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Awan v. Lapin

March 17, 2010

KHALID AWAN, PLAINTIFF,
v.
HARLEY LAPIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge

ELECTRONIC PUBLICATION ONLY

MEMORANDUM AND ORDER

Plaintiff Khalid Awan, currently incarcerated at the United States Penitentiary ("USP") in Marion, Illinois, brings this pro se action alleging violations of his constitutional rights by various employees of the Bureau of Prisons ("BOP") and the Metropolitan Detention Center ("MDC") in Brookyln. Defendants filed this motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56(c). For the reasons stated below, the motion is granted.

BACKGROUND

On October 25, 2001, FBI agents arrested Awan for credit card fraud. He was indicted on those charges in this district on December 4, 2001, pleaded guilty to one count of credit card fraud on March 17, 2003, and was sentenced by the Honorable Joanna Seybert to a sixty-month term of imprisonment on October 28, 2004. Awan was transferred to the MDC on January 31, 2006, and was scheduled to be released from BOP custody in March 2006.

On March 8, 2006, Awan was indicted again in this district. A superseding indictment filed on August 1 of that year charged him with two counts of conspiracy to provide material support to a terrorist organization and one count of money laundering in promotion of terrorism. Awan was tried by a jury before the Honorable Charles P. Sifton, and was found guilty of all three counts on December 20, 2006. On September 12, 2007, Judge Sifton sentenced Awan to a total of 168 months' imprisonment.

The following facts are drawn from Awan's complaint. From August 3, 2006 to March 5, 2007 and from August 16, 2007 to November 15, 2007, Awan was placed in the Special Housing Unit ("SHU") of the MDC. Throughout his confinement in the SHU, Awan was denied "all social access to telephone service . . . without explanation." Compl. 5.*fn1 Awan alleges that defendant B.M. Beard, the unit manager of the SHU, "and his accomplices" also refused to allow Awan to make calls to his lawyer and the Canadian Consulate. He also alleges that defendant Moses Andre Stancil, another unit manager, refused to allow him to make legal calls between August 17, 2007 and November 14, 2007. Id. Throughout Awan's time in the SHU, "Unit Manager [Stancil] . . . and Unit Manager [Beard] . . . failed to [sic] daily team visit," failed to "act in response to [administrative complaints]," failed to "take action on [Awan's] informal resolutions," and refused to "sign for acceptance of items presented for administrative action." Id. During the "entire term of [his] incarceration at MDC," Awan's legal mail was opened before he received it, in violation of BOP policy. Awan informed "SIS lieutenant [Felipe] Martinez and Lieutenant Caronilli"*fn2 of this infraction but received no assistance. Compl. 7. Awan is a Muslim from Pakistan, and alleges generally that the mistreatment he received at the MDC was motivated by discriminatory animus based on his religion and national origin.

On July 2006, defendant Richard Desmond, an "Intelligence Officer," searched Awan's cell, seized a copy of an Urdu magazine, copied it, and returned it to Awan. Compl. 2 The next morning, he demanded that Awan produce the magazine, and had him dig through the garbage in an unsuccessful attempt to retrieve it. On August 24, 2006, defendant D. Scott Dodrill ignored Awan's complaint regarding this incident.

Awan also alleges that did not receive regular changes of linens from August 3, 2006 through November 2006, when "Assistant Warden Andrew" finally heeded his request. Apparently during the same period, Awan developed a foot fungus but did not receive his anti-fungal ointment from the commissary or medical treatment for this condition, resulting in "painful irritation all during the extended period required to recover." Compl. 6.

On August 7, 2006, Awan began a hunger strike based on the defendants' failure to treat his injured shoulder and to provide photocopies and reading glasses to perform his legal work. Defendant Michael Drake, a lieutenant at the MDC, falsely stated in a report that Awan refused to eat because he wanted to see the warden or the assistant warden. Compl. 5.

On September 7, 2006, Awan gave a legal document to defendant Kettisha Mason-Walker, a librarian at the MDC, and asked her to copy it and return the copy and the original to him. Mason-Walker later informed Awan in writing that she had sent the document to "SIS Lieutenant Martinez," who told Awan that he had sent the document to an Assistant United States Attorney. Compl. 6. Martinez did not respond to three administrative complaints Awan sent him. Awan alleges that this disclosure prejudiced a motion he filed for relief from selective prosecution. Compl. 6.

On August 25, 2006, defendant Oscar Fortunato*fn3 entered Awan's cell in the SHU, stated that he had heard that Awan was "here for terrorism," and asked Awan to tell him about his case. Compl. 3. Awan said he was in for money laundering, whereupon Fortunato said "you're lying," and left Awan's cell. Id. Awan also alleges that Fortunato repeatedly called him a "terrorist." Id.

On September 29, 2006, "CO (defendant) E. Riveria" took Awan to a "cage" to meet with his lawyer, falsely suggesting that Awan's lawyer was waiting there to meet him, and apparently entered his cell during Awan's absence. Riveria is not named as a defendant in this action. Awan also alleges that Warden Paul M. Laird declined to respond to his complaints regarding Riveria's conduct and the incident with Officer Desmond, and that his "bad-faith delays" resulted in the denial of Awan's administrative appeal regarding those actions as untimely. Compl. 3.

On January 15, 2007, a corrections officer nicknamed "Macho" took Awan out for recreation, and left him in the dark and the rain for at least an hour. He complained to Lieutenant Drake, who said "It's not bad" and took no action. Compl. 4. On August 17, 2007, corrections officers Jose Caberelo and Ramirez took Awan to the recreation cage. It began to rain, and Awan asked to be taken in. The officers did nothing, and Awan spent two hours in the rain "without any proper[] clothing or footwear." Compl. 3. He contracted "a flu and sickness" shortly thereafter. Id.

During an unspecified period, Awan was held for over five weeks in a cell with a leaking ceiling. He complained in writing to Lieutenant Drake, who conceded that a change of cell was warranted and ordered the move.

In January of 2007, defendant Schoenfelder, an "MDC Captain," kicked the door of Awan's cell and told him not to cover his face with a blanket. Compl. 4. Awan protested that he was unable to stay warm, and Schoenfelder responded that he did not care.

On February 27, 2007, following an attorney visit, Awan was strip-searched "without legitimate security reasons." Compl. 3. A Hispanic inmate who came out of the same visiting room was not searched.

Between March 6, 2007 and August 15, 2007, while Awan was housed at the Nassau County Jail, MDC personnel allowed his legal papers to "get exposed to water," which "destroyed" them. Compl. 7. He received an "Inmate Personal Property Form showing that the property had been destroyed from SHU CO Monrae" but apparently did not receive a signed copy of this form.

From September 13, 2007 to October 12, 2007, during the month of Ramadan, Awan alleges that defendant James McDevitt, the MDC Chaplain, and defendant Loren Van Galder, the Assistant Chaplain, improperly served him two dinner meals instead of a lunch meal and a dinner meal in the evenings. Compl. 7.

On October 4, 2007, Awan did not receive his order from the commissary. He complained to the Lieutenant and Awan received his order "after the second day." Compl. 6. He alleges that this failure was "a deliberate harassment, and [an] attempt to block me from receiving the postage stamps that would allow [him] to process [his] legal process." Id.

On October 9, 2007, defendant Corrections Officer Salvatore Auteri*fn4 "mocked Awan's religious beliefs" and harassed Awan "by demanding that [he] cuff-up, and allow him to invade the cell." Compl. 4. Awan refused and "presented two [administrative complaints] to Lieutenant John seeking his intervention," but he received no response. Id.

On October 17, 2007, Auteri shut off the water while Awan was shaving in his cell. Awan asked "CO Morrare" to turn on the water, and Morrare did so more than a half hour later. Compl. 5.

On or about October 29, 2007, Awan was placed in cell #225, which had no light. He spoke to "the Lieutenant" and was moved to a cell with a light after three days, during which time Awan was "unable to continue legal efforts . . . and not even able to read a book or my Holy books for daily prayers." Compl. 4.

On November 15, 2007, Awan was transferred from the MDC to the Federal Transfer Center in Oklahoma. On November 30, 2007, he was transferred to the Communications Management Unit ("CMU") of USP Terre Haute. Awan claims that this transfer is part of a BOP scheme to isolate ...


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