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Former Prisoner’s First Amendment Claims Dismissed Under “Second Class System of Justice”

December 10, 2013

BOP not liable for retaliation against activist Daniel McGowan


Today, the Center for Constitutional Rights (CCR) released the following statement in response to the dismissal of the claims in a federal lawsuit that plaintiff Daniel McGowan was placed in highly restrictive Communications Management Units while in federal prison in retaliation for protected First Amendment activity. The other claims in the case, Aref v. Holder, continue.

“We are deeply disappointed by the court’s dismissal of Daniel McGowan’s claims against the Federal Bureau of Prisons (BOP). Mr. McGowan was designated, and then re-designated, to the Communications Management Units (CMU) in blatant retaliation for his political speech and activities. At the CMUs, he had severely restricted access to telephone calls and social visits—including a total ban on contact visits with his loved ones. Once he had been released to a halfway house, the BOP once again retaliated against Mr. McGowan, unconstitutionally placing him in federal custody days after he published [a] blog piece about the CMUs on the Huffington Post. While our claims challenging broad due process violations at the CMUs will proceed, Aref v. Holder also sought accountability for these acts of retaliation against protected First Amendment activity. Now, the court has held that, while non-prisoners may sue under these circumstances, the Prison Litigation Reform Act (PLRA) bars Mr. McGowan’s damages claims because he was not subjected to physical harm. CCR condemns the second class system of justice created by the PLRA, which places unjust hurdles between prisoners and redress for constitutional violations. We will continue to vigorously pursue our case against the BOP.”

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