____________________________________________________________________________________________

Comes now the Plaintiffs, herein referred to as Giles W. Dalby C.F. Inmates, Et.Al. and respectfully submits this Class Action Suit Pursuant to Title 42 U.S.C. § 1983. Plaintiffs seek declaratory relief pursuant to Title 28 U.S.C. § 2201 and § 2202.

This Civil Action retains its Jurisdiction under Rule 23 of the Federal Rules of Civil Procedures. Moreover, this Honorable Court has Jurisdiction under 28 U.S.C. § 1343, and 42 U.S.C. § 1983. For the relief sought the Court has Jurisdiction under 28 U.S.C. § 2201, and § 2202.

Plaintiffs are federal prisoners. committed to the custody of the Attorney General, Federal Bureau of Prisons’ Division. Plaintiffs are presently confined at Giles W. Dalby Correctional Facility, which is a privately operated facility in partnership with Garza County, located in Post, Texas. Giles W. Dalby C.F. is owned by Management and Training Corporation.

1. Defendant, JANET RENO is the Attorney General of the United States. She is responsible for the overall operation of the Department of Justice, including the Bureau of Prisons (BOP).

2. Defendant KATHLEEN HAWK is the Director of the BOP. She is responsible for the overall operation of the BOP, including Regional Offices.

3. Defendant RONALD G. THOMPSON is the BOP Regional Director. He is responsible for the overall operation of the South Central Regional Office, including the Community Corrections Office.

4. Defendant DAN SIMPSON is the BOP Community Corrections Manager. He is responsible for the overall operation of the Contract Detention Facilities in the South-Central Region, including Giles W. Dalby Correctional Facility.

5. Defendant JOHN DOE is the CEO/President and/or Director of (MTC) Management and Training Corporation that operate Giles W. Dalby Correctional Facility. He is responsible for the overall operation of Giles W. Dalby Correctional Facility.

6. Defendant JOE RASBEARY is the Facility Warden of Giles W. Dalby Correctional Facility. He is responsible for the overall operation of Giles W. Dalby Correctional Facility.

 

1. Plaintiffs were designated to service their sentences at Giles W. Dalby Correctional Facility. The BOP utilized Operations Memorandum No. 075-098 (5100) "Criteria and Procedure for Designation to the Major Use Contract Detention Center" and Title 18 U.S.C. § 3621 (b) as the authority to designate Plaintiffs to Giles W. Dalby C.F. Only Alien Inmates qualify for designation to Giles W. Dalby C.F.

2. Plaintiffs are segregated from the rest of the U.S. BOP General Population and submitted to harsher conditions of confinement solely by the reason of their alienage.

A) Plaintiffs do not have access to decent medical care, as the BOP usually provides its inmates in General Population; Plaintiffs receive dental attention on the weekends (Saturday) only;

B) Plaintiffs are not offered reasonable adequate foods, as the BOP usually provides its inmate in BOP General Population;

C) Plaintiffs are subject to high telephone prices and usually are charged for non-answered calls (in violation of BOP policy);

D) Plaintiffs are subject to high commissary prices, and commonly denied of purchasing items that are obtainable at facilities controlled directly by the B.O.P.;

E) Plaintiffs are subject to exercise their religious services at classrooms due to the lack of appropriate chapel at Giles W. Dalby C.F.;

F) Plaintiffs are denied adequate opportunity for rehabilitation. Giles W. Dalby C.F. operates under BOP minimum standards and under these standards, Educational Programs are very limited;

G) Work opportunities are inadequate at Giles Dalby C.F.;

H) Psychological services, Drug, and Alcohol Programs for rehabilitation are not offered at Giles W. Dalby C.F.;

I) The Legal Library contains an extremely low amount of Legal Books, and the only reporters it has, are the Supreme Court Reporter, U.S.C.A.’s West Reporters, Federal Reporters Book 1 F2d to 600 F2d, and Rider Digest Reporter. The Legal library is also closed on Sundays, and the hours are constantly reduced because lack of personnel, and constant meetings in said place;

J) The majority of the population at Giles W. Dalby C.F. is Hispanic and the proficiency of the Spanish is abundant. However, the Leisure Library does not contain enough reading books in said language (Spanish);

K) The majority of the Security Guards are Caucasians and usually discriminate inmates because of their nationality and color. Most of these officials were trained to be correctional officers at States (of Texas) Prisons, and their mentality differs from the trained officers by the BOP. Very few of the Officers at Giles W. Dalby are Hispanics, and just a few of them speak Spanish properly;

L) The Buildings do not have drinking water fountains, and usually drinking water is stored in containers which are dirty and commonly emptied at night, leaving the inmates without water for up to (10) ten hours;

M) Upon completion of their sentence inmates are usually held for a period of up to four days awaiting to be retrieved by INS custody to face deportation;

N) Because Giles W. Dalby C.F. is a privately-owned institution, when an inmate commits an offense inside the facility, the Disciplinary Hearing Officer immediately recommends loss of good time credit toward sentence. The Bureau of Prisons acts differently, they take into consideration all the factors involved in the offenses and normally on first incident reports, disallowance of good time credit toward sentence is not applied. The BOP usually seeks other punishments or warnings in order to prevent their inmates from being deprived of their rights to earn good conduct time toward sentence, and the opportunity to return promptly to their families.

O) Upon being processed for a violation of the Disciplinary Code and Regulations and a sanction imposed, inmates at Giles W. Dalby are requested to appeal the decision of the Disciplinary Hearing Officer to the Warden of this Institution. However, said warden does not possess the authority to re-install the time (and/or the sanction imposed) that the BOP has disallowed the inmate with, in a complete sheer denial of Due Process.

P) Clothing is not sufficient for physical needs. Moreover, the clothes provided are extremely thin and different from BOP clothes, which are thick enough to resist the weather conditions.

1. Plaintiffs have been deprived from Defendants RENO, HAWK, THOMPSON, and SIMPSON of their Constitutional Rights under Fifth Amendment which prohibits discrimination that is so unjustifiable as to be a violation of Due Process. Moreover, segregation based solely on alienage status violates the Due Process.

2. Plaintiffs segregation, based solely on their alienage status, is in violation of the Title 18 U.S.C. § 3621 (b) which prohibits the BOP favoritism based on high social status when assigning place of confinement. A corollary of this prohibition is that the BOP must not disfavor persons of low social status, in this case to aliens.

3. Plaintiffs have been submitted to harsher conditions of their confinement and their protection under the Eighth Amendment Constitutional Right of Cruel and Unusual Punishment has been violated by Defendants: RENO, HAWK, THOMPSON and SIMPSON.

4. Plaintiffs segregation in a detention center under harsher conditions of confinement and separation from the rest of the U.S. BOP General Population solely by the reason of their alienage are in violation of the International Covenant in Civil and Political Rights ("ICCPR") Article 9, to which the United States is bounded to.

5. Plaintiffs segregation under harsher conditions of confinement by reason of their alienage is a degrading treatment and is in violation of the Universal Declaration of Human Rights ("UNHR") Article 5 and 7, to which the United States is a part and bounded to.

6. Plaintiffs have been deprived by Defendant "DOE" and RASBEARY of their Rights Under the Fourteenth Amendment to the U.S. Constitution because they have been treated in an inhuman manner;

7. Plaintiffs have been deprived from defendant "DOE" and RASBEARY their rights guaranteed to them under the Equal Protection Clause of the Fifth Amendment to the Constitution of the United States. Giles W. Dalby C.F., as a State Chartered Corporation in partnership with Garza County, is bounded to this (5th Amendment U.S. Cons.).

WHEREFORE, Plaintiffs respectfully pray that this Honorable Court enter a judgment granting them the following reliefs:

1. A declaratory judgment that:

A) Defendants RENO, HAWK, THOMPSON and SIMPSON’s acts, policies, and practices prescribed herein are in violation of Plaintiffs rights conferred to them by the Fifth Amendment to the U.S. Constitution.

B) Defendants RENO, HAWK, THOMPSON’s acts, policies and practices described herein are in violation of the Title 18 U.S.C. § 3621 (b).

C) Defendants RENO, HAWK, and THOMPSON’s acts, policies and practices described herein are in violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment to the Constitution of the United States.

D) Defendants "DOE" and RASBEARY’s acts, policies and practices described herein are in violation of Plaintiffs Constitutional Rights under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

E) Defendants RENO, HAWK, THOMPSON, SIMPSON, "DOE" and RASBEARY’s acts, policies and practices described herein violates the ICCPR, a treaty to which the United States is a part of and bounded to.

F) Defendants RENO, HAWK, THOMPSON, "DOE" and RASBEARY’s acts, policies and practices described herein violates the UDHR, a treaty to which the United States is a part of and bounded to.

G) Upon demonstrating conditions of confinement that are different from those of the BOP, then, order that Giles W. Dalby C.F. be permanently barred from operating with the Bureau of Prisons, and close all operation within the facility.

2. A preliminary Injunction Order which:

A) Prohibits the Defendants from segregation of Alien inmates from the rest of the U.S. Federal Bureau of Prison’s General Population and requiring the Defendants to integrate Legal Resident Aliens and U.S. Citizens into Giles W. Dalby Correctional Facility;

B) Prohibits the defendants from confining Plaintiffs under harsher conditions of confinement than those who are U.S. Citizens;

C) Prohibits defendants, their agents, employees, successors in interest and all other persons in acting concert or participation with them, from threatening, punishing or retaliating in anyway against the Plaintiffs because of the exercise of their Civil Rights, by filing this Class Action, or from transferring Plaintiffs to any other institution without their express consent during the pendency of this action;

D) Requires Defendants, to allow Plaintiffs and other prisoners to:

i. Engage in any oral or written communication which is reasonably related to be conduct of this lawsuit, including the preparation of affidavits on behalf of Plaintiffs, and

ii. Confer with Co-Plaintiffs and prepare necessary legal papers, and to do anything consistent with prison security, which is reasonably connected with the conduct of this lawsuit.

3. Compensatory damages in the form of three days extra credit toward Plaintiffs’ sentences for each day they are confined at Giles W. Dalby C.F.,

4. Also, compensatory damages in the amount of $10,000 (Ten-thousand U.S. Currency) from defendant RENO, HAWK, THOMPSON, SIMPSON JOHN DOE and RASBEARY to each of the Plaintiffs from each of the Defendants.

5. Punitive damages in the amount of $50,000 (fifty thousand U.S. Currency) from defendants RENO, HAWK, THOMPSON, SIMPSON JOHN DOE, and RASBEARY to each of the Plaintiffs from each defendant.

6. Trial by jury on all triable issues.

7. Plaintiffs’ cost of the lawsuit.

And such other reliefs that this Honorable Court deems as proper to grant to the Plaintiffs.

Executed this 11 day of January 2001.

Respectfully Submitted,

EFREN TERRAZAS 81749-079 (BOP No.)

SALVADOR CRESPO 09561-112 (BOP No.)

TRINIDAD CAZARES GONZALEZ 07817-041 (BOP No.)

HERNAN MOLINA 16409-004 (BOP No.)

JUAN CARLOS CARDENAS 57755-004 (BOP No.)

RAFAEL VALERA 26125-083 (BOP No.)

SERGIO OTERO 62033-080 (BOP No.)

OSWALDO COLLINS-CARBAJAL 72230-198 (BOP No.)

SERGIO SALAMANCA SANDOVAL 48923-019 (BOP No.)

OMER AZPURUA 58366-004 (BOP No.)

AUGUSTO VALMORE 57958-004 (BOP No.)

JOSAPHAT SOTO NAVARRO 08222-079 (BOP No.)

JOSE PENALOZA 28755-086 (BOP No.)

JORGE YANEZ 52133-004 (BOP No.)

EZEQUIEL ESPARZA 91326-080 (BOP No.)

JAVIER COMPAN-MOLINA 48954-019 (BOP No.)

IN THE UNITED STATES DISTRICT COURT

____________________________________________________________________________________________

Comes now, the Plaintiffs, Pro Se herein referred to as Giles W. Dalby C.F. Inmates, Et Al., and respectfully submits this Memorandum of Law in Support of the accompanying Class Bivens Action, Pursuant to Title 42 U.S.C. § 1983. Plaintiffs seek declaratory relief Pursuant to Title 28 U.S.C. § 2201 and § 2202.

Plaintiffs respectfully prays this Honorable Court to construe their Pro Se Pleading, Liberally, as Supreme Court ruling on: Haines -v- Kerner, 404 U.S. 519, 520-21,92 Ct 594, 595-96(1972)(Holding that pleadings of Pro Se litigants are held to a less stringent standard than formal pleadings drafted by lawyers); See, also: United States -v- Weathersby, 958 F2d 65, 66 (5th Cir. 1992).

Plaintiffs are inmates serving Federal Sentences, on different violation of the Federal Laws, and were committed to the custody of the Federal Bureau of Prisons, by order of different U.S. District Courts across the United States.

Plaintiffs were designed to Giles W. Dalby C.F. to serve their sentences. The Federal Bureau of Prisons (B.O.P.) assigned Plaintiffs, at a private operated facility named Giles W. Dalby C.F. which operates in conjunction with Garza County, Texas, and that is located in Post, Texas.

The B.O.P. utilized Operations Memorandum No. 075-098 (5100) "Criteria and Procedure for designation to the Major Use of Contract Detention Center" and Title 18 U.S.C. 362(b) as the authority to designate Plaintiffs to Giles W. Dalby Correctional Facility.

Plaintiffs are segregated from the rest of the U.S. Federal Prisoners General Population and submitted to harsher conditions of confinement solely by reason of their nationality. All inmates assigned at Giles W. Dalby C.F. are legal and illegal residents of the U.S. pending the completion of their Sentences to face deportation proceeding to their countries of national origin.

Giles W. Dalby Correctional Facility does not provide the same privileges that B.O.P. does to their inmates, and Giles W. Dalby C.F. usually discriminates them because of their Alienage.

At Giles W. Dalby C.F.:

A. Plaintiffs do not have access to decent Medical Care. The Dental Services are provided on Saturdays only, for a population of over one-thousand inmates. Up to this Date the Medical Department does not have a permanent Dental Technician;

B. Plaintiffs are not offered reasonable adequate foods, which commonly lacks enough calories to provide inmates with the minimum requirement of the B.O.P. and/or federal regulations, and when the food contains enough calories, is not properly prepared and/or cooked;

C. Plaintiffs are subject to high telephone prices which differs tremendously from the prices that inmates in B.O.P. General Population pay for their calls, either collect or through the Telelink System, being subject to pay for calls that are unanswered and/or that are answered by the answering machines;

D. Plaintiffs are subject to high commissary prices, and commonly denied of purchasing items that are obtainable at facilities controlled directly by the B.O.P.;

E. Plaintiffs do not have a chapel. The religious services are held at classrooms and during non-working hours;

F. Plaintiffs are denied of adequate opportunities for rehabilitation, due to the fact that the facility operated under BOP minimum standards and under such standards, educational programs are very limited;

G. Work opportunities are not equal and are inadequate, due to the overpopulation, and hazardous environment, in which Giles W. Dalby operates;

H. Psychological services, Drug and Alcohol Rehabilitation programs are not encouraged and rarely offered, at Giles W. Dalby C.F. and the materials to learn from such programs are very limited;

I. The Legal Library contains an extremely low amount of Legal Books, and the only reporters it has, are the Supreme Court Reporter, U.S.C.A.’s West Reporters, Federal Reporters Book 1 F2d to 600 F2d, and Rider Digest Reporter. The Legal library is also closed on Sundays, and the hours are constantly reduced because lack of personnel, and constant meetings in said place;

J. The leisure library, which is also located at the law library, contains a minimum selection of books in Spanish, which is the language that most inmates at G.W.D.C.F. speak, due to the majority of them (Hispanics) been assigned to the Facility;

K. The majority of the security guards are Caucasian, and frequently discriminate inmates because of the other nationality and/or color. Most officials at G.W.D.C.F., were trained to be correctional officers at State Prisons, and their mentality differs from the trained officers of the BOP which give respect to their initiates; in addition, only few officers at the Giles W. Dalby C.F. are Hispanics and very few of them speak Spanish;

L. The dormitories in which inmates live (living quarters), do not have drinking water fountains, and usually the inmates store the water in containers which are usually dirty and commonly emptied during the night, leaving the inmates without water for a period sometimes up to (10) ten hours;

M. Upon completion of their sentences, inmates usually remain in custody waiting to be 44 picked up" by INS which only arrives two days a Week. This procedure is different from the B.O.P. that usually prepares the INS with written notice to have their inmate that will be released, to be "picked up" on the same date of their completion of Sentence;

N. Because Giles W. Dalby is a privately own institution, when an inmate commits an offense inside the facility, the Disciplinary Hearing Officer immediately recommends loss of good time credit toward sentence. The Bureau of Prisons acts different, they take into consideration all the factors involved in the offenses and normally on first incident reports, disallowance of good time credit toward sentence is not applied, the BOP usually seeks other punishments or warnings, in order to prevent their inmates from being deprived of their rights to earn good conduct time toward sentence, and the opportunity to return promptly to their families.

O. Upon being processed for a violation of the Disciplinary Code and Regulations, and a sanction imposed, inmates at Giles W. Dalby C.F. are requested to appeal the decision of the Disciplinary Hearing Officer to the Warden of this Institution. However, said warden does not possess the authority to re-install the time (and/or the sanction imposed) that the BOP has disallowed the inmate with, in a complete sheer denial of Due Process.

P. Clothing is not sufficient for physical needs; Moreover, the clothes provided are extremely thin and different from BOP clothes, which are thick enough to resist the weather conditions. The BOP acts differently in this case. They provide inmates with new clothes upon arrival to their institutions, and the BOP usually replace the clothing every six months.

The Fifth Amendment to the United States Constitution protects all persons, regardless, of color, race or national origin in its Due Process Clause, which states in relevant part: "no person shall... be deprived of life, liberty, or property, without due process of law..." See: Constitution 5th Amendment U.S.C.A.

Moreover, the Fifth Amendment to the Constitution of the United States forbids federal government from depriving any person of life, liberty or property without due process of law. See: Bloom v. State of Illinois, U.S.Ill. 1968, 88 S.Ct. 1477, 391 U.S. 194, 20 L.Ed.2d 522.

Furthermore, "Guarantee of due process has historically been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property, and due process clause is not implicated by lack of due care of an official causing unintended injury to life, liberty, or property." See: United States v. Crouch, C.A.5 (Tex.) 1996, 84 F.3d 1497, certiorari denied 117 S.Ct. 736, 519 U.S. 1076, 136 L.Ed.2d 676.

Additionally, "Due process is not technical conception with fixed content unrelated to time, place and circumstances; rather, it is flexible and calls for such procedural protections as particular situation demands. See: Mathews v. Eldridge, (1976), 96 S.Ct. 893, 424 U.S. 319, 47 L.Ed.2d 18.

Plaintiffs respectfully submit that they are protected under the Due Process clause of the 5th Amendment to the U.S. Constitution, as held by the Fifth Circuit Court of Appeals in: Knoetze v. United States, Dept. of State, C.A.5 (Fla.) 1981, 634 F.2d 207, certiorari denied 102 S.Ct. 109, 454 U.S. 823, 70 L.Ed.2d 95, in which was held: "This clause’s protection extends to all persons within the United States, but attaches only when federal government seeks to deny a liberty or property interest."

Besides, "In absence of legitimate, countervailing state concerns, even illegal aliens are entitled to guarantees of Fifth and Fourteenth Amendments." See: Lynch v. Cannatella, C.A.5 (La.) 1987, 8 10 F.2d 1363, on remand 122 F.R.D. 195.

The term "liberty" within this amendment is not confined to mere freedom from bodily restraint, but it extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. See: Bolling v. Sharpe, U.S.Dist.Col. 1954, 74 S. Ct. 693, 347 U. S. 497, 98 L.Ed. 884, 53 O.O. 331, supplemented on other grounds 75 S.Ct. 753, 349 U.S. 294, 99 L.Ed. 1083, 57 O.O. 253, on remand 139 F.Supp. 468.

Moreover, other courts have recognized that: "Bivens action may be brought on due process grounds." See: Vennes v. An Unknown Number of Unidentified Agents of United States, C.A.8 (N.D.) 1994,26 F.3d 1448, certiorari denied 115 S.Ct. 721, 513 U.S. 1076,130 L.Ed.2d 627. Also, "Violation of Fifth Amendment by federal official may give rise to cause of action under Bivens." See: Kaufmann v. United States, E.D.Wis.1995, 876 F.Supp. 1044.

Plaintiffs Due Process Rights of Liberty has been violated by Defendants RENO, HAWK, and THOMPSON because they have been segregated from the Bureau of Prisons General Population and submitted to harsher conditions of their confinement only because of their alienage status.

The fundamental rights of individuals protected by the Amendment Fourteenth from infringement by the states are guaranteed by the Due Process Clause of the Fifth Amendment against action by the territorial legislature or officers, such clause applying to the federal government and all its agencies. See: Farrington v. T. Tokushige, U.S.Hawaii 1927, 47 S.Ct. 406, 273 U.S. 284, 71 L.Ed. 646.

To be more specific, the fact that Defendants have segregated the Plaintiff to harsher conditions of their confinement, only because the Plaintiffs are foreign national, is a discriminatory process which clearly violates Plaintiffs Constitutional Rights under the Fifth and Fourteenth Amendments to the Constitution of the United States.

Therefore, Plaintiffs respectfully prays this Honorable Court grant them all the relief to which they are entitled in this Bivens Action.

Title 18 U.S.C. § 3621 states as follows:

"Imprisonment of a convicted person

(a) Commitment to custody of Bureau of Prisons.—A person who has been sentenced to a term of imprisonment pursuant to the provisions of subchapter D of chapter 227 shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed, or until earlier released for satisfactory behavior pursuant to the provisions of section 3624.

(b) Place of imprisonment.—The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering

(1) the resources of the facility contemplated;

(2) the nature and circumstances of the offense;

(3) the history and characteristics of the prisoner;

(4) any statement by the court that imposed the sentence—

(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or

(B) recommending a type of penal or correctional facility as appropriate; and

(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.

In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status..."

Clearly in Plaintiffs’ case, the Bureau of Prisons has segregated the inmates because of their alienage status, in violation of Title 18 U.S.C.A. § 3621, which protects Plaintiffs from being separated from the BOP General Population base only on their social or economics status (In Plaintiffs’ case they have been separated from the BOP because of their alienage status).

Under the circumstances Plaintiffs respectfully pray this Honorable Court to request the Bureau of Prisons to integrate U.S. Citizens to Giles W. Dalby C.F. or in the alternative to close all operations with said facility.

Plaintiffs respectfully submit that the Eighth Amendment Clause of Cruel and Unusual Punishment was violated when Defendants were segregated from the Bureau of Prisons Population and were confined under harsher conditions of confinement, only because of their alienage status.

The Eighth Amendment to the Constitution of the United States holds: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Nevertheless, the Defendants has violated this clause when they inflicted a cruel and unusual punishment upon the Plaintiffs. That is because the Defendants ordered the Plaintiffs to be transferred to harsher conditions of their confinement based on their alienage states.

In addition to this, the plaintiffs are enduring harder conditions of confinement due to the fact that Giles W. Dalby C.F. does not provide them:

1. With appropriate food to comply with minimum standards of the BOP (clearly different from the BOP);

2. The Medical Personnel treats differently the inmates at such facility than the BOP Medical Personnel treats their inmates;

3. Up-to the date of the signing of this civil action, there has not been a Dentist assigned to G.W.D.C.F.

4. Telephone prices are extremely high, and Plaintiffs are unable to make collect calls to their country of national origin, unless they pay for the calls through the Telelink system, and of course, after paying a different price than the BOP telephone companies charge their inmates. Moreover, the telephone company charges the Plaintiffs for unanswered calls made from Giles W. Dalby C.F. In addition to this the list of prices for international price are different from the actual charges that the telephone company makes to inmates telephone accounts;

5. The Plaintiffs are denied of the basic needs for living, such as water; being forced to drink unfiltered water, which is completely different from the BOP’s facilities that usually have drinking (fountains) water;

6. The clothing provided by Giles W. Dalby is completely different than the clothes provided by the BOP to their inmates; leaving., Plaintiffs exposed to harsh weather conditions. To be more specific, Giles W. Dalby does not provide the Plaintiffs with:

a. Appropriate shoes for their residency while at the facility, such as boots or hard sole shoes;

b. An appropriate amount of clothes to be while at the facility (socks, t-shirts, pants, sweaters, shirts, and underwear);

c. Gloves and hats for the cold conditions;

7. The religious services are held at school-classrooms due to the lack of chapel at the facility, and usually held at specific and limited hours, because the school also uses the classrooms;

Segregation of inmates because of specific factor violated Eighth Amendment prohibition against cruel and unusual punishment. See: Pembroke v. Wood County, Tex., C.A.5 (Tex.) 1993, 981 F.2d 225, certiorari denied 113 S.Ct. 2965, 508 U.S. 973, 125 L.Ed.2d 665.

Under the circumstances the Plaintiffs’ respectfully request that this Honorable Court grant them all the relief to which they are entitled in this action.

Defendants RENO, HAWKS, THOMPSON, and SIMPSON violated the International Covenant and Political Rights which protects the Plaintiffs in its Article 9 by stating that there shall be no favoritism based solely in alienage status.

In addition to this Title 42 U.S.C. § 1981 states in relevant part:

"Equal rights under the law

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."

Such deprivation of rights, has caused the Plaintiffs to be treated differently and under an inhuman manner as to be a violation of such covenant to which the United States is part of and bounded to.

Under the circumstances, the plaintiffs respectfully request that this honorable Court grant them the relief they should be entitled in this action.

The Defendants have violated Article 5 and 7 of the Universal Declaration of Human Rights which protect the Plaintiffs from being treated under a degraded manner, such as in this case.

Plaintiffs respectfully prays that this honorable Court permit them to supplement this information upon the arrival of such information from the appropriate source.

Nevertheless, Plaintiffs respectfully request that this honorable Court consider this argument and grant them all the relief to which they may be entitled to in this Bivens Action.

The Fourteenth Amendment to the Constitution of the United States protects all individuals in its clause of Equal Protection of Laws regardless of color, social status, race or national origin. See: Amendment 14th of the U.S. Const.

Amendment 14th states in relevant part as follows: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws..."

The Plaintiffs have been deprived of their rights to access to court, because at G.W.D.C.F. they do not have the appropriate law reporters. "Prisoners have constitutional right of access to the courts." See: Bounds v. Smith, U.S.N.C. 1977, 97 S.Ct. 1491, 430 U.S. 817, 52 L.Ed.2d 72.

Moreover, Plaintiffs’ rights of religion have been violated by Defendants Doe and Rasbeary, because they are unable to exercise their religious services at any time in the appropriate place. in: Muhammad v. Lynaugh, C.A.5 (Tex.) 1992, 966 F.2d 901, the Fifth Circuit Court of Appeals stated that an Equal Protection would be committed if the plaintiff in a civil action was denied of some particular religious beliefs or practices.

Though rights of prisoner may be diminished by the needs and exigencies of the institutional environment, they are not wholly without the protections of the Constitution and the due process clause. See: Wolff v. McDonnell, (1974), 94 S.Ct. 2963, 418 U.S. 539, 41 L.Ed.2d 935, 71 O.O.2d 336.

Accordingly, Plaintiffs respectfully pray that this Honorable Court grant them all the relief to which this Bivens Actions entitles them.

The Fifth Amendment contains no equal protection clause, but it does forbid discrimination that is so unjustifiable as to be violative of due process. See: Shapiro v. Thompson, U.S.Conn.1969, 89 S.Ct. 1322, 394 U.S. 618, 22 L.Ed.2d 600. See, also, U.S.R.R. Retirement Bd. v. Fritz, U.S.Ind. 1980, 101 S.Ct. 453, 449 U.S. 166, 66 L.Ed.2d 368, rehearing denied 101 S.Ct. 1421, 450 U.S. 960, 67 L.Ed.2d 385; Schlesinger v. Ballard, Cal.1975, 95 S.Ct. 572, 419 U.S. 498, 42 L.Ed.2d 610, rehearing denied 95 S.Ct. 1363,420U.S. 966,43 L.Ed.2d446; Johnson v. Robinson, Mass. 1974, 94 S.Ct. 1160, 415 U.S. 361, 39 L.Ed.2d 389; Schneider v. Rusk, Dist.Col.1964,84 S.Ct. 1187, 377 U.S. 163, 12 L.Ed.2d218; Kiyoshi Hirabayashi v. United States, 1943, 63 S.Ct. 1375, 320 U.S. 81, 87 L.Ed. 1774; Jones v. Reagan, C.A.7(Ill.) 1983, 696 F.2d 55 1; Mack v. United States, Ct.C1.1980,635F.2d828,2250.0. 187, certiorari denied 101 S.Ct. 1988,451 U.S. 913, 68 L.Ed.2d 304; Tanner v. Weinberger, C.A.Ohio 1975, 525 F.2d 5 1; NAACP v. Allen, C.A.Ala. 1974, 493 F.2d 614, affirmed 767 F.2d 1514; Wright v. Atlas Production Credit Ass’n, C.A.Okl.1972, 468 F.2d 997.

When social and economic legislation enacted by Congress is challenged on equal protection grounds as being violative of this clause, the rational basis standard is the appropriate standard of judicial review, and if the classification has some "reasonable basis," it does not offend this clause simply because the classification is not made with mathematical nicety or because in practice it results in some inequality. U.S. R.R. Retirement Bd. v. Fritz, U.S.Ind. 1980, 101 S.Ct. 453, 449 U.S. 166, 66 L.Ed.2d 368, rehearing denied 101 S.Ct. 1421, 450 U.S. 960, 67 L.Ed.2d 385.

The Fifth Amendment Clause encompasses equal protection principles. See: Mathews v. De Castro, U.S.Ill.1976, 97 S.Ct. 431, 429 U.S. 181, 50 L.Ed.2d 389. See, also, National Ass’n for Advancement of Colored People v. Wilmington Medical Center, Inc., D.C.Del.1978, 453 F.Supp. 330; United Federation of Postal Clerks v. Blount, D.C.D.C.1971, 325 F.Supp. 879, affirmed 92 S.Ct. 80, 404 U.S. 802, 30 L.Ed.2d 38.

There may be overriding national interest which would justify selective federal legislation which would be unacceptable for an individual state under Amendment Fourteenth, but when a federal rule is applicable only to a limited territory and there is no special national interest involved, this clause will be construed as having the same significance as the equal protection clause. See: Hampton v. Mow Sun Wong, U.S.Cal. 1976, 96 S.Ct. 1895, 426 U.S. 88, 48 L.Ed.2d 495.

The Supreme Court’s approach to equal protection claims under this amendment is the same as its approach to equal protection claims under Amend. 14. See: Weinberger v. Wiesenfeld, U.S.N.J. (1975),95 S.Ct. 1225,420 U.S. 636, 43) L.Ed.2d 514.

If a classification, as in this case of Plaintiffs segregation, would be invalid under the equal protection clause of Amend. 14, would also be inconsistent with the Fifth Amendment Clause. See: Johnson v. Robison, U.S.Mass.1974, 94 S.Ct. 1160, 415 U.S. 361, 39 L.Ed.2d 389. See, also, Richards v. Secretary of State, Dept. of State, C.A.9(Cal.) 1985, 752 F.2d 1413; United States v. Gordon-Nikkar, C.A.Fla.1975, 518 F.2d 972; Young v. Pierce, E.D.Tex.1982, 544 F.Supp. 1010.

Basic concepts of equal protection apply to the federal government through the due process clause of this amendment. See: United States v. Hawes, C.A.5 (Ga.) 1976, 529 F.2d 472.

Fifth Amendment due process clause includes equal protection component paralleled in Fourteenth Amendment. See: United States v. Romero-Reyna, C.A.5 (Tex.) 1989, 867 F.2d 834.

When governmental action affects right through classification in furtherance of governmental interest, judiciary will scrutinize congruence of characteristics of means of classification with object of act under facts to guarantee that individuals who are similarly situated are treated similarly, in accordance with equal protection aspect of due process clause. See: Graham v. Bowen, S.D.Tex. 1986, 648 F.Supp. 298.

Hence, Plaintiffs respectfully submit that this honorable Court grant them all the relief appropriate in this Bivens Action.

WHEREFORE, Plaintiffs respectfully pray that this Honorable Court enter a judgment granting them the following reliefs:

7. A declaratory judgment that:

A. Defendants RENO, HAWK, THOMPSON and SIMPSON’s acts, policies, and practices prescribed herein are in violation of Plaintiffs rights conferred to them by the Fifth Amendment to the U.S. Constitution.

B. Defendants RENO, HAWK, THOMPSON’s acts, policies and practices described herein are in violation of the Title 18 U.S.C. § 3621 (b).

C. Defendants RENO, HAWK, and THOMPSON’s acts, policies and practices described herein are in violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment to the Constitution of the United States.

E. Defendants "DOE" and RASBEARY’s acts, policies and practices described herein are in violation of Plaintiffs Constitutional Rights under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

F. Defendants RENO, HAWK, THOMPSON, SIMPSON, "DOE" and RASBEARY’s acts, policies and practices described herein violates the ICCPR, a treaty to which the United States is a part of and bounded to.

G. Defendants RENO, HAWK, THOMPSON, "DOE" and RASBEARY’s acts, policies and practices described herein violates the UDHR, a treaty to which the United States is a part of and bounded to.

H. Upon demonstrating conditions of confinement that are different from those of the BOP, then, order that Giles W. Dalby C.F. be permanently barred from operating with the Bureau of Prisons, and close all operation within the facility.

1. A preliminary Injunction Order which:

A. Prohibits the Defendants from segregation of Alien inmates from the rest of the U.S. Federal Bureau of Prison’s General Population and requiring the Defendants to integrate Legal Resident Aliens and U.S. Citizens into Giles W. Dalby Correctional Facility;

B. Prohibits the defendants from confining Plaintiffs under harsher conditions of confinement than those who are U.S. Citizens;

C. Prohibits defendants, their agents, employees, successors in interest and all other persons in acting concert or participation with them, from threatening, punishing or retaliating in any way against the Plaintiffs because of the exercise of their Civil Rights, by filing this Class Action, or from transferring Plaintiffs to any other institution without their express consent during the pendency of this action;

D. Requires Defendants, to allow Plaintiffs and other prisoners to:

I. Engage in any oral or written communication which is reasonably related to be conduct of this lawsuit, including the preparation of affidavits on behalf of Plaintiffs, and

II. Confer with co-Plaintiffs and prepare necessary legal papers, and to do anything consistent with prison security, which is reasonably connected with the conduct of this lawsuit.

3. Compensatory damages in the form of three days extra credit toward Plaintiffs’ sentences for each day they were confined at Giles W. Dalby C.F.,

4. Also compensatory damages in the amount of $10,000 (ten thousand U.S. Currency) from defendant RENO, HAWK, THOMPSON, SIMPSON JOHN DOE and RASBEARY to each of the Plaintiffs from each of the Defendants.

5. Punitive damages in the amount of $50,000 (fifty thousand U.S. Currency) from defendants RENO, HAWK, THOMPSON, SIMPSON JOHN DOE, and RASBEARY to each of the Plaintiffs from each defendant.

6. Trial by jury on all triable issues.

7. Plaintiffs’ cost of the lawsuit.

And such other reliefs that this Honorable Court deems as proper to grant to the Plaintiffs.

Executed this 11 day of January 2001.

Respectfully Submitted,

EFREN TERRAZAS 81749-079 (BOP No.)

SALVADOR CRESPO 09561-112 (BOP No.)

TRINIDAD CAZARES GONZALEZ 07817-041 (BOP No.)

HERNAN MOLINA 16409-004 (BOP No.)

JUAN CARLOS CARDENAS 57755-004 (BOP No.)

RAFAEL VALERA 26125-083 (BOP No.)

SERGIO OTERO 62033-080 (BOP No.)

OSWALDO COLLINS-CARBAJAL 72230-198 (BOP No.)

SERGIO SALAMANCA SANDOVAL 48923-019 (BOP No.)

OMER AZPURUA 58366-004 (BOP No.)

AUGUSTO VALMORE 57958-004 (BOP No.)

JOSAPHAT SOTO NAVARRO 08222-079 (BOP No.)

JOSE PENALOZA 28755-086 (BOP No.)

JORGE YANEZ 52133-004 (BOP No.)

EZEQUIEL ESPARZA 91326-080 (BOP No.)

JAVIER COMPAN-MOLINA 48954-019 (BOP No.)

____________________________________________________________________________________________

We, the Plaintiffs in the accompanying Bivens Action, hereby certify under penalty of perjury, that on this date served true and correct copies of the accompanying Bivens Action and Memorandum of Law in Support, upon each of the Defendants, including and additional copy to the United States Attorney’s Office for the Northern District of Texas, by placing said copies in proper addressed envelopes with affixed postage to ensure its delivery in the United States Mail.

The address to which Plaintiffs mail the copies of accompanying documents are as follows:

Defendant No. 1 United States Department of Justice

Defendant No. 2 United States Department of Justice

Defendant No. 3 United States Department of Justice

Defendant No. 4 United States Department of Justice

Defendant No. 5 John Doe (MTC CEO)

Defendant No. 6 Mr. Joe Rasbeary

Executed this 11 day of January 2001.

Respectfully Submitted,

EFREN TERRAZAS 81749-079 (BOP No.)

SALVADOR CRESPO 09561-112 (BOP No.)

TRINIDAD CAZARES GONZALEZ 07817-041 (BOP No.)

HERNAN MOLINA 16409-004 (BOP No.)

JUAN CARLOS CARDENAS 57755-004 (BOP No.)

RAFAEL VALERA 26125-083 (BOP No.)

SERGIO OTERO 62033-080 (BOP No.)

OSWALDO COLLINS-CARBAJAL 72230-198 (BOP No.)

SERGIO SALAMANCA SANDOVAL 48923-019 (BOP No.)

OMER AZPURUA 58366-004 (BOP No.)

AUGUSTO VALMORE 57958-004 (BOP No.)

JOSAPHAT SOTO NAVARRO 08222-079 (BOP No.)

JOSE PENALOZA 28755-086 (BOP No.)

JORGE YANEZ 52133-004 (BOP No.)

EZEQUIEL ESPARZA 91326-080 (BOP No.)

JAVIER COMPAN-MOLINA 48954-019 (BOP No.)