On April 1, 2010, five current and former prisoners in the custody of the Bureau of Prisons who were transferred to experimental "Communications Management Units" (CMUs), and two spouses of those prisoners, filed suit under the First, Fifth, and Eighth Amendments, as well as the Administrative Procedure Act against the U.S. Attorney General and the BOP in the District Court for the District of Columbia. The plaintiffs were represented by private as well as public interest counsel and asked the court for declaratory relief and injunctive relief either compelling the BOP to return them to the general population of an appropriate BOP facility or enjoining the BOP from operating the CMU in a way that violates the plaintiff's rights. Specifically, the plaintiffs claim that placement in the CMU was discriminatory and imposes atypical and significant curtailments on their ability to communicate with loved ones, and that the BOP was required by the APA to provide opportunity for notice and comment on a dramatic change in policy that contradicts existing regulations.
In 2006 and 2007, the BOP secretly created two experimental prison units designed to isolate certain prisoners from the rest of the BOP and the outside world, called "Communication Management Units." The CMUs, unlike other federal general population units, categorically banned any physical contact with visiting friends and family, and placed severe restrictions on CMU prisoners' access to phone calls and prison programming. More than two thirds of the prisoners confined in the CMUs are Muslim, over-representing the BOP Muslim population by roughly 1,000%.
On March 30, 2011, Judge Urbina denied in part and granted in part the defendants' motion to dismiss, allowing the plaintiffs to proceed on their procedural due process and retaliation claims. 774 F.Supp.2d 147. The case then went into discovery for several years. During discovery, on April 4, 2012, the case was reassigned to Judge Richard Roberts. Then, on November 5, 2012, the case was again reassigned to Judge Barbara Rothstein.
On July 12, 2013, Judge Rothstein dismissed one plaintiff's claims as moot, as the plaintiff had been released from BOP custody, and dismissed the other plaintiffs' claims for mental and emotional injury against one defendant in his individual capacity, as the Prison Litigation Reform Act barred such claims. The remaining claims (procedural due process violation for both plaintiffs, and retaliation for one plaintiff) continued in discovery. 953 F.Supp.2d 133 (D.D.C. 2013).
On April 23, 2014, the plaintiffs filed a motion for summary judgment on their remaining claims, and on May 21, defendants filed their own motion for summary judgment. The next year, on March 16, 2015, Judge Rothstein denied the plaintiffs' motion and granted the defendants' motion for summary judgment, dismissing the two remaining plaintiffs' procedural due process claims and one plaintiff's retaliation claim. Judge Rothstein reasoned that the plaintiffs' procedural due process claims failed because they could not establish a "private liberty interest" as required by Mathews v. Eldridge
, 424 U.S. 319, 335 (1976). A plaintiff, Judge Rothstein explained, can establish a liberty interest by showing that restrictions impose "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." The baseline for "ordinary incidents of prison life" is administrative segregation (solitary confinement) or "the most restrictive confinement conditions that prison officials . . . routinely impose." Here, Judge Rothstein found that the conditions of administrative segregation at the facilities were generally harsher
than those in the CMUs, noting, "except where communication is concerned, CMUs function like a general population unit." Judge Rothstein further granted summary judgment to defendant on one plaintiff's retaliation claim, deferring to the judgment of the prison administrators that the plaintiff's transfer in response to speech had a "valid, rational connection" to a legitimate government interest. Prison officials had described the plaintiff's speech as "inciting and radicalizing the Muslim inmate population," and Judge Rothstein deferred to their judgment, holding that the plaintiff's speech was not protected by the First Amendment. 2015 WL 3749621 (D.D.C., Mar. 16, 2015).
Plaintiffs appealed, and filed their opening appellate brief on October 28, 2015. The matter is pending in the D.C. Circuit.Xin Chen - 04/10/2011
Kevin Nomura - 04/06/2015