Ayyad v. Gonzales et al
ORDER ORDERED that Defendants request for reconsideration of my Order of October 10, 2012, denying Defendants Motion to Dismiss Ayyads Claims as Moot as to Ayyads due process related to his transfer to ADX is DENIED. It is FURTHER ORDERED that Def endants Motion for Summary Judgment ECF No. 259 is DENIED AS MOOT as to Ayyads due process claim as to his ongoing confinement in ADX, his request for injunctive relief for a transfer from the ADX to another less restrictive facility, and his Fir st Amendment claims as these claims were previously dismissed. It is GRANTED as to all remaining claims in this case, including Abouhalimas First Amendment claims and Plaintiffs procedural due process claims. Judgment shall enter in favor of Defendants and against Plaintiffs on their remaining claims in this consolidated action. by Judge Wiley Y. Daniel on 9/24/2014.(evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 05-cv-02342-WYD-MJW
(consolidated with Civil Action No. 05-cv-02653-WYD-MJW)
NIDAL A. AYYAD and
ERIC H. HOLDER, JR., Attorney General of the United States,
CHARLES E. SAMUELS, JR., Director of the Federal Bureau of Prisons,
PAUL M. LAIRD, Regional Director, North Central Region,
DAVID BERKBILE, Warden, United States Penitentiary - Administrative Maximum, and
JOHN DOES 1 THROUGH 5, sued in their official capacities,
ORDER ON DISPOSITIVE MOTIONS
THIS MATTER is before the Court on Defendants’ Motion for Summary
Judgment and Defendants’ motion to reconsider a portion of my Order of October 10,
2012 [“October 2012 Order”] on Defendants’ Motion to Dismiss Ayyad’s Claims as
Moot. A hearing was held on these motions on Thursday, September 4, 2014.
Plaintiffs Nidal Ayyad [Ayyad”] and Mahmud Abouhalima [“Abouhalima”]
[collectively “Plaintiffs”] are federal inmates who are or were until fairly recently
incarcerated at the United States Penitentiary [“USP”]-Administrative Maximum [“ADX”]
in Florence, Colorado. Their cases were consolidated, and they asserted claims under
the First and Fifth Amendments to the Constitution regarding (1) restrictions upon their
incoming and outgoing communications under Special Administrative Measures
[“SAMs”] imposed upon them in 2005; and (2) the imposition and maintenance of
extreme conditions of confinement at the ADX under the SAMs without due process of
law. SAMs are imposed upon direction of the Attorney General when they are
determined to be “reasonably necessary to protect persons against the risk of death or
serious bodily injury.” 28 C.F.R. § 501.3(a).
Defendants filed their Motion for Summary judgment on March 25, 2011. While
this motion has been pending for some time, it was not fully briefed until July 2014.
Thus, Plaintiffs’ consolidated response was filed on January 9, 2012, and a revised
response reflecting certain restrictions, redactions and modifications was filed on May
17, 2012. Defendants filed a reply as to the portion of the motion regarding
Abouhalima’s claims in September 2012. Abouhalima filed a supplemental response in
October 2013, and Defendants filed a supplemental reply in November 2013.
As to Ayyad, the filing of Defendants’ reply brief was stayed pending a ruling on
Defendants’ Motion to Dismiss Ayyad’s Claims as Moot [“motion to dismiss”]. After
completion of the jurisdictional discovery, Defendants’ reply to the summary judgment
motion as to Ayyad was filed on July 1, 2014. Ayyad filed a surreply on July 18, 2014.
Defendants’ motion to dismiss argued that Ayyad’s claims were moot because
his SAMs had expired and because he was transferred from ADX to another, less
restrictive, Bureau of Prisons [“BOP”] facility—the Communications Management Unit
[“CMU”] at Terre Haute, Indiana. In the October 2012 Order, I granted the motion to
dismiss as to Ayyad’s due process claim challenging his ongoing confinement in ADX
and his request for injunctive relief for a transfer to a facility with less restrictive
conditions of confinement. With the dismissal of the ongoing confinement claim, Ayyad
no longer asserts a challenge to the SAMs. I denied the motion to dismiss as to
Ayyad’s due process claim regarding his transfer to ADX, and deferred ruling as to
Ayyad’s First Amendment claims so that jurisdictional discovery could be taken.
Ayyad later conceded in his Surreply in Opposition to Defendants’ Motion for
Summary Judgment that his First Amendment claims were moot, and those claims were
dismissed on August 19, 2014. Since Ayyad’s only remaining claim is his due process
claim challenging his transfer to ADX, I deny as moot the Motion for Summary
Judgment as to Ayyad’s due process claim as to his ongoing confinement in ADX, his
request for injunctive relief for a transfer from ADX, and his First Amendment claims.
After jurisdictional discovery was completed, the parties filed supplemental
pleadings as to the motion to dismiss. Defendants argued that Ayyad’s remaining due
process claim should be dismissed based on that discovery. Because I had previously
denied the motion to dismiss as to that claim, I ruled by Order of June 10, 2014, that I
would treat Defendants’ argument as a motion for reconsideration of that ruling. Ayyad
addressed whether reconsideration of that ruling is appropriate in a document filed in
June 2014, and a reply was filed in July 2014. I now address that issue.
MOTION TO RECONSIDER REGARDING AYYAD’S DUE PROCESS CLAIM
Background and Standard of Review
Ayyad alleges that his “transfer to the ADX without notice and an opportunity to
be heard constituted a deprivation of a liberty interest without due process of law in
violation of the Fifth Amendment to the United States Constitution.” (Third Amended
Complaint, ¶ 131.) Ayyad seeks a declaration that he “has been and is being deprived
by Defendants of his liberty interest in avoiding indefinite confinement under conditions
constituting an atypical and significant hardship, such deprivation being without due
process of law in violation and contravention of the Fifth Amendment to the United
States Constitution.” (Id., Prayer for Relief ¶ A.)
Defendants ask that I reconsider that portion of my October 2012 Order denying
the motion to dismiss as to this claim. This request “invok[es] the district court’s general
discretionary authority to review and revise interlocutory rulings prior to entry of final
judgment.’” Fye v. Okla. Corp. Com’n, 516 F.3d 1217, 1224 n. 2 (10th Cir. 2008)
(quotation omitted). In deciding such a request, a court is not bound by the
requirements of Rule 59(e) and 60(b). Id. “‘A motion to reconsider ... should be denied
unless it clearly demonstrates manifest error of law or presents newly discovered
evidence.’” Id.; see also Fye, 516 F.3d at 1224 (district court did not abuse discretion in
denying motion to reconsider when the decision “was not ‘a clear error of judgment’ and
did not ‘exceed[ ] the bounds of permissible choice in the circumstances’”) (quotation
omitted). “[A]s a practical matter, ‘[t]o succeed in a motion to reconsider, a party must
set forth facts or law of a strongly convincing nature to induce the court to reverse its
prior decision.’” Nat’l Bus. Brokers, Ltd. v. Jim Williamson Productions, Inc., 115
F. Supp. 2d 1250, 1256 (D. Colo. 2000) (quotation omitted).
Defendants’ mootness argument raises a jurisdictional dispute under Fed. R. Civ.
P. 12(b)(1). Accordingly, I am “free to weigh the evidence and satisfy [myself] as to the
existence of [the court’s] power to hear the case. . . .” Osborn v. United States, 918
F.2d 724, 730 (8th Cir. 1990). I “must decide the jurisdictional issue, not simply rule that
there is or is not enough evidence to have a trial on the issue.” Id.; see also Stuart v.
Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001).
“‘Under the constitutional mootness doctrine, the suit must present a real and
substantial controversy with respect to which relief may be fashioned.’” Jordan v. Sosa,
654 F.3d 1012, 1023-24 (10th Cir. 2011) (quotation omitted). The doctrine focuses on
“whether ‘a definite controversy exists throughout the litigation and whether conclusive
relief may still be conferred by the court despite the lapse of time and any change of
circumstances that may have occurred since the commencement of the action.’” Id. at
1024 (quotation omitted). “‘The hallmark of a moot case or controversy is that the relief
sought can no longer be given or is no longer needed.’” Unified Sch. Dist. No. 259 v.
Disability Rights Ctr. Of Kan., 491 F.3d 1143, 1150 (10th Cir. 2007) (quotation omitted).
In deciding that Ayyad’s due process claim was not mooted by his transfer from
the ADX to the CMU and the termination of his SAMs, I found in the October 2012
Order that the Tenth Circuit’s opinion in Rezaq v. Nalley, 677 F.3d 1001 (10th Cir.
2012), was controlling. I stated, “[e]ven though Ayyad has been transferred out of ADX,
he is still in a CMU—a very restrictive facility as noted by the Tenth Circuit.” (October
2012 Order at 10.) “Defendants have not shown that new hearings with the due
process that Ayyad claims he was entitled to could not result in Ayyad’s return to
general population conditions.” (Id. at 10-11) (citing Rezaq, 677 F.3d at 1009.)
While Defendants argued that Ayyad’s claim that he could obtain a different
placement if new hearings were held was speculative or highly unlikely I disagreed,
stating that even if the relief granted “is unlikely to result in transfers to less restrictive
conditions, it is relief nonetheless and the case is not moot.’” (October 2012 Order at
11) (quoting Rezaq, 677 F.3d at 1009-10). I also rejected the argument that Ayyad
obtained the relief he requested through his transfer to the CMU, i.e., transfer to a less
restrictive environment, as I found it was possible that some remedy could still be
fashioned. (Id. at 11.) Finally, I rejected Defendants’ argument that the claim should be
dismissed on grounds of prudential mootness.
Defendants argue that I should reconsider the above ruling based on newly
discovered evidence, i.e., the jurisdictional discovery. I first reject their argument that I
reconsider my ruling regarding prudential mootness. Defendants have not cited any
new facts or evidence that persuade me that dismissal is appropriate on this ground.
As to constitutional mootness, Defendants assert that Ayyad’s case is moot
under both prongs of the test. The first—whether there are ongoing, long-term
consequences— requires a causal connection between the original injury and the
inmate’s current conditions. Ongoing, long-term consequences are present when the
record shows that the inmate’s current conditions are a “byproduct” of the original
conditions or policy that is the subject of the inmate’s lawsuit. Rezaq, 677 F.3d at 1009
(noting that if an inmate’s “current conditions are a byproduct of their initial transfers to
ADX, then long-term consequences may persist and an injunction may serve to
‘eradicate the effects of [the BOP’s] past conduct.’” Id. (quotation omitted).
Even if there is evidence that the inmate’s new conditions are a byproduct of the
alleged violation, the case may still be moot unless there is an existing remedy that will
“mitigate” the byproduct or consequences of the defendants’ original actions. Rezaq,
677 F.3d at 1009. A remedy that has the potential to “mitigate” an injury “will have
some effect in the real world.” Rio Grande Silvery Minnow v. Bureau of Reclamation,
601 F.3d 1096, 1110 (10th Cir. 2010). I now turn to my analysis of these issues.
Whether Ayyad’s Transfer is a Byproduct of his ADX Placement
Defendants note that Ayyad’s due process claim is the same claim brought by
his co-conspirators in Rezaq. However, in Rezaq, the court assumed as to a motion to
dismiss that the inmates’ CMU designations were a consequence or byproduct of their
initial transfers to the ADX. See Rezaq, 677 F.3d at 1009. Here, this assumption is
disputed based on the jurisdictional discovery, and Defendants argue that I should rely
on this new evidence and dismiss the due process claim as moot.
Defendants argue that the discovery fills in the evidentiary record and establishes
that “new hearings with the due process that Ayyad claims he was entitled to could not
result in Ayyad’s return to general population conditions.” (See October 2012 Order at
10-11.) They contend that Rezaq compels the conclusion that Ayyad’s claim is moot
because the evidence establishes that Ayyad’s transfer to the CMU is not a byproduct
of his ADX placement, but the result of an independent evaluation process in which
prior ADX placement plays no role. They further argue that the decision to place Ayyad
in the CMU was based entirely on Ayyad’s conduct, as shown by the Declaration of
David Schiavone, attached as Exhibit 1 to Defendants’ Supplemental Pleading in
Support of Motion to Dismiss [“Schiavone Decl.”], ¶¶ 11-25. Ayyad asserts in response
that the argument that his ADX placement was not considered in the CMU is
contradicted by Defendants’ own witness and documentation provided in discovery.
I agree with Ayyad that the jurisdictional discovery shows that while his conduct
was considered in connection with his transfer to the CMU (see, e.g., ECF No. 3442—Notice to Inmate of a Transfer to a Communications Management Unit), his transfer
to the CMU was at least in part a byproduct of his incarceration at ADX under SAMs.
Several of the documents produced in discovery support this finding.
Thus, the “Rationale for Re-designation”, recommending to the Regional Director
that Ayyad be sent to a CMU, states that, “Since the SAM was not renewed, the
Warden at [ADX] has recommended inmate Ayyad be transferred from the institution to
a CMU since the inmate no longer requires the level of physical security and controls
afforded by the institution.” (Ayyad’s Supplemental. Resp. to Defs.’ Mot. to Dismiss
[“Pl.’s Supplemental Resp.”], Ex. 9) (emphasis added). It further states that Ayyad
“requires increased monitoring of communications with persons in the community” and
that “[t]he CMU is more appropriate to monitor this inmate than typical placement in the
Pre-Transfer Unit of the Step-Down Program” at ADX. (Id.)
Similarly, in the “Comments” section of Ayyad’s CMU Referral form, the
Correctional Programs Division and the Executive Assistant recommend that Ayyad be
transferred to a CMU pending his placement in the general population of a federal
penitentiary: “AYYAD has been housed in the H-unit (SAM) of the ADX, and has more
recently progressed to the J-Unit, still with SAMs restrictions. Recently, SAMs was not
renewed. CTU staff recommend placement in a CMU to allow staff the opportunity to
assess his behavior in a less restrictive environment before placement in an open
population.” (Pl.’s Supp. Resp., Ex. 10) (emphasis added.) I find from these documents
that the nature of Ayyad’s incarceration at ADX, where he was under restrictions related
to his communications, played a part or contributed to his transfer to CMU where the
restrictions on his communications could continue.
Whether There Is a Real World Remedy
Defendants also assert that Ayyad’s claims are moot because ordering additional
process to address his transfer to the ADX will have no effect on the BOP’s decision to
designate him to a CMU, even if the conclusion of the new ADX process was that Ayyad
should not have been transferred to the ADX. That is because the designation was the
result of an entirely separate, independent process unrelated to the ADX designation.
(See Schiavone Decl. at ¶¶ 13-18.) Defendant argue that more process about Ayyad’s
transfer to the ADX would not override the BOP’s assessment that his communications
may still pose risks to institutional security and public safety. (Id. ¶ 29.) Thus,
Defendants assert there is thus no effectual relief for the Court to award.
I reject Defendants’ argument. The CMU designation criteria they rely on would
only come into play upon a recommendation for a transfer to a CMU. No evidence is
offered to suggest that there ever would have been, or would be, a CMU designation
process or evaluation absent the intervening assignment to and recommendation from
the ADX. In other words, if Ayyad had received adequate process in the first place, he
may not have been placed in ADX and there may have been no recommendation that
he ever be transferred to the CMU (as it was the ADX warden that made that
recommendation based on the fact that the SAMs were being terminated as to him and
there was a need for increased monitoring of his communications). The fact that other
wardens in other institutions could have made that recommendation, as Defendants
assert, does not mean that they would have made that recommendation. Even the
possibility of a partial remedy is sufficient to prevent a case from being moot.
Based on the foregoing, I deny Defendants’ request that I reconsider my October
2012 Order denying Defendants’ motion to dismiss.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Due to the voluminous nature of this record, I cite only an abbreviated recitation
of the facts.1 I have, however, considered all the facts and evidence cited by the
parties, “‘view[ing] the evidence and draw[ing] all reasonable inferences therefrom in the
light most favorable’” to the Plaintiffs. Atl. Richfield Co. v. Farm Credit Bank of Wichita,
226 F.3d 1138, 1148 (10th Cir. 2000) (quotation omitted). I cite to the record only when
the facts are disputed or when I deem it necessary.
I also note that responses disputing or denying a fact that are not supported by
evidence in the record raise no genuine dispute of a material fact. See Practice
Standards, III.B.4 (“Any denial shall be accompanied by . . . a specific reference to
material in the record supporting the denial”); Fed. R. Civ. P. 56(c)(1)(A) (a party must
For example, the summary judgment motion contains 55 pages of facts. Plaintiffs’ consolidated
response to these facts and their statement of additional facts is 105 pages.
“cit[e] to particular parts of materials in the record” in order to show a genuine dispute).
To the extent a party has disputed a fact but does not cite facts or evidence to support
the dispute (but rather other additional facts), I have deemed these non-responsive
statements that raise no genuine dispute of a material fact. See Gooden v. Timpte, Inc.,
No. 99 N 795, 2000 WL 34507333, *3 n.3 (D. Colo. June 29, 2000) (when party denies
a fact but only offers a “citation to evidence in the record which is unresponsive to the
factual assertion,” the “undisputed fact is deemed admitted”).
Self-serving statements, opinions, and personal views raise no genuine dispute
where they relate to facts that are supported by competent evidence. Hall v. Bellmon,
935 F.2d 1106, 1111 (10th Cir. 1991). Speculation, legal argument, and conclusory
statements also raise no genuine dispute. See Conaway v. Smith, 853 F.2d 789, 794
(10th Cir. 1988). Finally, disputed facts that are based on inadmissible evidence, such
as hearsay or testimony not based on personal knowledge, has been disregarded. See
Fed. R. Civ. P. 56(c)(2). I now turn to the facts alleged by the parties.
Plaintiffs’ Crimes of Convictions, Affiliations, and Prior Incarceration
Plaintiffs were part of the group of criminal associates who were convicted in
connection with a plot to bomb the World Trade Center in 1993. The attack killed six
people, injured more than a thousand others, and caused hundreds of millions of dollars
in damage. Plaintiffs were each convicted after a jury trial of multiple felonies in
connection with the bombing and are each serving sentences of more than 100 years.
They are not eligible for parole, as there is no federal parole. They are serving
sentences in excess of their remaining years, and will die in prison.
The FBI has information showing that both Plaintiffs were associated with an
Egyptian terrorist organization, al-Gama’a al-Islamiyya, also known as the Islamic
Group. (Ex. A-1, Decl. of FBI Agent Donald R. Shannon, Jr. [“Shannon Decl.”], ¶ 6.)2
Based on Plaintiffs’ conviction for their participation in the World Trade Center bombing,
FBI Agent Shannon testified that the government considers them to have been
important Islamic Group operatives. (Shannon Decl., ¶ 8.) Plaintiffs deny their
association with the Islamic Group, and note that at no time during their prosecutions
did the government ever assert that either of them was an “Islamic Group operative”, let
alone “important” ones. (Ex. 7, Shannon Dep., 74:4-10; Ex. 1, Abouhalima Decl., ¶ 27);
Ex. 2, Ayyad Decl., ¶ 21.) Additionally, they assert that Defendants’ own documents
demonstrate that the government does not consider them to be “important Islamic
Group operatives.” (Exs. 8 and 9—H-Unit Classification Summarys for Plaintiffs.)
Plaintiffs spent eight years, from 1994 to 2001, in general population housing
units at United States Penitentiaries, which are high-security prisons. During this time,
they held laundry, orderly, and other jobs alongside other inmates; ate their meals with
other inmates; were able to walk freely in their housing units and on the prison yard; and
were allowed to play sports with other inmates. They also were allowed to
communicate with family in the United States and abroad on a daily basis using phones
that were available at any time, without prior permission; experienced delays of only a
few days for prison staff to read, translate, and release incoming and outgoing mail,
Defendants’ exhibits are cited in reference to letters and numbers, e.g., “Ex. A-1”, whereas Plaintiffs’
exhibits are cited in reference only to numbers, e.g., “Ex. 25.” Unless otherwise noted, the reference to
Defendants’ exhibits are those attached to the motion for summary judgment. The reference to Plaintiffs’
exhibits are those attached to the response brief.
whether in English or Arabic; prayed in congregation; had contact visits with their
families at tables in the visiting room with other inmates; were allowed to communicate
with the news media; and were given approximately twenty phone calls per month.
On September 11, 2001, Plaintiffs were removed from their open population units
and put into Special Housing Units. (Ex. 96 —“Following the tragic events of
September 11, 2001, all inmates in the . . . (BOP) who were convicted of, charged with,
associated with, or in any way linked to terrorist activities were placed in Administrative
Detention as part of an immediate national security endeavor.”)
Transfers to ADX and Imposition of SAMS
On October 4, 2002, Ayyad was transferred to the ADX. SAMs were imposed on
him in 2005, but they expired in March 2012. He was transferred from the ADX to the
CMU at Terre Haute, Indiana, where he has been incarcerated since May 15, 2012.
Abouhalima was transferred to the ADX on March 23, 2003. SAMs were
imposed on him in March 2005 and he was placed in the H Unit, and remain imposed
today. Although the government contemplated imposing SAMs earlier, after the
September 11th attacks, it did not do so at that time. (Ex. 96—“[w]e anticipate that
some or all of these inmates will have SAMs approved in the near future.”)
It is undisputed that neither Plaintiff was given notice, nor an opportunity to be
heard, prior to his transfer to the ADX. Plaintiffs assert they were not provided with
hearings regarding their transfers to the ADX until seven years after those transfers
occurred, and the hearings did not address the SAMs or Plaintiffs’ later placement in the
H Unit of the ADX. Defendants acknowledge that Plaintiffs had “retroactive” ADX
placement hearings. Also, it is undisputed that neither of the Plaintiffs was given notice,
nor an opportunity to be heard, prior to the imposition of SAMs.
Upon arrival at the ADX, Defendants contend that Plaintiffs had the opportunity to
raise challenges to their transfers, both during Program Reviews and through the BOP’s
administrative remedy program. (Ex. E-1, Decl of Warden Jeffery Keller [“Keller Decl.”],
¶ 28.) Both Plaintiffs challenged their transfers via the BOP’s administrative program
and asked at every opportunity about the reason for the transfers. Plaintiffs assert they
were not given any reason other than their convictions for being sent to ADX, and were
not told of any way to be transferred back to their pre-9/11 statuses. (Abouhalima Decl.,
¶¶ 104-105; Ayyad Decl., ¶¶ 63-64, 197-198; see also Ex. 99.)
Ayyad’s H Unit Classification Summary states, “[W]e recommend he be housed
in an ADX-GP Unit for an indeterminate period of time.” (Ex. 9.) While in the general
population unit [“ADX-GP”], Plaintiffs were housed in single cells containing a shower, a
cement bed, and two gates at the front. The inner gate had a slot for meal trays. Meals
were consumed in the cells. When both doors were closed, it was almost impossible for
Plaintiffs to communicate with other inmates. Outside recreation occurred in groups,
two or three times per week, and inside recreation was provided on the other days.
Defendants assert that the decision to place an inmate at ADX is made using the
BOP’s classification system, which provides criteria for assessing the security needs of
each inmate. (Keller Decl., ¶ 9.) When Plaintiffs were designated to ADX, Program
Statement 5100.07 governed the transfer to ADX, which lists the ADX and USP Marion
as “Exceptions” to the normal Central Inmate Monitoring procedures. (Ex. 98, at
US015032.) Plaintiffs dispute that their transfers to ADX were effectuated via the
classification system or Program Statement 5100.07. They assert their transfers
occurred pursuant to a memorandum issued after the September 11th attacks ordering
all federal prisoners convicted of terrorism-related crimes to be put in solitary
confinement and then to be considered for transfer to the ADX. (Exs. 96, 97;
Abouhalima Decl., ¶ 102.)
According to Defendants, the BOP conducted multi-level regional reviews before
transferring Plaintiffs to the ADX. (Keller Decl., ¶¶ 13, 16, 22.)3 In Ayyad’s case, the
process involved an evaluation by the institution, the BOP’s Regional Office for Ayyad’s
institution, and the North Central Regional Office where the ADX is located. (Keller
Decl., ¶¶ 13.a., 16-21; see also Ex. E-3—referral packet for Ayyad.) Following that
review, the North Central Regional Director determined that placement in the ADX was
appropriate, and Ayyad was transferred to the ADX. (Keller Decl., ¶ 21.) Ayyad
disputes that placement in ADX was appropriate.4
In Abouhalima’s case, the review process involved an evaluation by the
institution and the North Central Regional Office. (Keller Decl., ¶¶ 13.b., 22-28; see also
Ex. E-4—referral packet for Abouhalima.) Following this review, the North Central
Plaintiffs assert that these reviews did not follow the guidelines and procedures required by Program
Statement 5100.07. (Ex. E-2, 98.)
He notes that the “Proposed Transfer Code” for him was 323 (“Close Supervision Transfer”). (Ex.
99.) He had already been transferred to USP Lewisburg as a “Close Supervision Transfer.” (Id.) Close
Supervision Transfers are part of the standard Central Inmate Monitoring transfers, not within the
“Exceptions” for ADX Florence and USP Marion. (Ex. 98.) Also, there is no indication in the Transfer
Packet that “redesignation to another high security institution” was considered. In fact, “Institution
Recommended” is “ADX Florence or USP Marion.” (Ex. 99.) Finally, Ayyad asserts that nothing in the
Transfer Packet suggests that he had “demonstrated an inability to function in a less restrictive
environment without being a threat to others, or to the secure and orderly operation of the institution.”
Regional Director determined that placement in the ADX was appropriate, and
Abouhalima was transferred to the ADX. (Keller Decl., ¶ 27.) Abouhalima also disputes
that his placement was appropriate.5
In December 2011 and 2012, before renewal of the SAMs for the upcoming
years, Abouhalima met with ADX and FBI representatives. An FBI memo documenting
the 2011 meeting stated that “the SAM renewal justification EC will be submitted via
separate correspondence.” It also stated that “the inmate asked, several times, what he
could do to be removed from SAM monitoring, to which the investigator responded,
‘cooperation with BOP staff and adherence to inmate protocols as outlined by BOP
staff.’” (Abouhalima Supp. Resp., Ex. 3.) In the December 2012 meeting, Abouhalima
was told that the SAMs would be renewed, but not the reason for the renewal.
Abouhalima then asked whether the original basis for the imposition of the SAMs still
existed. The ADX/FBI staff stated they could not tell him the answer to his question.
Abouhalima’s SAMs were also renewed in March 2013 and March 2014. (See Defs.’
Notice Regarding Renewal of Special Administrative Measures for Pl. Abouhalima filed
August 28, 2014 and Ex. 1 thereto.) Thus, he remains under SAMs at this time.
He asserts that there is nothing in the Transfer Packet to suggest that he had “demonstrated an
inability to function in a less restrictive environment without being a threat to others, or to the secure and
orderly operation of the institution.” To the contrary, the referral memo recites that, “He receives above
average work reports and relates well with staff and inmates. Abouhalima has made a favorable
institutional adjustment.” (Ex. 24; Ex. 101—Progress Report). Instead, the rationale for referral is that,
due to the nature of his crime of conviction, “he requires greater security than afforded at USP
Leavenworth,” and transfer was recommended to USP Marion, not ADX, “for his safety and the safety of
others at this institution.” (Ex. 24.)
There is no fixed end date to Abouhalima’s ADX confinement or the number of
time SAMs, which expire at the end of the year, can be renewed. Defendants
acknowledge that there is not a check-list of specific conduct that ensures transfer from
ADX or the removal of SAMs, both of which are decisions based on the professional
judgment of counterterrorism and correctional professionals. A March 19, 2009
memorandum to the FBI counterterrorism section states, “Due to the gravity of the
offenses and length of sentences regarding ADX SAMs inmates, it is likely that SAMs
measures will be in place for many of them for a number of years.” (Ex. 127.)
Communications Before SAMs were Imposed
Defendants have information showing that, as recently as 2004, while
incarcerated at the ADX, Plaintiffs were in contact with Spanish prisoners. (Shannon
Decl., ¶ 9.) When this was discovered in February 2004, they were told to stop this
correspondence and they complied. Plaintiffs did not receive an incident report for this.
In August 2004, an FBI investigation revealed that Plaintiffs had corresponded
with Mohamed Achraf [“Achraf”], the leader of the Salafist Spanish terrorist cell known
as the “Martyrs for Morocco” [“Martyrs”], and other persons who were linked to the
Martyrs and were incarcerated in Spanish prisons. (Id., ¶ 10.) The government did not
learn until the investigation began that the Spanish prisoners with whom Plaintiffs had
been corresponding, as well as Achraf, were affiliated with international terrorism.6 The
FBI also learned that Mohammed Salameh [“Salameh”], one of the convicted co-
Plaintiffs assert that they did not know these prisoners were members of a terrorist cell or of their
crimes of convictions.
conspirators in the 1993 World Trade Center bombing, had corresponded with Achraf.
The information obtained by the FBI indicated that Achraf was planning to execute a
terrorist attack. (Ex. A-3; Shannon Decl., ¶ 11.) The FBI determined that Plaintiffs
should not be alerted to the ongoing investigation, a part of which involved monitoring
their incoming and outgoing communications. (Shannon Decl., ¶ 13; see also Ex. A-8.)
Plaintiffs point out, however, that no terrorist acts occurred as a result of this
correspondence. To the contrary, the documentation states that the FBI “does not
believe operational or other guidance on the part of the ’93 TRADEBOM inmates was
involved” in Plaintiffs’ correspondence with the Spanish prisoners. (Ex. 26.)
The investigation was ongoing when, in January 2005, the FBI received
information that MSNBC planned to air a report about Plaintiffs’ and Salameh’s
correspondence with Achraf and other terrorists. (Shannon Decl., ¶ 14.) The FBI was
concerned that this broadcast would jeopardize the progress of the investigations in that
it would alert the inmates and their correspondents that authorities were analyzing the
correspondence. (Id.; see also Ex. A-9 at USAB 670.) They also assert that the FBI
determined that any benefit from not alerting Plaintiffs to the existence of the
investigations was lost once the MSNBC report aired in February 2005. (Id., ¶ 15.)
Plaintiffs do not dispute the substance of the facts in the previous paragraph, but
dispute the credibility of same. They point out that by January 2005, correspondence with
the Spanish prisoners had been halted at the BOP’s request for nearly a year. They assert
that the FBI could not credibly have been concerned that the MSNBC report would alert
them that authorities were reviewing their correspondence as they were already aware of
this fact. (Exs. 11, 118). Indeed, Plaintiffs point to an October 2004 Arabic newspaper
report that they read which stated that authorities who had arrested Achraf found letters
indicating that he had corresponded with some of the men from the World Trade Center
bombing. (See Abouhalima Decl., ¶ 128.)
Prior to airing of the broadcast, the FBI stated that Plaintiffs’ correspondence “should
be handled in accordance with established” Department of Justice [“DOJ”] and BOP
policies. (Exs. 28, 29; see also Ex. 119—MSNBC News Report stating, “Federal officials
tell NBC that the Justice Department failed to restrict communications to and from the three
bombers because key officials didn’t consider them all that dangerous.”). Also prior to the
broadcast, the FBI saw no need to impose SAMs on Plaintiffs, noting that “though SAMs
are not in place on these . . . inmates, this particular facility [ADX] houses many high
priority international terrorism subjects and restricts their communication; consequently, the
opportunities that they would have to recruit other inmates is limited.” (Ex. 126.)
Plaintiffs contend that the SAMs were imposed on them because of political pressure
resulting from embarrassment at the NBC broadcast, rather than any actual security
concerns relating to their correspondence. (See Abouhalima Decl., ¶ 132—ADX warden
stated to Plaintiff that “he knew” that he had already ceased writing letters at the staff’s
direction, “but that he was told to impose these restrictions on me, and there were a lot of
politicians involved”; Ex. 27—noting that the need for the SAMs “may have been influenced
by the broadcast, but it was not in retaliation for it.”) Plaintiffs note an FBI email regarding
the news report which states, “Among the key points of the proposed NBC story will be
‘how could the BOP let this happen?’” (Ex. 12 at US4820.)
The government has determined that Abouhalima’s letters to the Martyrs conveyed
his respect for individuals associated with violent jihad. (Shannon Decl., ¶¶ 28-30; Exs. A21, A-23, Ex. G—Abouhalima Dep. at 93:25-94:9.)7 The government also has determined
that Plaintiffs corresponded with other individuals linked to terrorism. (Shannon Decl.,
¶¶ 30-31; Exs. A-12, A-7, A-24, A-25.)
Defendants further assert that some of
Abouhalima’s post-SAMs correspondence were intended to radicalize the recipient.
(Shannon Decl., ¶¶ 48-53; Ex. A-30.) Abouhalima disputes these assertions, stating he
has refuted the incorrect characterizations of his correspondence and that the FBI struggles
with training personnel to understand the distinction between an observant Muslim and a
Communications Within ADX Before SAMS Were Imposed
Defendants assert that the government has determined that prior to the imposition
of SAMs, Abouhalima promoted the conversion of BOP inmates to a radical interpretation
of Islam. (Shannon Decl., ¶ 35; Ex. A-29 —Translation of July 16, 2002 letter from
Abouhalima.) Abouhalima disputes the characterization of this letter.
Abouhalima was identified by the government as an influential member of the Sunni
Muslim community while he was incarcerated at USP Lompoc. (Shannon Decl., ¶ 35; Exs.
A-7, A-10, A-12.) While Abouhalima disputes this, it is undisputed that he was known as
an inmate with knowledge of Islam who answered questions about Islam for other inmates.
Abouhalima objects to the phrase “[t]he government has determined”, which Defendants use
throughout their statement of facts, asserting that it is so vague that no part of the determination can be
relied upon as a material undisputed fact.
See “FBI Chided for Training That Was Critical of Islam,” New York Times, Sept. 16, 2011, available
Finally, the government has information showing that Abouhalima played a role in
the 1997 murder of a correctional officer at USP Lompoc carried out by another inmate.
(Shannon Decl., ¶ 35; Exs. A-7, A-10, Ex. A-12.) The BOP investigation following the
murder concluded that “Abouhalima’s defined leadership role and responsibility among the
inmates in the Muslim Community and his ability to plan and execute violent acts presents
a significant threat to the staff.”
(Shannon Decl., ¶ 35; Ex. A-26—Request for
Redesignation.) The BOP determined that the safety and security of staff at USP Lompoc
required that Abouhalima be transferred to another institution following the murder. (Id.;
Ex. A-27—Recommendation for Transfer; Ex. A-28—Close Supervision Transfer Request.)
Abouhalima disputes that he played a role in the attack of the correctional officer.
(Abouhalima Decl., ¶¶ 74-85.) He was not given an incident report or criminally charged
for involvement in the killing of the officer.
(Ex. 23—Disciplinary History Report.)
Abouhalima also asserts that notwithstanding the existence of the BOP paperwork, he
never presented a threat to institutional staff warranting ADX placement, and was treated
accordingly, until 9/11. (Abouhalima Decl., ¶¶ 51-65, 783-103; Ex. 23; Ex. 24.)
As to Ayyad, Defendants presented evidence that after an inmate assaulted Ayyad
while he was incarcerated at USP Terre Haute, that inmate had to be placed in protective
custody at his next four institutions because of threats from Muslim inmates. (Shannon
Decl., ¶ 35; see also Ex. A-10 at USAB 644; Ex. A-6 at US 5560; Ex. A-11 at US 14626.)
How the SAMs Promote the Government’s Interests
It is undisputed that the government has an interest in protecting national security,
including preventing acts of terrorism against the United States and its interests. It also has
an interest in promoting the security of its prisons and the safety of correctional personnel
and inmates. Finally, the government has an interest in promoting the effective operation
of its law enforcement agencies by establishing practices designed to efficiently allocate
resources for fighting terrorism, including resources necessary to ensure the integrity of
review of communications for SAMs inmates and resources required for counterterrorism
operations that extend beyond the ADX.
The government determined that Abouhalima’s SAMs help to ensure that he does
not engage in communications that could jeopardize national security, and that without
SAMs, there would be an increased risk that his communications could jeopardize national
security. (Shannon Decl., ¶¶ 36, 58.) In response, Abouhalima asserts that there is a
dispute within the government about whether the SAMs were warranted or appropriate,
citing to an email from a New York FBI Agent regarding the types of reading materials
Plaintiffs could receive while under the SAMs which states, “When it comes to the books
. . . again, I have no objection to these guys reading what they want. The fact that they
were all put under these SAMs based on those bullshit letters is bothersome enough. That
said, they are under SAMs, and if that reading material falls outside what is allowed in the
SAMs. . . then they should not get it.” (Ex. 25) (emphasis added.) Further, the SAMs
origination memo for Abouhalima concludes that, “upon initial review of the brief summaries
of the letters, the FBI does not believe operational planning or guidance on the part of the
1993 TRADEBOM inmates was involved.” (Ex. 26.)
Abouhalima also asserts that the SAMs were actually imposed on him because of
embarrassing coverage in the media relating to the letters (the NBC report). (Ex. 27—
BOP grievance response to 2008 SAMs renewal stating that “the [NBC] broadcast
highlighted the Department’s need to closely monitor your communications . . .The need
for the SAM may have been influenced by the broadcast, but it was not in retaliation for it”).
Defendants assert that Abouhalima is in a position to inspire and radicalize others
to carry out a terrorist agenda because he is among only a handful of people who have
executed and survived a high profile terrorist attack, elevating him to hero status and the
top rank of the Sunni extremist hierarchy. (Shannon Decl., ¶¶ 37-39.) This is disputed by
Abouhalima, again noting that the documentation supporting the SAMs states that “the FBI
does not believe operational or guidance on the part of ’93 TRADEBOM inmates was
involved.” (Ex. 26.) There is additionally no demonstration of Abouhalima “inspiring” or
“radicalizing” others. The fact of Abouhalima’s conviction and sentence was known since
1994, and the 8 ½ years he spent in high-security, open-population prisons did not
radicalize or inspire anyone to commit any acts of terror, and he was treated accordingly
by the BOP. Finally, he asserts that the government has presented no undisputed factual
evidence that anyone, including “Sunni extremist[s],” regards Abouhalima as a “hero,” and
even if this Court were to find this to be a material undisputed fact, it is a factual situation
over which he has no influence.
The government has also determined that communications from terrorists of
Abouhalima’s reputation can reinforce an aspiring terrorist’s resolve and assuage doubts
about carrying out an attack, even where the communications themselves do not discuss
operational planning for a specific attack and might appear superficially benign. (Shannon
Decl., ¶¶ 41-43.) Abouhalima disputes this, arguing that the government is not entitled to
deference on this factual question which must be established at trial. Further, he asserts
that Defendants have presented no undisputed factual evidence in support of this
assertion. To the contrary, after the government discovered the correspondence between
Abouhalima and the Spanish prisoners, the FBI determined that the communications
“should be handled in accordance with established DOJ and BOP policies.” (Exs. 28, 29.)
The government has also determined that Abouhalima’s ability to connect with the
Martyrs and other terrorists demonstrates that he retains the ability to attract the attention
of and to motivate other terrorists, and that without SAMs, his connections to the terrorist
network may be resurrected. (Shannon Decl., ¶¶ 40, 44.) Abouhalima disputes this, and
disclaims any alleged desire to have connections to terrorists. He has testified as to his
actual, benign motivations for engaging in the correspondence in question, and argues that
he engaged in correspondence and had access to media without SAMs for 12 years
without “resurrect[ing]” any “connections to the terrorist network”.
The FBI’s own
documentation states that it “does not believe operational or other guidance on the part of
the ’93 TRADEBOM inmates was involved” in Abouhalima’s correspondence. (Ex. 26.)
Abouhalima’s SAMs facilitate the government’s interest in protecting national
security, according to Defendants, because they sever his connections to the jihadist
network and deprive other terrorists and would-be terrorists from the affirmation derived
from communicating with terrorists of Abouhalima’s status. (Shannon Decl., ¶¶ 44, 60.)
Abouhalima disputes this, asserting this is a core fact in dispute. He contends that no
security interest is facilitated by prohibiting him from calling his brother in Egypt at his work,
but being permitted to speak with that brother if present where a call to a permitted number
is made. (Abouhalima Decl., ¶ 171.) Nor is any national security interest facilitated by the
other communication restrictions imposed upon him. (Id., ¶¶ 147-175.)
Defendants assert that the possibility of active terrorists connecting with Abouhalima
is of heightened concern because he has previously communicated with other terrorists
from prison. (Shannon Decl. ¶ 45.) Abouhalima asserts in response that the BOP has
other mechanisms available to it to ensure this does not occur. Further, the “possibility”
that “active terrorists” might connect with Abouhalima is belied by his history of confinement
and treatment by the government prior to the airing of the NBC report.
The government has determined that individuals like Abouhalima, who have a
history of committing terrorist acts or who have expressed adherence to a radical Islamic
ideology that manifests itself in acts of violence, are likely to attempt to engage in future
acts that advance the goals of jihad and threaten the security of the United States and the
safety of individuals outside the prison. (Shannon Decl., ¶ 46.) Abouhalima asserts that
this is disputed by the actual, innocuous contents of his correspondence.
Finally, Defendants assert that incarceration provides no guarantee that a terrorist
will be unable to continue to participate in terrorist plots.
(Shannon Decl., ¶ 47.)
Abouhalima disputes this, again disclaiming the motives that Defendants ascribe to him.
The government has determined that Abouhalima’s SAMs help to ensure that he
does not engage in communications that could jeopardize institutional security, and that
without SAMs, there would be an increased risk that his communications may jeopardize
prison security. (Shannon Decl., ¶¶ 54, 58.) It has also determined that institutional
practices of jihad that threaten prison security include attacks against personnel and other
inmates, and manipulation of resources by activities such as concerted hunger strikes. (Id.,
¶¶ 55, 80.) Additionally, the government has determined that Abouhalima has the ability
to exert influence among the prison population and has done so in a manner that has
compromised the security of inmates and personnel. (Id., ¶ 56.) Abouhalima disputes this,
arguing that this is rebutted by his Declaration, institutional conduct, and treatment until
9/11. He has not attacked prison personnel or other inmates (Exs. 23, 33)9, and there is
no evidence that his correspondence posed a risk to security or caused a disruption.
Defendants assert that Abouhalima’s SAMs promote institutional security by
lowering the risk of dissemination of communications to him that could lead to violence or
disruption within the prison. (Shannon Decl., ¶ 60.) Abouhalima disputes this, and notes
that this type of communication would be rejected by the BOP’s existing policies.
The government has determined that Abouhalima, having successfully executed the
1993 World Trade Center bombing, has a significant status within the network of terrorists.
Abouhalima disputes this, arguing that the only evidence on this is that Defendants
accorded him such status following the events of 9/11, and imposed greater security
restrictions on him as a result. His conduct since incarceration belies the assertion of such
status. Additionally, he has been characterized as a “low-level operative.” (Exs. 3 & 5.)
While Abouhalima has engaged in hunger strikes to protest his conditions of confinement, these were
not “concerted.” (Abouhalima Decl., ¶ 138.) He notes that hunger strikes are recognized as protected
activity under the First Amendment, and are regulated by BOP policy.
Finally, Defendants assert that convicted terrorists have continued to collaborate in
ways that endanger security in the prison. (Shannon Decl., ¶ 57.) Abouhalima disputes
this as to him, arguing that no evidence was presented that he ever “collaborate[d] in ways
that endanger security in the prison”, and notes again that this is rebutted by his testimony,
records of institutional conduct, and treatment until 9/11.
SAMs Review by Counterterrorism Professionals
According to Defendants, the government has determined that analyzing the
communications of terrorists of Abouhalima’s stature requires different tools than would be
sufficient for analyzing the communications of non-terrorist inmates.
¶ 59.) Abouhalima disputes this, noting that Defendants admit that not all prisoners
convicted of terrorist-related crimes are under SAMs. (Ex. 35—Resp. to Question No. 26.)
In the absence of a specialized review of Abouhalima’s communications designed
to detect terrorist connections, FBI Agent Shannon testified that Abouhalima could more
readily make additional connections with other terrorists.
(Shannon Decl., ¶ 64.)
Abouhalima disputes this, asserting that in the 12 years he was incarcerated prior to the
SAMs he never intentionally made a “terrorist connection” and disclaims any interest in ever
doing so. Additionally, the BOP and FBI provided responses to the OIG Report: BOP
Monitoring of Mail for High-Risk Inmates, in which they documented multiple strategies put
in place between 2006-2008 to ensure careful monitoring of communications of all
prisoners convicted of terrorist crimes. (Ex. 31 at 98-99.)10
Additionally, Abouhalima asserts that the BOP has translators on staff at the ADX and at other BOP
facilities who are capable of monitoring and translating his mail and telephone calls. This is not, however,
necessarily supported by the evidence cited by him.
One aspect of monitoring communications of terrorists of Abouhalima’s stature is the
evaluation of his communications by FBI counterterrorism personnel, including FBI case
agents and translators. (Shannon Decl., ¶¶ 61, 62.)11 Abouhalima’s communications were
not reviewed by FBI agents with training in counterterrorism and FBI translators during the
period when he successfully connected with other terrorists without the government’s
knowledge. (Id., ¶ 63.) Abouhalima notes, however, that his mail during this period was
submitted to ADX staff, open and unsealed, for inspection and that in February 2004, the
BOP stopped the correspondence after determining that it was with prisoners.
The government has determined that, in order to prevent transmittal of
communications that could jeopardize its interests in national and prison security, due
diligence requires a piece-by-piece review of all communications generated by SAMs
inmates. (Shannon Decl., ¶ 61.) Abouhalima notes, however, that the BOP’s policies call
for the very type of review that Defendants argue is unavailable absent the SAMs.
Defendants assert that the government has determined that reasonable limitations
on the quantity of communications for the 21 terrorism SAMs inmates at ADX and USP
Florence are necessary to assure the effectiveness and integrity of the SAMs review and
to ensure that the FBI has sufficient resources to staff all components of the mission of
combating terrorism. (Shannon Decl., ¶¶ 65-66.) Abouhalima disputes this, arguing that
the limitation on quantity of communication is not “reasonable,” and Defendants have
presented no undisputed evidence in support of a contrary finding.
Abouhalima notes in response that his “stature” was not given as a reason for imposing SAMs, and
it is not in fact the reason. (Ex. 25—SAMs imposed because of “those bullshit letters”).
Expanding the scope of communications currently permitted under the SAMs
would decease the amount of time case agents/translators could dedicate to their analysis
and increase the potential for missing dangerous messages. (Shannon Decl., ¶ 65.)
Abouhalima states that this is speculative and conclusory, especially in light of the fact that
he has not communicated dangerous messages and that ADX staff already review all
correspondence and monitor calls and visits. (Ex. 31.) Additionally, he argues there is a
high potential for misinterpreting his correspondence, as demonstrated by mistranslations
that have occurred to date. (Abouhalima Decl., ¶¶ 73, 97, 126, 177, 191, 194, 197.)
Whether the Specific SAMs Promote These Interests
Defendants assert that limiting approved non-legal contacts for correspondence to
immediate family members lessens the risk that Abouhalima could connect with other
members of the terrorist network or act as a conduit in that network. (Shannon Decl.,
¶¶ 68, 69, 71, 75, 79, 81.) Abouhalima disputes this, asserting that the family members
and close friends with whom he seeks to communicate are not members of a terrorist
network. (See Ex. 18, Fatmeh Badra Decl., ¶ 32.) Also, anyone who wishes to visit him
or speak with him via phone must clear a security background check. (Exs. 37, 38.)
The government has determined, according to Defendants, that Abouhalima is
subject to being inspired and further radicalized by incoming communications from
devotees outside the prison. (Shannon Decl., ¶ 79.) Abouhalima disputes this, asserting
that this “determination” is speculative and conclusory, and disputed by his testimony.
Defendants assert that limiting approved non-legal contacts to immediate family
members reduces the potential for “fan mail” from terrorists that could encourage
Abouhalima to engage in acts of jihad within the prison, including hunger strikes or attacks
against correctional officers or inmates. (Shannon Decl., ¶¶ 79, 80.) Abouhalima disputes
this as speculative and unsupported. He has never received “fan mail” from devotees
outside the prison, much less mail that influenced him in his behavior or beliefs. He further
notes he engaged in his longest hunger strikes after the imposition of the SAMs, illustrating
that the SAMs are not effective at reducing the likelihood of him engaging in future strikes.
Defendants assert that limiting approved non-legal contacts to immediate family
members helps to maintain quality analysis of Abouhalima’s communications, by taking into
account limits on the FBI’s resources for review, translation and threat assessment.
(Shannon Decl., ¶¶ 68, 75.) Abouhalima disputes this, arguing that the FBI’s analysis of
his communications while under the SAMs has been incomplete and inaccurate.
(Abouhalima Decl., ¶¶ 73, 97, 126, 177, 191, 194, and 197.) He asserts that there is no
evidence that the FBI’s “quality analysis” is better in any meaningful way than the analysis
that would be available with BOP resources, and that what evidence does exist supports
the opposite conclusion. For example, he points to the fact that Ayyad was corresponding
with his half-sister and the Jordanian embassy after the imposition of the SAMs; later, the
FBI realized that he “was not allowed” such correspondence and required him to stop.
(Compare Exs. 39 and 40.)
The 14-business-day (English) and 60-business-day (foreign language) review
periods for review of correspondence by the FBI allow sufficient time, according to
Defendants, to thoroughly translate and analyze the large volume of correspondence
generated by SAMs inmates and their correspondents. (Shannon Decl., ¶ 70.) While
Defendants assert that the FBI is in compliance with these time frames with respect to
Abouhalima’s correspondence (Milusnic Decl., ¶ 70), Abouhalima denies this. He asserts
that due to excessive delays in translating their mail, even those family members with
whom he has been approved to communicate with have dramatically curtailed their writing.
(Abouhalima Decl., ¶¶ 147, 152—noting that after the imposition of the SAMs,
correspondence in Arabic took more than three months to process), see also Ex. 52—FBI
document noting “delay of inmate mail beyond 14/60 days imposed under SAMs which led
to a hunger strike by several of the inmates”.)
With the gradual lessening of emotions attendant to the passage of time since 9/11,
the government determined that SAMs restrictions could be revised to allow extensive
access to mass communications, including periodicals, books and television. (Shannon
Decl., ¶¶ 82-83.) Abouhalima disputes that his access to mass communications is now
“extensive”. For printed mass communications, Abouhalima is not aware of what is
prohibited until he orders a publication that the government subsequently deems
objectionable. (see Ex. 47). Additionally, he is not allowed any Arabic channels or stations,
unlike Spanish-speaking prisoners who have four channels. (Ex. 43.)
Defendants assert that the government has determined that national and institutional
security interests could be jeopardized if SAMs inmates are allowed access to criticallytimed or coded information through the medium of mass communications. (Shannon Decl.,
¶ 83.)12 Under the SAMs, Defendants state that classified advertisements and letters to the
Abouhalima notes that Defendants have not shown that he possesses the ability, knowledge, or
desire to pass “coded information” through mass communication.
editor are removed from periodicals to eliminate outside agents’ ability to transmit
messages that could pose a threat to national or institutional security, such as messages
concerning terrorist plots, coordinated hunger strikes or attacks against correctional officers
or other inmates. (Ex. B-1, Milusnic Decl., ¶ 57.)
Procedures for Imposing and Renewing SAMs
The Director of the Office of Enforcement Operations [“OEO”], part of the Criminal
Division of the DOJ, testified that the decision whether SAMs are warranted to limit and
monitor the communications of a convicted terrorist implicates national security and the
security of the institution where the inmate is housed. (Ex. C-1, Paul M. O’Brien Decl.
[“O’Brien Decl.”], ¶ 5.) The decision involves an analysis that draws on the multi-faceted
knowledge base of DOJ personnel, including the expertise of the Counterterrorism Section
of the National Security Division [“CTS/NSD”] and the FBI, and the in-depth knowledge of
the inmate’s criminal activity of the United States Attorney’s Office [“USAO”] that
prosecuted the criminal action. (Id., ¶¶ 5-6, 17.)
The evaluation takes into account the totality of the circumstances related to the
inmate and the potential dangers associated with his communications. (O’Brien Decl., ¶ 7;
see also Shannon Decl., ¶ 32.) Abouhalima received such a review prior to the initial
imposition of his SAMs in March 2005 and the subsequent renewals. (O’Brien Decl., ¶¶ 5,
18.) Abouhalima asserts that O’Brien’s testimony belies the perfunctory, pre-ordained
nature of his actual SAMs reviews, and that this is an area of extensive factual dispute.
The deliberative process preceding the imposition of SAMs begins with the USAO
consulting with CTS/NSD and the FBI. (O’Brien Decl., ¶ 16.) The inmate has no input in
this process. The FBI makes the initial assessment as to whether SAMs should be
imposed, considering numerous factors. (Id., ¶¶ 7, 9.) The FBI prepares and forwards to
the prosecuting USAO an initial written assessment. (See Ex. A-10—2005 Origination of
SAMs for Plaintiffs and Salameh.)
If it is determined that SAMs are warranted, a memorandum is prepared and directed
to the OEO. In Abouhalima’s case, the memorandum reflected a collaborative effort
between the prosecuting USAO and CTS/NSD. (O’Brien Decl., ¶ 10; Exs. C-2, C-3.) The
OEO evaluates the written memorandum and can request additional information it deems
necessary. (O’Brien Decl., ¶ 11.) Based on that information, the Assistant Attorney General
makes a formal written recommendation to the Attorney General. If the Attorney General
decides to proceed with the imposition of SAMs, a memorandum is forwarded to the BOP
directing that SAMs be imposed and stating the measures to be implemented.
According to O’Brien, notice of the basis for the SAMs is provided to the inmate by
the BOP. The notice of SAMs to the inmate may be limited, in the interest of preserving
prison security or safety, national security, or to protect against acts of violence or terrorism
(O’Brien Decl., ¶ 15). See also 28 C.F.R. § 501.3(b). Abouhalima disputes that any
meaningful notice of the basis for the SAMs was ever provided to him. (Abouhalima Decl.,
¶¶ 134, 203-212.) He asserts that the “notice of the basis for the SAMs” was simply a
recitation of the SAMs regulation. (See, e.g., Ex. 73—stating SAMs imposed “based on
your proclivity for violence.”) Additionally, Abouhalima asserts that the notice is provided
only after the SAMs have already been imposed, without giving him the opportunity to see
the allegations motivating the SAMs. (Abouhalima Decl., ¶ 134.) The inmate has no input
in the process before this point, and his only recourse after notice is to challenge the SAMs
through the BOP’s administrative remedy program (which does not involve the OEO or other
agencies involved in the imposition of the SAMs.) (Ex. 72, O’Brien Dep., 90:10-91:12.)
O’Brien testified that another review process, involving the USAO, FBI, OEO and
BOP, precedes the expiration of an inmate’s SAMs to determine whether SAMs continue
to be warranted and should be renewed. (O’Brien Decl., ¶¶ 18, 19.) Defendants assert that
inmate input is solicited and considered in connection with the pre-renewal review. (Id., ¶ 8;
(Ex. D-1, Decl. of Mark Collins [“Collins Decl.”], ¶ 16.) Plaintiffs disputes that inmates are
able to provide “input” in connection with the review because they are not told about the
concerns implicating the SAMs so they can explain or respond to those concerns.
(Abouhalima Decl., ¶¶ 203-212; Ex. 74—Ayyad’s 2011 SAMs input form; Ex. 75.)
Since 2010, the annual SAMs renewal review also includes an in-person meeting with
the inmate approximately 90 days prior to the expiration date. (Collins Decl., ¶¶ 18-19.)
Defendants assert that this meeting gives the inmate an additional opportunity to provide
information concerning possible renewal and/or modification of the SAMs. (Collins Decl.,
¶ 19.) Abouhalima asserts that nothing is told to the prisoner at this meeting about the
reasons why the SAMs may be renewed. According to Defendants, information obtained
from the meeting is then forwarded to the USAO, the FBI and the OEO for evaluation. (Id.,
¶ 21.) An in-person meeting with Abouhalima was held on January 6, 2011. Abouhalima
asserts that he was not permitted to meaningfully participate, and was not permitted to give
information on relevant topics related to renewal of his SAMs. (Abouhalima Decl., ¶¶ 20712.)
45 days prior to expiration of the SAMs, the USAO, in consultation with the FBI,
determines whether continued imposition of SAMs is warranted. The USAO provides a
written recommendation to the OEO. If the decision is to renew the SAMs, renewals are
approved by the Assistant Attorney General. Notice of the basis for the renewal of SAMs
is provided to the inmate. (O’Brien Decl., ¶ 22.) Abouhalima again disputes that any
meaningful notice of the basis for renewal of the SAMs was provided to him. (Abouhalima
Decl., ¶¶ 134, 203-212). He asserts the notices are vague. (See, e.g., Exs. 78, 79.)
The SAMs of eleven inmates who have been incarcerated at the ADX have been
removed, with six of those non-renewals occurring since January 1, 2009. (Collins Decl.,
¶ 24.) Defendants assert that information provided by the inmates during the annual prerenewal review process was taken into account in the non-renewal decisions for those
inmates. (Id., ¶ 25.) Inmates whose SAMs are removed may be placed in any BOP
institution consistent with their security and custody classification level (id., ¶ 24), although
Abouhalima notes that some of them remain at ADX or are in CMUs.
The BOP’S Administrative Remedy Program Relevant to the SAMs
The SAMs regulation, 28 C.F.R. § 501.3(e)), designates the BOP’s administrative
remedy program as the means for inmates to challenge decisions concerning SAMs. When
this process is used, Defendants assert that steps are taken to ensure that the inmate’s
challenge reaches all entities involved in the SAMs decision. (Collins Decl., ¶ 10.) The
process operates in much the same way as when the inmate challenges the imposition or
renewals of SAMs. (Id.) ADX personnel forward the inmate’s request to the USAO and FBI
for them to determine if the information submitted by the inmate alters the decision
concerning the imposition or renewal of SAMs. (Id. at ¶¶ 10, 11.) Abouhalima notes,
however, that the OEO is not involved in the process. (Ex. 72, O’Brien Dep., 91:6-8.) He
also asserts that because he is not told the reasons for the SAMs’ imposition/renewal, he
cannot meaningfully address the government’s concerns. (Abouhalima Decl., ¶¶ 203-12.)
The Director of the OEO also has the authority to modify an existing SAM subject to
certain limitations. (O’Brien Decl., ¶ 23.) ADX staff provide information to the USAO and
FBI regarding requested modifications to the SAMs just as with imposition or renewal of the
SAMs. (Collins Decl., ¶ 13.) Modification requests in which the USAO, FBI and CTS/NSD
concur are forwarded to OEO. (O’Brien Decl., ¶ 25.) All relevant information is considered
in evaluating a modification request, including that submitted by the inmate. (Id.)
O’Brien testified that modifications that relax an inmate’s SAMs are made frequently.
(O’Brien Decl., ¶ 24.) Inmates with SAMs have used the administrative remedy process to
achieve modifications permitting the inmate to engage in communications with a larger
group of individuals, allowing the inmate to communicate with prospective attorneys with
whom he has no attorney-client relationship, facilitating faster receipt of periodicals and
books, and modifying the mass communications provisions of SAMs. (Collins Decl., ¶ 14.)
Abouhalima questions whether requests for modifications are appropriately acted
upon. He has been told to request modifications by submitting names and information via
a form (eventually) created by the BOP. He has submitted these names over and over and
has either had them rejected or received no response. (Abouhalima Decl., ¶¶ 204-205; Ex.
85—Abouhalima request—“I am submitting this list for the third time”); Ex. 86.)
Communications Permitted by the SAMS
Defendants note that Abouhalima is allowed a broad variety of communications under
the SAMS, including written correspondence to members of his family. There is no limitation
on the number or length of letters to or from approved non-legal correspondents and
attorneys. (Milusnic Decl., ¶ 31 and Att. 3 and 4; Shannon Decl., ¶¶ 67, 72.) Abouhalima
notes, however, that the SAMS authorized a limit of one letter per week, which was done
in 2006 (Ex. 36) and which could be done again at the warden’s discretion. (Ex. 47.)
Further, he asserts that the SAMs authorize limitations on the number and length of letters
a SAMs inmate can send to his approved non-legal correspondents (Milusnic Decl., ¶ 31),
and that these limitations could be imposed in the future.
Abouhalima also notes in his response that since imposition of the SAMs, he has
requested permission to communicate with approximately 30 total individuals, and (as of the
time of Plaintiffs’ response) four of those requests had been granted. He asserts that
months or years elapsed between the dates when he made these requests and when he
was notified that they had been approved or denied. (Abouhalima Decl., ¶ 247; Abouhalima
Supp. Resp., Ex. 17, Supplemental Decl. of Abouhalima [“Abouhalima Supp. Decl.”], ¶ 5;
see also Ex. 85—letter from Abouhalima enclosing for the third time a list of names, phone
numbers and addresses of family members he wishes to correspond with, “especially after
a couple of my family members died within one month.”) These facts are undisputed,
although Defendants note in their reply that Abouhalima is currently allowed to communicate
with 15 members of his immediate and extended family. In Defendants’ Surreply, they note
that since Abouhalima was moved to Phase Three, his group of social contacts has been
expanded to include six more members of his extended family.
Further, Abouhalima asserts that Defendants’ decision-making regarding his
approved correspondents does not seem to include an assessment of their particular
(Abouhalima Decl., ¶¶ 159-75—describing inexplicable rejections of
correspondence and individual correspondence.) He notes that letters have been rejected
from approved correspondents for a variety of idiosyncratic reasons, reducing the total
amount of correspondence he receives. (Id., ¶¶ 147-169; Exs. 56, 57.) Student attorneys
who signed affirmations acknowledging receipt of the SAMs were denied the opportunity to
correspond with him. (Ex. 58.) Further, Abouhalima asserts that Defendants have made,
and continue to make, significant errors in the translation of his correspondence, and that
there is no effective mechanism by which he can learn of these errors in a timely fashion
and potentially address them. (Abouhalima Decl., ¶¶ 73, 97, 126, 177, 191, 194, and 197.)
The SAMs also allow Abouhalima to receive visits from his approved family members
and attorneys who have signed a SAMs affirmation. (Milusnic Decl., Att. 3 and 4.) The
SAMs place no limits on the number of legal or non-legal visits Abouhalima may receive.
Abouhalima does not dispute this, but notes that the SAMs require that non-legal visits occur
in English and that ADX policy only allows SAMs prisoners to have visits on certain days.
(Ex. 61.) He further notes that ADX policy permits there to be only one SAMs prisoner in
the visiting area at a time, meaning that no visits can occur as to other SAMs inmates. This
results in the need for visitors to wait for weeks for an “open” slot, which has resulted in a
near-total decline in family visits for Abouhalima who had been receiving regular visits prior
to his placement in the ADX. (Abouhalima Decl., ¶¶ 68, 91, 228-232.)
As to telephone calls to approved non-legal contacts, Abouhalima is currently in
Phase Three of the Program, where he receives four telephone calls every month, two more
than inmates in the ADX-GP according to Defendants.
The SAMs afford Abouhalima access to any periodical and newspaper “determined
not to facilitate criminal activity or be detrimental to: national security; the security, good
order, or discipline of the institution; or the protection of the public.” (Milusnic Decl., Att. 3.)
Abouhalima notes, however, that periodicals and newspapers that have rejected do not
meet these criteria, and Defendants’ decision-making on this issue seems to at least in part
be driven by external scrutiny rather than consistent application of these criteria.
(Abouhalima Decl., ¶¶ 155-158; Ex. 2—response to grievance challenging rejection of
Harpers, the Nation and Atlantic Monthly.) Under the SAMs, sections of periodicals and
newspapers “which offer a forum for information to be passed by unknown and/or unverified
individuals,” including classified advertisements and letters to the editor, are removed prior
to distribution. (Milusnic Decl., Att. 3.)
The SAMs also afford Abouhalima access to “all books which do not facilitate criminal
activity or present a substantial threat to national security or the security, discipline, or good
order of the institution.” (Milusnic Decl., Att. 3 and 4.) Defendants assert that SAMs
inmates are permitted to read an almost unlimited number of books, newspapers and
periodicals, including either the Denver Post or USA Today. (Id.,¶¶ 27, 56; Shannon Decl.,
¶ 85.) Abouhalima again notes that rejected books do not meet the above criteria, such as
the World Almanac, and Defendants’ decision-making on this issue seems to be driven by
external scrutiny rather than the consistent application of these criteria. (See Exs. 63, 65.)13
Defendants also contend that the SAMs allow Abouhalima to communicate with
others on a daily basis. Thus, he can communicate with other SAMs inmates during “certain
predesignated times. . .the place and duration to be set” by the BOP. (Milusnic Decl., Att.
3.) Other than in Phase Three of the H-Unit Program, however, communication between
SAMs prisoners is never directly face-to-face. (Ex. 69, Milusnic Dep. at 23-24.) SAMs
inmates also have contact with staff and correctional officers throughout the day. (Milusnic
Decl., ¶ 23.) Abouhalima notes, however, that the brief interactions with staff are limited to
perfunctory, impersonal exchanges made as part of institutional routines, and that
sometimes no words are exchanged at all.
H Unit cells are side-by-side and Defendants assert that they allow communication
between inmates by speaking in moderate tones, or using the air ventilation. (Milusnic
Decl., ¶ 13.) Abouhalima disputes this, stating that inmates must shout in order to be heard
by one another, rendering conversation impossible. Defendants also assert that H Unit
inmates may speak with one another while at indoor or outdoor recreation. (Milusnic Decl.,
¶¶ 13, 19-20.) Abouhalima partially disputes this, stating that when he was taken to indoor
SAMs inmates are also permitted time in a computerized law library that includes access to
LexisNexis (although Abouhalima asserts it has limited features and limits the ability to do legal research).
Further, the BOP provides access to sixty television networks, closed circuit institutional programming,
and five FM radio stations and digital music channels. It is undisputed that Abouhalima watches
television, including news, sports, and movies, and listens to the programming broadcast by ADX
Religious Services (although most of the tapes are in English and have been played repeatedly since
2002). Further, the SAMs allow Abouhalima to receive information from the media, but do not permit him
to contact the media. Further, they allow Abouhalima to participate in the same education courses offered
to other inmates at ADX.
recreation while in Phase Two, he exercised alone with no other prisoners nearby. Other
prisoners were also sometimes not present at outside recreation. (Abouhalima Supp. Decl.,
¶ 7.) When he was with other Muslim prisoners, they were not permitted to pray together.
(Id.; Ex. 69, Milusnic Dep. at 28.)
In October 2013, Abouhalima was moved to Phase Three of the H-Unit Program,
which Program is discussed in more detail below. In Phase Three, SAMs inmates are
permitted to have physical contact with others. (Milusnic Decl., ¶ 39.) They are permitted
a minimum of 1 ½ hours per day on the range in a group of as many as four inmates, five
days a week, where they are not restrained. They eat one meal together and engage in
recreational activities, and may shower at any time they are on the range. They receive a
minimum of 10.5 hours of out-of-cell recreation per week and approximately 20 hours per
week total of out-of-cell time. (Id., ¶ 41.)14
Communications Limitations and Monitoring of All BOP Inmates
All BOP inmates are subject to communications limitations and monitoring. BOP
policy authorizes the agency to monitor the non-legal mail of federal prisoners, without
SAMs restrictions. Each piece of incoming general correspondence and each piece of
outgoing general mail from an inmate in a medium or high security institution is subject to
reading and inspection by BOP staff. A warden is authorized to reject correspondence or
By contrast, in Phase One inmates are permitted two non-legal telephone calls per month, escorted
shower time on the inmate’s range three times each week, and access to a minimum of ten hours of outof-cell recreation per week. In Phase Two, inmates are allowed three non-legal telephone calls per month,
unescorted showers five times each week, and access to a minimum of ten hours of out-of-cell recreation
per week. (Id., ¶ 38.)
a publication “if it is determined detrimental to the security, good order, or discipline of the
institution, to the protection of the public, or if it might facilitate criminal activity.”15
BOP inmates may also be subject to limitations and conditions on telephone
privileges, and their calls are subject to monitoring. Also, ADX-GP inmates are limited to
five social visits per month. However, Plaintiffs note that ADX-GP prisoners may receive
visits from family members every weekend and on holidays, unlike prisoners under SAMs
who may only receive visits on certain weekdays and when no other inmate is having a visit.
Additionally, if for any reason an FBI translator is not available, even for a visit that has been
scheduled months in advance, the visit to a SAMs inmate may be cancelled without notice.
The ADX H-Unit Program
SAMs inmates incarcerated in H Unit have the opportunity to participate in a threephase program called the Special Security Unit Program [“the H-Unit Program”], designed
specifically for SAMs inmates to ensure that national and institutional security are protected.
(Milusnic Decl., ¶¶ 33, 34.) Defendants assert that the success of the inmate’s participation
in the Program provides information that is considered in the evaluation of whether SAMs
continue to be warranted for that inmate. (Id., ¶ 33.)16 The H-Unit Program is, according
to Defendants, the counterpart to the Step-Down Program for ADX-GP inmates. (Id.)
A warden may also place an inmate on Restricted General Correspondence Status, which may limit
the inmate’s incoming and outgoing communications.
Abouhalima disputes this, asserting that there is nothing to suggest that a prisoner’s success in the
Program has any impact on the decision of whether to renew an inmate’s SAMs, and much that suggests
otherwise. (See, e.g., Ex. 91—letter from warden to Shannon recommending against SAMs modification
for Phase Three but stating that Abouhalima’s “behavior and programming have been excellent”).
Abouhalima disputes this, asserting that the programs differ in their influence on conditions
of confinement. Upon completion of the Step-Down Program, inmates may be transferred
out of ADX to an open-population institution. (Ex. 92, 5-6.) Inmates who complete the HUnit Program receive only increased privileges. (Ex. 63.)
Abouhalima was told that while SAMs are imposed on him, he is not eligible for
transfer to an open facility. (Ex. 69—Milusnic Dep at 97:4-20; Ex. 130—“you have a SAM;
accordingly, you are not eligible for transfer at this time); Ex. 132.) Thus, Abouhalima
asserts that he could spend the rest of his sentence in the H Unit if the SAMs are not
removed. Defendants state in response that the Step-Down Program is not the only means
of transferring to a less restrictive environment, as Ayyad’s recent transfer indicates.
An inmate’s advancement to the next phase of the H-Unit Program is a classification
decision as to whether he can function with additional privileges without posing a risk to
institutional security and good order; posing a risk to the safety and security of staff, inmates
or others or the inmate himself; and/or posing a risk to public safety. (Milusnic Decl., ¶ 36.)
The government has determined that, because of the national and institutional security
concerns associated with communications of SAMs inmates, there must be a careful
assessment of whether a SAMs inmate can function in a less-restrictive setting that permits
physical contact with other inmates and correctional staff (as in Phase Three). (Id., ¶ 47.)
In September 2010, the first group of SAMs inmates was selected to advance to
Abouhalima was not included in that group because, according to
Defendants, there were concerns related to certain communications between Abouhalima
and his immediate family members that the government determined evidenced Abouhalima
encouraging radicalized behavior in one of those family members. (Milusnic Decl., ¶ 51.)
A SAMs inmate is evaluated for advancement in the H-Unit Program at least twice
per year, at his six-month program reviews where he may present concerns. (Milusnic
Decl., ¶ 42.)17 If an inmate is not advanced following a review, Defendants assert that ADX
staff communicate the reasons for that decision to the inmate. (Id., ¶ 52.) Abouhalima
disputes that this has occurred as to him. (Abouhalima Decl., ¶¶ 216, 220-23.) Appeals
may be made by inmates through the BOP’s Administrative Remedy Program. (Milusnic
Decl., ¶ 52.)18
Living Conditions in H Unit
The ADX is the most secure prison in the federal system with special security
procedures to control inmates and to enhance the safety of staff, inmates, and visitors. ADX
Inmates under SAMs are housed together in the H Unit to ensure they are not able to
transmit unauthorized communications through other inmates who are not subject to such
restrictions. An inmate’s placement at ADX or in H Unit under SAMs does not impact the
duration of his sentence; his parole eligibility, if applicable; or his good-time credits.
Abouhalima disputes that these are “reviews” in the sense of a meeting or discussion. Inmates do
not know when the reviews are going to occur, and they do not have the opportunity to present information
demonstrating that they should be entitled to progress to the next phase. They also do not know about
and thus cannot address any concerns the BOP may have related to the decision to progress them.
Abouhalima also asserts that these reviews determine eligibility for advancement, not whether
advancement is actually appropriate.
Abouhalima notes, however, that this appeal is considered only by the BOP, not by the FBI, USAO,
or OEO (Ex. 72, O’Brien Dep., 90:16 – 91:12), rendering the appeal meaningless. Indeed, during the
December 2012 meeting regarding the renewal of his SAMs, Abouhalima states he was told that the
decision of whether to progress him to Phase Three belongs to the USAO.
Like all ADX inmates, H Unit inmates are single-celled (one inmate per cell). Each
cell in H Unit has 75.5 square feet of living space, identical in size to the cells for inmates
in the ADX Step-Down Program. H Unit cells are slightly smaller than ADX-GP cells, but
Defendants assert these cells have approximately the same amount of living space as the
ADX-GP cells. Showers for H Unit and the Step-Down Program are located on the range.
ADX-GP units have in-cell showers, which accounts for the slightly larger cell size.19
Like the cells in the ADX Step-Down Program units, each cell in H Unit has a solid
outer door with a window that looks out onto the range (Plaintiffs note that an inmate can
only see a wall and the floor when looking through the window). Also like the Step-Down
Program units, Defendants assert that the cell doors in H Unit are configured in a manner
that allows sound to travel, permitting inmates to converse with passers by. (Milusnic Decl.,
¶ 15.)20 Like the cells in other units, each cell in H Unit has a window that looks outside,
providing the inmate with natural lighting, although the window allows Abouhalima to see
only a brick wall and some exercise cages. Also like cells in other units, cells in H Unit have
a light with three settings which the inmate controls and may turn on and off as needed.21
Like in the ADX-GP units, H Unit inmates consume their meals in their cells (unless
inmates are in Phase Three of the H-Unit Program). The cells allow inmates a walking
Plaintiffs assert that the lack of a shower has a significant impact on H Unit inmates, especially
during lockdowns as prisoners are denied the opportunity to shower for days at a time. (Abouhalima
Decl., ¶ 137.) They assert that the inability to shower is a hardship because cleansing oneself is important
to performing certain acts of worship in Islam.
This is partially disputed by Plaintiffs, who note that on the limited occasions that staff seek to
“converse” with H-Unit inmates, Plaintiffs need to speak loudly in order to be heard.
Plaintiffs dispute this last fact as to the implication that the light switch allows inmates to
escape artificial light. Lights in front of the cell are on 24 hours per day which makes the cell very bright,
regardless of the ability to turn off the cell light. (Ayyad Decl., ¶ 119.)
distance of eight feet, within which they must read, write, sleep, walk, and go to the
bathroom, except when they are permitted to walk around in a comparably-sized outdoor
cage or indoor recreation room. (Abouhalima Decl., ¶ 235, and Supp. Decl., ¶ 7.)
H Unit inmates, like all ADX inmates, can participate in both indoor and outdoor
recreation with access to sunlight and fresh air. Recreation is scheduled up to seven days
per week. Inmates in Phase One and Two of the H-Unit Program receive the same amount
of recreation as ADX-GP inmates, i.e., a minimum of ten hours of out-of-cell recreation per
week. Out-of-cell outdoor recreation for H Unit and ADX-GP inmates occurs with up to five
other inmates in secure, single recreation areas that measure 10 feet by 20 feet. (Milusnic
Decl., ¶ 20; Ex. D-1 at ¶ 33.)22 Inmates in these recreation areas can only take a few steps
in either direction and thus cannot run or walk quickly. Recreation logs for H Unit from
August 2009 through March 2011 show that recreation was cancelled only three times, once
for weather conditions and twice for security reasons. (Milusnic Decl., ¶ 22.)
According to Defendants, H Unit inmates, like all ADX inmates, may talk with each
other while in their cells or during out-of-cell recreation. (Milusnic Decl., ¶ 24; Ex. D-1 at
¶¶ 33a-b.) Plaintiffs dispute this, asserting that the configuration of the cells makes it
difficult, if not impossible, for inmates to “talk” with each other. Yelling through the cement
walls enables only brief exchanges and is not akin to conversation. While a prisoner can
also put his face into the toilet and yell through the plumbing, Abouhalima is unwilling to do.
Plaintiffs assert, however, that sometimes inmates are placed in the cages by themselves or with
only one other prisoner. They further assert that when in the cages, an inmate can see nothing beyond
the cement walls of the enclosure—no grass, trees, or surrounding landscape.
Defendants assert that like other ADX inmates, H Unit inmates have individual blackand-white televisions in their cells. Abouhalima now has access to the same approximately
60 television and radio networks as the other ADX inmates. H Unit inmates may also
participate in the same education courses, wellness programs, and reading materials offered
to other inmates at ADX. Finally, H Unit inmates, like all ADX inmates, may hold paid jobs
as Unit Orderlies, and Abouhalima has been an orderly for several years.
Abouhalima notes that the psychological effects of his confinement at ADX and in H
Unit include depression, anxiety, fear, paranoia, loss of sleep, and loss of appetite.
(Abouhalima Decl., ¶¶ 147-150—describing “devastating” effects of initial SAMs
imposition—and ¶¶ 233-240—describing ongoing effects.)
Summary Judgment Standard
Summary judgment may be granted where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and the ... moving party is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c). “A fact is ‘material’ if, under the governing law,
it could have an effect on the outcome of the lawsuit.” E.E.O.C. v. Horizon/CMS Healthcare
Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). “A dispute over a material fact is ‘genuine’ if
a rational jury could find in favor of the nonmoving party on the evidence presented.” Id.
The burden of showing that no genuine issue of material fact exists is borne by the
moving party. Horizon/CMS Healthcare Corp., 220 F.3d at 1190. “‘Only disputes over facts
that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment.’” Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d
1138, 1148 (10th Cir. 2000) (quotation omitted). When applying the summary judgment
standard, the court must “‘view the evidence and draw all reasonable inferences therefrom
in the light most favorable to the party opposing summary judgment.’” Id. (quotation
omitted). In other words, “‘[t]he evidence of the nonmovant is to be believed, and all
justifiable inferences to be drawn in his favor.’” Tolan v. Cotton, ___ U.S. ___, 134 S. Ct.
1861, 1863 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). “All
doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Sw. Bell
Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991).
The Merits of the Motion
Abouhalima’s First Amendment Claims
Introduction and Standard of Review
Abouhalima asserts that the SAMs infringe on his First Amendment rights of speech
and association. (Third Am. Compl., at 30-31.)23 These claims do not involve a facial attack
upon the validity of the SAMs; rather, Abouhalima challenges the extreme nature of the
specific SAMs imposed on him in light of the alleged absence of a reasonable relationship
between these restrictions and Defendants’ asserted justifications.
Abouhalima asserts he would present evidence at trial to demonstrate that the
imposition and maintenance of the SAMs—especially at the level of severity involved—was
and is both unwarranted by the facts particular to him and was motivated in large part by
As noted previously, Ayyad’s First Amendment claims have been dismissed as moot.
political embarrassment of various public officials. Abouhalima contends that this resulted
in a violation of his First Amendment rights with regard to both incoming correspondence
and publications and outgoing correspondence while in prison, and that this has effectively
blocked his ability to earn his way out of the extreme conditions of confinement to which he
is being improperly and indeterminately subjected.
Defendants argue that Abouhalima’s First Amendment claims fail because the SAMs
bear a rational nexus to legitimate government interests, including its important interests in
national and institutional security. The SAMs are, according to Defendants, a rational
means to limit Abouhalima’s communications given that he is a convicted terrorist whose
actions culminated in a high-profile, successful strike against the United States. Under the
SAMs, Abouhalima is provided a wide range of opportunities to communicate with others
and to access information. Abouhalima may dislike the SAMs, but Defendants assert that
there is no genuine dispute that the SAMs bear a rational nexus to governmental interests.
Turning to my analysis, I first generally note that “[t]he fact of confinement and the
needs of the penal institution impose limitations on constitutional rights, including those
derived from the First Amendment, which are implicit in incarceration.” Jones v. North
Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977). However, “prisoners do
not forfeit all constitutional protections by reason of their conviction and confinement in
prison. Bell v. Wolfish, 441 U.S. 520, 545 (1979). Thus, “a prison inmate retains those First
Amendment rights that are not inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections system.” O’Lone v. Estate of Shabazz,
482 U.S. 342, 348 (1987).
The first case that decided “the appropriate standard of review for prison regulations
restricting freedom of speech” was Procunier v. Martinez, 416 U.S. 396 (1974). It dealt with
the constitutionality of censorship rules restricting inmate correspondence. Id. at 398.
Martinez noted that “[w]hatever the status of a prisoner’s claim to uncensored
correspondence with an outsider, it is plain that the latter’s interest is grounded in the First
Amendment’s guarantee of freedom of speech.” Id. at 408. It also stated, however, that
“the legitimate governmental interest in the order and security of penal institutions justifies
the imposition of certain restrictions on inmate correspondence. Id. at 413. Thus, the
Martinez court was called upon to “determine the proper standard for deciding whether a
particular regulation or practice relating to inmate correspondence constitutes an
impermissible restraint of First Amendment liberties.” Id. It held that a regulation or practice
censoring prisoner mail is justified” if it “further[s] an important or substantial governmental
interest unrelated to the suppression of expression” and is “no greater than is necessary or
essential to the protection of the particular governmental interest involved.” Id.
Next came Turner v. Safley, 482 U.S. 78 (1987), which dealt with a prison regulation
limiting “correspondence between inmates at different institutions.” Id. at 81. Turner found
that the Martinez standard did not apply in that circumstance, distinguishing Martinez as
striking prison regulations that “caused a ‘consequential restriction on the First and
Fourteenth Amendment rights of those who are not prisoners.’” Id. at 85 (quoting Martinez,
416 U.S. at 409). Turner held that “when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to legitimate penological
interests.” Id. at 89. It found that “such a standard is necessary if ‘prison administrators ...,
and not the courts, [are] to make the difficult judgments concerning institutional operations.’”
Id. (quotation omitted).
Finally, the Supreme Court in Thornburgh v. Abbott, 490 U.S. 401 (1989), addressed
the standard of review applicable to incoming correspondence from outsiders to prisoners.
It found a significant distinction between incoming and outgoing correspondence, noting that
“the implications for security [for outgoing mail] are far more predictable”, as “[d]angerous
outgoing correspondence is more likely to fall within readily identifiable categories, including
“escape plans, plans relating to ongoing criminal activity, and threats of blackmail or
extortion.” Id. at 412. On the other hand, it found that incoming letters or publications to
the prison “may be expected to circulate among prisoners, with the concomitant potential
for coordinated disruptive conduct.” Id. Thus, recognizing that “[t]he implications of
outgoing correspondence for prison security are of a categorically lesser magnitude than the
implication of incoming materials”, Thornburgh limited Martinez “to regulations concerning
Id. at 413. It held that Turner’s more deferential standard
should be applied to incoming mail and publications. Id.
The first question I must address is what test applies to determine the constitutionality
of the SAMS restrictions on communications under the First Amendment. Defendants argue
that the Turner
test applies to the claims involving both incoming and outgoing
correspondence. Abouhalima acknowledges that the Turner standard applies to incoming
correspondence, but asserts that the less deferential standard stated in Martinez applies as
to restrictions on outgoing correspondence.
I agree with Defendants that the Tenth Circuit’s decision in Al-Owhali v. Holder, 687
F.3d 1236 (10th Cir. 2012) is instructive on this issue. There, as here, an ADX inmate
convicted of terrorist-related offenses brought a First Amendment claim challenging SAMs
imposed on him. Id. at 1239. The Tenth Circuit applied Turner to the restrictions on both
incoming and outgoing correspondence, without distinguishing between the two. Id. at
1239-40. This is consistent with Gee v. Pacheco, 627 F.3d 1178, 1187 (10th Cir. 2010),
where Turner was applied to a prisoner’s First Amendment challenges to outgoing
correspondence. Similarly, Judge Krieger applied Turner on summary judgment to SAMs
regulations regarding incoming and outgoing correspondence in Mohammed v. Holder, No.
07-cv-02697-MSK-BNB, 2011 WL 4501959, at 7 (D. Colo. Sep. 29, 2011).
While the above cases did not cite Martinez or explain why the court applied Turner
instead of Martinez to the restrictions on outgoing correspondence, I find that application of
the Turner test to both types of communications makes sense in the situation here where
SAMs are imposed to prevent a convicted terrorist from participating in communications that
could jeopardize national security. In this context, as indicated by the evidence adduced by
Defendants, including the Declaration of FBI Agent Shannon, the risks and implications
associated with the inmate’s outgoing communications cannot be deemed “of a categorically
lesser magnitude than the implications of incoming materials.” Thornburgh, 490 U.S. at 413.
Based on the foregoing, I will apply the Turner test to the limitations on both incoming
and outgoing correspondence. Four factors are used to guide the Turner inquiry at the
summary judgment stage, which I address below. Beerheide v. Suthers, 286 F.3d 1179,
1185 (10th Cir. 2002). Turner does not necessarily require that all four factors favor the
government to find that a restriction is rationally imposed. See Beard v. Banks, 548 U.S.
521, 532-33 (2006) (prison policy upheld as reasonable, even though prisoners had no
alternative means of exercising the right). I now turn to those factors.
Analysis of the Turner Factors
The first Turner factor is “whether a rational connection exists between the prison
policy regulation and a legitimate governmental interest advanced as its justification.”
Beerheide, 286 F.3d at 1185. This factor has been held to be “the most important;. . .it is
‘not simply a consideration to be weighed but rather an essential requirement.’” Al-Owhali,
687 F.3d at 1240 (quotation omitted). It is Abouhalima’s “burden to demonstrate that there
is no legitimate, rational basis for the increased communications restrictions.” Id. at 1241.
Defendants assert that the first and most critical interest at issue is the preservation
of national security by preventing acts of terrorism. They note that the evidence establishes
that Plaintiffs are not only terrorists, but “singularly dangerous ones who have demonstrated
appeal to others in the global terrorist network and whose communications outside the
prison raise significant security concerns.”
(Mot. Summ. J., at 62.)
successful participants in one of the most significant terrorist attacks carried out on
American soil, have connections with the Islamic Group and other terrorists, and
communicated from ADX with, among others, members of the Martyrs terrorist cell that was
planning to execute a bombing of the National Justice Building in Madrid.
Defendants also point to the government’s strong interest in maintaining the security
of its prisons, including the safety of staff and inmates, and its interest in efficiently operating
its law enforcement agencies and allocating its resources. They assert that Abouhalima
exerted dangerous influence within the prison, particularly in connection with his role in
inciting another inmate to murder a correctional officer at USP Lompoc. An investigation
concluded that his “defined leadership role and responsibility among the inmates in the
Muslim Community and his ability to plan and execute violent acts presents a significant
threat to the staff” at USP Lompoc, and resulted in his transfer to another institution.
Further, since imposition of SAMs, Abouhalima has engaged in communications that the
government has determined have been intended to radicalize the recipient. Based on these
concerns, the government has determined that, without SAMs, Abouhalima’s
communications could continue to compromise national security and the safety of others.
The SAMs allow the FBI to conduct a comprehensive review of Abouhalima’s
communications that maximizes the government’s ability to reduce these risks.
I find that the concerns articulated above are legitimate governmental interests.
While Abouhalima disagrees with the government’s characterization of his communications
as dangerous and/or a threat to national security, and argues that his intentions are benign,
I do not find that this creates an issue of fact regarding the arbitrariness or illegitimacy of the
governmental interests articulated by Defendants. See Beard, 548 U.S. at 530 (noting that
a court “must distinguish between evidence of disputed facts and disputed matters of
professional judgment” and, with respect to the latter, the court’s “inferences must accord
deference to the views of prison authorities.”).
Indeed, I must afford deference to the Executive Branch’s evaluation of the facts in
assessing risks to national security as an exercise of its “informed judgment.” Holder v.
Humanitarian Law Project, 561 U.S. 1, 33-34 (2010). This is because “when it comes to
collecting evidence and drawing factual inferences in this area, ‘the lack of competence on
the part of the courts is marked. . .and respect for the Government’s conclusions is
appropriate.’” Id. (quotation omitted). Nonetheless, “concerns of national security and
foreign relations do not warrant abdication of the judicial role”, and I do “not defer to the
Government’s reading of the First Amendment, even when such interests are at stake. Id.
I also find that a rational connection exists between imposition of the SAMs on
Abouhalima and the governmental interests articulated above. Defendants assert, and I
agree, that the government did not act irrationally when it concluded that limits on
Abouhalima’s communications are warranted as the SAMs reduce the risk that his
communications could inspire future acts of terrorism. The government has information that
other terrorists wish to communicate with him. Further, it has concluded that, even if
Abouhalima was unaware of the Martyrs’ plot or the content of the communications he
exchanged with them appears superficially benign, the danger to national security remains
significant. Communications with successful terrorists can reinforce an aspiring terrorist’s
resolve. Incarceration provides no guarantee that an inmate will be unable to continue to
participate in terrorist plots—a conspirator in the 1993 World Trade Center bombing helped
orchestrate that attack from prison. United States v. Salameh, 152 F.3d 88 (2d Cir. 1998).
Executive Branch officials relied on their accumulated knowledge about terrorist
threats to make an informed judgment about Abouhalima and the effect of his
communications on others. This is appropriate. As noted by FBI Agent Shannon:
The government must make informed predictions about future conduct based
on past behavior. Persons, like Plaintiffs, who have a history of terrorist acts
or who have expressed adherence to a radical Islamic ideology that manifests
itself in acts of violence, are likely to attempt to engage in acts that advance
the goals of jihad, including conduct that would threaten the security of the
United States and the safety of individuals outside the institution.
(Shannon Decl., ¶ 46.) Defendants assert that the SAMs promote institutional security in
Abouhalima’s case by inhibiting his ability to exert a radicalizing influence on other inmates.
And diminishing the risk that he will himself be further radicalized.
restrictions, he would have easier access to communications from terrorist devotees that
could encourage him to engage in acts of institutional jihad.
While Abouhalima disputes that many of these risks apply to him, and argues that
the severity of the restrictions imposed upon him is driven by the nature and notoriety of his
crimes of conviction and the government’s embarrassment from adverse media attention,
again I find that deference is warranted to these disputed matters of professional judgment.
Beard, 548 U.S. at 530. As noted in a case in this court decided by Judge Krieger, “[t]he
Plaintiff does not directly challenge any of [the government’s] representations; he simply
places a slightly different gloss on them.” Georgacarakos v. Wiley, No. 07-cv-01712-MSKMEH, 2010 WL 1291833, at *12 (D. Colo. March 30, 2010). This is not sufficient to
demonstrate a genuine issue of material fact.24
However, while Defendants have generally shown that the imposition of SAMs on
Abouhalima was rationally related to legitimate penological objectives, that is not the issue.
As to the email by an FBI agent that Abouhalima argues supports an inference that the impetus for
the SAMs was “those bullshit letters” or the embarrassing MSNBC media report related to same rather
than any national or institutional security interest, Defendants have shown that the agent was not involved
in the FBI’s investigation of the letters to the Martyrs terrorist cell and I find this creates no genuine,
material dispute. A single comment expressed by an agent who was not involved in the investigation does
not refute the overwhelming, undisputed evidence establishing the rationality of the SAMs decision in
“[T]he question is not whether SAMs, generally, are rationally related to a penological
objective, but instead whether the Government has shown that there is a rational connection
between the particular SAMs applied to [plaintiff] and a penological objective.” Mohammed,
2011 WL 4501959, at *8. Thus, I turn to the specific restrictions at issue under the SAMs.
The primary restriction relates to limits on the number of family or friends that
Abouhalima can communicate with both through outgoing and incoming correspondence.
At the time the motion was filed Abouhalima was limited to 15 family members; he can now
communicate with more family members. Abouhalima, however, wishes to communicate
with additional family members and/or close friends.
Defendants first argue as a justification that limiting correspondence to immediate
family members and other approved persons lessens the risks that Abouhalima can connect
with other terrorists. This limitation promotes institutional security, according to Defendants,
by severing Abouhalima’s connection with terrorists outside the institution, particularly those
who may be inclined to forward radicalizing “fan mail” that could encourage prison violence.
I find that the restrictions are not, however, rationally related to these justifications. There
is no evidence that the family members or other people Abouhalima has requested contact
with are associated with terrorism or are threats in any manner or that any “fan mail” has
been sent through family. See Mohammed, 2011 WL 4501959, at *8; Sattar v. Holder, No.
07-cv-02698-PAB-KLM, 2012 WL 882401, at *5 (D. Colo. March 15, 2012).
Defendants also assert, however, that the limitation on the number of people that
Abouhalima communicates with ensures that the quality of analysis can be maintained,
giving FBI personnel the opportunity to develop an in-depth familiarity with the inmate and
the persons with whom he communicates. They contend that such restrictions reflect
constraints on the FBI’s review, translation and threat assessment resources, which must
be allocated among all SAMs inmates and the war on terrorism generally. I find that
Abouhalima has not shown that this is arbitrary; instead, Defendants have shown that the
restrictions on the number of people Abouhalima is permitted to communicate with is
rationally related to this legitimate governmental interest.
In so finding, I reject Abouhalima’s argument that this justification is conclusory and
unsupported. FBI Agent Shannon provided testimony on this point. While he did not give
specific details regarding the FBI resources or how they would be impacted if additional
family members were added, citing national security concerns about divulging further details
about allocation of resources, I find that he was not required to. As noted by the Supreme
Court, “conclusions must often be based on informed judgment rather than concrete
evidence, and that reality affects what we may reasonably insist on from the Government.
. . .The Government, when seeking to prevent imminent harms in the context of . . . national
security, is not required to conclusively link all the pieces in the puzzle before we grant
weight to its empirical conclusions.” Humanitarian Law Project, 561 U.S. at 34-35.
The SAMs also prohibit publications that are determined to facilitate criminal activity
or be detrimental to “national security; the security, good order, or discipline of the
institution; or the protection of the public.” Further, they require the removal of classified
advertisements and letters to the editor. I find that there is a rational relationship between
these restrictions and legitimate governmental interests. It is undisputed that the SAMs
permit broad access to mass communications, and prohibiting publications that could
facilitate criminal activity or be detrimental to “national security; the security, good order, or
discipline of the institution; or the protection of the public” is undisputedly a legitimate
governmental interest. While Abouhalima asserts that some periodicals have been rejected
on grounds that do not meet these criteria, this is merely his unsupported opinion. As to the
removal of classified advertisements and letters to the editor, Defendants assert that this
diminishes Abouhalima’s opportunity to receive messages from other terrorists. Plaintiff has
not met his burden of showing that this is not legitimate or rational.
The final restriction at issue relates to the time frame for review and translation of the
correspondence (14 days for English mail and 60 days for foreign language mail). In
practice, Abouhalima asserts that there are delays of up to four months in connection with
his mail. Defendants assert that as to these time frames that a specialized review of inmate
communications by counterterrorism professionals is warranted for sophisticated terrorists
like Abouhalima. They contend that the government needs sufficient time to thoroughly
translate and analyze the large volume of SAMs communications. Translation and analysis
of the communications of convicted terrorists can be complicated, and the government
needs time to ensure that dangerous communications are not missed. Again, Abouhalima
has not shown that this interest is not served by the time restrictions, even taking into
account purported delays. He has also not show that this justification is irrational.
In conclusion, I find that the first Turner factor favors the Defendants.
Alternative Means of Exercising the Right
The second Turner factor is “whether alternative means of exercising the right are
available notwithstanding the policy or regulation.” Beerheide, 286 F.3d at 1185. Resolution
of this factor turns on whether the law requires that Abouhalima have alternate expressions
of communication with the family members he is not allowed to communicate with or
whether he just has to have alternate means of expression generally. Thus, Defendants
have shown that Abouhalima has many forms of expression under the First Amendment.
However, he has no other means of expression with family members whom the government
has not approved contact with under the SAMs.
Turning to the law on this issue, in Turner the Supreme Court found that a regulation
prohibiting certain types of correspondence between inmates at different institutions did not
deprive “prisoners of all means of expression” but “only with a limited class of other people
with whom prison officials have particular cause to be concerned.” Id. at 92. Similarly, in
O’Lone, a First Amendment suit involving policies prevented inmates from attending a
Muslim service, there were no alternative means of attending this service. 482 U.S. at 351.
However, the Supreme Court stated:
In Turner, we did not look to see whether prisoners had other means of
communicating with fellow inmates, but instead examined whether the
inmates were deprived of “all means of expression.” Here ... [t]he record
establishes that respondents are not deprived of all forms of religious
exercise, but instead freely observe a number of their religious obligations ....
[T]his ability on the part of respondents to participate in other religious
observances of their faith supports the conclusion that the restrictions at issue
here were reasonable.
Id. at 352 (emphasis added); cf. Mohammed, 2011 WL 4501959, at *9 (finding that the
plaintiff’s “evidence may be sufficient to show that alternative means of exercising his First
Amendment rights are not available for maintaining his familial associations” because he
could not “communicate by telephone, writing, or personal visit with anyone other than the
... persons approved by his SAMs”).
I find that the test that should be adopted is not whether the SAMs allow Abouhalima
the means to communicate with all family members he wishes to communicate with, but
whether he is deprived of all means of expression in connection with his ability to
communicate with family and maintain his familial associations. See, e.g., Parkhurst v.
Lampert, 418 F. App’x 712, 714-15 (10th Cir. 2011) (right at issue was the right to have
newspapers delivered; the court looked at whether there were alternate means of
expressing the right and found that there were). I find that Abouhalima is not deprived of
all means of expression in connection with that right, as he has been permitted under the
SAMs to communicate with over 15 members of his family. Further, he can communicate
with approved family members through visits and telephone calls. Thus, I find that the
second factor also favors Defendants.
The Effect of Accommodating the Exercise of the Right
The third factor is “what effect accommodating the right would have on guards, other
prisoners, and prison resources generally.” Beerheide, 286 F.3d at 1185. Defendants
argue that removing the SAMs would have a negative impact on the guards and other
inmates in immediate proximity to Abouhalima at ADX as well as persons outside the
institution. Unlike most inmates, he has the ability to transmit inspiring communications far
beyond the prison that could impel aspiring terrorists to carry out an attack that could affect
victims both in the United States and abroad. The government has determined that SAMs
are necessary in Abouhalima’s case to diminish the potential for such errors.
I agree with Abouhalima that Defendants have offered no evidence in support of their
argument that allowing him to receive correspondence from a broader selection of his
relatives would have any realistic, negative impact upon prison staff, inmates, or persons
outside the institution. Again, Defendants have not demonstrated that Abouhalima’s
correspondence with family members, even those who have not yet been approved, pose
any threats or that his family is associated in any way with terrorist groups.
However, Defendants have also presented evidence through FBI Agent Shannon that
allowing broader correspondence to Abouhalima would impact government resources in
connection with the monitoring of his communications, as more resources would be
expended in translating the letters. This evidence shows that the review and translation of
Abouhalima’s communications is conducted by persons with specialized knowledge of the
operation of international terrorism networks and violent extremist ideology and
radicalization, and that time is needed to ensure the quality of review necessary to prevent
a repeat of the Martyrs scenario. Defendants assert that these limitations ensure that the
government has sufficient resources to staff counterterrorism operations that extend beyond
the ADX. I find that this justification is rational and legitimate, and that Abouhalima has not
shown otherwise.25 Accordingly, the third factor also favors the Defendants.
Alternatives That Would Accommodate Abouhalima’s Rights
The final factor is “whether ready, easy-to-implement alternatives exist that would
accommodate the prisoner’s rights.” Beerheide, 286 F.3d at 1185. As Turner notes, “the
existence of obvious, easy alternatives may be evidence that the regulation is not
reasonable, but is an ‘exaggerated response’ to prison concerns.” 482 U.S. at 90. “This is
Again, I reject Abouhalima’s argument that this justification is conclusory and unsupported for the
reasons discussed above in connection with the first Turner factor.
not a ‘least restrictive alternative’ test: prison officials do not have to set up and then shoot
down every conceivable alternative method of accommodating the claimant’s constitutional
Defendants argue as to this factor that the SAMs monitoring regimen bears a direct
relationship to the harms it seeks to prevent, and no ready alternatives promote the
interests. Thus, they assert that the government—utilizing the national security and
counterterrorism expertise of DOJ personnel—has engaged in a comprehensive review of
Abouhalima’s circumstances. Following that review, it concluded that SAMs monitoring
promotes the government’s critical interests, including its compelling interest in national
security. Defendants argue that this conclusion should be afforded substantial deference.
I find that this factor also favors the Defendants. Abouhalima has not presented
evidence sufficient to create a genuine issue of material fact that there are ready, easy-toimplement alternatives that would accommodate his rights. While he points to the fact that
the BOP monitored his conversations before the SAMs were implemented, Defendants
presented evidence that during this monitoring period Plaintiffs were able to successfully
transmit correspondence from the ADX to terrorists located abroad. I agree with Defendants
that the fact that under BOP review, Plaintiffs were able to communicate with the Martyrs
for nearly two years supports the assessment that SAMs are warranted to prevent such
Evidence also has been presented that the FBI has an in-depth
understanding of Islamic extremism and worldwide terrorism networks that the BOP lacks.26
Abouhalima refers to a statement by Les Smith, Director of the BOP’s Counterterrorism Unit, that
“Yes, I believe the Federal Bureau of Prisons has the ability to effectively manage Mr. Abouhalima.” (Ex.
32, p. 8.) However, his reference to being able to “manage” Abouhalima is vague. Importantly, it does not
state that the BOP alone can successfully monitor his communications, and I believe that such an
Abouhalima also relies on September 2006 responses from the BOP and the FBI to
the recommendations in the OIG report: BOP Monitoring of Mail for High-Risk Inmates, in
which they documented multiple strategies put in place between 2006-2008 devoted to
ensuring careful monitoring of communications of all prisoners convicted of terrorist crimes.
(Ex. 31.) Abouhalima asserts that such strategies could be implemented here as an easy
alternative to SAMs monitoring. I agree with Defendants that this is not sufficient to create
a genuine issue of material fact.
First, there is no evidence that the new and sophisticated set of interagency
procedures that Abouhalima thinks could be substituted for the SAMs were actually created
or were ever implemented. Nor is there any evidence that this unidentified monitoring
scheme would have enabled the government to identify significant security information in
a manner equal to that of the FBI—intensive monitoring under Abouhalima’s SAMs. And
there is no evidence demonstrating that any government official—from the BOP, the FBI or
elsewhere—shares Abouhalima’s view that some form of “interagency” monitoring would
have been as effective as the social contacts limits in the SAMs, a view that is notably at
odds with the considered judgment of the Executive Branch counterterrorism personnel who
assessed his risks and determined that FBI monitoring was necessary in his case.27
Most critically, I agree with Defendants that Abouhalima has not presented evidence
showing that the alternative monitoring structure he posits could be implemented “at de
inference from Mr. Smith’s statement is too broad.
There is also no evidence as to how the monitoring scheme would work—which government
personnel would be responsible for monitoring his communications, what training such personnel would
need, what level of language and skill set would be required, and if it would match those of the FBI Joint
Terrorism Task Force case agents, analysts and translators.
minimis cost to valid penological interests.” Turner, 482 U.S. at 91. His “evidence” reduces
to his speculation that there are other forms of available monitoring that equal the
effectiveness of the SAMs. This speculation is not evidence of sufficient “quality and
quantity” to show that there are alternative monitoring structures that are as effective as the
SAMS and which can be implemented at de minimis cost to valid governmental/penological
interests. Thus, I find that the fourth factor also favors Defendants.
Conclusion as to First Amendment Claims
Based on the foregoing, I find that all four Turner factors weigh against Abouhalima
and in favor of the Defendants. Accordingly, I find that the SAMs regulation at issue is valid
under Turner as it is reasonably related to legitimate penological interests. Defendants’
Motion for Summary Judgment is therefore granted as to Abouhalima’s First Amendment
The Procedural Due Process Claims
Both Plaintiffs assert a procedural due process claim relating to their initial transfer
Abouhalima also asserts a due process claim related to his conditions of
confinement in the ADX, asserting that these constitute an atypical and significant hardship.
He argues that this confinement, which includes his transfer to the H Unit in the ADX and
the imposition of the SAMs, blocks his entry to the ADX Step-Down program for ADX-GP
inmates and impacts his ability to transfer out of the ADX to a less restrictive facility.
Statute of Limitations
I first address Defendants’ argument that Ayyad’s due process claim relating to his
transfer to ADX is time-barred. The statute of limitations for any civil action against the
United States is six years from when the “right of action first accrues.” 28 U.S.C. § 2401(a).
“The statute of limitations in section 2401(a) is jurisdictional and not subject to waiver.” AlOwhali v. Mukasey, No. 07-cv-02214-LTB-BNB, 2010 WL 5651033, at *7 (D. Colo. June 17,
2010). Ayyad did not assert a due process claim challenging his transfer until the Third
Amended Complaint filed on April 16, 2009, which was more than six years after his transfer
to ADX on October 4, 2002.
The issue is whether this claim relates back to Ayyad’s previous complaints which
were filed within the applicable six-year time period. “An amendment to a pleading relates
back to the date of the original pleading when ... the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set out—or attempted to be set
out—in the original pleading....” Fed. R. Civ P. 15(c)(1)(B). The purpose of relation back
is “to balance the interests of the defendant protected by the statute of limitations with the
preference expressed in the Federal Rules of Civil Procedure in general, and Rule 15 in
particular, for resolving disputes on their merits.” Krupski v. Costa Crociere S.p.A., 560 U.S.
538, 550 (2010). “‘The rationale of Rule 15(c) is that a party who has been notified of
litigation concerning a particular occurrence has been given all the notice that statutes of
limitations were intended to provide.’” McClelland v. Deluxe Fin. Servs., 431 F. App’x 718,
725 (10th Cir. 2011) (quotation omitted).
I find that Ayyad’s due process claim related to his transfer to ADX relates back to
his earlier complaints and is not time barred. Ayyad alleged in his earlier filings that before
his transfer to ADX he was in open general population receiving all privileges and rights
offered to other inmates. (Ayyad’s Second Am. Compl. at 5.) He further alleged that upon
his transfer to ADX, he was initially housed in a general population unit receiving the same
treatment and privileges as other inmates in that unit but that he lost some of these
privileges when SAMs were imposed. (Id. at 5-8.) While the due process claim referred
primarily to the SAMs, the reference to the transfer to ADX provided Defendants sufficient
notice that this may be at issue in this litigation. Accordingly, summary judgment is denied
as to this issue.
The Merits of the Due Process Claims
The Due Process Clause “shields from arbitrary or capricious deprivation those facets
of a convicted criminal’s existence that qualify as ‘liberty interests.’” Harper v. Young, 64
F.3d 563, 564 (10th Cir. 1995). To sustain a procedural due process claim, the plaintiff must
establish that (1) he has been deprived of a liberty interest; and (2) that the procedures
employed by the defendants in depriving him of that interest were constitutionally
insufficient. Swarthout v. Cooke, 562 U.S. 216, 131 S. Ct. 859, 861 (2011).
Thus, the first issue is whether Plaintiffs have a liberty interest in connection with this
claim. This requires me to assess the “nature” of the interest and whether Plaintiffs
deprivation of it has caused them to suffer “a ‘grievous loss’ of liberty retained even after ···
imprisonment.” Sandin v. Conner, 515 U.S. at 480, 481 (1995). Sandin looked at whether
the prison’s actions constituted a “dramatic departure from the basic conditions of [the
prisoner’s] indeterminate sentence.” Id. at 485. It also looked to whether the action at issue
presented “the type of atypical, significant deprivation in which a State might conceivably
create a liberty interest.” Id. at 486. Thus, Sandin held that liberty interests are “generally
limited to freedom from restraint which imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Id. at 484.
Sandin was applied in Wilkinson v. Austin, 545 U.S. 209 (2005), which addressed
whether inmates had a protected liberty interest in avoiding incarceration at the Ohio
supermax facility. The inmates there were subject to extremely restrictive conditions of
confinement consisting of a prohibition on all human contact, 24-hour illumination of cells,
no outdoor exercise and one hour per day of indoor exercise. Id. at 223. Wilkinson found
that these conditions, along with the fact that transfer to the facility resulted in indefinite
placement and disqualification from parole eligibility, created a liberty interest. Id. at 224.
The liberty interest issue was also addressed by the Tenth Circuit in Estate of
DiMarco v. Wyo. Dep’t of Corrections, 473 F.3d 1334 (10th Cir. 2007). The DiMarco court
noted two issues that arise in determining whether a liberty interest exists: “what is the
appropriate baseline comparison?” and “how significant must the conditions of confinement
deviate from the baseline to create a liberty interest in additional procedural protections?”
Id. at 1341. The court declined to adopt a baseline for the liberty interest inquiry, stating that
there was no “no rigid either/or assessment”, but found that a few key factors were relevant.
These include whether “(1) the segregation relates to and furthers a legitimate penological
interest, such as safety or rehabilitation; (2) the conditions of placement are extreme; (3) the
placement increases the duration of confinement, as it did in Wilkinson; and (4) the
placement is indeterminate (in Wilkinson the placement was reviewed only annually).” Id.
Finally, in the Rezaq case, the Tenth Circuit clarified that the DiMarco factors are not
dispositive and do not “serve as a constitutional touchstone.” Rezaq v. Nalley, 677 F.3d
1001, 1012 and n. 5 (2012). Rather, the proper approach to the baseline question in
assessing conditions in segregated confinement “is a fact-driven assessment that accounts
for the totality of conditions presented by a given inmate’s sentence and confinement.” Id.
at 1012. Rezaq noted that while the Wilkinson conditions can be instructive, they “may not
serve as helpful comparator evidence in all cases.” Id. (emphasis in original). “The ‘ordinary
incidents of prison life’ will differ depending on a particular inmate’s conviction and the
nature of nonpunitive confinement routinely imposed on inmates serving comparable
Finally, Rezaq “read Wilkinson to say that extreme conditions in
administrative segregation do not, on their own, constitute an ‘atypical and significant
hardship’ when compared to ‘the ordinary incidents of prison life.’” Id. at 1013 (quoting
Sandin, 515 U.S. at 484).
The Tenth Circuit in Rezaq found that, even though the conditions at ADX “are
undeniably harsh”, convicted terrorists in the ADX general population unit had no liberty
interest in avoiding confinement in the ADX. 677 F.3d at 1012-17. Consistent with this, no
court in this Circuit has found that conditions in any ADX housing unit implicate a liberty
interest. See Jordan v. Fed. Bureau of Prisons, 191 F. App’x 639, 652 (10th Cir. 2006);
Muhammad v. Hood, 100 F. App’x 782, 783 (10th Cir. 2004); Muhammad v. Finley, 74
F. App’x 847, 849 (10th Cir. 2003); Gowardia v. Stearns, No. 13-cv-00777-KMT, 2014 WL
959487, at 9 (D. Colo. March 12, 2014); McMillan v. Wiley, 813 F. Supp. 2d 1238, 1248
(D. Colo. 2011); Saleh v. Fed. Bureau of Prisons, Nos. 05-cv-02467, 06-cv-01747, 07-cv00021, 2010 WL 5464295, at *7 (D. Colo. Nov. 23, 2010); Matthews v. Wiley, 744 F. Supp.
2d 1159, *8-10 (D. Colo. 2010); Georgacarakos v. Wiley, No. 07-cv-01712, 2010 WL
1291833, *11-13 (D. Colo. Mar. 30, 2010).
Further, Judge Brimmer of this Court found that an inmate housed in the H Unit of
ADX under SAMs did not have a liberty interest in connection with his conditions of
confinement. Sattar v. Holder, No. 07-cv-02698-PAB-KLM, 2012 WL 882401, at *11 (D.
Colo. March 15, 2012). Similarly, Judge Matsch of this Court recently found that the
conditions in the H Unit do not give rise to a liberty interest. Yousef v. United States, No.
12-cv-2585-RPM, 2014 WL 1908711, at *5 (D. Colo. May 13, 2014); see also Allmon v.
Wiley, 2011 WL 4501941, at *15 (D. Colo. Aug. 25, 2011) (“The evidence shows that the
conditions of confinement in H Unit do not differ in any meaningful way from those in other
ADX units and do not implicate a liberty interest.”), adopted by 2011 WL 4501937 (D. Colo.
Sep. 27, 2011).
Nonetheless, as this is a fact driven assessment, I turn to the relevant factors to
determine whether Plaintiffs have shown a liberty interest in connection with their claims.
As in Rezaq, I find that the four factors recited in DiMarco are appropriate in this case.
Legitimate Penological Interest
The first factor is whether Plaintiffs’ transfer to ADX and the conditions of confinement
there, including placement in the H Unit and imposition and renewal of the SAMs, further a
legitimate penological interest. I find that they do. Defendants have asserted an interest
in protecting national security, including preventing acts of terrorism; promoting the security
of its prisons, correctional personnel and inmates; and in promoting the effective operation
of its law enforcement agencies by establishing practices designed to efficiently allocate
resources for fighting terrorism, including resources necessary to ensure the integrity of the
review of communications for SAMs inmates.
Defendants have further shown that these interests are reasonably related to their
decisions to transfer Plaintiffs to the ADX and impose SAMs based on Plaintiffs’ past
terrorist activity, communications with other terrorists, and conduct prior to their transfer to
the ADX.28 FBI Agent Shannon described the nature of Plaintiffs’ crimes and affiliations with
other terrorists; the information on which the government based its evaluation of the
continuing risks of their communications, including the FBI’s investigation of Plaintiffs and
the members of the Martyrs terrorist cell; Plaintiffs’ pre-SAMs communications with other
terrorists and associates of terrorists; and information explaining the basis for the conclusion
that Plaintiffs can inspire terrorism both within and outside the institution, even years after
the bombing of the World Trade Center. (Shannon Decl., ¶¶ 6-9, 10-17, 26-31, 35-57.) I
find that these conclusions made as matter of professional judgment are entitled to
deference. Humanitarian Law Project, 561 U.S. at 33-34.
Indeed, the Tenth Circuit found that addressing national security risks posed by
inmates with terrorist ties and sympathies is a legitimate, “uniquely federal penological
interest.” Rezaq, 677 F.3d at 1014; see also Yousef v. United States, 2014 WL 1908711,
at *2. Rezaq further noted that the court “has upheld an inmate’s placement in segregation,
even for an extended period of time, for safety reasons.” 677 F.3d at 1013 (citing DiMarco,
473 F.3d at 1342).
On the latter issue, for example, Defendants point to the fact that the government has information
showing that Abouhalima played a role in the 1997 murder of a correctional officer at USP Lompoc, and
that after an inmate assaulted Ayyad while he was incarcerated at USP Terre Haute, that inmate had to be
placed in protective custody at his next four institutions because of threats from Muslim inmates.
Plaintiffs argue, however, that there are genuine issues of material fact as to whether
those interests are “legitimate” with respect to them. For example, while Defendants refer
to their crimes of conviction and their correspondence with the Spanish prisoners as
justifications, Plaintiffs assert that the evidence at trial would show that they successfully
served their sentences in USPs for seven years prior to September 11, 2001, when they
were transferred to ADX. Those transfers were ordered by Defendants, even though
Plaintiffs assert they did not meet the criteria for placement in ADX in effect at the time of
their transfers and they were not transferred pursuant to the BOP’s own procedures.
Plaintiffs further assert that the legitimacy of the government’s interests in connection with
its actions as to them is undermined by Defendants’ own documents that call into question
the FBI’s conclusions, particularly as to the renewal of the SAMs.
While I recognize that there are disputes about the justifications for imposition or
renewal of the SAMs and other actions as they relate to Plaintiffs, I still find that the first
factor has been satisfied. First, the fact that Plaintiffs were safely able to function in less
restrictive environments prior to their transfer to ADX is not dispositive. As Judge Brimmer
noted in a similar case, “the threat posed by plaintiffs was not that they might act out in
prison, but that, following September 11, they might contact individuals on the outside and
therefore posed a threat to national security.” Saleh, 2010 WL 5464294, at *4.
Second, regardless of whether Plaintiffs met the criteria for placement in ADX in
effect at the time of their transfers and/or were transferred pursuant to the BOP’s
procedures, it is undisputed that in deciding to place Plaintiffs at ADX, the government
properly relied on their underlying criminal conduct involving blowing up the World Trade
Center and institutional conduct while at the USPs. (Exs. E-3 and E-4.) See McMillan v.
Wiley, 813 F. Supp. 2d 1238, 1241 (D. Colo. 2011) (“Plaintiff’s criminal history supports his
placement at the ADX based on a legitimate penological interest.”).
Similarly, the government relied on Plaintiffs’ underlying conduct in connection with
their crimes in imposing the SAMs. (See Abouhalima Supp. Resp., Ex. 1.) Magistrate
Judge Mix of this Court rejected a similar argument as to the SAMs in the Sattar case,
where the plaintiff argued that there was no legitimate penological interest supporting the
SAMs restrictions because there was no nexus between the SAMs and any behavior by
plaintiff since his incarceration. 2012 WL 882401, at *7. She noted that “the penological
interest need not be related only to post-incarceration conduct” and “[p]rison officials are
permitted to consider the nature of the underlying crime for which a prisoner was convicted.”
Moreover, as discussed previously, courts are cautioned to distinguish between
evidence of disputed facts and disputed matters of professional judgment that are entitled
to deference. Beard, 548 U.S. at 529. Regardless of how Plaintiffs characterize or view the
matters of judgments by the Defendants, they have not pointed to sufficient evidence
regarding such matters to allow them to prevail on the merits. Id.
For example, Abouhalima points to the 2011 renewal notice which states that the
SAMs are necessary because of the government’s belief that “inmates like you have
demonstrated the ability to remain operational” (emphasis added), and that Abouhalima’s
crime of conviction “carries with it the potential for other inmates to not only see you as a
source of guidance and inspiration, but also to radicalize others who may be inclined to
commit acts of terrorism.” (Abouhalima Supp. Resp., Ex. 1 at 2) (emphasis added.)
Whether or not these actual events have transpired, Plaintiffs present no evidence to refute
that these beliefs were part of the government’s professional judgment. As Judge Matsch
stated in the Yousef case, “Yousef may be frustrated that he remains a motivating force for
extremists, that is not. . . out of his control; no one forced Yousef to bomb the World Trade
Center.” Id. This sentiment applies equally here.
Indeed, the government is not required to “prove” that its information about
Abouhalima shows that his confinement in the ADX under SAMs “is essential” to protect its
interests. Rezaq, 677 F.3d at 1014 (emphasis added). The government’s “conclusions
must often be based on informed judgment rather than concrete evidence.” Humanitarian
Law Project, 561 U.S. at 34-35. In this case, however benign Plaintiffs’ actions may have
been while in ADX, their crimes “remain one of the most infamous terrorist attacks on
United States soil, and. . .the threat of Islamic extremism is clear and present.” Yousef,
2014 WL 2892251, at *2. The government must be given some deference as to its
professional judgment about the threat Plaintiffs pose and how to address it.
Plaintiffs contend, however, that findings in the Government Accounting Office’s
[“GAO”] Report entitled, Improvements Needed in Bureau of Prisons’ Monitoring and
Evaluation of Impact of Segregated Housing, support their assertion that there is a genuine
issue of material fact as to whether the conditions of confinement in the ADX and under the
SAMs serve Defendants’ articulated governmental interests. The Report noted that “BOP
has not assessed the extent” to which ADX and other segregated housing units “impact
institutional safety for inmates and staff.” (Abouhalima Supp. Resp., Ex. 6 at 33.) It further
observed, “without an assessment of the impact of segregated housing, BOP cannot
determine the extent to which placement of inmates in segregation contributes to
institutional safety and security.” (Id. at 36.) I reject Plaintiffs’ argument.
As Defendants note in their Supplemental Reply (ECF No. 371), the GAO report
makes no factual findings that are material to Plaintiffs’ claims, i.e., it does not include facts
that would enable Plaintiffs to show that their transfers to or confinement in the ADX under
SAMs fail to promote security. It merely recommends that the BOP undertake studies to
obtain statistical data. As such, it has no bearing on decisions by Executive Branch security
professionals about how to manage Plaintiffs’ particular confinement to protect security
interests, especially the government’s preeminent interest in preserving national security.
Finally as to the first factor, Plaintiffs argue that while an asserted penological
justification may be pertinent to the sufficiency of the process ultimately accorded to them,
it does not bear upon a determination as to whether their conditions of confinement
themselves impose an “atypical and significant hardship.”
They argue the alleged
penological interest should be considered only during the actual due process hearing or
other review procedures accorded to them. This argument was specifically rejected in
Rezaq, 677 F.3d at 1013, and I reject it here.
Based on the foregoing, I find that the first factor weighs against finding a liberty
Conditions of Confinement
The second factor addresses whether the conditions of confinement are extreme.
In determining this issue, the Tenth Circuit stated “it is appropriate to compare the nature
of the challenged conditions to the type of nonpunitive confinement routinely imposed on
inmates serving comparable sentences.” Rezaq, 677 F.3d at 1014. It further noted that a
comparison to the conditions at the Ohio supermax facility at issue in Wilkinson can be
instructive when considering conditions in segregated confinement. Id.
Applying this analysis to Plaintiffs, while the conditions at ADX “are undeniably
harsh”, Rezaq, 677 F.3d at 1014, I find they are not extreme, even under the additional
conditions that Abouhalima is under in connection with the SAMs and H Unit. I first note that
Plaintiffs, convicted terrorists, are the very types of inmate who are routinely subject to
nonpunitive restrictive confinement and who can reasonably expect to find themselves in
such conditions at some point during their incarceration. The limitations on communications
imposed by the SAMs are also a type of non-punitive restriction an inmate with
Abouhalima’s history should expect to have.
Indeed, limitations on unfettered
communications between inmates and the outside world are a hallmark of prison life, not a
“dramatic departure” from it. See Sandin, 515 U.S. at 485.
I also agree with Defendants that there are important differences between the
conditions at the Ohio supermax prison found to be extreme in Wilkinson and Plaintiffs’
conditions at ADX. These differences include ADX inmates’ ability to communicate with
other inmates during recreation and through their cells (even though Plaintiffs assert that
such communications are very difficult) and to have five “no contact” social visits and two
fifteen-minute phone calls per month. Id. at 1015 and n.6. Further, in the H Unit in ADX,
unlike the conditions in Wilkinson, inmates have control over the lights in the cell, a window
in the cell, opportunity for outdoor exercise (even if recreation is occasionally cancelled due
to weather or institutional issues), the opportunity for social visits and the ability to
communicate with approved family members, and regular contact with staff and other
inmates (even if very brief). See Rezaq, 677 F.3d at 1014-15.29 Inmates in Phase One and
Phase Two of the H-Unit Program receive the same amount of recreation as ADX-GP
inmates, and inmates in Phase Three receive more . Moreover, the conditions in H Unit are
nearly identical to those in the ADX-GP and Step-Down Program units, which no court has
found to deprive an inmate of a liberty interest.30 As in Allmon, Abouhalima’s “complaints
about H Unit are minor matters of degree. He does not show any significant conditions
between the conditions of confinement in H Unit and other ADX units that courts have
considered in finding no protected liberty interest.” 2011 WL 4501941, at *15.31
In short, Plaintiffs have not provided evidence that the conditions they experience(d)
at ADX, even in H Unit and under the SAMs, are extreme or that they differ materially from
the conditions experienced by the plaintiffs in Rezaq, Jordan, Georgacarakos, or Allmon.
“These conditions are common to many high-security prisons around the country, and can
hardly be said to violate contemporary standards of decency.” Georgacarakos, 2010 WL
Defendants present evidence that the same or similar type of inmate-to-inmate communications and
recreation opportunities are available for SAMs inmates in H Unit as those in the ADX-GP, and that SAMs
inmates have access to even more visits and telephone calls than inmates in the ADX-GP. This is
particularly true now that Abouhalima has been moved into Phase Three of the H-Unit Program.
As to the length of Abouhalima’s confinement, it appears to be similar to that in Georgacarakos,
2010 WL 1291833, at *11 n. 13. Abouhalima has not cited any authority that the duration of his
confinement is, alone, an atypical and significant hardship. Instead, the Tenth Circuit has indicated that
duration is to be “considered in tandem with indeterminacy.” Rezaq, 677 F.3d at 1016.
Although Plaintiffs did present evidence regarding less restrictive conditions at USPs in which they
were housed prior to their transfer to ADX, I find that is not the appropriate baseline. See DiMarco, 473
F.3d at 1341-42; Yousef, 2014 WL 2892251, at *2.
1291833, at *12. Accordingly, I find that the second factor favors Defendants and weighs
against finding a liberty interest.
Duration of Confinement
The third factor is whether the placement increases the duration of the confinement.
DiMarco, 473 F.3d at 1342. Here, it is undisputed that neither the SAMs nor incarceration
in ADX and the H Unit deprives Plaintiffs of parole eligibility. Accordingly, they do not (or
did not as to Ayyad) extend the length of their incarceration. While Plaintiffs argue that this
factor is not pertinent in this case given the length of their sentences coupled with the
elimination of federal parole, I disagree. Rezaq rejected that argument, finding the fact that
confinement in the ADX did not lengthen the plaintiffs’ sentences was a crucial factor in the
liberty interest analysis—one that strongly supported the finding that no liberty interest
exists. Rezaq, 677 F.3d at 1016. Accordingly, I find that this factor also weighs against
finding a liberty interest. See also Saleh, 2010 WL 5464295, at *13; DiMarco, 473 F.3d at
The fourth factor, whether the placement is indeterminate, is “a critical consideration
in liberty interest analysis.” Rezaq, 677 F.3d at 1016. Defendants recognize that if an
inmate’s deprivation is indeterminate or legally indefinite, that factor can support a finding
that the inmate has been deprived of a liberty interest. But they assert, and I agree, that the
Tenth Circuit has indicated that the availability of regular reviews suggests that the
confinement was not legally “indefinite” or indeterminate. Rezaq, 677 F.3d at 1016 (holding
that status at ADX not indeterminate where inmate received twice-yearly program reviews,
even when those conditions are not of a “predictably finite” length); DiMarco, 473 F.3d at
1343-44 (confinement not indefinite where inmate had regular evaluations with team who
interviewed her); Saleh, 2010 WL 5464295, at *14 (same); cf. Wilkinson, 545 U.S. at 224
(finding that placement at Ohio supermax prison was indefinite because, after an initial 30day review, placement was reviewed just annually).
Defendants present evidence that before Plaintiffs’ transfer to ADX, the BOP
conducted multi-level regional reviews as to their placement in ADX. They further present
evidence that upon arrival at the ADX, Plaintiffs had the opportunity to raise challenges to
their transfers during program reviews and through the BOP’s administrative remedy
program. (Ex. E-1, Keller Decl., ¶ 28.) Their “opportunity to respond” to the transfer did not
have to occur in advance of the transfer to satisfy due process. See Mathews v. Eldridge,
424 U.S. 319, 339-40 (1976) (holding that evidentiary hearing was not required prior to
termination of social security disability benefits); see also DiMarco, 473 F.3d at 1344-45 (no
due process violation where inmate placed in administrative segregation without notice and
hearing upon intake, but prison subsequently provided periodic reviews of the inmate’s
status). More recently, Plaintiffs received retroactive hearings regarding their placement at
ADX, including notice of the factual basis for ADX placement, an opportunity for rebuttal in
the form of a hearing, and the opportunity for further review by BOP officials.
As to the SAMs, Defendants have presented evidence that a comprehensive, multilevel review precedes the imposition and annual renewals of the SAMs, and has yielded
information considered in decisions not to renew SAMs as to some inmates. Abouhalima
participates in this review by submitting written comments and meeting in person with
government officials. Abouhalima also receives program reviews, which occur at least two
times each year and determine his level of placement in the H-Unit Program. Defendants
assert that this additional review gives Abouhalima an opportunity to demonstrate positive
behavior that officials can take into account in the SAMs assessment. I find that “[t]hese
periodic reviews include procedural protections, including the chance to appeal decisions
through an administrative process.” Rezaq, 677 F.3d at 1016.
While Plaintiffs argue that these reviews are meaningless as the process is linked to
historical or status criteria that they have no ability to change and/or assert that they cannot
meaningfully participate in the reviews, this is not dispositive. “The Tenth Circuit has said
that ‘it is not necessary[,]’ in considering the fourth DiMarco factor, ‘to closely review the
process. . . .’” Yousef, 2014 WL 2892251, at *3 (quoting Rezaq, 677 F.3d at 1016). How
an inmate’s “confinement conditions are reviewed is a separate question from the frequency
with which they are reviewed.” Id.; see also Rezaq v. Nalley, No. 07-cv-02483-LTB-KLM,
2010 WL 5157317, at *12 (“[a]though Plaintiff contends that these reviews are meaningless,
he does not dispute that they occurred and that he had some opportunity to participate”).
Abouhalima also argues that his confinement is indeterminate because without the
termination of the SAMs (which are themselves indefinite), he cannot participate in the ADX
Step-Down Unit and thus, cannot be transferred out of ADX. He cites cases that, while
finding that the conditions at ADX did not pose an atypical and significant hardship,
emphasized that the critical factor was that the conditions were not indefinite because the
inmates had access to the Step-Down program. See Georgacarakos, 2010 WL 1291833,
at *13 (noting the plaintiff could transfer out of ADX upon completing the step down
program, and that he “holds the keys” to his own release from the ADX); Rezaq, 2010 WL
5157317, at * 13 (noting that the option of the step down program was not foreclosed to
plaintiff and thus his confinement was not indefinite); Saleh, 2010 WL 5464294, at *5. At
the very least, Abouhalima argues this raises a genuine issue of fact as to the indefinite
nature of his confinement. Again, I reject this argument.
According to Abouhalima, the only thing preventing him from entering into the StepDown Program is the imposition of his SAMs. I reject this argument, as the SAMs are not
indeterminate. They are reviewed annually, with Abouhalima’s input, to determine if they
are still appropriate. Defendants can decide at any of these annual reviews to terminate the
SAMs, at which time Abouhalima would be eligible to participate in the Step Down Program.
Moreover, Ayyad’s SAMs were terminated and he was transferred out of ADX in a matter
of weeks without participation in the Step-Down Program. Thus, Abouhalima’s argument
that the ADX Step Down Program for general population inmates is the only route out of the
ADX is belied by the history of this case.
Based on the foregoing, I find that the fourth factor favors the Defendants.
Summary of Liberty Interest Factors
In conclusion, I find that all four factors weigh against Plaintiffs. Accordingly, I find
that Plaintiffs have not demonstrated a protected liberty interest in connection with their
transfer to ADX and/or conditions of confinement in ADX in the H Unit and under SAMs.
Having found that there is no protected liberty interest, I need not determine whether
Plaintiffs were afforded the appropriate procedural protections. Defendants’ Motion for
Summary Judgment is granted as to Plaintiffs’ due process claims.
Based on the foregoing, it is
ORDERED that Defendant’s request for reconsideration of my Order of October 10,
2012, denying Defendants’ Motion to Dismiss Ayyad’s Claims as Moot as to Ayyad’s due
process related to his transfer to ADX is DENIED. It is
FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
259) is DENIED AS MOOT as to Ayyad’s due process claim as to his ongoing confinement
in ADX, his request for injunctive relief for a transfer from the ADX to another less restrictive
facility, and his First Amendment claims as these claims were previously dismissed. It is
GRANTED as to all remaining claims in this case, including Abouhalima’s First Amendment
claims and Plaintiffs’ procedural due process claims. Judgment shall enter in favor of
Defendants and against Plaintiffs on their remaining claims in this consolidated action.
Dated: September 24, 2014
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
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