Hosam Smadi v. William True ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 1, 2019
Decided November 8, 2019
Before
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19-1370
HOSAM MAHER SMADI, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 3:18-cv-02149-JPG
WILLIAM TRUE, et al., J. Phil Gilbert,
Defendants-Appellees. Judge.
ORDER
Hosam Smadi, a federal inmate, alleges that prison officials violated the First
Amendment by blocking his communications with an attorney, an ambassador, and
others. He seeks to enjoin their actions and pursue damages from them under Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the seminal
case that implied a limited damages remedy under the Fourth Amendment against

The defendants were not served with process in the district court and are not
participating in this appeal. We have agreed to decide the case without oral argument
because the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19-1370 Page 2
federal agents. The district court ruled that, after Ziglar v. Abbasi, 137 S. Ct. 1843 (2017),
Bivens does not apply to First Amendment claims for damages. It then rejected Smadi’s
request for injunctive relief and dismissed the complaint with prejudice at screening.
See 28 U.S.C. § 1915A(b)(1). In resolving Smadi’s First Amendment claims, in particular
his request for injunctive relief, we would benefit from the assistance of counsel in the
district court. Therefore, we vacate and remand for further proceedings on those claims;
in all other respects, we affirm.
This case covers Smadi’s attempted communications between 2016 and 2018,
while imprisoned in a restricted unit that monitors all outgoing communications. At
this stage, we take as true his factual allegations. Perez v. Fenoglio, 792 F.3d 768, 774
(7th Cir. 2015). Smadi attempted to mail a letter to a criminal-defense attorney seeking
legal representation. Smadi wrote the letter as part of his effort to publicize his belief
that he is in prison because he was forced to plead guilty to an attempted act of
terrorism. Prison officials blocked this letter from leaving the prison. They also
prevented Smadi, a Jordanian citizen, from sending a similar letter to the Jordanian
ambassador in Washington D.C., from communicating with a journalist about his case,
and from sending collages, blog posts, newspaper articles, and other materials through
the inmates’ computer system and by postal mail.
Smadi challenged the constitutionality of blocking the communications and his
placement in the unit. After unsuccessfully using the prison’s administrative appeals
process, he sued individual officers, raising three claims. First, he accuses them of
violating the First Amendment by preventing him from contacting the attorney,
ambassador, and journalist, and blocking other digital or postal correspondence. He
seeks both damages and injunctive relief. Second, Smadi alleges that prison officials
kept him in this restricted unit in retaliation for trying to contact these recipients, and
they did so without a hearing, thereby further violating the First Amendment and his
right to due process. Third, Smadi accuses prison officials of violating the First
Amendment and federal law by denying him religious meals. The district court severed
the religious-meal claim and dismissed the remaining counts sua sponte.
On appeal, Smadi argues that the district court erred in severing the religious-
meal claim and dismissing his remaining claims. But the district court properly
dismissed Smadi’s due-process challenge to his placement in the restricted unit because
that claim is indistinguishable from the due-process claim rejected in Abbasi.
See 137 S. Ct. at 1858–64. And the religious-meal claim is unrelated to the rest of the suit,
No. 19-1370 Page 3
so the district court did not abuse its discretion in severing it. See UWM Student
Association v. Lovell, 888 F.3d 854, 864 (7th Cir. 2018).
As for Smadi’s First Amendment claims for injunctive relief and damages against
federal officers for restricting his communications, we cannot fully evaluate them on the
current record. In deciding what, if any relief, a plaintiff may obtain from federal
officers for alleged constitutional violations post-Abbasi, courts of appeals have
foreclosed a Bivens-style damages remedy, but often after receiving counseled briefing
on the matter. See, e.g., Effex Capital, LLC v. National Futures Association, 933 F.3d 882, 885
(7th Cir. 2019); Doe v. Meron, 929 F.3d 153, 167–70 (4th Cir. 2019); Cantú v. Moody,
933 F.3d 414, 421–24 (5th Cir. 2019); Farah v. Weyker, 926 F.3d 492, 498–500 (8th Cir.
2019); Vega v. United States, 881 F.3d 1146 (9th Cir. 2018).
We think that the best approach is for the district court to recruit counsel for
Smadi and receive adversarial briefs on the First Amendment claims. Counsel can
consider which claims for damages, if any, counsel believes Smadi may still pursue
after Abbasi, and then focus on whether, and under what authority, an alternative
remedy such as injunctive relief may be available.
Accordingly, we VACATE the dismissal of the First Amendment claims and
REMAND the case for further proceedings with recruited counsel; in all other respects,
we AFFIRM. In light of this decision, we remove the strike that Smadi incurred in the
district court.