AREF v. HOLDERAREF v. HOLDER
GRANTING IN PART AND DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS; GRANTING THE DEFENDANTS’ SUPPLEMENTAL MOTION FOR PARTIAL DISMISSAL; DENYING THE APPLICANTS’ MOTION TO INTERVENE
I. INTRODUCTION
This matter is before the court on the defendants’ motion to dismiss and supplemental motion to dismiss. The plaintiffs are a group of federal prisoners who are or were incarcerated in specially designated Communication Management Units (“CMUs”) established at the Federal Correctional Institutions (“FCI”) in Terre Haute, Indiana (“Terre Haute CMU”) and Marion, Illinois (“Marion CMU”) as well as two spouses of the prisoners. They contend that the defendants – the United States Attorney General, the Federal Bureau of Prisons (“BOP”), the Director of the BOP and the Assistant Director of the BOP’s Correctional Programs Division – violated their constitutional rights by designating them to the CMUs. The plaintiffs also allege that the defendants violated the Administrative Procedure Act (“APA”),
In their initial motion to dismiss, the defendants contend that the plaintiffs have failed to sufficiently plead their constitutional claims, that the plaintiffs’ APA claim is moot and that plaintiff Royal Jones lacks standing. In their supplemental motion for partial dismissal, the
The matter is also before the court on the motion to intervene filed by four inmates at the Terre Haute CMU (“applicants”) who are not currently parties in this action. Because the current plaintiffs adequately represent the interests of the applicants, the court denies the applicants’ motion to intervene.
II. FACTUAL & PROCEDURAL BACKGROUND
A. Communication Management Units
The BOP established the Terre Haute CMU in 2006 and the Marion CMU in 2008. Compl., Ex. A (“BOP Terre Haute CMU Institution Supplement”) at 1; see also id., Ex. B (“BOP Marion CMU Institution Supplement”) at 1.1 The BOP describes the CMUs as follows:
The CMU is 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.
The CMU is a self-contained general population housing unit where inmates reside, eat, and participate in all educational, recreational, religious, visiting, unit
BOP Terre Haute CMU Institution Supplement at 1. 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 рrotection of the public, as a result of the inmate’s unmonitored communication with persons in the community.
Compl., Ex. F (“Notice to Inmates”) at 1.
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. BOP Terre Haute CMU Institution Supplement at 2. All communication during the visits must be in English and the visits are live-monitored by BOP staff and are subject to recording. Id. at 2-3. CMU inmates are currently afforded eight visitation hours per month and no single visit may last more than four hours.2 Compl. ¶ 57. Visiting hours are from 8:30 a.m. to 2:30 p.m. Sunday through Friday. Id.
CMU inmates are entitled to at least one phone call per month lasting at least three
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. Id. at 1. An inmatе may appeal his “transfer to [a CMU], or any conditions of his confinement, through the [BOP’s] Administrative Remedy Program,
B. The Plaintiffs
1. Yassin Aref
Yassin Aref is an Iraqi refugee who is serving a fifteen-year sentence for money laundering, providing material support for terrorism, conspiracy and making a false statement to the FBI. Compl. ¶¶ 16, 107. Prior to his convictions he served as an Imam of the Masjid-As-Salam Mosque in Albany, New York. Id. ¶ 104. His conviction arose from his participation in a loan transaction that would have helped to finance the purchase of a surface-to-air missile to a terrorist group called Jaish-e-Mohammed (“JEM”). Id. ¶ 107.
At the time his incarceration began in 2007, the BOP classified Aref as a “low security” inmate. Id. ¶¶ 107, 112. He has no disciplinary history and “has never received an infraction of
Your current offense of conviction includes Providing Material Support & Resources to a Foreign Terrorist Organization, & Conspiracy to Use a Weapon of Mass Destruction. Your offense conduct included significant communication, association and аssistance to Jaish-e-Mohammed (JeM), a group which has been designated as a foreign terrorist organization.
Id. Aref challenged his designation to the CMU through the prison’s grievance system, arguing that the Notice of Transfer “mischaracterized his offense conduct.” Id. ¶ 114. He applied for a transfer and was eventually sent to the Marion CMU. Id. ¶ 116.
2. Avon Twitty
In 1984, Avon Twitty was sentenced to a term of imprisonment of twenty years to life for murder and three to ten years for carrying a pistol without a license. Id. ¶¶ 17, 127. He was designated to the Terre Haute CMU in May 2007. Id. ¶ 132. On October 20, 2010, Twitty was placed in a halfway house in Washington, D.C. Defs.’ Supplemental Mot. to Dismiss on Mootness Grounds (“Defs.’ Suppl. Mot.”) at 2. He was paroled on January 21, 2011. Pls.’ Notice Regarding Change in Confinement Status of Avon Twitty (“Pls.’ 1st Notice”) at 1.
3. Daniel McGowan & Jenny Synan
Daniel McGowan4 is a former member of the Earth Liberation Front (“ELF”), Compl. ¶ 18, a domestic terrorist organization, Defs.’ Mot. at 4. In 2006, he pled guilty to two counts of arson and, in 2007, he was sentenced to seven years of incarceration. Compl. ¶ 151. Like Aref, McGowan has been classified by the BOP as “low security” and has had no disciplinary history
In August 2008, McGowan was transferred to the Marion CMU. Id. ¶ 160. Ten days after the transfer, he received a Notice of Transfer stating as follows:
Your offense conduct included аcts of arson, destruction of an energy facility, attempted arson, and conspiracy to commit arson. You have been identified as a member and leader in the Earth Liberation Front (ELF) and Animal Liberation Front (ALF), groups considered domestic terrorist organizations. Your offense conduct included communicating in code and teaching others how to commit crimes of arson. Your actions had the primary purpose to influence and affect the conduct of government, commerce, private business and others in the civilian population by means of force, violence, sabotage, destruction of property, intimidation and coercion. Your contact with persons in the community requires heightened controls and review.
Id.
McGowan administratively appealed his transfer. Id. ¶¶ 162, 164. This effort ultimately proved unfruitful. Id. In October 2010, McGowan was transferred from the CMU into the general population at the Marion facility. Defs.’ Suppl. Mot. at 2. He was, however, transferred to the Terre Haute CMU on February 24, 2011. Defs.’ Notice Regarding Govt’s Supplemental Mot. To Dismiss (“Defs.’ Notice”) at 1.
4. Royal Jones
Royal Jones was convicted of solicitation of bank robbery, which also constituted a probation violation for an earlier gun possession conviction. Compl. ¶ 184. He was sentenced in 2007 to ninety-four months of incarceration. Id. ¶¶ 184-85. Jones has had “no serious disciplinary infractions” and only “one minor communications[-]related infraction” during this period of incarceration. Id. ¶ 186.
Your current offense of conviction is solicitation to commit a crime of violence. Reliable evidence indicates your crimes and incarceration conduct have included involvement in recruitment and radicalization efforts, including other inmates, through extremist, violence[-]oriented indoctrination methods to intimidate or coerce others.
Id. ¶ 189.
Jones’s efforts to administratively appeal his transfer were unsuccessful. Id. ¶ 194. Jones filed a pro se complaint in the United States District Court for the Southern District of Illinois, challenging, inter alia, his transfer to the CMU. Id. ¶ 195. Jones explains, however, that he voluntarily dismissed that complaint in August 2009 because CMU staff told him that such a dismissal would result in his transfer out of a CMU and to a facility where he could see his family. Id. In March 2010, Jones was transferred out of the Marion CMU and into the general population at the Marion facility. Id. ¶ 196.
5. Kifah Jayyousi & Hedaya Jayyousi
Kifah Jayyousi5 was convicted in August 2007 of conspiracy to murder, kidnаp and maim in a foreign country and conspiracy to provide material support to terrorism. Id. ¶ 205. Upon his incarceration, the BOP classified him as a “low security” prisoner. Id. ¶ 210.
Jayyousi was transferred into the Terre Haute CMU in June 2008. Id. ¶ 212. Upon arriving there, he received a Notice of Transfer, which stated as follows:
Your current offenses of conviction are for Conspiracy to Murder in a Foreign Country; Conspiracy to Kidnap, Maim, and Torture; and Provide Material Support to a Terrorist Organization. You acted in a criminal conspiracy to raise
Id. Jayyousi pursued administrative remedies, arguing that the Notice of Transfer contained inaccurate and erroneous information. Id. ¶ 213. His attempts have been “summarily rejected.” Id.
C. Procedural History
In their complaint, filed on April 1, 2010, the plaintiffs allege that their procedural due process rights were violated beсause they did not receive adequate Notices of Transfer or an opportunity to challenge their designation to the CMUs. See Compl. ¶ 253. The plaintiffs also allege that their substantive due process rights have been violated because the conditions at the CMU “intentionally or recklessly interfer[e] with [their] interests in family integrity without legitimate penological purpose.” Id. ¶ 258. Similarly, the plaintiffs allege that communications restrictions in the CMU interfere with their free speech and free association rights. Id. ¶ 263.
The plaintiffs also bring an equal protection claim, arguing that there is “a pattern and practice throughout the BOP of designating individuals, including Plaintiffs, to the CMU in retaliation for their protected political and religious speech and beliefs, or based on their religion, national origin, and perceived political and/or ideological beliefs.” Id. ¶ 273. Further, the plaintiffs assert that the conditions of confinement in the CMUs, “including [the] prolonged and complete denial of any opportunity for physical contact with their loved ones,” constitutes cruel and unusual punishment. Id. ¶ 268. Lastly, the plaintiffs submit that the defendants’ failure to engage in notice and comment rulemaking prior to establishing the CMUs constitutes a violation
On April 19, 2010, four inmates at the Terre Haute CMU filed a motion to intervene in this action pursuant to
III. ANALYSIS
A. The Defendants’ Motions to Dismiss
1. The Court Denies the Defendants’ Motion to Dismiss Jones’s Claims for Lack of Standing
a. Legal Standard for Standing
As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing standing. Lujan, 504 U.S. at 561; Steel Co., 523 U.S. at 104; City of Waukesha v. Envtl. Prot. Agency, 320 F.3d 228, 233 (D.C. Cir. 2003) (per curiam). At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct will suffice. Sierra Club v. Envtl. Prot. Agency, 292 F.3d 895, 898-99 (D.C. Cir. 2002).
To demonstrate standing, a plaintiff must satisfy a three-pronged test. Sierra Club, 292 F.3d at 898 (citing Lujan, 504 U.S. at 560). First, the plaintiff must have suffered an injury in fact, defined as a harm that is concrete and actual or imminent, not conjectural or hypothetical. Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 243 (D.C. Cir. 1999) (citing Steel Co., 523 U.S. at 103). Second, the injury must be fairly traceable to the governmental conduct alleged. Id. Finally, it must be likely that the requested relief will redress the alleged injury. Id. This Circuit has made clear that no standing exists if the plaintiff’s allegations are “purely ‘speculative[, which is] the ultimate label for injuries too implausible to support standing.’” Tozzi v. Dep’t of Health & Human Servs., 271 F.3d 301, 307 (D.C. Cir. 2001) (quoting Advanced Mgmt. Tech., Inc. v. Fed. Aviation Admin., 211 F.3d 633, 637 (D.C. Cir. 2000)). Nor does standing exist where the court “would have to accept a number of very speculative inferences and assumptions
b. Plaintiff Jones Has Standing to Pursue His Claims
The defendants argue that Jones laсks standing because he is not currently designated to a CMU and, accordingly, is not suffering an injury in fact for which relief can be provided. See Defs.’ Mot. at 9-10. The defendants note that, in March 2010, Jones was transferred to the general population at the Marion facility and is not currently designated to a CMU. Id. at 9; see also Compl. ¶ 21. The plaintiffs respond that Jones was placed in a CMU without proper explanation or process and, as a result, he has no idea what conduct to refrain from in order to avoid being sent back. Pls.’ Opp’n to Defs.’ Mot. (“Pls.’ Opp’n”) at 69. Moreover, the plaintiffs note that McGowan was designated to a CMU, transferred back into the general population and then redesignated to a CMU without receiving sufficient notice or an opportunity to be heard. See generally Pls.’ Notice in Resp. to Defs.’ Feb. 25, 2011 Notice (“Pls.’ 2d Notice”). This, the plaintiffs contend, is evidence that Jones faces a realistic threat of being redesignated to a CMU. See id. at 5. The defendants reply that Jones’s injury is only hypothetical because has not demonstrated that there is a “sufficient likelihood” that he will be returned to a CMU. Defs.’ Reply in Supp. of Mot. to Dismiss (“Defs.’ Reply”) at 2.
The Supreme Court has explained that “application of the constitutional standing requirement [is not] a mechanical exercise, and that when standing is challenged on the basis of the pleadings[,] we accept as true all material allegations of the complaint, and . . . construe the complaint in favor of the complaining party.” Pennell v. City of San Jose, 485 U.S. 1, 7 (1988). “[A] prediction of injury based on experience suffices to show injury in fact to the extent that
Viewed through this prism, Jones has plainly stated facts that, accepted as true, demonstrate a realistic threat that he might be redesignated to a CMU. Jones’s Notice of Transfer indicated that he was placed in the CMU because of the nature of his underlying conviction and because of his alleged efforts to radicalize other inmates. Compl. ¶ 189. These facts are not going to change; thus, it appears entirely plausible that Jones will be redesignated to the CMU for the very reasons he was sent there in the first place. Indeed, as noted by the plaintiffs, McGowan who, like Jones, has also raised a claim of retaliation, was transferred out of the Marion CMU and placed in the general prison population only to be redesignated to the Terre Haute CMU four months later. See generally Pls.’ 2d Notice. The court, thus, determines that the plaintiffs have advanced sufficient evidence suggesting that Jones faces a realistic threat of redesignation to a CMU. See Pennell, 485 U.S. at 7-8 (explaining that the owners of a building subject to a City Ordinance satisfied standing by alleging that they were subject to the Ordinance even though no enforcement of the Ordinance had yet been sought against the owners); Biggerstaff, 511 F.3d at 183 (holding that the plaintiff had demonstrated standing based on his experience that it is “definitely likely” that the challenged agency order will be applied to him) cf. Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (ruling that a plaintiff did not have standing because “the odds that [a plaintiff seeking an injunction barring the use of chokeholds by police officers] would not only again be stopped for a traffic violation but would also be subjected to a chokehold without any provocation whatsoever are [in]sufficient to make out a federal case for
2. The Court Grants the Defendants’ Supplemental Motiоn for Partial Dismissal
a. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1)
Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) (noting that “[a]s a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction”).
Because “subject-matter jurisdiction is an ‘Art[icle] III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.’” Akinseye v. Dist. of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)). On a motion to dismiss for lack of subject matter jurisdiction pursuant to
Because subject matter jurisdiction focuses on the court’s power to hear the claim, however, the court must give the plaintiff’s factual allegations closer scrutiny when resolving a
b. Legal Standard for Mootness
Under
Courts must evaluate mootness “through all stages” of the litigation in order to ensure that a live controversy remains.
A case is moot when “the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” City of Erie, 529 U.S. at 287 (internal quotations omitted). An intervening event may render a claim moot if (1) there is no reasonable expectation that the conduct will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violations. Pharmachemie B.V. v. Barr Labs,, Inc., 276 F.3d 627, 631 (D.C. Cir. 2002); Sellers v. Bureau of Prisons, 959 F.2d 307, 310 (D.C. Cir. 1992). A case is not moot, however, so long as any single claim for relief remains viable, as the remaining live issues satisfy the case-or-controversy requirement. Tucson Med. Ctr. v. Sullivan, 947 F.2d 971, 978 (D.C. Cir. 1991) (internal quotations and citations omitted). The burden of establishing mootness rests on the party raising the issue, and it is a heavy burden. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953); Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449, 458-59 (D.C. Cir. 1998).
c. Plaintiff Twitty’s Claims Are Moot
The defendants argue that because Twitty was placed in a halfway house in October 2007 and paroled in January 2011, he is no longer in BOP custody and his claims are therefore moot.6
“[A] defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Friends of the Earth, Inc., 528 U.S. at 189. “[I]n order for this exception to apply, the defendant’s voluntary cessation must have arisen because of the litigation.” Pub. Util. Comm’n of Cal. v. Fed. Energy Regulatory Comm’n, 100 F.3d 1451, 1460 (9th Cir. 1996).
There is no dispute that prior to the commencement of this lawsuit, the BOP had already determined that Twitty was eligible for placement in a halfway house. Compl. ¶ 70 (“Twitty was approved for nine months pre-release placement at a halfway house.”); Defs.’ Suppl. Mot. at 2. Because the decision to release Twitty preceded this lawsuit, it is clear that the cessation of his
3. The Court Grаnts in Part and Denies in Part the Defendants’ Motion to Dismiss the Plaintiffs’ Claims Pursuant to Rule 12(b)(6)
a. Legal Standard for a Rule 12(b)(6) Motion to Dismiss
A
Yet, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-46, instructing courts not to dismiss for failure to state a claim unless it appears beyond doubt that “no set of facts in support of his claim [] would entitle him to relief”). A claim is facially plausible when the pleadеd factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).
In resolving a
b. The Court Grants the Defendants’ Motion to Dismiss the Plaintiffs’ Substantive Due Process Claim
The plaintiffs allege that that the defendants have violated their First Amendment right to “family integrity” through the restrictions placed on the plaintiffs’ communications. Compl. ¶ 258; see also Pls.’ Opp’n at 39 (arguing that the defendants have violated their right “to maintain
As an initial matter, the court notes that although the Supreme Court has acknowledged that “the Constitution protects certain kinds of highly personal relationships,” it is unclear to what extent such a right survives incarceration. Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (internal quotation omitted). Regardless, because, as discussed below, the CMU regulations are rationally related to legitimate penological interests, the plaintiffs’ substantive due process claim fails.
It is well settled that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). In determining whether this standard is met, the court looks to four considerations. See id. “First, there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Id. (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)). Second, the court examines “whether there are alternative means of exercising the right that remain opеn to prison inmates.” Id. at 90. Third, the court must assess “the impact that accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Id. Fourth, the court must consider the availability of alternatives. Id. “Although [these] factors are intended as guides to a single reasonableness standard, the first factor looms especially large. Its rationality inquiry tends to encompass the remaining factors, and some of its criteria are
According to the defendants, the penological interest furthered by the restrictions imposed by the CMUs is the “effective monitoring of the communications of high-risk inmates . . . to protect the safety, security and orderly operation of Bureau facilities, and to protect the public.” Defs.’ Mot. at 25. The plaintiffs do not dispute that this is a legitimate interest. Pls.’ Opp’n at 46 (“Plaintiffs agree that protection of the safety and operations of a prison and protection of the public are legitimate penological interests . . . [and] that effective monitoring of the communications of high-risk inmates could serve those interests.”). Indeed, the weight of the relevаnt case law supports the conclusion that the types of communications restrictions imposed by the CMUs are rationally related to the legitimate penological interest of promoting the safety of correctional institutions and the public. See, e.g., Block, 468 U.S. at 588 (holding that a prohibition on contact visits is rationally related to the legitimate goal of promoting institutional security); Williams v. Mierzejewski, 401 F. App’x 142, 145 (7th Cir. 2010) (“We give considerable deference to a prison official’s determination that a communication between a prisoner and the outside world constitutes a security threat.” (citing Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989))); Maze v. Tafolla, 369 F. App’x 532, 535 (5th Cir. 2010) (applying Block and upholding a ban on contact visits for a pretrial detainee as rationally related to a legitimate penological interest); Perez v. Fed. Bureau of Prisons, 229 F. App’x 55, 57 (3rd Cir. 2007) (holding that “restrict[ing] telephone calls to one per week [for] prisoners who have a history of using the telephone to conduct criminal activity is clearly reasonable because it relates to the legitimate penological goal of public and institutional safety”); Pope v. Hightower, 101
Accordingly, because the plaintiffs have not adequately alleged that the CMU restrictions are not rationally related to the legitimate penological interest in monitoring the communication of high-risk inmates, the court dismisses the plaintiffs’ substantive due process claim. See Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990) (explaining that “[t]he first [Turner] factor constitutes a sine qua non“); Amatel, 156 F.3d at 196 (noting that the first rationality factor “tends to encompass the remaining factors“).
c. The Court Denies the Defendants’ Motion to Dismiss the Plaintiffs’ Procedural Due Process Claim
The defendants contend that the plaintiffs have not articulated the deprivation of a constitutional or government-created liberty interest as required to state a viable procedural due process claim. See Defs.’ Mot. at 10-20. According to the defendants, the BOP‘s “transfer of Plaintiffs to a CMU and the imposition of the subject communication restrictions do not impose significant or ‘unduly harsh’ restrictions,” as required to trigger a government-created liberty interest in the prison context. Defs.’ Reply at 10. Furthermore, the defendants argue that even if
The plaintiffs maintain that they have a government-created liberty interest in avoiding the conditions of confinement that exist in the CMUs because those conditions impose an “atypical and significant hardship on the [plaintiffs] in relation to the ordinary incidents of prison life.” Pls.’ Opp‘n at 9 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Furthermore, the plaintiffs assert that any procedures the defendants have provided are insufficient to protect these rights. Id. at 20-25. Additionally, the plaintiffs contend that the BOP‘s purported “reviews” of the plaintiffs’ designation to the CMUs “are merely an assessment of whether the ‘original reasons for CMU placement still exist‘” and thus, meaningless because thоse original reasons “cannot change.” Pls.’ Opp‘n at 23.
The
[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.
Mathews, 424 U.S. at 335. All the while, the court must remain mindful that “due process is flexible and calls for such procedural protections as the particular situation demands.” Mathews, 424 U.S. at 334 (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
i. The Plaintiffs Have Plausibly Alleged a Liberty Interest Protected by Procedural Due Process
This Circuit has observed that
a deprivation in prison implicates a [government-created] liberty interest protected by the Due Process Clause only when it imposes an “atypical and significant hardship” on an inmate in relation to the most restrictive confinement conditions that prison officials, exercising their administrative authority to ensure institutional safety and good order, routinely impose on inmates serving similar sentences.
Hatch v. Dist. of Columbia, 184 F.3d 846, 856 (D.C. Cir. 1999) (quoting Sandin, 515 U.S. at 484).
At present, the plaintiffs designated to a CMU are allowed two fifteen-minute phone calls per week and eight hours of non-contact visits per month. Compl. ¶¶ 57, 65. Each visit may not
By contrast, BOP prisoners housed in the general population are typically allowed 300 phone minutes per month. Compl. ¶ 63; Defs.’ Mot. at 6. BOP regulations governing visitation for prisoners housed in the general population provide no specific cap on the number or duration of visits, but do indicate that each inmate shall be allowed at least four hours of visiting time per month,
The plaintiffs note that at this early stage in the litigation — prior to discovery — they are unable to cite specific examples of the most restrictive conditions of confinement routinely imposed on inmates serving sentences similar to those being served by the plaintiffs. Pls.’ Opp‘n at 15; see also Brown v. Plaut, 131 F.3d 163, 170 (D.C. Cir 1997) (explaining that the comparison of prison conditions is a “complex and fact-specific inquiry“). Nonetheless, the aforementioned allegations are specific and detailed and plausibly suggest a significant disparity in the treatment of CMU inmates and those housed in the general population. Compl. ¶¶ 37-68.
ii. The Plaintiffs Have Plausibly Alleged That They Were Denied Procedural Due Process
As discussed, Mathews delineates a three-factor test for determining whether a plaintiff has received an opportunity to be heard at a meaningful time and in a meaningful manner. Mathews, 424 U.S. at 333. In this case, the first factor requires the court to consider the significance of the plaintiffs’ interest in avoiding erroneous placement in a CMU. See Wilkinson, 545 U.S. at 225. The plaintiffs assert, and the defendants do not contest, that the plaintiffs have an interest in avoiding designation to a CMU. Pls.’ Opp‘n at 23; see generally Defs.’ Mot.;
Next, the court considers the risk that procedures used by the defendants resulted in the erroneous deprivation of the plaintiffs’ liberty interest, as well as the “probable value, if any, of additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335. “To insure that [a] review does not become simply a sham, the content and substance of that review must be scrutinized under the illumination” of the
The defendants insist that the BOP‘s standard administrative remedies are available to the plaintiffs designated to the CMU and contain a process for review of “an issue relating to any aspect of [the plaintiffs‘] confinement.” Defs.’ Mot. at 21 n.5. The defendants further assert that the plaintiffs have “received reviews of their continued confinement in the CMU by the CMU‘s Unit Team in connection with regularly scheduled program reviews.” Id. at 21. The plaintiffs allege that administrative remedies and periodic reviews are “illusory,” id. ¶ 90, and that the Notices of Transfer are “so vague and generic” that they effectively provide no notice at all. Id. ¶ 77. The plaintiffs allege that the administrative and periodic review process is insufficient because those procedures involve review at the institutional or regional level, but the decisions for CMU designation are only made by officials in Washington, D.C., id. ¶ 84, 90. The plaintiffs also argue that “[b]ecause CMU designation is not based on any ongoing misbehavior, the reason
In light of the plaintiffs factual allegations supporting their contention that reviews provided by the defendants are “illusory” and meaningless, the court determines that they have adequately alleged there is a high risk that the procedures used by the defendants have resulted in erroneous deprivations оf their liberty interests. See Mathews, 424 U.S. at 335; see also Williams v. Norris, 277 F. App‘x 647, 649 (8th Cir. 2008) (noting that the reason for segregation should “not only be valid at outset but must continue to subsist during period of segregation” and reversing the lower court‘s grant of summary judgment because there remained unresolved issues of fact as to whether the prisoner “received meaningful reviews, rather than sham reviews, as he contend[ed]“); Lira v. Cate, 2009 U.S. Dist. Lexis 91292, at *90 (N.D. Cal. Sept. 30, 2009) (denying the defendant‘s motion to dismiss because the plaintiff provided evidence that reviews of his administrative segregation were “largely perfunctory” and the prison “provided no substantive review of the propriety of [his] retention in administrative segregation“); Hogan v. Epps, 2009 U.S. Dist. Lexis 128449, at *6 (S.D. Miss. July 6, 2009) (denying summary judgment because the defendants did not provide any evidence to contradict the plaintiff‘s claim that review of administrative segregation in prison was not meaningful nor explained “the circumstances under which an inmate may be removed from . . . segregation“).
Accordingly, the court determines that at this stage in the proceedings, the plaintiffs have adequately alleged facts sufficient to satisfy the three Mathews factors. As a result, the plaintiffs have plausibly alleged that the defendants violated their procedural due process rights, see Iqbal, 129 S. Ct. at 1949 (internal citation omitted), and the court denies the defendants’ motion to dismiss the plaintiffs’ procedural due process claim.
d. The Court Grants the Defendants’ Motion to Dismiss the Plaintiffs’ Eighth Amendment Claims
The defendants argue that the plaintiffs have not adequately alleged that they have been denied “the minimal civilized measure of life‘s necessities” as required to sustain a cruel and unusual punishment claim under the
The plaintiffs’ allegations are based on the conditions of their confinement in the CMUs — namely the visitation and telephone restrictions imposed on their contact with their families. See Compl. ¶ 268; Pls.’ Opp‘n at 52-53. It is far from clear, however, that family contact is a basic life necessity for
e. The Court Denies the Defendants’ Motion to Dismiss the Plaintiffs’ Retaliation Claims
The plaintiffs allege that the defendants transferred Jones into the CMU in retaliation for his continued litigation against the BOP and that they transferred McGowan into the CMU in retaliation for his vocalization “about social justice issues and the rights of political prisoners.” Compl. ¶¶ 167, 188. The defendants contend that the plaintiffs have failed to allege that retaliation was the “but for” cause of their transfer. See Defs.’ Mot. at 34-39.
A prisoner alleging a
Here, the plaintiffs allege that Jones is “an outspoken and litigious prisoner” and that he has written books about imprоper prison conditions and filed grievances and complaints on his own behalf. Compl. ¶ 188. They further allege that his prison record contains “no serious disciplinary infractions” and “one minor communications[-]related infraction” from 1997. Id. ¶ 186. Although the timeline is somewhat unclear with respect to this plaintiff, it appears that he filed a complaint in 2007 after he was placed in FCI Englewood in Littleton, Colorado. See id. ¶¶ 185, 188-89. While there, he alleges that staff told him he would be “sent east” if he continued filing complaints. Id. ¶ 188. He filed a complaint about this alleged threat and, on June 6, 2008, he was transferred to the Marion CMU. Id. ¶¶ 188-89. In light of the plaintiffs’ allegation regarding Jones‘s relatively clean disciplinary history, his history of complaints and the threat allegedly directed at him by staff at FCI Englewood, Jones has plausibly alleged that
Similarly, the plaintiffs allege that McGowan has a clean disciplinary record and has been “active in social justice movements during his incarceration.” Compl. ¶ 159; see also Pls.’ Opp‘n at 32. He was placed in the Marion CMU in August 2008. Compl. ¶ 160. The plaintiffs assert that the information in his Notice of Transfer is patently untrue and that the BOP has been unresponsive to his attempts to correct his record. Id. ¶¶ 462-64. Moreover, McGowan was released into the general population at FCI Marion in October 2010, see Defs.’ Suppl. Mot. at 2, but was redesignated to the Terre Haute CMU in February 2011, see Defs.’ Notice at 1. The plaintiffs allege that this redesignation was in direct response to a telephone conversation that he had with his wife, after being placed back in the general population, in which he requested that she ask his attorneys to send him certain legal documents. See Pls.’ 2d Notice at 3. In light of these allegations, the court concludes that McGowan has also stated a plausible claim of retaliation. See Garcia, 56 F. Supp. 2d at 13. Accordingly, the court denies the defendants’ motion to dismiss the plaintiffs’ retaliation claims.
f. The Court Grants the Defendants’ Motion to Dismiss the Plaintiffs’ Discrimination Claims
The plaintiffs allege that the defendants transferred Aref, Jayyousi and Jones into CMUs because they are Muslim and therefore unlawfully discriminated against them in violation of the
Where, as here, a plaintiff claims that he was discriminated against in violation of the
The statistics proffered by the plaintiff, without more, are not minimally sufficient to survive a motion to dismiss. See Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 213 (5th Cir. 2009) (holding that plaintiffs’ statistics, even combined with allegations that the defendants used racial epithets, did not allege sufficient facts to survive a motion to dismiss its § 1983 claims); see also Segar v. Smith, 738 F.2d 1249, 1273-74 (D.C. Cir. 1984) (explaining that “to be legally sufficient” the proffered statistics must demonstrate not just a disparity of treatment, but they must “eliminate the most common nondiscriminatory explanations of the disparity, and thus
g. The Court Dismisses Without Prejudice the Plaintiffs’ APA Claims
The plaintiffs also challenge the creation of the CMUs, arguing that the defendants did not engage in prior notice and comment rulemaking as required by the APA. Compl. ¶¶ 276-282. Although the defendants assert that notice and comment rule making were not required because the APA does not apply to the Marion and Terre Haute Institution Supplements that created the CMUs, they note that the BOP has, nevertheless, began the process for rulemaking as it pertains to the CMUs. Defs.’ Mot. at 39-43. In fact, the proposed rule was published in the
B. The Motion to Intervene
1. Legal Standard for a Rule 24(a) Motion to Intervene
[o]n timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant‘s ability to protect its interest, unless existing parties adequately represent that interest.
This Circuit has identified “four prerequisites to intervene as of right: ‘(1) the application to intervene must be timely; (2) the applicant must demonstrate a legally protected interest in the action; (3) the action must threaten to impair that interest; and (4) no party to the action can be an
2. The Court Denies the Motion to Intervene
Four inmates at the Terre Haute CMU (“applicants“) seek leave to intervene as a matter of right in this action pursuant to
The applicants bear the burden of demonstrating that the plaintiffs will inadequately represent their interests. See Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972). Although this burden is not onerous, see Dimond v. Dist. of Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986), the applicants “must produce something more than speculation as to the purported inadequacy,” Moosehead Sanitary Dist. v. S.G. Phillips Corp., 610 F.2d 49, 54 (1st Cir. 1979).
Other than generally arguing that their interests are not being adequately represented, the applicants state only that the “existing parties[‘] representation may use bad or poor judgment in conducting or settling the cause of action.” Applicants’ Mot. to Intervene at 3. These allegations are insufficient to demonstrate inadequate representation for the purposes of intervention. See
Indeed, the applicants have not stated what their interests are or how they differ from those of the plaintiffs. See generally Applicants’ Mot. to Intervene; Applicants’ Reply. Although they allege that thеy have constitutional claims that have not been addressed by the plaintiffs, Applicants’ Reply at 2, the applicants do not state the nature of these claims, see generally id.; Mot. to Intervene at 3 (indicating that the applicants, like the plaintiffs, are seeking injunctive relief and removal from the CMU); Bldg. & Constr. Trades Dep‘t, AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994) (holding that, where the applicant “offered no argument not also pressed by the defendant” intervention was not appropriate); Va. v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976) (denying intervention because the applicant sought the same relief as the plaintiff). Accordingly, because the applicants have not demonstrated that the plaintiffs will inadequately represent their interests, the court denies the motion to intervene as a
III. CONCLUSION
For the foregoing reasons, the court grants in part and denies in part the defendants’ motion to dismiss, grants the defendants’ supplemental motion for partial dismissal and denies the applicants’ motion to intervene. An Order consistent with the Memorandum Opinion is separately and contemporaneously issued this 30th day of March, 2011.
RICARDO M. URBINA
United States District Judge