Musawwir v. Federal Bureau of Prisons et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. COUNT 6 is DISMISSED with prejudice for failure to state a claim upon which relief may be granted. Defendant FEDERAL BUREAU of PRISONS is DISMISSED from this action with prejudice. The Clerk of Court is DIRECTED to complete, on Plaintiffs behalf, a summons and form USM-285 for service of process on Defendants HOLDER, DODRILL, SAMUELS, CARDONA, NEUMANN, RIVAS, CRUITT and WALTON; the Clerk shall issue the completed summons. Signed by Judge Michael J. Reagan on 4/16/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TARIQ MUSAWWIR, # 40233-086,
Plaintiff,
vs.
FEDERAL BUREAU of PRISONS,
ERIC HOLDER,
CHARLES E. SAMUELS, JR.,
SCOTT D. DODRILL, J.S. WALTON,
S. CARDONA, M. NEUMANN,
H. RIVAS, and A. CRUITT,
Defendants.

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Case No. 13-cv-288-MJR

MEMORANDUM AND ORDER
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
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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. 1314). 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

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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

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Plaintiff that his privileges might be restored if he were to quit filing grievances (Doc. 1, pp. 1920). 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 legal mail, against

Defendants Cardona, Neumann, and Rivas;
Count 4:

Unconstitutional restriction of Plaintiff’s right to communicate with

individuals in the community, against Defendants Rivas and Cruitt; 1 and
Count 5: Retaliation claim against Defendants Walton, Cardona, Neumann, Rivas, and
Cruitt. 2
However, Plaintiff has failed to state a viable claim under RLUIPA (Count 6) for
the infringements on his religious practices. RLUIPA applies to state and local governments and

1

Counts 3 and 4 were both included in “Claim Three” of Plaintiff’s complaint (Doc. 1), but are
designated as separate counts herein for the convenience of the Court. The parties and the Court will use
the designations above in all future pleadings and orders, unless otherwise directed by a judicial officer of
this Court.
2

Count 5 was designated as “Claim Four” in Plaintiff’s complaint (Doc. 1).
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to those acting under color of state law. See 42 U.S.C. § 2000cc-5(4). It does not apply to
federal prisons. Id. at § 2000cc-1. Therefore, Count 6 shall be dismissed with prejudice.
Plaintiff named the Federal Bureau of Prisons as a Defendant in connection with
each of his claims. However, neither the federal government nor any of its agencies is amenable
to suit in a Bivens action. See FDIC v. Meyer, 510 U.S. 471, 475; 483-86 (1994) (sovereign
immunity shields the federal government from suit absent a waiver; Bivens action permits suit
only against an individual who is an agent of the federal government). Accordingly, the Bureau
of Prisons shall be dismissed from the action with prejudice.
Finally, Plaintiff has failed to state a claim against Defendants Samuels or Walton
for the alleged violations in Counts 3 and 4. Plaintiff does not claim that these Defendants were
personally involved in either the opening of his legal mail or the imposition of the ban on contact
with certain individuals. Nor does he indicate that he made either of these Defendants aware of
the alleged misconduct or requested their intervention, outside of their possible routine review of
grievances. Instead, he seeks to hold them liable because of their supervisory responsibilities
over Defendants Cardona, Neumann, Rivas, and/or Cruitt. However, the doctrine of respondeat
superior is not applicable to civil rights actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th
Cir. 2001) (citations omitted). To clarify, Plaintiff may proceed on his claim against Defendant
Samuels in Count 2 and Defendant Walton in Count 5. Count 3 shall proceed only against
Defendants Cardona, Neumann and Rivas, and Count 4 shall proceed only against Defendants
Rivas and Cruitt.
Disposition
COUNT 6 is DISMISSED with prejudice for failure to state a claim upon which
relief may be granted. Defendant FEDERAL BUREAU of PRISONS is DISMISSED from

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this action with prejudice.
The Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons
and form USM-285 for service of process on Defendants HOLDER, DODRILL, SAMUELS,
CARDONA, NEUMANN, RIVAS, CRUITT and WALTON; the Clerk shall issue the
completed summons.

The United States Marshal SHALL serve Defendants HOLDER,

DODRILL, SAMUELS, CARDONA, NEUMANN, RIVAS, CRUITT and WALTON
pursuant to Rule 4(e) of the Federal Rules of Civil Procedure. 3 All costs of service shall be
advanced by the United States, and the Clerk shall provide all necessary materials and copies to
the United States Marshals Service.
In addition, pursuant to Federal Rule of Civil Procedure 4(i), the Clerk shall (1)
personally deliver to or send by registered or certified mail addressed to the civil-process clerk at
the office of the United States Attorney for the Southern District of Illinois a copy of the
summons, the complaint, and this Memorandum and Order; and (2) send by registered or
certified mail to the Attorney General of the United States at Washington, D.C., a copy of the
summons, the complaint, and this Memorandum and Order.
Plaintiff shall serve upon Defendants (or upon defense counsel once an
appearance is entered), a copy of every pleading or other document submitted for consideration
by the Court. Plaintiff shall include with the original paper to be filed a certificate stating the
date on which a true and correct copy of the document was served on Defendants or counsel.
Any paper received by a district judge or magistrate judge that has not been filed with the Clerk
3

Rule 4(e) provides, “an individual – other than a minor, an incompetent person, or a person whose
waiver has been filed – may be served in a judicial district of the United States by: (1) following state law
for serving a summons in an action brought in courts of general jurisdiction in the state where the district
court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the
summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s
dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C)
delivering a copy of each to an agent authorized by appointment or law to receive service of process.”
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or that fails to include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to
the complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States
Magistrate Judge Stephen C. Williams for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate
Judge Williams for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all
parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment
of costs under § 1915, Plaintiff will be required to pay the full amount of the costs,
notwithstanding that his application to proceed in forma pauperis has been granted. See 28
U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C.
§ 1915 for leave to commence this civil action without being required to prepay fees and costs or
give security for the same, the applicant and his or her attorney were deemed to have entered into
a stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the
Court, who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to
plaintiff. Local Rule 3.1(c)(1).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7
days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action

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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: April 16, 2013

s/ MICHAEL J. REAGAN
United States District Judge

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