at subsequent reviews (Doc. 1, p. 18).

The written notice of Plaintiff's transfer to the CMU (Doc. 1-1, p. 4) states that he has the right to appeal the transfer. Defendants Rivas, Kelly, and Neumann have conducted reviews of Plaintiff's placement every six months, at which he has requested transfer out of the CMU (Doc. 1, p. 15). However, these Defendants have responded that Plaintiff "will NEVER leave the CMU. We don't need any more Muslims in general population to radicalize anyone." Id. They added that Marion officials could not grant him a transfer, and only Defendant Dodrill (Assistant Director of Correctional Programs for the BOP) had that authority. Plaintiff alleges that the following Defendants denied his requests for a transfer to a different unit, based on the discriminatory policy of keeping Plaintiff and other Muslims in the CMU: Hollingsworth, Parent, Julian, Baney, Schiavone, Colt, Simmons, Smith, Cruitt, Falls, Nalley, Howard, Rivas, Nelson, Conley, Lappin, Kelly, Roal, Cardona, Samuels, Laird, Dodrill, Johnson, Sproul, Garcia, Neumann, and Burgess (Doc. 1, pp. 15-16).

In addition, Plaintiff claims that the BOP routinely denies halfway house placement to Muslim inmates with actual or suspected links to terrorism. Those who are allowed such placement are required to wear ankle bracelets and are subject to special monitoring (Doc. 1, p. 16).

Finally, Plaintiff charges that the BOP failed to follow the requirements of the APA, because it failed provide advance notice or solicit comments on the rules that established the CMU at Marion or the CMU at the federal prison at Terre Haute, Indiana (Doc. 1, pp. 12, 16-17).

He seeks unspecified injunctive relief, as well as declaratory relief, compensatory and punitive 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 at this stage of the litigation, Plaintiff has articulated the following colorable federal claims which shall receive further review:

Count 1: Procedural due process claim against all the individual Defendants (but not against Defendant BOP), for placing and retaining Plaintiff in the CMU, and denying his requests for transfer;

Count 2: Equal protection claim against all the individual Defendants (but not against Defendant BOP), for designating Plaintiff for placement in the CMU based on his race and religion;[5]

Count 3: Violation of the Administrative Procedure Act, against Defendant Bureau of Prisons and ...


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