ABUHOURAN v. MORRISON et al

Filing 77

MEMORANDUM, FILED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 3/17/11. 3/21/11 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HITHAM ABUHOURAN,
Plaintiff,
v.
R.L. MORRISON, et al.,
Defendants.

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CIVIL ACTION
NO. 07-5513

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

I.

MARCH 17, 2011

INTRODUCTION
Plaintiff Hitham Abuhouran (“Plaintiff”) brings this

pro se suit against the United States and seventeen current or
former employees of the Federal Bureau of Prisons (“Defendants”).
Plaintiff’s complaint contains seven counts relating to his
incarceration from August 2001 to June 2007.

Counts One and Two

plead Federal Tort Claims Act (“FTCA”) claims against Defendants
for subjecting Plaintiff to excessive exposure to environmental
tobacco smoke and inadequate ventilation.
¶¶ 112-25.)

(See First Am. Compl.

Counts Three, Four, and Five are Bivens1 claims

seeking redress for the same environmental tobacco smoke and
inadequate ventilation that Counts One and Two are predicated

1

See Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 403 U.S. 388 (1971).

on.2

(See id. ¶¶ 126-48.)

Count Six is a Fifth Amendment Bivens

claim alleging “invidious discrimination by all defendants due to
[Plaintiff’s] ethnicity and/or national origin.”
152-55.)

(Id. ¶¶ 150,

Finally, Count Seven is a Bivens claim alleging that

Defendants violated the First Amendment by requiring incoming and
outgoing written correspondence to be in English.
156-60.)

(See id. ¶¶

In accordance with this Court’s Order requiring the

same, (see doc. no. 53), Defendants moved for judgment on the
pleadings or, in the alternative, summary judgment.

Plaintiff

responded in opposition, and has since asked the Court to appoint
counsel.
As discussed below, Defendants’ motion will be granted.
Therefore, Plaintiff’s motion for appointment of counsel will be
denied.

II.

BACKGROUND
A.

Facts
Plaintiff, a “Jordanian by birth” who has been a United

States citizen since 1988, (see First Am. Compl. ¶ 23), is a
federal inmate who is currently housed at Camp Canaan in Waymart,
PA, (id. ¶ 3.)

Plaintiff’s claims stem from Defendants’ alleged

2

Counts Four and Five explicitly invoke the Eighth
Amendment and/or Bivens. While Count Three does not, it refers
to Defendants’ reckless disregard for Plaintiff’s well being,
(see, e.g., First Am. Compl. ¶ 128), and therefore also seems to
be an Eighth Amendment Bivens claim.
- 2 -

acts and omissions from August 2001 to June 2007.
see also id. ¶¶ 113, 122, 133, 150, 157.)

(See id. ¶ 22;

During this time,

Plaintiff was incarcerated at two federal facilities:

the

Federal Detention Center in Philadelphia, Pennsylvania (“FDC”)
and the Federal Correctional Institution in Elkton, Ohio (“FCI”).
Plaintiff was housed at the FCI from August 2001 to July 2002,
and then again from March 2004 to June 2007.
70.)

(See id. ¶¶ 27; 51;

Plaintiff was at the FDC during the intervening period of

July 2002 to March 2004.

(See id.)

At both institutions,

Plaintiff was exposed to environmental tobacco smoke which,
according to Plaintiff, has contributed to his failing health.
(See, e.g., id. ¶¶ 98-99.)

Plaintiff was also subject to

correspondence restrictions during the relevant time period.
Specifically, Plaintiff was neither permitted to send nor receive
letters written in any language other than English.

(Id. ¶¶ 86-

88.)

B.

Procedural History
On March 24, 2006, Plaintiff filed his first suit

relevant to the instant proceedings in the United States District
Court for the District of Columbia, whereupon it was transferred
to the United States District Court for the Northern District of
Ohio.

The complaint in that case, which turns out to be the

initial iteration of the complaint presently before the Court,

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pled two causes of action:

(1) an Eighth Amendment Bivens claim

for injuries sustained due to environmental tobacco smoke and
poor ventilation at the FDC and FCI; and (2) a Fifth Amendment
Bivens claim for race-based discrimination.
Judge Adams of the Northern District of Ohio dismissed
with prejudice Plaintiff’s claims arising out of his
incarceration at the FCI for failure to state a claim, and
dismissed without prejudice Plaintiff’s claims arising out of his
incarceration at the FDC for failure to exhaust administrative
remedies.

See Abuhouran v. Morrison, No. 06-1207, 2006 WL

2334748, at *7 (N.D. Oh. Aug. 10, 2006) [hereinafter Abuhouran
I].

On appeal, the United States Court of Appeals for the Sixth

Circuit affirmed the dismissal of the FCI claims, but remanded
the FDC claims based on Jones v. Bock, 549 U.S. 199 (2007), which
held that exhaustion was an affirmative defense under the Prison
Litigation Reform Act (“PLRA”).

Following remand, the Northern

District of Ohio transferred the case to this Court.

Thereafter,

Plaintiff filed the first amended complaint presently at issue.
Shortly after filing the abovementioned case, Plaintiff
brought a second suit in the Northern District of Ohio.

The

complaint in this second suit contained nearly identical facts to
those averred in the earlier suit and subsequently raised in
Plaintiff’s first amended complaint.

This time, however,

Plaintiff’s complaint contained only one FTCA count against the

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United States for environmental tobacco smoke and poor
ventilation at the FDC and FCI.

Citing the preclusive effect of

Plaintiff’s prior case which was, at the time, on appeal with the
Sixth Circuit, Judge Economus dismissed with prejudice
Plaintiff’s FTCA claim to the extent it involved conduct at the
FCI.

See Abuhouran v. United States, No. 06-2505, 2007 WL

128908, at *4 (N.D. Oh. Jan. 12, 2007) [hereinafter Abuhouran
II].
Recognizing that Plaintiff’s claims pertaining to the
FDC had been dismissed without prejudice in Abuhouran I, Judge
Economus permitted Plaintiff to proceed “solely on [his] claim
concerning the ventilation at FDC-Philadelphia.”3

Id.

The case

was subsequently transferred to this Court, which considered the
remaining claim of inadequate ventilation at the FDC and granted
summary judgment for the defendant because Plaintiff could not
“raise a genuine issue of material fact that inadequate
ventilation led to [environmental tobacco smoke] exposure, which
was the causal connection for his injuries.”

Abuhouran v. United

States, 595 F. Supp. 2d 588, 595 (E.D. Pa. 2009) [hereinafter
Abuhouran III].

The Third Circuit affirmed this Court’s grant of

summary judgment.

See Abuhouran v. United States, 389 F. App’x

179 (3d Cir. 2010).

3

Judge Economus held that any other claims relating to
acts or omissions undertaken at the FDC had not been properly
exhausted.
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III. LEGAL STANDARD
A.

Summary Judgment Standard
Summary judgment is appropriate if there are no genuine

issues of material fact and the moving party is entitled to
judgment as a matter of law.

Fed. R. Civ. P. 56(c).

“A motion

for summary judgment will not be defeated by ‘the mere existence’
of some disputed facts, but will be denied when there is a
genuine issue of material fact.”

Am. Eagle Outfitters v. Lyle &

Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)).

A fact is

“material” if proof of its existence or non-existence might
affect the outcome of the litigation, and a dispute is “genuine”
if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”

Anderson, 477 U.S. at 248.

In undertaking this analysis, the court views the facts
in the light most favorable to the non-moving party.

“After

making all reasonable inferences in the nonmoving party’s favor,
there is a genuine issue of material fact if a reasonable jury
could find for the nonmoving party.”

Pignataro v. Port Auth. of

N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance
Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)).

While

the moving party bears the initial burden of showing the absence
of a genuine issue of material fact, the non-moving party “may
not rely merely on allegations or denials in its own pleading;

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rather, its response must—by affidavits or as otherwise provided
in [Rule 56]—set out specific facts showing a genuine issue for
trial.”

B.

Fed. R. Civ. P. 56(e)(2).

Judgment on the Pleadings Standard
Rule 12(c) permits a party to move for judgment on the

pleadings “[a]fter the pleadings are closed—but early enough not
to delay trial.”

Fed. R. Civ. P. 12(c).

Where, as here, a Rule

12(c) motion challenges the plaintiff’s failure to state a claim
upon which relief can be granted, the court evaluates the motion
under the same standard as a motion to dismiss pursuant to Rule
12(b)(6).

See Turbe v. Gov’t of the V.I., 938 F.2d 427, 428 (3d

Cir. 1991).
Under this standard, the court must “accept as true all
allegations in the complaint and all reasonable inferences that
can be drawn therefrom, and view them in the light most favorable
to the non-moving party.”

DeBenedictis v. Merrill Lynch & Co.,

Inc., 492 F.3d 209, 215 (3d Cir. 2007) (internal citations
omitted).

In order to withstand a motion to dismiss, a

complaint’s “[f]actual allegations must be enough to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. 544, 555 & n.3 (2007).

Bell Atl. Corp. v.

This “requires more

than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”

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Id. at 555 (internal

citation omitted).

Although a plaintiff is entitled to all

reasonable inferences from the facts alleged, a plaintiff’s legal
conclusions are not entitled to deference and the court is “not
bound to accept as true a legal conclusion couched as a factual
allegation.”

Papasan v. Allain, 478 U.S. 265, 286 (1986) (cited

with approval in Twombly, 550 U.S. at 555).
The pleadings must contain sufficient factual
allegations so as to state a facially plausible claim for relief.
See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d
187, 190 (3d Cir. 2009).

A claim possesses such plausibility

“‘when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged.’”

Id. (quoting Ashcroft v. Iqbal, ---

U.S. ----, 129 S. Ct. 1937, 1949 (2009)).

In deciding a Rule

12(b)(6) motion, the court is to limit its inquiry to the facts
alleged in the complaint and its attachments, matters of public
record, as well as undisputedly authentic documents if the
complainant’s claims are based upon these documents.

See Jordan

v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d
Cir. 1994); Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

IV.

DISCUSSION
Defendants argue that the Court should enter judgment

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in their favor as to each of the seven counts in Plaintiff’s
complaint.

Plaintiff’s initial response, (see doc. no. 64), only

addressed Defendants’ arguments as to Count Seven, arguing that
Defendants’ motion was without merit because the correspondence
restriction in question was imposed simply because Plaintiff is
an ethnic Arab.

Since that time, however, Plaintiff has filed a

motion to vacate a prior order of this Court which Plaintiff
evidently construed to dismiss his environmental tobacco smoke
claims.4

(See doc. no. 70.)
While Plaintiff’s environmental tobacco smoke claims

remain extant and Plaintiff’s motion to vacate is therefore
unnecessary, the Court will read it liberally, see Feliz v.
Kintock Group, 297 F. App’x 131, 137 (3d Cir. 2008) (noting that
pro se pleadings are afforded liberal construction), and treat it
as an additional response to Defendants’ summary judgment motion.
Evaluating the merits of this latter motion will, as evidenced by
complicated procedural history whereby Plaintiff has asserted
substantially similar claims peppered with new time periods,
require a careful parsing of Plaintiff’s complaint.

This

memorandum turns to that task.

A.

Counts One and Two
As noted, Counts One and Two purport to plead FTCA

4

In support of this motion, Plaintiff cites newly
discovered evidence that tobacco smoke is harmful.
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violations against Defendants based on (1) Plaintiff’s exposure
to environmental tobacco smoke; and (2) the allegedly inadequate
ventilation at the FCI and the FDC.

At the outset, it should be

noted that this theory for relief does not permit suit against
the various Federal Bureau of Prisons (“BOP”) employees named in
Plaintiff’s complaint.

See Lackro v. Kao, --- F. Supp. 2d ----,

No. 10-940, 2010 WL 3946296, at *4 (E.D. Pa. Oct. 8, 2010)
(Robreno, J.) (“The FTCA permits plaintiffs to recover against
the United States . . . but it prohibits suits against the
employee of the United States whose acts or omissions may have
led to the suit.”).

This is far from the only problem with

Counts One and Two of Plaintiff’s complaint, however, as
Plaintiff has already fully litigated this claim for most of the
time periods at issue.
A party is barred from litigating a claim that was or
could have been brought in a prior or subsequent suit for which a
judgment was rendered if (1) the action involves the same parties
or their privies; and (2) the claim sought to be litigated is the
same as that previously adjudicated.

See Duhaney v. Attorney

Gen., 621 F.3d 340, 347 (3d Cir. 2010) (listing the elements for
claim preclusion);

Greer v. County of Cook, 54 F. App’x 232, 235

(7th Cir. 2002) (“When two lawsuits are pending simultaneously in
different courts, preclusive effect is given to the judgment that
is entered first, regardless of the sequence in which the suits

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were filed.”).

Here, Plaintiff bases his complaint on

Defendants’ actions from August 2001 to June 2007 but, as
outlined in further detail below, has largely had this claim
conclusively resolved for claim preclusion purposes.

1.

FTCA Claims Based on Pre-2006 Conduct at the FCI

Judge Adams’ August 10, 2006 order disposed with
prejudice of Plaintiff’s environmental tobacco smoke Bivens
claims arising at the FCI from August 2001 to March 2006.

When,

in a separate suit, Plaintiff raised the same facts in support of
an FTCA claim, Judge Economus filed a January 12, 2007 order
dismissing all claims pertaining to conduct at the FCI due to the
preclusive effect of Judge Adams’ earlier decision.

Thus, there

can be no serious debate as to whether Plaintiff may proceed on
Counts One and Two with respect to the dates ranging from August
2001 to March 2006; Plaintiff is barred from raising such claims
in this action.5

See Allen v. McCurry, 449 U.S. 90, 94 (1980)

(“Under res judicata, a final judgment on the merits of an action
precludes the parties or their privies from relitigating issues
that were or could have been raised in that action.” (emphasis
added)); see also United States v. 5 Unlabeled Boxes, 572 F.3d

5

This analysis is not altered by Plaintiff’s inclusion
of defendants Hoover and Johnson, employees of the FCI, who were
not defendants when Judge Adams disposed of the Bivens claims in
Abuhouran I. As noted, an FTCA claim may only be brought against
the United States. See Lackro, 2010 WL 3946296, at *4.
- 11 -

169, 174 (3d Cir. 2009).

2.

Plaintiff’s Remaining Claims

That leaves Plaintiff’s claims stemming from his
detention at (1) the FDC from July 2002 to March 2004; and (2)
the FCI from March 2006 to June 2007.

The former was fully

litigated before this Court in Abuhouran III.

Indeed, upon the

Northern District of Ohio’s transfer to this Court of the
remaining FTCA claim stemming from Plaintiff’s incarceration at
the FDC, the Court expressly considered Plaintiff’s “claim of
negligence” under the FTCA “for exposing [Plaintiff] to excessive
amounts of environmental tobacco smoke . . . while in prison” and
granted summary judgment in the defendant’s favor.
III, 595 F. Supp. 2d at 590, 596.

Abuhouran

Thus, Plaintiff is also barred

from litigating the claims raised in Counts One and Two as they
pertain to his July 2002 to March 2004 detention at the FDC.

See

Allen, 449 U.S. at 94.
The remaining period to consider is March 2006 to June
2007, during which time Plaintiff was incarcerated at the FCI.
Although no court has previously resolved FTCA claims for this
period, Defendants nevertheless argue Counts One and Two are
barred by issue preclusion in light of this Court’s conclusion in
Abuhouran III that Plaintiff could not raise a triable issue of
fact concerning actual injury from the environmental tobacco

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smoke and inadequate ventilation to which he was allegedly
subjected.6

Issue preclusion bars relitigation of an issue where

“‘(1) the identical issue was previously adjudicated; (2) the
issue was actually litigated; (3) the previous determination was
necessary to the decision; and (4) the party being precluded from
relitigating the issue was fully represented in the prior
action.’”

5 Unlabeled Boxes, 572 F.3d at 173 (quoting Jean

Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 249
(3d Cir. 2006)).
Under the circumstances presented, the Court concludes
that issue preclusion is inappropriate.

While the Court reviewed

documentary evidence bearing on the instant FTCA claim stemming
from Plaintiff’s March 2006 to June 2007 incarceration at the FCI
in Abuhouran III,7 it did not have occasion to consider whether
Plaintiff had a cognizable FTCA claim for this time period.
Instead, the Court’s inquiry was limited to whether Plaintiff
could proceed to a jury on an FTCA claim arising from his
confinement at the FDC.

Thus, the issue of whether Plaintiff

could show an injury stemming from his March 2006 to June 2007
confinement at the FCI was never actually litigated.

For similar

6

Defendants also contend that Plaintiff has not
exhausted administrative remedies for claims arising from March
2007 to June 2007.
7

Specifically, the Court reviewed Plaintiff’s medical
records and Plaintiff’s deposition testimony. See Abuhouran III,
595 F. Supp. 2d at 595.
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reasons, disposition of this matter was not necessary to this
Court’s prior decision.
Notwithstanding the foregoing, Defendants are entitled
to summary judgment on this issue.

Plaintiff indicated in his

December 13, 2007 deposition that he was not currently suffering
from respiratory problems.
G.)

(See Def.’s Mot. For Summ. J., Ex.

This, of course, was taken after the period of incarceration

Plaintiff bases the instant FTCA claim on, and indicates that
Plaintiff has not sustained the requisite injury necessary to
proceed on his claim.

See Abuhouran III, 595 F. Supp. 2d at 595

(explaining that actual injury was required for Plaintiff to
proceed on his FTCA environmental tobacco smoke claim).

The

medical records the Court reviewed in Abuhouran III similarly
contradict Plaintiff’s allegations of injury stemming from the
period in question.

See id.

Plaintiff has adduced no evidence providing a reason to
doubt what his deposition testimony and medical records make
clear:

that he has not suffered any injury.

Nor has Defendant

even attempted to demonstrate that any actual injury was
suffered.

Consequently, no rational jury could find that

Plaintiff has suffered an actual injury as to prevail on his FTCA
claim for injuries sustained at the FCI from March 2006 to June
2007.8

See Anderson, 477 U.S. at 248.

8

Thus, for the reasons set

It is thus unnecessary to consider whether Plaintiff
properly exhausted this claim in its entirety. See 42 U.S.C. §
- 14 -

forth above, Defendants’ motion will be granted as to Counts One
and Two.

B.

Counts Three, Four, and Five
Counts Three, Four, and Five each plead Eighth

Amendment Bivens claims based on the same allegations underlying
Counts One and Two—i.e., the inadequate ventilation and
environmental tobacco smoke to which Plaintiff was subjected from
August 2001 to June 2007.

Defendants argue that judgment should

be granted in their favor on these counts because (1) the
judgment bar in 28 U.S.C. § 2676 precludes their litigation; (2)
claim preclusion prevents relitigation of these claims; and (3)
Plaintiff failed to exhaust his administrative remedies.

While

each of these arguments provide a basis for dismissing
Plaintiff’s claims in whole or in part,9 the Court’s conclusion
with respect to Counts One and Two resolves the matter under the
FTCA’s judgment bar.
Indeed, a judgment in an FTCA case bars any action
1997e(c)(2) (“In the event that a claim is, on its face,
frivolous, malicious, [or] fails to state a claim upon which
relief can be granted . . . the court may dismiss the underlying
claim without first requiring the exhaustion of administrative
remedies.”). Nevertheless, the record demonstrates that
Plaintiff did not exhaust administrative remedies for the March
2007 to June 2007 period. (See Def.’s Mot. For Summ. J., Ex. A.)
9

Indeed, the claims pled do
properly exhausted, (see Def.’s Mot.
are also subject to claim preclusion
which these or like issues have been
- 15 -

not appear to have been
For Summ. J., Ex. C.), and
based on the other cases in
adjudicated.

arising from the same subject matter against the government
employee whose acts or omissions led to the claim:
The judgment in an action under section 1346(b) of this
title shall constitute a complete bar to any action by the
claimant, by reason of the same subject matter, against the
employee of the government whose act or omission gave rise
to the claim.
28 U.S.C. § 2676.

A claim is “of the same subject matter” for

these purposes when it arises “out of the same actions,
transactions, or occurrences.”

Manning v. United States, 546

F.3d 430, 433 (7th Cir. 2008) (internal marks omitted) (quoting
Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d
840, 858 (10th Cir. 2005)).

Thus, where plaintiffs bring a

Bivens action against federal employees relating to the same
underlying conduct at issue in an FTCA claim, they “risk[ ]
having a judgment on the FTCA claims operate to bar their Bivens
theories.”

Unus v. Kane, 565 F.3d 103, 122 (4th Cir. 2009).

This is true even if the FTCA and Bivens claims are brought in
the same suit.

See, e.g., Denson v. United States, 574 F.3d

1318, 1334 n.50 (11th Cir. 2009) (collecting authority and noting
that “[a] majority of courts have construed § 2676 as barring a
plaintiff’s Bivens claims, irrespective of whether the Bivens and
FTCA claims were brought in the same lawsuit”); see also Manning,
546 F.3d at 433 (“[W]hen the district court in this case entered
a judgment in the FTCA claim, that judgment became a ‘judgment in
an action under’ the FTCA which ‘constitute[d] a complete bar to

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any action by the claimant,’ and [the plaintiff’s] Bivens claims
fell under the ambit of ‘any action.’”).
As discussed above, Defendants are entitled to judgment
with respect to Plaintiff’s related FTCA claims brought in Counts
One and Two.

This disposition subjects Plaintiff’s related

Bivens claims against the allegedly responsible BOP employees to
the FTCA’s statutory judgment bar.

See Kane, 565 F.3d at 122

(“[T]he court’s summary judgment award on the FTCA claims
trigger[ed] the judgment bar provision of § 2676, and the
plaintiffs’ . . . Bivens subclaims against the federal agent
defendants are thus barred.”).

Consequently, Defendants’ motion

will be granted as to Counts Three, Four, and Five.

C.

Count Six
Defendants next ask the Court to enter judgment in

their favor on Count Six, which pleads a Fifth Amendment Bivens
claim for “systematic and invidious discrimination which was
imposed upon plaintiff by defendants.”

(First Am. Compl. ¶ 152.)

Defendants contend that this claim arises from the same facts
attendant to the environmental tobacco smoke claims asserted in
Counts One through Five, and therefore seek judgment under the
FTCA’s judgment bar or by way of issue preclusion.

While

Defendants cannot be faulted for making this argument given the
conclusory and vague allegations contained in Count Six of

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Plaintiff’s complaint,10 the Court cannot definitively conclude
that Count Six stems from Plaintiff’s exposure to environmental
tobacco smoke or from any other conduct pled in Plaintiff’s
complaint.

Consequently, the Court will liberally construe

Plaintiff’s pleading to presume that Count Six involves a
distinct factual predicate from the other claims in Plaintiff’s
complaint.
Of course, if it is indeed true that Count Six is
separate from Plaintiff’s other claims, there is no principled
means by which the Court could determine what acts or omissions
led to Count Six’s allegations.

This problem is intimately tied

to Plaintiff’s failure to develop this theory of relief by way of
the BOP administrative process.

The BOP database reflects that

Plaintiff did not exhaust this claim or anything remotely
resembling it.

(See Def.’s Mot. For Summ. J., Ex. C (listing the

four issues for which Plaintiff properly exhausted administrative
remedies).)

This deficiency was duly raised by Defendants, (see

Answer, Fifth Affirmative Defense), and is fatal to Plaintiff’s
due process claim, see 42 U.S.C. § 1997e(a) (“No action shall be
10

Specifically, the allegations included under this Count
provide as follows: (1) “From . . . August 2001 until June 10,
2007 . . . Plaintiff was subjected to a pattern of systematic and
invidious discrimination by all defendants due to his ethnicity
and/or national origin,” (First. Am. Compl. ¶ 150); and (2) “The
pattern of systematic and invidious discrimination inflicted upon
plaintiff by defendants was not imposed as the result of any
compelling concern or reason, but rather, was done for the sake
of discriminating against plaintiff on the basis of his ethnicity
and/or national origin,” (id. ¶ 153.)
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brought with respect to prison conditions . . . by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted.”); Boyd v. United States, 396 F. App’x 793, 795-96 (3d
Cir. 2010) (discussing BOP’s administrative grievance process).
Therefore, the Court will grant Defendants’ motion as
to Count Six.

See Spruill v. Gillis, 372 F.3d 218, 223 n.2 (3d

Cir. 2004) (noting that failure to exhaust administrative
remedies is an affirmative defense subject to dismissal following
a judgment on the pleadings motion).
dismissed without prejudice.11

Count Six, however, will be

See Ahmed v. Sromovski, 103 F.

Supp. 2d 838, 843 (E.D. Pa. 2000) (“Dismissal of a plaintiff’s
11

Thus, the Court need not address the merits of
Plaintiff’s claims. It should be noted, however, that Plaintiff
faces several hurdles in proceeding on this theory. First, the
applicable statute of limitations may bar a claim. Second,
Plaintiff’s claim may prove untimely under the BOP’s
administrative deadlines. See 28 C.F.R. § 542.14. Third, at
least a portion of this claim may well be res judicata. See
Abuhouran I, 2006 WL 2334748, at *7. Fourth, Plaintiff’s claim
may be subject to the judgment bar or issue preclusion if this
Court’s generous assumption concerning the factual predicate for
Count Six is mistaken.
While these hurdles provide a colorable basis to
overlook Plaintiff’s failure to exhaust administrative remedies
and dismiss his claim on the merits, see 42 U.S.C. § 1997e(c)(2),
the Court will, in view of his pro se status and the undeveloped
nature of the record before the Court, dismiss Count Six on
exhaustion grounds instead. Plaintiff, however, should note
these considerations in bringing any future action, keeping in
mind that he may be inviting the imposition of sanctions under
Rule 11’s mandate that claims made be “warranted by existing law
or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law.” Fed. R.
Civ. P. 11.
- 19 -

complaint without prejudice is appropriate when an plaintiffinmate has failed to exhaust his available administrative
remedies . . . .”), aff’d sub nom. Ahmed v. Dragovich, 297 F.3d
201 (3d Cir. 2002).

D.

Count Seven
Count Seven alleges that, from October 2001 to June

2007, Defendants violated Plaintiff’s First Amendment rights by
requiring his incoming and outgoing correspondence to be written
in English.

Defendants urge that this restriction was

necessitated by security concerns related to Plaintiff’s conduct.
Plaintiff, in turn, appears to contend that the real purpose of
the correspondence restriction was to punish him for being an
Arab after the tragic attacks of September 11, 2001.

As

discussed below, Defendants’ motion will be granted because the
evidentiary materials of record do not support Plaintiff’s
account of the facts.

1.

Legal Standard

It is well settled that “a prison inmate retains those
First Amendment rights that are not inconsistent with his status
as a prisoner or with the legitimate penological objectives of
the corrections system.”
(1974).

Pell v. Procunier, 417 U.S. 817, 822

Thus, prisons may reasonably limit their inmates’ speech

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as necessary.

See, e.g., Abu-Jamal v. Price, 154 F.3d 128, 134

(3d Cir. 1998) (recognizing that prisons may properly limit
“speech that may include escape plans or incite other
prisoners”).

At the threshold, determining whether such a

restriction comports with the First Amendment in the prison mail
context hinges on whether the restriction in question is applied
to incoming or outgoing mail.

Restrictions on incoming mail are

governed by the test articulated in Turner v. Safley, 482 U.S. 78
(1987) while restrictions on outgoing mail are governed by the
stricter test espoused in Procunier v. Martinez, 416 U.S. 396
(1974).

See Nasir v. Morgan, 350 F.3d 366, 371 (3d Cir. 2003)

(“Because Thornburgh holds that Turner does not squarely overrule
Martinez as applied to outgoing mail, we will apply Turner to
incoming mail and Martinez to outgoing correspondence.”); see
also Bowens v. U.S. Dep’t of Justice, No. 08-590, 2009 WL
3030457, at *3 (M.D. Pa. Sept. 17, 2009).
The test in Turner instructs the Court to consider the
following four factors in assessing a First Amendment claim:
First, there must be a “valid, rational connection” between
the prison regulation and the legitimate governmental
interest put forward to justify it. . . . A second factor
relevant in determining the reasonableness of a prison
restriction . . . is whether there are alternative means of
exercising the right that remain open to prison inmates. . .
. A third consideration is the impact accommodation of the
asserted constitutional right will have on guards and other
inmates, and on the allocation of prison resources
generally. . . . Finally, the absence of ready alternatives
is evidence of the reasonableness of a prison regulation.

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Turner, 482 U.S. at 89-90 (internal citations omitted); see
Nasir, 350 F.3d at 371.

Martinez, by contrast, applies a two-

part “strict scrutiny” test, see Turner, 482 U.S. at 83, to
evaluate whether a restriction on speech offends the First
Amendment:
First, the regulation or practice in question must further
an important or substantial governmental interest unrelated
to the suppression of expression. . . . Second, the
limitation of First Amendment freedoms must be no greater
than is necessary or essential to the protection of the
particular governmental interest involved.
Martinez, 416 U.S. at 413, overruled on other grounds, Thornburgh
v. Abbott, 490 U.S. 401 (1989).

Nevertheless, the Court has

clarified that, in applying this test, “the decisions of prison
officials [should not be subject] to a strict ‘least restrictive
means’ test.”

Thornburgh, 490 U.S. at 411.

Instead, the

challenged regulation must be “‘generally necessary’ to a
legitimate governmental interest.”

Id. (quoting Martinez, 416

U.S. at 414).

2.

Application

As noted, Defendants argue that the correspondence
restriction employed in this case were a product of security
concerns.

This contention is supported by Defendants’ Rule

30(b)(6) deponent’s deposition testimony.12
12

Indeed, as

On April 1, 2010, the Court ordered Defendants to
designate a deponent with respect to Plaintiff’s First Amendment
claim. (See doc. no. 48.) Defendants selected Danine Adams, who
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Defendants’ deponent explained following a review of Plaintiff’s
prison record:
[T]he warden received information . . . that Inmate
Abuhouran . . . was using a third party to attempt to
communicate with known fugitives who were his codefendants,
who were in Jordan.
The restrictions were also based on the fact that his
correspondence was in Arabic and could not be efficiently
translated at the institution. And that was important
because previously he had been involved in a situation -- in
a plot at another institution where Arabic -- his use of
Arabic was related to an escape that allowed these people to
get to Jordan, and that was orchestrated via his use of
Arabic. The restrictions were also based on correspondence
that was reviewed that contained coded language.
(See Def.’s Mot. For Summ. J., Ex. H.)
Additional evidence of record supports this account.13
For example, a February 12, 1998 letter from the Assistant United
States Attorney to the Special Investigative Supervisor of the
BOP’s Northeast Region stated that the Plaintiff and his codefendant brother intended to attempt an escape from prison.

The

letter further explained that two of Plaintiff’s other codefendants—his siblings Adham and Adma Abuhouran—had already
successfully fled the country for Jordan while being held on home
detention, and that Plaintiff was aware of his siblings’ escape
plan and advised them to that end.

Moreover, as Plaintiff

Plaintiff deposed on May 13, 2010.
J., Ex. H.)

(See Def.’s Mot. For Summ.

13

Some of this evidence was submitted after the Court
entered an Order requiring Defendants to turn over all available
documentary evidence relating to Plaintiff’s correspondence
restriction. (See doc. no. 69.)
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acknowledges in his affidavit in opposition to Defendants’
summary judgment motion, he has received the alleged coded
communications while in prison:
[T]he alleged coded language was a letter from an inmate who
had left the prison system and wrote me a letter letting me
know where he was . . . . The letter was written in English
and the coded allegations relates to the heading of the
letter “Hello from the Commomwealth [sic] of Mass” . . . .
(Pl.’s Opp. To Defs.’ Mot. For Summ. J., Aff.)
Nevertheless, Plaintiff contends that the restriction
at issue was precipitated by racial animus following the
September 11, 2001 terrorist attacks.

In support of this

contention, Plaintiff submits an affidavit in which he claims
that Defendants are concealing evidence revealing their true
motives, and that he was informed by one of the named defendants
that the correspondence restriction was “because of the 9/11
tragedy.”

(Id.)

Plaintiff further avers in his affidavit that

he was not subjected to any correspondence restrictions before
September 11, 2001 and that no other foreigners in prison were
subjected to similar restrictions during the time in question.
(Id.)
The dispute in this case therefore turns on whether
Plaintiff’s account of the facts is adequately supported by the
evidentiary record when viewing the facts and drawing all
inferences in his favor.

See Pignataro, 593 F.3d at 268.

After

all, if the restrictions in question were implemented for the

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security reasons Defendants advance, there could be no serious
question as to whether the regulation passes constitutional
muster under both Turner (for Plaintiff’s incoming mail) and
Martinez (for Plaintiff’s outgoing mail).14

See, e.g., Smith v.

Epps, No. 07-43, 2010 WL 437075, at *2-5 (N.D. Miss. Feb. 2,
2010) (applying Turner and Martinez and rejecting prisoner’s
challenge concerning prison officials’ refusal to deliver
incoming and outgoing mail written in French).

Correspondingly,

14

Given the security concerns Defendants raise, the
restriction would plainly satisfy Turner. First, the requisite
“valid, rational connection” exists between the regulation and
the government interest in question because Plaintiff posed a
prison security threat that could not effectively be dealt with
unless the prison staff could understand the letters it was
monitoring. Second, utilizing this restriction was not unduly
intrusive because Plaintiff retained the ability to exercise his
First Amendment right to speak in Arabic in other ways; only his
incoming and outgoing written correspondence to others was
limited to English. Third, it is clear that lifting the
restriction would have imposed a considerable burden on prison
resources as Plaintiff’s mail would have had to be sent to
Washington to be translated and returned for review by the prison
staff. (See Def.’s Mot. For Summ. J., Ex. H.) Finally, no
“ready alternatives” to this burdensome protocol or
implementation of the correspondence restriction existed when the
restriction was in place. (See id.) Now that an alternative for
prompt translation of correspondence in all languages exists,
(see id.), Plaintiff’s correspondence restriction has been
lifted.
Martinez would also not be offended by imposition of
the restriction. The government had a substantial governmental
interest entirely unrelated to the suppression of expression.
See Abu-Jamal, 154 F.3d at 134. Indeed, the content of
Plaintiff’s speech was not limited in any way; only the manner in
which it was communicated was impacted. While not the only
conceivable means of furthering the government’s interest in
security, the restriction in question was undoubtedly “generally
necessary” to that end. Thornburgh, 490 U.S. at 411.
- 25 -

if Plaintiff were correct that the restriction was imposed solely
due to ethnic animus, the restriction would clearly be improper
under the governing tests.
While this Court is tasked with viewing the facts in
the light most favorable to Plaintiff and drawing all reasonable
inferences in Plaintiff’s favor, see Pignataro, 593 F.3d at 268,
it does not do so in a vacuum.

Rather, as the Supreme Court

noted in Scott v. Harris, “[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by the
record . . . a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.”
U.S. 372, 380 (2007).

550

Here, a rational jury would not be able to

find in Plaintiff’s favor because the evidentiary record shows
that the restrictions were prompted by security concerns;
Plaintiff’s averments that ethnic status was a factor does
nothing to rebut the plethora of legitimate reasons Defendants
have proffered in support of the restriction’s implementation.
Indeed, the strongest facts Plaintiff advances
regarding his contention are (1) the temporal proximity of the
restriction to the events of September 11; and (2) that he was
told his correspondence was restricted because of that day’s
events.

Plaintiff, however, admits that he was subject to

correspondence restrictions—albeit not precisely the same
ones—prior to September 11.

(See Pl.’s Opp. To Defs.’ Mot. For

- 26 -

Summ. J., Aff.)

Additionally, Plaintiff adduces no evidence

whatsoever to controvert Defendants’ evidence that Plaintiff (1)
maintained communications with his fugitive siblings in Jordan;
(2) was aware of his siblings’ escape plan before they carried it
out; and (3) received coded language in written letters.15
Thus, the record belies Plaintiff’s account to the
extent Plaintiff’s averment concerning September 11 can be
understood to imply that September 11 was the only reason for the
correspondence restriction in question.16

And because Plaintiff

has not rebutted Defendants’ showing that the serious security
concerns that existed played—at the least—a very substantial role
in prompting the correspondence restriction, Plaintiff’s First
Amendment claim fails.

Thus, the Court will grant Defendants’

motion as to Count Seven.

V.

CONCLUSION
For the foregoing reasons, the Court will grant

Defendants’ motion for judgment on the pleadings or, in the
alternative, summary judgment.

Because Plaintiff’s motion to

vacate this Court’s April 1, 2010 Order is unnecessary and has

15

In fact, as noted, Plaintiff expressly acknowledges
receiving coded communications while in prison.
16

Or, by extension, that the restriction was imposed only
because he was an ethnic Arab. (See Pl.’s Opp. To Defs.’ Mot.
For Summ. J., at 1.)
- 27 -

been treated as a response to Defendants’ motion, it will be
denied as moot.

Finally, Plaintiff’s application for pro bono

counsel will be denied.17

An appropriate Order will follow.

17

Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993) lists
several factors relevant to this determination. At the
threshold, it instructs the court to determine whether “the
plaintiff’s claim has arguable merit in fact and law.” Id. at
155. As this Court’s grant of judgment in Defendants’ favor
reflects, Plaintiff’s claims in this case do not satisfy this
standard. This conclusion is not a product of Plaintiff’s pro se
status; the issues dealt with in this memorandum were not
particularly complex, were thoroughly investigated, and were
pursued by a litigant who has extensive experience representing
himself in federal court.
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