Amawi v. Walton et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. The Clerk is DIRECTED to add Joyce Conley (former BOP Assistant Director of Programs) as a party Defendant. COUNT 4 is DISMISSED with prejudice for failure to state a claim upon which rel ief may be granted. COUNTS 5 and 6 are DISMISSED without prejudice for failure to state a claim upon which relief may be granted. The Clerk of Court is DIRECTED to complete, on Plaintiff's behalf, a summons and form USM-285 for service of proce ss on Defendants WALTON, DODRILL, DAVIS, SMITH, LAPPIN, HOLDER, KANE, SAMUELS, NALLEY, LAIRD, NELSON, ROAL, HOLLINGSWORTH, PARENT, JULIAN, SPROUL, JOHNSON, BANEY, KELLY, CARDONA, NEUMANN, BURGESS, HOWARD, GARCIA, RIVAS, and FEDERAL BUREAU of PRISONS; the Clerk shall issue the completed summons. Signed by Judge J. Phil Gilbert on 9/23/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MOHAMMAD ZAKI AMAWI, # 30547-160, )
)
Plaintiff,
)
)
vs.
)
)
J.S. WALTON, et al.,
)
)
Defendants.
)

Case No. 13-cv-866-JPG

MEMORANDUM AND ORDER
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

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current1 and past2 Marion officials, and current3 and past4 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
1

According to Plaintiff, the following Defendants are current Marion officials: J.S. Walton (Warden),
Dan Sproul (Associate Warden of Programs), Calvin Johnson (Associate Warden of Operations), Steven
Cardona (CMU Unit Manager), M. Neumann (Case Manager Coordinator and former CMU Case
Manager), G. Burgess (CMU Case Manager), E. Garcia (Captain), and Henry Rivas (CMU Intelligence
Research Specialist).
2

The following Defendants are former Marion officials: Wendy J. Roal and Lisa Hollingsworth
(Wardens), John Parent (Associate Warden), Steve Julian (Associate Warden of Operations), Jeff Baney
(Executive Assistant), Paul Kelly (Unit Manager), and Lawrence Howard (Captain).
3

The following Defendants are current Bureau of Prisons officials: Brian K. Davis (Assistant Director of
Correctional Programs Division), Leslie Smith (Chief of Counterterrorism Unit/Head of Intelligence
Section), Charles Samuels (BOP Director), Paul M. Laird (BOP North Central Regional Director), D.
Schiavone (BOP Senior Intelligence Analyst/Counterterrorism Unit), April Cruitt, William Falls, J.
Simmons, T. Capaldo, and Stephen Colt (all BOP Intelligence Analysts/Counterterrorism Unit).
4

The following Defendants are former BOP officials: D. Scott Dodrill (Assistant Director of Correctional
Programs Division), Harley Lappin (BOP Director), Thomas R. Kane (Acting BOP Director), Michael K.
Nalley (BOP North Central Regional Director), Amber Nelson (BOP North Central Acting Regional
Director), and Joyce Conley (BOP Assistant Director of Programs). Defendant Joyce Conley was omitted
from the docket sheet because Plaintiff did not include her among the enumerated Defendants in the
complaint (Doc. 1, pp. 1-2, 7-12). However, he lists her as an additional Defendant in his attached
exhibits (Doc. 1-1, p. 6), and includes allegations against her in his statement of claim. The Clerk shall be
directed to add Defendant Conley as a party.
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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

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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;

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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 all individual Defendants.
However, Plaintiff has failed to state a viable claim for conspiracy (Count 4), intentional
infliction of emotional distress (Count 5), or for discriminatory denial of halfway house
placement to Muslim inmates (Count 6). Therefore, these claims shall be dismissed without
prejudice.
Dismissal of Count 4 - Conspiracy
Plaintiff alleges that the individual Defendants conspired to deprive him of his procedural
due process rights, as well as to place and retain him and other Muslims in the CMU in violation
of their rights to equal protection under the law. Under the intracorporate conspiracy doctrine, a
§ 1985 conspiracy claim “cannot exist solely between members of the same entity.” Payton v.
Rush Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623, 632 (7th Cir. 1999). Plaintiff has alleged
that the defendants are all officials (or former officials) of the same entity, the Federal Bureau of
Prisons, and that they were all working in the BOP’s interest. The BOP is an agency of the
United States Department of Justice, headed by Defendant Holder. Therefore, the defendants
cannot be sued for conspiracy under § 1985. See id. See also Wright v. Ill. Dep’t Of Children
and Family Servs., 40 F.3d 1492, 1508 (7th Cir. 1994).
The Court declines Plaintiff’s invitation to disregard the intracorporate conspiracy
doctrine, citing Volk v. Coler, 845 F.2d 1422, 1435 (7th Cir. 1988) and Travis v. Gary Comm.
5

Plaintiff adds his “political beliefs” as another impermissible reason for his CMU placement (Doc. 1, p.
17). However, the complaint fails to articulate what those particular beliefs consist of; therefore, Plaintiff
fails to state an equal protection claim on this ground.
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Mental Health Ctr., 921 F.2d 108, 110 (7th Cir. 1991). Travis supports the Court’s conclusion
that the intracorporate conspiracy doctrine applies to defeat Plaintiff’s claim. Volk does not
dictate a different result, and in fact points out that Plaintiff would not be entitled to any
additional damages if he were to prevail on a conspiracy claim in addition to the underlying due
process or equal protection claims.
Further, “the function of a conspiracy claim under 42 U.S.C. § 1985(3) is to ‘permit
recovery from a private actor who has conspired with state actors.’” Turley v. Rednour, __F.3d
__ , 2013 WL 3336713, *2 n.2 (7th Cir. July 3, 2013) (quoting Fairley v. Andrews, 578 F.3d
518, 526 (7th Cir. 2009)). Nowhere does Plaintiff’s complaint allege the involvement of any
private individual in the claimed constitutional violations. For these reasons, Count 4 shall be
dismissed with prejudice.
Dismissal of Count 5 – Intentional Infliction of Emotional Distress
According to the Illinois Supreme Court, the tort of intentional infliction of emotional
distress includes the following elements:
(1) the conduct involved must be truly extreme and outrageous; (2) the actor must
either intend that his conduct inflict severe emotional distress, or know that there
is at least a high probability that his conduct will cause severe emotional
distress[;] and (3) the conduct must in fact cause severe emotional distress.
Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001) (citing McGrath v. Fahey, 533 N.E.2d 806,
809 (Ill. 1988)).
While Plaintiff alleges that the Defendants’ actions of denying him due process and equal
protection “shock the conscience” (Doc. 1, pp. 21-22), he does not claim that they took these
actions with the requisite intent to inflict severe emotional distress. Further, he never claims that
he in fact suffered any emotional distress as a result of the Defendants’ conduct. Accordingly,
Count 5 shall be dismissed without prejudice.
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Dismissal of Count 6 – Halfway House Placement
Plaintiff makes general claims that Muslim inmates who have been confined in the CMU
are either denied community halfway house placement when they near the end of their sentences,
or are subjected to onerous conditions while in community placement. However, he does not
allege that he personally has been denied community placement, and he is clearly nowhere close
to the time in his sentence at which he might be eligible for such placement. He therefore fails to
state a claim. See Higgason v. Farley, 83 F.3d 807, 810 (7th Cir. 1996) (plaintiff lacks standing
in civil rights action where he alleges that inmates generally are treated in contravention to the
constitution, but not that plaintiff himself was treated in violation of the constitution). Count 6
shall be dismissed without prejudice.
Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to United States
Magistrate Judge Frazier for further consideration.
Disposition
The Clerk is DIRECTED to add Joyce Conley (former BOP Assistant Director of
Programs) as a party Defendant.
COUNT 4 is DISMISSED with prejudice for failure to state a claim upon which relief
may be granted. COUNTS 5 and 6 are DISMISSED without prejudice for failure to state a
claim upon which relief may be granted.
The Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons and
form USM-285 for service of process on Defendants WALTON, DODRILL, DAVIS, SMITH,
LAPPIN, HOLDER, KANE, SAMUELS, NALLEY, LAIRD, NELSON, ROAL,
HOLLINGSWORTH, PARENT, JULIAN, SPROUL, JOHNSON, BANEY, KELLY,

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CARDONA, NEUMANN, BURGESS, HOWARD, GARCIA, RIVAS, and FEDERAL
BUREAU of PRISONS; the Clerk shall issue the completed summons. The United States
Marshal SHALL serve the above Defendants pursuant to Rule 4(e) of the Federal Rules of Civil
Procedure.6 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 states that the following Defendants, who work with the BOP’s Counterterrorism
Unit in Martinsburg, West Virginia, have an address that is “known only by the BOP”:
SCHIAVONE, CRUITT, FALLS, SIMMONS, CAPALDO, and COLT (Doc. 1, pp. 9-10).
Therefore, Plaintiff did not provide an address for these individuals. Similarly, Plaintiff did not
provide an address for retired BOP employee Defendant CONLEY, whose address is also
“known only by the BOP” (Doc. 1-1, p. 6). With respect to these Defendants, the BOP or its
representative, within 45 days of the date of this order (on or before November 7, 2013),
SHALL furnish the Clerk with the Defendant’s current work address, or, if not known, the
Defendant’s last-known address. This information shall be used only for formally effecting
6

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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service. Any documentation of the address shall be retained only by the Clerk. Address
information shall not be maintained in the court file or disclosed by the Clerk.
Similarly, for any other Defendant who no longer can be found at the work address
provided by Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work
address, or, if not known, the Defendant’s last-known address. This information shall be used
only for formally effecting service. Any documentation of the address shall be retained only by
the Clerk. Address information shall not be maintained in the court file or disclosed by the
Clerk.
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 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 Philip M. Frazier for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Frazier 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

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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
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: September 23, 2013
s/J. Phil Gilbert
United States District Judge

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