Archives for posts with tag: muslim

This Muslim prisoner was denied a preliminary injunction on a case involving claims on injury and violation of constitutional rights. The “ninja turtle” description referred to the back brace he wore after injury.

SAMUEL ABDUL-JABBAR, Plaintiff,
v.
SUPERINTENDENT CALVIN E. WEST, Elmira Correctional Facility,
MARY J. HOPKINS, Nurse Administration,
M.D. WESLEY K. CANFIELD,
and JEFFREY FLETCHER, FSA # 2, Defendants.

05-CV-0373F

UNITED STATES
DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK

2009 U.S. Dist. LEXIS 75965

Opinion by US Magistrate Judge Leslie G. Foschio, August 26, 2009:

Plaintiff Samuel Abdul-Jabbar (“Plaintiff”), proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. § 1983 on May 26, 2005, alleging violations of his Eighth Amendment right to be free from cruel and unusual punishment while incarcerated at Elmira Correctional Facility (“Elmira” or “the correctional facility”), related to an incident occurring on February 28, 2005, when Plaintiff, while pushing a mess hall garbage wagon to the correctional facility’s dumpster, stepped into a pothole, fell on his back, twisting his foot and knee.

And

Plaintiff, incarcerated at Gouveneur Correctional Facility (“Gouveneur”), moves for a preliminary injunction enjoining Defendants Dr. Canfield and Hopkins, as well as various DOCS employees at Gouveneur, from retaliating against Plaintiff for commencing the instant action by subjecting Plaintiff to discrimination, physical abuse, property damage, offensive remarks and harsh treatment. Plaintiff’s Affidavit at 3. In support of the motion, Plaintiff asserts that (1) after undergoing back surgery on March 3, 2008, Gouveneur Correctional Officer (“C.O.”) Brown (“Brown”), in reference to a back brace Plaintiff then wore, called Plaintiff a “ninja turtle“, Plaintiff’s Affidavit at 4; (2) Gouvernuer Housing Sergeant DeMarco and a hearing officer conspired to find Plaintiff guilty of a false misbehavior report charging Plaintiff with failing to keep his living area clean, id. at 4-5; (3) unnamed staff and corrections officers at Gouveneur failed to provide Plaintiff with the “flat steel bottom bed” for which Plaintiff had been medically approved following his back surgery; (4) unnamed prison staff members denied Plaintiff the opportunity to participate in an induction dinner for a Muslim group at Gouveneur, id. at 6-7; and (5) during the second week of November 2008, certain unspecified items were missing from a package Plaintiff retrieved from Gouveneur C.O. Jenkins, id. at 7

But

Plaintiff presents no evidence, by affidavit or otherwise, supporting a finding that Plaintiff is likely to prevail on the merits of the instant action, or that without the requested injunctive relief, Plaintiff will suffer irreparable harm without such relief. [footnote omitted]

So

Defendants’ motion seeking summary judgment (Doc. No. 59) is GRANTED; Plaintiff’s motion for a preliminary injunction (Doc. No. 74) is DENIED.

mup

A few posts ago, NinjaLaw told you some details about federal prisoner Waseem Daker,. That post briefed the February 2007 opinion by Judge Story of the District Court in Georgia and also mentioned some updates on Mr. Daker’s current situation. The post today arises from the conclusion of proceedings about the books, already referenced in the previous posts. This opinion is August 2007 and, as mentioned previously, it was upheld on appeal. But also recall from the previous post, that despite this being the end of Mr. Daker’s RLUIPA claims about these books it is not the end of his story. Mr. Daker was rearrested five years after serving a ten year sentence and is now again in Federal prison on charges related to the same 1995 situation.

Waseem DAKER, Plaintiff,
v.
Joe FERRERO, et al., Defendants.

Civil Action No. 1:03-CV-02481-RWS.
506 F.Supp.2d 1295 (2007)
United States District Court, N.D. Georgia, Atlanta Division.

This August 2007 opinion includes the names of a variety of books banned from Mr. Daker’s prison reading requests and determines that some were properly denied, others were improperly denied but the defendant’s aren’t liable for the error and some were improperly denied and constitutional first amendment rights were violated.

Both parties move for summary judgment on Plaintiff’s claims arising out of the denial of approximately 55 publications and numerous mailings while Plaintiff was incarcerated in GDC facilities. Defendants admit that the following publications, listed in the chronological order of their denial, were denied to Plaintiff:

including:

14) Ninja: History and Tradition
(15) Ninja: Power of the Mind
(16a) Ninja Mind Control
(16b) Bin Laden: The Man Who Declared War on America

Noting in footnote: “In its Order of February 26, 2007, the Court mistakenly listed Ninja Mind Control and Bin Laden: The Man Who Declared War on America as a single book denoted as Number 16 on the list,” – explaining why now 16a and 16b, also on this book list

The claims on these books was ruled summary judgment for the defendant, the prison, because of qualified immunity related to “Materials Containing Instructions on Fighting Techniques and Military Procedures and Materials Which Could Assist a Prisoner in Effecting an Escape”, citing Thornburgh:

the Supreme Court approved of a regulation restricting material which “depicts, encourages, or describes methods of escape from correctional facilities” or “depicts, describes or encourages activities which may lead to the use of physical violence or group disruption.” See Thornburgh, 490 U.S. at 413 (quoting 28 C.F.R. § 540.71(b)). The Court agrees with Defendants that the titles of these books could lead a reasonable prison official to conclude that they would assist in planning an escape from a prison institution or may lead to the use of physical violence or group disruption. Moreover, Plaintiff has failed to direct the Court to any precedent which clearly establishes the right to access books of a similar title or description. For both reasons, Defendants are entitled to qualified immunity.

One other “ninja” book on the censored list was:

(46) The Black Science: Ancient and Modern Techniques of Ninja

The claim on this book (#46) was also summary judgment for the defendant, because plaintiff conceded that it (amongst a few other books) “could be constitutionally denied on the basis of content” (see footnote #4).

There are other books on the list for which plaintiff won summary judgment (for example he was denied a book on Criminal Trial Practice for seemingly no good reason). The case also went on to trial on issues of procedural due process but this August 2007 opinion was determinative for the ninja issues. And as mentioned in previous post, he seems to be on trial again and also still filing civil rights actions – see this one filed two weeks ago, Aug 10, 2012.

This 2007 case is an action pursuant to 42 U.S.C.S. § 1983 by a Muslim prisoner in Georgia claiming RLUIPA related First Amendment violations while in prison. Specicially, the plaintiff sought 52 books, some with the word “Ninja” in the title. He also had other issues like wearing his Kufi and having a digital version of the Qur’an. This plaintiff has become something of a jailhouse lawyer filing many actions, but also he is still involved in litigation about related incidents from 1995. The word ninja is mentioned only in this decision involving alleged prison guard violations of first amendment and the plaintiff was released from prison (serving a 10 year sentence) before this 2007 case was decided. But in a strange twist, he is back in prison now facing murder charges related to the original crime. The trial is happening like now (?-see update below-) see links below, but first the 2007 RLUIPA ninja case:

WASEEM DAKER, Plaintiff,
v.
JOE FERRERO, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION
CIVIL ACTION NO. 1:03-CV-02481-RWS
475 F. Supp. 2d 1325

Decided, February 26, 2007 by Judge Richard Story:

Plaintiff, proceeding pro se, initiated this civil action in August 2003 against Defendant Joe Philip Ferrero, Acting Commissioner of the Georgia Department of Corrections (“GDC”), and numerous prison officials. In his Fourth Amended Complaint, Plaintiff asserts nineteen claims pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et seq., challenging aspects of his confinement in various GDC prison facilities. Specifically, Plaintiff challenges: (i) a requirement that he “stand at attention” in the presence of prison officials; (ii) a restriction on his wearing of a Kufi, a traditional article of Muslim headdress; (iii) a denial of his request to possess a digital device containing the text of the Qur’an; (iv) content-based restrictions on the sending and receiving of prisoner mailings and publications; and (v) the sufficiency of the procedures afforded to inmates and senders of mail when prisoners are denied certain mailings and publications. 1 On October 25, 2005, Plaintiff was released from prison, but he continues to pursue this litigation.

explaining:

In his third and eighth allegations, Plaintiff claims that Defendants denied him approximately 52 books on the basis of content in violation of the First Amendment. These books include: (1) The Catalog of Catalogs VI; (2) Mathematical Cryptology; (3) Applied Cryptography; (4) Using Microsoft Visual InterDev; (5) C++ How to Program; (6) Dubugging C++; (7) Night Movements; (8) Inside Kung-Fu; (9) Complete Karate; (10) Far Beyond Defensive Tactics; (11) SAS Training Manual; (12) The Encyclopedia of Survival Techniques; (13) The SAS Guide to Tracking; (14) Ninja: History and Tradition; (15) Ninja: Power of the Mind; (16) Ninja Mind Control; (16) Bin Laden: The Man Who Declared War on America; (17) Revolution by the Book; Different Loving; (18) How to Survive the IRS; (19) Witchcraft: A Secret History; (20) Practical Electronics; (21) Lip Reading Made Easy; (22) HansWehr Arabic English Dictionary; (23) Que Tal?; (24) C++ from the Ground Up; (25) Visual Basic from the Ground Up; (26) Ditch Medicine; (27) Do it Yourself Medicine; (28) The Mammoth Book of Love and Sensuality; (29) The Joy of Sex; (30) Building Bots; (31) Gonzo Gizmos; (32) Booby Trap Identification and Response Guide; (33) Death Investigator’s Handbook and DEA Investigator’s Manual; (34) Georgia Criminal Trial Practice; (35) Georgia Criminal Trial Practice–Forms; (36) Georgia Handbook on Criminal Evidence; (37) Green’s Georgia Law on Evidence; (38) Criminal Investigation: Basic Perspectives; (39) Law Enforcement Technology 260: Criminal Investigation; (40) U.S. Army Special Forces Medical Handbook; (41) Military Book Club Emergency Medical Procedures; (42) The Tao of Sexuality; (43) Ragnar’s Guide to the Underground Economy; (44) Investing Offshore; (45) Electronic Circuits and Secret of an Old-Fashioned Spy; (46) The Black Science: Ancient and Modern Techniques of Ninja Mind Control; (47) The Kama Sutra; (48) Samurai: The World of the Warrior; (49) Leadership Lessons of the Navy Seals; (50) Experiments in Electronic Devices and Circuits; (51) three Fantagraphics books; and (52) Guide to Getting it On. (See Pl.’s Statement of Material Facts [hereinafter “Pl.’s SMF”] PP 15-59.)

Defendants do not dispute that they denied Plaintiff these books. Rather, Defendants argue that Plaintiff has failed to demonstrate that he followed the proper procedures in requesting the books, and that, in any event, the books were properly denied on procedural grounds or after a review by a publications review panel. Defendants claim they are therefore entitled to qualified immunity, notwithstanding the reasons for the denial of each individual publication.

Go to this Headnote in the case.Regulations affecting the sending of publications to a prisoner are analyzed under the Turner reasonableness standard. Thornburgh, 490 U.S. at 413 (citing Turner, 482 U.S. at 89). Such regulations are valid if they are reasonably related to legitimate penological interests.

also,

As another example, Plaintiff claims that on October 26, 2004, two books, The Ninja and Endurance Techniques, were denied to Plaintiff. He claims that he was initially denied an opportunity to appeal, but after filing a grievance relating to that denial, Plaintiff was ostensibly given an opportunity to appeal. Nevertheless, Plaintiff alleges that Defendant Hilton Hall “refused to impound the publication for review by the [Publications Review Committee].” After Plaintiff filed another grievance relating to the denial of an opportunity to appeal, Defendant Steve Benton rejected the appeal, stating “only if the facility cannot determine admissibility is the publication to be impounded for further review by the PRC.” (See Pl.’s SMF P 46.) Once again, Defendants “dispute these allegations as written,” without providing any argument or citation to evidence in the record. (See Defs.’ SMF P 46.)

This case decision is on motion for Summary Judgment. The Court granted the motion in part and denied in part. For example the Defendant prison guards were granted summary judgment as related to the wearing of the Kufi. But as to the books, the allegation lived on. But ultimately in subsequent appeal, on a motion to vacate, in the same Court, Judge Story wrote on January 8, 2008, Daker v Chatman, 2008 U.S. Dist. LEXIS 1192 :

Plaintiff has demonstrated, that reasonable prison officials could disagree over whether certain of these titles pose legitimate security concerns in a prison environment. But that disagreement entitles Defendants to qualified immunity. Unless no reasonable prison official could conclude that any of these publications present a security risk, then the “considerable deference” owed to officials engaged in the “‘inordinately difficult undertaking’ that is modern prison administration” and the robust legal protection afforded to governmental agents, who must be allowed to “carry out their discretionary duties without the fear of personal liability or harassing litigation,” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002), entitles the denying official to qualified immunity. See Duamutef v. Hollins, 297 F.3d 108, 112 (2d Cir. 2002) (applying “heightened deference” to prison official’s decision to censor publications). For these reasons and for the reasons stated in its Order of August 24, 2007, the Court remains convinced that the denial of these publications was consistent with the protections afforded to prisoners under the First Amendment, see Turner v. Safley, 482 U.S. 78, 85, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), and thus, Plaintiff suffered no constitutional injury. Insofar as Plaintiff moves to vacate this Court’s Order of August 24, 2007, that Motion is DENIED.

Amazingly, this is nowhere near the end of the story. Waseem Daker did get out of prison in 2005 but was re-arrested in 2010 on charges related to the same incidents from 1995. His original imprisonment was related to stalking and assault, and 2010 they arrested him for murder. An order May 9, 2011 by Magistrate Judge E. Clayton Scofield III, in Daker v. Warren, 2011 U.S. Dist. LEXIS 116451, explains,

At the combined probable cause/bond hearing on February 18, [2010] at which Daker was represented by retained counsel, attorney Brian Steel, the trial court heard testimony from Daker’s brother revealing that Daker (who was born in 1977) has family ties to Syria, where his parents were born and raised. The court also heard that Daker has lived in the Atlanta area since 1990; that after his release from state prison in 2005, following ten years of incarceration, until his arrest in January 2010, he worked in the family business as the general manager of a furniture store and lived with his family, who currently reside in a half-million dollar home; and that he has an expired Canadian passport, although it is unclear whether he has dual citizenship in Canada and the United States. (Probable Cause/Bond Hr’g Tr. at 31-41, ECF No. 4-1 at 39-49.) The state argued that Daker’s family has “large assets” and “connections in Syria, where the family’s from” and where Daker has traveled, and that Daker had “connections to Canada” at some point as well: “He has the ability to flee, he has the connections to flee, he’s a risk of flight.” (Id., Hr’g Tr. at 54-55, ECF No. 4-1 at 62-63.) The trial court ruled as follows: “Well, murder is different . . . [addressing Daker’s attorney], in the sense that somebody’s facing a life sentence, so I think that’s a strong motivation for someone to flee, or to think about fleeing. So, today I’m going to deny bond.” (Id., Hr’g Tr. at 55.) Daker filed a state habeas petition, which was denied on June 24, 2010. The Georgia Supreme Court, on November 3, 2010, denied Daker’s application for a certificate of probable cause to appeal that denial. (Pet. ¶ 10.)

And recently, June 25, 2012, Judge Story denied a variety of Daker’s motions in Daker v. Warren, 2012 U.S. Dist. LEXIS 87517, including a motion to reconsider bail, and a motion to recuse both Judge Story and Magistrate Judge Scofield, amongst other pretrial motions. The case remained on the docket the next day, but I can’t tell if it went to trial. It seems Daker first parted with his retained attorney nd was then acting pro se, filing all sorts of motions and then the Court took the unusual step of appointed backup counsel, and Daker seemed to allow that counsel to takeover (?) All this back-and-forth may be an attempted tactic. See article in Marietta Daily Journal “Trial of man accused in gruesome 1995 murder delayed 90 days” and in Atlanta Journal New, Cobb County: “Defendant representing himself in 1995 murder case” – But nothing more recent. Does that mean he hasn’t gone to trial yet or did he take an unreported plea?

waseem daker

— UPDATE —
Murder trial of Waseem Daker to begin in September“, Examiner.com, August 25, by Leigh Egan:

jury selection will begin on September 10th. The trial is set to take place at the Cobb County Superior Court.

Daker, 34, was charged in 2010 with the 1995 murder of Karmen Smith. Smith, a Delta flight attendant, was murdered in her Cobb County home. Only a year after the murder took place, Daker was accused of stalking Smith’s roommate. Subsequently, he was convicted and spent ten years in state prison. Although he remained as an person of interest in Smith’s murder, it wasn’t until 2010 that he was charged, based upon DNA evidence that was found at the scene.

Since then, Daker has attempted represent himself after firing several public and private defenders. Recently, however, he agreed to be represented by the law team of Michael and Jason Treadaway.

— UPDATE 2 — 9/9/2012

Murder trial to begin in Cobb woman’s 1995 strangling” by By Andria Simmons in The Atlanta Journal-Constitution

— UPDATE 3 — 9/14/2012
Defendant represents himself in flight attendant murder case” By Andria Simmons in The Atlanta Journal-Constitution
Stalking victim testifies in Cobb murder trial” By Andria Simmons in The Atlanta Journal-Constitution

The story is also being covered by Kim Issa in The Marietta Daily Journal:
“Opening arguments to begin today in E. Cobb murder trial” by Kim Isaza
Murder suspect was urged to get professional help” by Kim Isaza

and Andrew Spencer at WSBradio
Man charged in 1995 Cobb Co. murder representing himself” by Andrew Spencer as WSBradio
Defendant wants new lawyers in 1995 Cobb murder trial” by Andrew Spencer as WSBradio

— UPDATE 4 – 10/1/2012
“Daker sentenced to life plus 47 years” by Andria Simmons for AJC including a quote from the surviving victim, the son of the murdered woman, himself also assaulted and now currently 22 year’s old.