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Lindhcomplaint

Lindhcomplaint

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Date Created:May 19, 2014

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UNITED STATES DISTRICT COURT
 SOUTHERN DISTRICT INDIANA
 TERRE HAUTE DIVISION
 
YAHYA (JOHN) LINDH, his own behalf and behalf those similarly situated,  
Plaintiff,  No. 2:14-cv-142  
DIRECTOR, FEDERAL BUREAU  
PRISONS, his official capacity;  
WARDEN, FEDERAL CORRECTIONAL  
INSTITUTION, TERRE HAUTE, INDIANA,  Complaint-Class Action his official capacity,  
Defendants.  

Class Action Complaint for Declaratory and Injunctive Relief Introduction Plaintiff, Yahya Lindh, also known John Lindh, prisoner the Communications Management Unit (CMU) the Federal Correctional Institution Terre Haute, Indiana (FCI-Terre Haute). The only visitation allowed prisoners the CMU FCI-Terre Haute, aside from attorney visits, non-contact visitation where the prisoner escorted from the prisoner area the CMU across hallway into the visiting area. The visitation takes place through solid plexiglass with the visitor and prisoner speaking through telephones. Despite the fact that there contact between the visitor and the prisoner the policy the Warden FCI-Terre Haute that visit can occur without least one, and sometimes two, visual searches the prisoner that includes visual inspection all body surfaces and body cavities. Given the 
circumstances visitation the CMU, this violates the Fourth Amendment the United States
 
Constitution.
 
Yahya Lindh Muslim and clear tenet Islam that Muslim men are prohibited from wearing pants below their ankles. Despite this, formal policy the Director the Federal Bureau Prisons that Islamic inmates may not hem wear their pants above the ankle. This policy imposes substantial, and unjustified, burden the religious exercise Mr. Lindh and all Muslim prisoners with the Federal Bureau Prisons and violates the Religious Freedom Restoration Act (RFRA), U.S.C.  2000bb-1. Mr. Lindh requests the issuance appropriate injunctive and declaratory relief his behalf and behalf two classes similarly situated persons. 

Jurisdiction, venue, cause action 
This Court has jurisdiction this cause pursuant U.S.C.  1331, 1346. 
Venue proper this judicial district pursuant U.S.C.  1391. 
Declaratory relief authorized U.S.C.  2201, 2202 and Rule the Federal Rules Civil Procedure. 
This action brought pursuant the Fourth Amendment the United States Constitution and RFRA, U.S.C.  2000bb-1(c). 

Parties 
Yahya Lindh adult person currently confined the CMU FCI Terre Haute. 
The Director the Federal Bureau Prisons the duly appointed head the agency and sued pursuant Rule 17(d) the Federal Rules Civil Procedure. 
The Warden the Federal Correctional Institution, Terre Haute, Indiana, the duly appointed warden the institution within which located the CMU and sued pursuant Rule 17(d) the Federal Rules Civil Procedure. 

Class action allegations 
10. 
This action brought plaintiff his own behalf and behalf two classes those similarly situated pursuant Rule 23(a) and (b)(2) the Federal Rules Civil Procedure. 

11.	 
The first class, denominated Class defined as: 

all persons currently and the future confined the Communications Management Unit the Federal Correctional Institution  Terre Haute. 

12. defined, Class meets all the requirements Rule 23(a) the Federal Rules Civil Procedure.  Specifically: 
The class numerous that joinder all members impracticable. believed that the CMU currently holds approximately prisoners and that any one time holds between and prisoners. 
There are questions law fact common the class  whether requiring visual searches prisoners including visual inspection all body surfaces and body cavities before and/or after non-contact visits violates the Fourth Amendment the United States Constitution.  	
The claims Mr. Lindh are typical those the class. 	
Mr. Lindh will fairly and adequately represent the class. 

13. 
The further requirements Rule 23(b)(2) are met with regard Class the Warden FCI Terre Haute has, all times, acted and refused act grounds that generally apply the class that final injunctive relief corresponding declaratory relief appropriate with respect the class whole 

14.	 
The second class, denominated Class defined as: all male Muslim prisoners confined within the Bureau Prisons. 

15. defined, Class meets all the requirements Rule 23(a) the Federal Rules Civil Procedure. The class numerous that joinder all members impracticable. The exact number Muslim prisoners within the Bureau Prisons not yet known. However, the Center for Constitutional Rights reports that Muslims represent the general federal prison population, Center for Constitutional Rights, CMUs: The Federal Prison Systems Experiment Social Isolation, http://ccrjustice.org/cmu-factsheet (last visited May 2014), and there are more than 173,000 prisoners confined the custody the Bureau Prisons, with more than 32,000 other federal prisoners either privately managed other types facilities. Federal Bureau Prisons, Statistics, http://www.bop.gov/about/statistics/population_statistics.jsp (last visited May 2014). More than 93% the prisoners are male. Federal Bureau Prisons, Statistics-Inmate Gender, http://www.bop.gov/about/statistics/statistics_inmate_gender.jsp (last visited May 2014). The number Muslim male prisoners (6% least 93% 173,000 9,653) therefore large. 
There are questions law fact common the class  whether prohibiting Muslim prisoners from wearing pants above the ankles violates the Religious Freedom Restoration Act, U.S.C.  2000bb-1. 
The claims and defenses the representative party are typical those the class.  
Mr. Lindh will fairly and adequately represent the interests the class. 

16.
   The further requirements Rule 23(b)(2) are met with regard Class the Director the Federal Bureau Prisons has, all times, acted and refused act grounds that generally apply the class that final injunctive relief corresponding declaratory relief appropriate with respect the class whole 

17. 
Kenneth Falk and Gavin Rose are appropriate appointed class counsel for both classes and should appointed. 

Factual background 
The CMU FCI-Terre Haute 
18. 
The CMU located within FCI-Terre Haute. 

19. 
The CMU was created house prisoners whose communications with persons inside and outside prison have been determined the government need close monitoring ensure the safety, security, and orderly operation BOP facilities and ensure the protection the general public. 

20. 
The CMU was opened 2006. 

21. 
The CMU self-contained general population unit which means that all meals, religious services, and educational, recreational, vocational, and administrative programming and activities for the CMU prisoners take place inside the unit. 

22. 
The CMU contains cells that could hold two prisoners each. 

23. 
However, the current time there double-celling the unit.  

24. the current time there are approximately prisoners the CMU. 

Visitation the CMU 
25. 
Aside from attorney visits, law enforcement interviews, other extraordinary circumstances, visits the CMU are non-contact. with physical contact possible between visitors and prisoners. 

26. 
Within the CMU, separated locked door from the areas that prisoners are allowed regular access to, there are two rooms separated plexiglass window.  

27. 
Formerly, when CMU prisoner had visit would escorted one the rooms and locked without being searched guards, either before after the visit. 

28. 
His visitor would enter into the other room and the visit would take place through the plexiglass with the parties conversing phone. 

29. guard always remains immediately outside the visiting rooms. 

30. 
The visiting room which the non-prisoner seated has glass door that the guard can observe the visitor and also the prisoner through the plexiglass window. 

31. 
There are both audio and video devices the visiting rooms and all visits are recorded. 

The imposition searches 
32. C.F.R. 552.11 governs the searches prisoners within the BOP. 
33. C.F.R.  552.11(c) defines visual search visual inspection all body surfaces and body cavities. 

34. 
The regulation provides that: 

Staff may conduct visual search where there reasonable belief that contraband may concealed the person, good opportunity for concealment has occurred. For example, placement special housing unit (see CFR part 541, subpart B), leaving the institution, reentry into institution after contact with the public (after community trip, court transfer, after contact visit visiting room) sufficient justify visual search. The visual search shall made manner designed assure much privacy the inmate practicable. C.F.R.  552.11(c)(1). 
35. The BOPs Program Statement Number 5521.05, entitled Searches Housing Units, 
Inmates, and Inmate Work Areas, provides, way further explanation, that: CFR 541, subpart refers the Program Statement Inmate Discipline and Special Housing Unites. Except minimum security institutions, inmates must undergo visual search when leaving the institution, for whatever reason (even when being released). Examples other situations requiring visual searches include: 
	 
processing inmate into institution through Receiving and Discharge, 

	 
placing inmate the Control Unit, and 

	 
conducting periodic visual searches inmates returning from outside work details. 

Program Statement 5521.05 6 
36. 
Until approximately October 2012, when CMU prisoners went their non-contact visits they were not subjected visual search where they had strip and expose their body cavities inasmuch the visits were non-contact, the prisoners did not leave the CMU, they were escorted the visit correctional officers, and they and their visitors were under constant observation during the visits. 

37. 
However, October 2012, defendant Warden changed the policy and CMU prisoners were required, both before and after the visit, while being observed the officer who stood 

close by, strip naked, open their mouths, lift their genitals, and turn around exposing their buttocks squat and cough. These are visual searches within the BOP policy. 

38. 
Currently, CMU prisoners who are going non-contact visits continue subject visual searches, which are strip searches, although the recent past these searches have only occurred before visits. However, the best Mr. Lindhs knowledge there has been formal change the Wardens policy that requires visual searches both before and after the non-contact visits. 

39. 
These searches take place the bathroom next the room where the prisoners continue locked into during the visits. 

40. 
Visitors continue visit the other room with the glass door and the plexiglass window and telephone described above. 

41. 
Visits continue visually supervised correctional officer who physically present outside the glass door and the visits continue observed via listening devices and camera. 

42. 
Given that these are non-contact and closely observed visits, there absolutely reason for the CMU prisoners subjected the visual searches, which are strip searches. 

The pants policy 
43. 
The BOPs Program Statement P5360.09, entitled Religious Beliefs and Practices states, page 14, discussing ceremonial religious clothing that allowed, Islamic inmates may not hem wear their pants above the ankle. 

44. 
Both the Koran and the Hadith (the Hadith are reports and sayings the Prophet Muhammad) note, numerous occasions, that wearing ones lower garment below the ankles, for men, prohibited. 

45. 
There are some who believe that this prohibition arose out the fact that the time the Prophet, wearing ones garments long, that they were easily soiled, was deemed sign arrogance and excessive pride  flaunting the fact that the persons did not care that the garment would get dirty. 

46. 
Today, many Muslims believe that sinful person knowingly lets his garments below the ankles. 

47. 
Prisoners within the BOP are provided pants. Some prisoners, including those within the CMU, may also purchase sweat pants and shorts. 

48. 
Even prisoners are allowed purchase sweat pants and/or shorts, there are times that they must wear the BOP-issued pants  including during visits, among other times. 

49. 
The pants issued the prisoners the BOP are sized both waist and in-seam. 

50. would therefore easy for Muslim prisoners issued pants with slightly shorter in-seams that they would above their ankles.  

51. 
Because the above policy Muslim prisoners are not allowed request and wear pants that are hemmed above the ankle. 

52. 
Mr. Lindh, and other prisoners, have been disciplined for wearing their pants above their ankles.  

53. 
The policy the Director the Federal Bureau Prisons that prohibits Muslim prisoners from wearing their pants above their ankles imposes substantial burden plaintiffs religious exercise and the religious exercise all male Muslim prisoners within the BOP. 

54. 
This policy not narrowly tailored promote compelling governmental interest. 

55. 
Plaintiff has fully exhausted his administrative remedies without defendants altering either policy. His grievances are attached Exhibit and 

Grievances 
Irreparable harm 
56. Plaintiff and the putative classes are being caused irreparable harm for which there adequate remedy law. 

Legal claims 
57. 
The policy defendant Warden, FCI-Terre Haute, subjecting CMU prisoners the visual searches, which are strip searches, they have non-contact visits unreasonable and violates the Fourth Amendment the United States Constitution. 

58. 
The policy defendant Director, Federal BOP, prohibiting BOP Muslim prisoners from wearing their pants above the ankle imposes substantial burden plaintiff and the putative classs religious exercise and neither furthers compelling governmental interest, nor the least restrictive alternative further that interest. therefore unlawful violating the Religious Freedom Restoration Act, U.S.C.  2000bb-1. 

Request for relief 
WHEREFORE, plaintiff requests that this Court: 
Accept jurisdiction this case and set for hearing the earliest opportunity. 
Certify this case class action pursuant Rule 23(b)(2) the Federal Rules Civil Procedure with two classes certified defined above and with Mr. Lindh the class representative for both classes.  
Declare that the defendants have violated federal law and the United States Constitution for the reasons noted above. 
Enter preliminary injunction, later made permanent, enjoining:  
Defendant Warden, FCI-Terre Haute, discontinue the practice conducting strip searches CMU prisoners who have non-contact visits.  
Defendant, Director, Federal BOP, from prohibiting Muslim prisoners from wearing their pants above their ankles.  
Award plaintiffs their attorneys fees pursuant U.S.C.  1988 and U.S.C.  2412.  
Award all other proper relief. 

Kenneth Falk 
Kenneth Falk No. 6777-49 
Gavin Rose 
Gavin Rose No. 26565-53 ACLU Indiana 1031 Washington St. Indianapolis,  46202 317-635-4059 Fax: 317-635-4105 kfalk@aclu-in.org grose@aclu-in.org 
Attorneys for Plaintiff and the Putative Classes