Abdulmutallab v. Sessions et al
Filing
121
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 79 MOTION to Dismiss Amended Complaint filed by Federal Bureau of Prisons, Jefferson Sessions by Magistrate Judge Kathleen M. Tafoya on 3/6/2019. RECOMMENDS that Defendants' Motion to Dismiss Amended Complaint 76 beGRANTED in part, that Claims 7, 11, 12, and 13 be dismissed without prejudice pursuant to Fed. R. Civ. P. 12(b)(1), and that Claims 2, 3, 4, 5, and 14 be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6). The court further RECOMMENDS that the motion be DENIED in part as moot as to Claims 1 and 6, which this court does not address in this Recommendation based on its previous Recommendation (Doc. No. 120 ) that Defendants be granted summary judgment on those claims for Plaintiff's failure to exhaust his administrative remedies. (tsher, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17–cv–02493–RM–KMT
UMAR FAROUK ABDULMUTALLAB,
Plaintiff,
v.
JEFFERSON SESSIONS, Attorney General of the United States, in his official capacity,
FEDERAL BUREAU OF PRISONS,
JOHN DOES 1 THROUGH 20, in their official capacities,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Kathleen M. Tafoya
This matter comes before the court on Defendants’ “Motion to Dismiss Amended
Complaint [76]” (Doc. No. 79 [Mot.], filed May 11, 2018). Plaintiff filed his response on June 8,
2018 (Doc. No. 93 [Resp.]), and Defendants filed their reply on June 28, 2018 (Doc. No. 103
[Reply]).
STATEMENT OF THE CASE
Plaintiff is an inmate housed at the United States Penitentiary–Administrative Maximum
(“ADX”) in Florence, Colorado. (Doc. No. 76 [Am. Compl.], filed April 14, 2018, ¶ 4.)
Plaintiff is serving four terms of life imprisonment plus 50 years for his convictions for the
attempted use of a weapon of mass destruction on a commercial airliner that landed in Detroit
Michigan, and the attempted murder of the 289 people on board. (Id., ¶1.) ADX is the highest
security prison operated by the Federal Bureau of Prisons (“BOP”). (Id.) Before transferring
Plaintiff to long-term solitary confinement at ADX, the United States government placed
Plaintiff under Special Administrative Measures (“SAMs”). (Id., ¶ 7.)
The SAMs allow Plaintiff to communicate through writing, calls, and personal visits with
his immediate family, his list of authorized contacts (including his step-sisters, uncle, and stepmother), and his attorneys and related legal providers. (Mot., Ex. 41, ¶¶ 1.c, 2, 3.) Plaintiff is
allowed to communicate and visit with consular representatives (id. ¶ 11), as well as to
communicate with the U.S. courts, federal judges, U.S. Attorney’s Offices, members of the U.S.
Congress, the Bureau of Prisons, and federal law enforcement entities (id., ¶ 3.g). Plaintiff is
permitted to communicate with non-terrorist inmates during predesignated times. (Id., ¶ 1.c.)
Plaintiff is otherwise prohibited from communicating with other persons, but he may request
additional approved contacts, who are evaluated “on a case-by-case basis.” (Id. at 9 n.7.)
Plaintiff may access mass communications, including television, newspapers, books, and other
publications so long as they do not facilitate criminal activity, harm national security, or harm
the security, good order, or discipline of the institution. (Id., ¶ 8–9.) Plaintiff is not permitted to
communicate with the media. (Id., ¶ 4.) The Department of Justice found that such restrictions
are reasonably necessary to prevent Plaintiff from committing, soliciting, or conspiring to engage
in additional criminal activity, to prevent him from receiving and acting upon critically timed
messages, and to prevent him from advocating or inciting terrorist, criminal, and/or violent
offenses. (Id. at 16–17.)
1
The court takes judicial notice the March 2012 SAMs, as the document is referred to in the
complaint and is central to Plaintiff’s claims. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007).
2
Plaintiff brings this civil action with 14 claims challenging his conditions of confinement.
In Claim 1, Plaintiff alleges that his transfer to the ADX in 2012 violated due process. (Compl.,
¶¶ 284–88.) In Claims 2 through 5, Plaintiff alleges his SAMs violate the First and Fifth
Amendments. (Id., ¶¶ 289–316.) In Claims 6, 7, 11, 12, and 13, Plaintiff alleges the BOP’s
actions related to his hunger strikes in 2012 and 2015 violated the First, Fifth, and Eighth
Amendments, as well as the Religious Freedom Restoration Act (“RFRA”). (Id., ¶¶ 317–33,
359–83.) In Claims 8, 9, and 10, Plaintiff alleges that the BOP violated RFRA by denying group
prayer with other inmates, regular access to an imam, and a halal diet. (Id., ¶¶ 334–58.) In
Claim 14, Plaintiff alleges that the overall conditions of his confinement constitute cruel and
unusual punishment. (Id., ¶¶ 384–95.) Plaintiff seeks purely prospective declaratory and
injunctive relief for the alleged violations. (Id. at 82–83.)
Defendants move to dismiss Claims 1 through 7 and 11 through 14 of Plaintiff’s
Amended Complaint.2 (Mot.)
STANDARDS OF REVIEW
A.
Lack of Subject Matter Jurisdiction
Federal Rule of Civil Procedure Rule 12(b)(1) empowers a court to dismiss a complaint
for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is
not a judgment on the merits of a plaintiff=s case. Rather, it calls for a determination that the
court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than
the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)
This court does not address Claims 1 and 6 in this Recommendation, as it previously
recommended that Defendants be granted summary judgment on those claims for Plaintiff’s
failure to exhaust his administrative remedies. (Doc. No. 120.)
2
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(recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction
when specifically authorized to do so). The burden of establishing subject matter jurisdiction is
on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th
Cir. 1974). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings
in which it becomes apparent that jurisdiction is lacking.” See Basso, 495 F.2d at 909. The
dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006); see also Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (noting that
dismissals for lack of jurisdiction should be without prejudice because a dismissal with prejudice
is a disposition on the merits which a court lacking jurisdiction may not render).
A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the
complaint, without regard to mere conclusionary allegations of jurisdiction.” Groundhog v.
Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however,
the Court may consider matters outside the pleadings without transforming the motion into one
for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Where a
party challenges the facts upon which subject matter jurisdiction depends, a district court may
not presume the truthfulness of the complaint=s “factual allegations . . . [and] has wide discretion
to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to
resolve disputed jurisdictional facts under Rule 12(b)(1).” Id.
B.
Failure to State a Claim upon Which Relief Can Be Granted
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss
a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the
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parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d
1194, 1201 (10th Cir. 2003) (quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the
plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis.
First, the court identifies “the allegations in the complaint that are not entitled to the assumption
of truth,” that is, those allegations which are legal conclusion, bare assertions, or merely
conclusory. Id. at 679–81. Second, the Court considers the factual allegations “to determine if
they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss. Id. at 679.
Notwithstanding, the court need not accept conclusory allegations without supporting
factual averments. S. Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998).
“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover,
“[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
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cause of action will not do.’ Nor does the complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Id. (citation omitted). “Where a complaint pleads
facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, the court may consider documents
incorporated by reference, documents referred to in the complaint that are central to the claims,
and matters of which a court may take judicial notice. Tellabs, Inc, 551 U.S. at 322 ; Gee v.
Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly filed court records, including court
transcripts, are subject to judicial notice. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins.
Corp., 605 F.2d 1169, 1172 (10th Cir. 1979); United States v. Ahidley, 486 F.3d 1184, 1192 n.5
(10th Cir. 2007); Trusdale v. Bell, 85 F. App’x 691, 693 (10th Cir. 2003).
ANALYSIS
A. Claims 2, 3, 4, and 5 Regarding SAMs
In Claims 2 through 5, Plaintiffs alleges that his SAMs violate his First and Fifth
Amendment rights by restricting his communications and association with other persons.
(Compl., ¶¶ 289–316.)
1. Claims 2, 3, and 4—First Amendment
In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court established a deferential
standard for reviewing restrictions on prisoners’ constitutional rights, holding 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. This deferential standard
reflects the principle that “[l]awful incarceration brings about the necessary withdrawal or
6
limitation of many privileges and rights, a retraction justified by the considerations underlying
our penal system.” Price v. Johnston, 334 U.S. 266, 285 (1948), overruled on other grounds by
McCleskey v. Zant, 499 U.S. 467 (1991); see also Hudson v. Palmer, 468 U.S. 517, 523 (1984)
(recognizing that inmates retain only those First Amendment rights “not inconsistent with their
status as prisoners or with the legitimate penological objectives”).
Based on Turner, the Supreme Court has repeatedly held that First Amendment rights are
appropriately curtailed in prison and that “freedom of association is among the rights least
compatible with incarceration.” Overton v. Bazzetta, 539 U.S. 126, 131 (2003); see also Jones v.
N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 125–26 (1977). Turner is satisfied if officials,
in their judgment, believe that the restriction would advance the desired goal. See Johnson v.
California, 543 U.S. 499, 513 (2005) (observing that Turner does not require proof a policy
advanced the goal, but only that officials “might reasonably have thought” it would); Beard v.
Banks, 548 U.S. 521, 535 (2006) (upholding restriction even absent a showing that the restriction
had “proven effective”). In conducting this analysis, courts “must accord substantial deference
to the professional judgment of prison administrators, who bear a significant responsibility for
defining the legitimate goals of a corrections system and for determining the most appropriate
means to accomplish them.” Overton, 539 U.S. at 132. “The burden, moreover, is not on the
[government] to prove the validity of prison regulations but on the prisoner to disprove it.” Id.
To survive a motion to dismiss, a prisoner must account for the “core holding” of Turner
and therefore has the burden to plead facts showing the absence of a rational connection between
the challenged restriction and any legitimate penological interests. Al–Owhali v. Holder, 687
F.3d 1236, 1239 (10th Cir. 2012). “Government conduct that would be unacceptable, even
7
outrageous, in another setting may be acceptable, even necessary, in a prison.” Gee, 627 F.3d at
1186. Consequently, the complaint must show, through specific factual allegations, why the
government’s justifications do not have a rational connection to the challenged restrictions. Id.
This generally requires a prisoner to “ ‘recite[ ] facts that might well be unnecessary in other
contexts to surmount a motion to dismiss.’ ” Al–Owhali, 687 F.3d at 1240 (quoting Gee, 627 F.
3d at 1185) (alteration in original). It is plaintiff’s “burden to demonstrate that there is no
legitimate, rational basis” for the restrictions. Id. at 1241.
The government has a well-established legitimate penological interest in protecting
national security. Rezaq v. Nalley, 677 F.3d 1001, 1014 (10th Cir. 2012) (discussing the
“uniquely federal penological interest in addressing national security risks”). While prison
administrators are generally entitled to substantial deference, Overton, 539 U.S. at 132, that
deference is even greater in the realm of national security. See Holder v. Humanitarian Law
Project, 561 U.S. 1, 33–36 (2010); see also Ziglar v. Abbasi, 137 S. Ct. 1843, 1861 (2017)
(“courts traditionally have been reluctant to intrude upon the authority of the Executive in
military and national security affairs”); Franklin v. Massachusetts, 505 U.S. 788, 818 (1992)
(judicial deference “pervades the area of national security”); Citizens for Peace in Space v. City
of Colo. Springs, 477 F.3d 1212, 1221 (10th Cir. 2007) (acknowledging “special deference” in
matters relating to national security “even when constitutional rights are invoked”). “[N]ational
security and foreign policy concerns arise in connection with efforts to confront evolving threats
in an area where information can be difficult to obtain and the impact of certain conduct difficult
to assess.” Humanitarian Law, 561 U.S. at 34. “In this context, conclusions must often be based
on informed judgment rather than concrete evidence, and that reality affects what we may
8
reasonably insist on from the Government.” Id. at 34–35. A court must defer to the
government’s predictive judgment in relation to national security because “it is not reasonably
possible for an outside nonexpert body to review the substance of such a judgment.” Dep’t of
Navy v. Egan, 484 U.S. 518, 529 (1988).
Based on this legitimate penological interest in protecting national security, the Tenth
Circuit and this Court have repeatedly upheld SAMs restrictions nearly identical to the
restrictions challenged here. See, e.g., Gowadia, 596 F. App’x at 673; Al–Owhali, 687 F.3d at
1241; Nicholson v. Brennan, No. 15–cv–01999–KLM, 2017 WL 4337896 (D. Colo. Sept. 28,
2017); Salim v. Lynch, No. 1:13–cv–03175–RM–CBS (D. Colo. Nov. 30, 2016) (Doc. No. 95).
As the Tenth Circuit concluded in Gowadia, there is “an obvious and reasonable relationship
between Gowadia’s crimes and the measures the BOP implemented to restrict his
communications.” 596 F. App’x at 673.
Defendants argue that, in this case, there is an “obvious and reasonable relationship”
between Plaintiff’s crime, his statements under oath regarding his obligation to engage in jihad
and desire to harm the United States, his martyrdom video encouraging others to answer the call
of jihad, and the restrictions imposed in the SAMs. (Mot. at 16.) Defendants state that Plaintiff
is a terrorist who was convicted of attempting to use a weapon of mass destruction—a “blessed
weapon” in his words—to blow up a commercial airliner and kill 289 people on board.3 (Id., Ex.
3
In addition to the March 2012 SAMs, the court takes judicial notice of publicly-filed court
records, including the trial transcripts from Plaintiff’s criminal plea hearing, motion and sentencing
hearing. St. Louis Baptist Temple, Inc., 605 F.2d at 1172. Plaintiff argues that the court should
decline to take judicial notice of the documents because Defendants seek the court judicial notice of
not only the documents, “but also of the truth of the facts asserted in them.” (Resp. at 4.) Plaintiff is
incorrect. Defendants do not rely on the transcripts to prove what Plaintiff said during his trial or
sentencing hearing is true. Rather, Defendants rely on the transcripts because it is beyond dispute
9
1.) He testified that he believes jihad against the United States is among the most virtuous deeds,
that he is obliged to participate in jihad and proud to kill in the name of God, and that the United
States should await a great calamity that will soon befall them at the hands of the mujahedeen.
(Id., Exs. 1, 2.) The district judge stated that “by his own words, defendant has shown that he
continues to desire to harm the United States and its citizens, and that he views it as his religious
obligation to do so” and that he “poses a significant, ongoing threat to the safety of American
citizens everywhere.” (Id., Ex. 2 at 54:8–10, 54:18–20.) The Attorney General found there is a
substantial risk that Plaintiff’s communications or contacts with persons could result in death or
serious bodily injury to persons. (Id., Ex. 3 at 3.) This finding was based on numerous reasons,
including his crime; his martyrdom video released by al Qaeda where he exhorted others to
engage in jihad; and his own statements during his criminal proceedings and to government
officials indicating that he has an obligation to conduct jihad against the United States, a desire
to harm the United States, loyalty to al Qaeda, and no remorse or regret for his crimes. (Id. at 2–
3; Ex. 4 at 2–3.) Based on such actions and statements, the Attorney General concluded there is
a likelihood that Plaintiff would, if given the opportunity, attempt to radicalize others and
attempt to advocate or incite terrorism and violence. (Id., Ex. 3 at 2–3, 16–17; Ex. 4 at 2–3, 16–
17.) For these reasons, the Attorney General implemented restrictions on Plaintiff’s
that Plaintiff made certain statements, and therefore the court may take judicial notice of the
statements. Likewise, Defendants rely on the statement from the district court finding that Plaintiff
“poses a significant, ongoing threat to the safety of American citizens everywhere” (Mot., Ex. 2 at
54:8-10), not as a conclusion, but as a statement that the government may reasonably rely upon in
implementing SAMs restrictions. Moreover, the SAMs are referenced throughout the complaint and
central to Plaintiffs’ claims (Compl. at 14-19, 43, 119-79, 289-316), and the document’s authenticity
is not disputed. Prior courts evaluating challenges to SAMs restrictions have appropriately reviewed
the SAMs in deciding a motion to dismiss. See, e.g., Al-Owhali, 2010 WL 5651033, at *10 n.3.
10
communications, which are rationally related to the government’s legitimate penological interest
in protecting national security.
Plaintiff challenges all of the restrictions in the SAMs and seeks a permanent injunction
ordering them removed and barring any future Attorneys General from issuing new SAMs.
(Compl., 76 ¶¶ 289–316, Prayer for Relief.) Plaintiff repeatedly asserts that his rights are being
violated. However, the Amended Complaint is devoid of allegations to show that the
government lacks any legitimate, rational basis for the restrictions.
Plaintiff complains that he is unable to communicate “with more than 7.5 billion people,
the vast majority of people on the planet.” (Compl., ¶ 7.) As noted above, the SAMs permit
Plaintiff to communicate with his immediate family, his authorized contact list, his attorneys and
related legal providers, his consular representatives, non-terrorist inmates, U.S. courts, federal
judges, U.S. Attorney’s Offices, members of the U.S. Congress, the Bureau of Prisons, and
federal law enforcement entities. (Mot., Ex. 4.) Plaintiff is further permitted to request any
additional contacts, which are evaluated on a case-by-case basis. (Id. at 9 n.7.) This process
allows the government to evaluate each proposed new contact to ensure that Plaintiff’s
communications and visits with such persons would not threaten national security. There is an
obvious, rational connection between this restriction and Plaintiff’s crime, his prior attempt to
exhort others to engage in jihad through his martyrdom video, and his voluminous statements
asserting an obligation to engage in jihad and desire to harm the United States. The United
States is permitted to proactively prevent Plaintiff from attempting to engage in, incite, or
otherwise encourage further terrorist attacks.
11
Plaintiff also complains that he is unable to communicate with the media. (Compl., ¶
153.) There is a clear rational connection between this restriction and the legitimate penological
interest in preventing Plaintiff from using the media to advocate or incite terrorist, criminal,
and/or violent offenses. (Mot., Ex. 4 at 16–17.) The SAMs specifically references that prior to
his attempted bombing, Plaintiff recorded a video for al Qaeda in which he sought to incite
others to engage in jihad, like he was about to do. (Id. at 2.)4
Besides conclusory assertions that the government has no rational justification for the
restrictions, Plaintiff offers no facts that would eliminate the government’s stated justifications in
the SAMs. (See Mot., Exs. 3, 4.) Plaintiff does not contest that he attempted to blow up an
airliner based on a purported religious obligation to engage in jihad, or that he taped a video
released by al Qaeda in which he exhorted other to engage in jihad, or that he made various
statements in court and to government officials that he had a religious obligation to engage in
jihad, is proud to kill in the name of god, and desires to harm the United States, among others.
In his response, Plaintiff does not contest that national security is a legitimate penological
interest. Rezaq, 677 F.3d at 1014. Plaintiff does not rebut any of the justifications for the SAMs.
The SAMs rely on three justifications: (1) Plaintiff’s crime; (2) his statements indicating a desire
to harm the United States; and (3) his martyrdom video encouraging others to engage in jihad.
(Mot., Ex. 3, 4.) In his response, Plaintiff complains that his own statements used by Defendants
in their motion are too “inflammatory,” and he that he made them six years ago. (Resp. at 5.)
4
Plaintiff also complains that he is not permitted to communicate with his nieces and nephews.
(Compl., ¶ 308.) This court has recommended that Defendants be granted summary judgment on
Plaintiff’s claim related to his nieces and nephews. (Doc. No. 120 at 9-10.) Thus, the court need
not address this argument.
12
However, Plaintiff offers no explanation why it would be irrational to rely on his own words and
does not state in his Amended Complaint that he now disagrees with his prior statements.
Plaintiff next argues that the restrictions are illegal because Defendants do not assert that
his communications have ever harmed national security. On the contrary, the SAMs specifically
rely on Plaintiff’s martyrdom video encouraging others to answer the call of jihad. (Mot., Ex. 3
at 2; Ex. 4 at 2.) Given Plaintiff’s attempts to incite others in the past, he offers no explanation
why it would be irrational to conclude that he presents a risk of doing so again in the future.
Plaintiff spends much of his argument trying to distinguish his case from other SAMs
cases. But this is a futile task. Defendants do not argue that Plaintiff committed the same crimes
as other SAMs inmates. As Plaintiff acknowledges, the SAMs are judged based on whether
there is a rational connection between his restrictions and the justifications for him. (Resp. at
13–14.) However, Plaintiff is completely silent in responding to the justifications for the
impositions of his SAMs.
Plaintiff points to the decision in Mohammed v. Holder, No. 07–cv–2697–MSK–BNB,
2011 WL 4501959 (D. Colo. Sept. 29, 2011), in which former Chief Judge Krieger allowed a
SAMs challenge to move forward because BOP had expressed its view that the SAMs there
should allow “expanded communications” for the particular inmate and there was no explanation
for why that inmate’s restrictions had increased over time. Id. at *4–5, 8. Such circumstances
do not apply here. Plaintiff does not allege disagreement over his communications restrictions,
nor does he allege that his SAMs have become more restricted. Further, Judge Krieger did not
have the benefit of later Tenth Circuit cases, including Al–Owhali and Gowadia, which make
clear the heightened level of deference to be accorded in these cases.
13
Finally, Plaintiff argues that the SAMs restrictions are illegal because he believes other
criminals have committed worse crimes—in particular, Ted Kaczynski (Unabomber), Eric
Rudolph (Atlanta Olympics bomber) and Matthew Hale (white supremacist)—and those
individuals are not on SAMs. (Resp. at 18–19.) Plaintiff appears to misunderstand the Turner
test, which is not a least restrictive means analysis. Turner, 482 U.S. at 89–90 (rejecting such
analysis as insufficiently deferential). If it were otherwise, the courts would be inundated with
claims challenging prison restrictions because every prisoner would claim that another prisoner
is “just as bad” but is not subject to some challenged restriction. It is not up to the courts to
judge which prisoners are more or less dangerous. Block v. Rutherford, 468 U.S. 576, 588
(1984) (“emphasiz[ing] that we are unwilling to substitute our judgment on these difficult and
sensitive matters” relating to security); Turner, 482 U.S. at 89 (explaining the reasonableness test
is necessary so that the prisons, and not the courts, make the difficult judgments). This is
especially so here where only Plaintiff is associated with an international terrorist organization,
and it is not for courts to determine the relative risks of international terrorists compared to other
types of criminals. Such issues of national security require deference.
The Turner standard focuses not on whether the challenged restrictions are actually
necessary, but whether Defendants might rationally believe the restrictions advance the stated
national security interests. See Johnson v. California, 543 U.S. 499, 513 (2005); Sperry v.
Werholtz, 413 F. App’x 31, 40 (10th Cir. 2011); Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir.
1999); Bruscino v. Pugh, No. 02–cv–02362–LTB–PAC, 2006 WL 980580, at *8 (D. Colo. Apr.
11, 2006). Plaintiff’s burden was to allege facts that, taken as true, show that Defendants could
14
not rationally believe the restrictions advanced their national security interests. Plaintiff has not
addressed the stated justifications for the restrictions in his response.
Accordingly, Defendants’ Motion to Dismiss Claims 2, 3, and 4 should be granted.
2. Claim 5—Fifth Amendment
In claim 5, Plaintiff merely repeats his allegations regarding the SAMs and alleges that
by prohibiting him “from communicating with all but a small group of narrowly defined family
members,” the defendants are violating his substantive due process rights. (Compl., ¶¶ 314–15.)
The Supreme Court and the Tenth Circuit have repeatedly rejected such duplicative claims.
Because the Supreme Court has “always been reluctant to expand the concept of substantive due
process,” it has repeatedly held that “[w]here a particular Amendment provides an explicit
textual source of constitutional protection against a particular sort of government behavior, that
Amendment, not the more generalized notion of substantive due process, must be the guide for
analyzing these claims.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 (1998) (internal
quotations and citations omitted) (alteration in original); see also Conn v. Gabbert, 526 U.S. 286,
293 (1999); Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality); Graham v. Connor, 490 U.
S. 386, 395 (1989); Gehl Grp. v. Koby, 63 F.3d 1528, 1539 (10th Cir. 1995) (same).
In this case, Plaintiff’s substantive due process claim concerning the communications
limitations in his SAMs is entirely duplicative of his First Amendment claims (Claims 2–4).
Plaintiff may not seek to gain additional protections through substantive due process.
“[S]ubstantive due process does not provide additional protections where, as here, it would be
duplicative of other constitutional claims in the lawsuit. Plaintiff’s claim will rise and fall on his
First Amendment theory, not substantive due process.” Walker v. Scherbarth, No. 15–CV–
15
00823–MJW, 2015 WL 5697366, at *4 (D. Colo. Sept. 29, 2015), aff’d, 676 F. App’x 815 (10th
Cir. 2017); see also Al–Owhali, 2010 WL 5651033, at *9, adopted in relevant part, 2011 WL
288523, at *3 (rejecting substantive due process challenge to SAMs as duplicative).
Plaintiff argues that he should be able to pursue this claim because Defendants argue that
his First Amendment claims fail to state a claim. However, “substantive due process does not
provide additional protections where, as here, it would be duplicative of other constitutional
claims in the lawsuit. Plaintiff’s claim will rise and fall on his First Amendment theory, not
substantive due process.” Walker v. Scherbarth, No. 15–CV–00823–MJW, 2015 WL 5697366,
at *4 (D. Colo. Sept. 29, 2015), aff'd, 676 F. App’x 815 (10th Cir. 2017); see also Al–Owhali,
2010 WL 5651033, at *9, adopted in relevant part, 2011 WL 288523, at *3 (rejecting substantive
due process challenge to SAMs as duplicative). Thus, if the First Amendment does not protect
his speech, Plaintiff cannot rely on substantive due process for additional protections. Moreover,
SAMs do not implicate a “constitutionally protected liberty interest.” Gowadia, 596 F. App’x at
674; Salim v. Lynch, No. 1:13–cv–03175–RM–CBS (D. Colo. Nov. 30, 2016) (Doc. No. 95);
Yousef v. United States, No. 1:12–cv–02585–RPM, 2014 WL 1908711, at *5 (D. Colo. May 13,
2014). As such, it is impossible to state a due process claim, procedural or substantive.
The court recognizes, as Plaintiff points out in his response, that substantive due process
violations have been recognized where government conduct “lacks fundamental fairness to a
degree that shocks the conscience.” Masters v. Gilmore, 663 F. Supp. 2d 1027, 1046 (D. Colo.
2009) (citing Reali v. Abbot, 90 F. App’x 319, 324 (10th Cir.2004)). However, this Court and
the Tenth Circuit have upheld challenges to communications restrictions in SAMs. Gowadia,
596 F. App’x at 673–74; Al–Owhali, 687 F.3d at 1240–43; Nicholson, 2017 WL 4337896, at *4–
16
7; Salim, No. 1:13–cv–03175–RM–CBS, Doc. No. 95; Ayyad, 2014 WL 4747451, at *29. This
court cannot say that similar restrictions in this case shock the conscience.
Plaintiff’s Claim 5 should be dismissed.
B. Claims 7, 11, 12, and 13—Hunger-Strike Claims from 2012 and 2015
In claims 7 and 11–13, Plaintiff challenges various BOP actions related to hunger strikes
that he undertook in 2012 and 2015. Plaintiff seeks purely prospective relief, asking the Court to
enjoin the BOP from force-feeding him or taking any other actions in response to any
hypothetical future hunger strikes that he might undertake at some unspecified future date.
Because Plaintiff did not face any certainly impending injury at the time he filed his complaint,
he lacks standing to seek prospective relief. But even if he had standing, federal courts have
uniformly ruled that force-feeding hunger-striking inmates is justified based on the government’s
compelling interests to preserve the inmate’s health and to maintain prison order and discipline.
“Article III of the Constitution limits federal courts’ jurisdiction to certain ‘Cases’ and
‘Controversies.’ ” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). “ ‘One element of
the case-or-controversy requirement’ is that plaintiffs ‘must establish that they have standing to
sue.’ ” Id. “To establish Article III standing, an injury must be “[1] concrete, particularized, and
actual or imminent; [2] fairly traceable to the challenged action; and [3] redressable by a
favorable ruling.” Id. at 409. The party invoking federal jurisdiction bears the burden of
establishing standing. Id. at 411–12. In this case, the standing inquiry is “especially rigorous
when reaching the merits of the dispute would force [the court] to decide whether an action taken
by one of the other two branches of the Federal Government was unconstitutional.” Id. at 408.
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Where, as here, a plaintiff seeks prospective relief, he must demonstrate that he is
“immediately in danger of sustaining some direct injury as the result of the challenged official
conduct and the injury or threat of injury must be both real and immediate, not conjectural or
hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); see also Facio v. Jones,
929 F.2d 541, 544 (10th Cir. 1991) (same). The Supreme Court has “repeatedly reiterated that
threatened injury must be certainly impending to constitute injury in fact.” Amnesty Int’l, 568
U.S. at 409 (emphasis in original; internal quotations omitted); see also Whitmore v. Arkansas,
495 U.S. 149, 158 (1990); Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n.2 (1992).
Allegations of potential “injury at some indefinite future time” are insufficient because
the Court has “insisted that the injury proceed with a high degree of immediacy.” Defenders of
Wildlife, 504 U.S. at 564 n.2; Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir. 1994) (“[T]he
Court invariably has insisted that the injury proceed with a high degree of immediacy.’”).
Branton v. FCC, 993 F.2d 906, 910 (D.C. Cir. 1993) (same). “[W]ithout any description of
concrete plans, or indeed even any specification of when the someday will be,” there can be no
“finding of the ‘actual or imminent’ injury that our cases require.” Defenders of Wildlife, 504
U.S. at 564; see also Colo. Outfitters Ass’n v. Hickenlooper, 823 F.3d 537, 551 (10th Cir. 2016).
It is likewise not enough to “observe that the challenged conduct is repeatable in the future” or
“that the purportedly illegal practice is commonly used.” Lebron v. Rumsfeld, 670 F.3d 540, 561
(4th Cir. 2012) (citing Golden v. Zwickler, 394 U.S. 103, 109 (1969); Lyons, 461 U.S. at 106)).
In this case, Plaintiff alleges that he was force-fed after undertaking hunger strikes in
August 2012, October 2012, and July 2015. (Compl., ¶¶ 218, 231, 233.) Based on these three
incidents years ago, Plaintiff brings various claims concerning the BOP’s actions during the
18
hunger strikes, requesting purely prospective relief, including a “permanent injunction
prohibiting Defendant BOP from force-feeding” him under any circumstances. (Id. at Claims 6–
7, 11–135, Prayer for Relief.) Plaintiff’s years’-old allegations fail to meet his burden to
demonstrate that he faced a certainly impending injury at the time he filed his initial complaint.
Plaintiff’s standing argument is based on speculation that he may undertake a hunger strike at
some future unspecified time and that the BOP may force-feed him. However, Plaintiff merely
points to past conduct and suggests it is repeatable in the future—exactly the type of claim that
has been repeatedly rejected.
In his response, Plaintiff argues not that all force-feeding is illegal, but force-feeding
without medical necessity is illegal. (Resp. at 24–25.) However, this court has recommended
the defendants be granted summary judgment on Plaintiff’s Claims 7, 11, and 13, to the extent
the claims assert Plaintiff was force-fed in 2012 and 2015 without medical necessity. (Doc. No.
120 at 10–13.) Moreover, there is no dispute that BOP regulations do not permit force-feeding
without a physician determining that “an inmate’s life or health will be threatened if treatment is
not initiated immediately.” 28 C.F.R. § 549.65. Plaintiff’s claim therefore depends on a
speculative chain of future events, culminating in Plaintiff’s speculation that a future BOP
physician will deliberately violate BOP regulations and order him force-fed without medical
necessity. Plaintiff’s claims are too speculative and attenuated to establish standing. Amnesty
Int’l, 568 U.S. at 414 (rejecting standing based on such “speculative chain of possibilities”).
5
This court has recommended Defendants be granted summary judgment on Plaintiff’s Claim 6
in its entirety (Doc. No. 120 at 6-8) and on Plaintiff’s Claims 7, 11, and 13 in part (id. at 10-13).
As such, the court will not address Defendants’ arguments in this motion regarding Claim 6
specifically.
19
Plaintiff’s Claims 7, 11, 12, and 13 should be dismissed without prejudice.6
C. Claim 14—“Overall Condition” Claim
In his final claim, Plaintiff alleges that all of his conditions of confinement—the “totality
of circumstances”—combine to constitute cruel and unusual punishment. (Compl., ¶¶ 384–95.)
Both the Supreme Court and the Tenth Circuit have rejected such a challenge. “Nothing so
amorphous as ‘overall conditions’ can rise to the level of cruel and unusual punishment when no
specific deprivation of a single human need exists.” Wilson v. Seiter, 501 U.S. 294, 305 (1991).
Under the Eighth Amendment, conditions may only be analyzed in combination “when they have
a mutually enforcing effect that produces the deprivation of a single, identifiable human need
such as food, warmth, or exercise—for example, a low cell temperature at night combined with a
failure to issue blankets.” Id. at 304. Thus, to state a claim, “a plaintiff must allege an
‘unquestioned and serious deprivation of basic human needs,’ such as ‘food, warmth, or
exercise.’” Gowadia, 596 F. App’x at 674 (quoting Rhodes v. Chapman, 452 U.S. 337, 347
(1981), and Wilson, 501 U.S. at 304). Based on this precedent, the Tenth Circuit and this Court
have repeatedly held that conditions at the ADX, as alleged by Plaintiff and other inmates, do not
violate the Eighth Amendment. Gowadia, 596 F. App’x at 674; Hill v. Pugh, 75 F. App’x 715,
721 (10th Cir. 2003); Ajaj v. United States, 293 F. App’x 575, 582–84 (10th Cir. 2008); Davis v.
Fed. Bureau of Prisons, No. 15–CV–0884–WJM–MJW, 2016 WL 1156755, at *6 (D. Colo.
Mar. 24, 2016); McMillan v. Wiley, 813 F. Supp. 2d 1238, 1250–51 (D. Colo. 2011).
Plaintiff asserts that his conditions combine to deny social interaction. (Compl., ¶ 392.)
However, the Tenth Circuit has never determined that a lack of social interaction could rise to an
6
Accordingly, the court need not address Defendants’ Rule 12(b)(6) arguments as to these
claims.
20
Eighth Amendment violation. Silverstein v. Fed. Bureau of Prisons, 559 F. App’x 739, 755–56
(10th Cir. 2014). More importantly, the Tenth Circuit has held that even if such claim could
exist, Plaintiff’s allegations, which demonstrate that he has some social interaction, cannot meet
the standard. Id. Indeed, in Silverstein, the Tenth Circuit held that housing an inmate at Range
13 for three years—which Plaintiff alleges is far more isolated and involves far less social
contact than his conditions in H–Unit (Compl., ¶ 33)—does not violate the Eighth Amendment.
559 F. App’x at 755–56. Plaintiff attempts to combine his allegations regarding force-feeding
him while on a hunger strike or allegedly denying him halal to assert an Eighth Amendment
claim. However, this is exactly what the Supreme Court held to be impermissible.
Plaintiff argues that the defendants’ reliance on Silverstein is misplaced because
Silverstein was not under SAMs, and his claims were based on a lack of social contact and
environmental stimulation for an extended time, id. at 758, whereas in this case, Plaintiff has
alleged psychological harm not only from prolonged solitary confinement but also restrictive
communication measures coupled with deprivations of the opportunity to remediate his harsh
conditions of confinement with either religious practice or peaceful protest. (Compl., ¶ 393.)
The plaintiff in Silverstein alleged he lacked the opportunity for any social visits or phone calls
because of restrictive rules and could only correspond with a few individuals. 559 F. App’x at
743, 749. In contrast, Plaintiff alleges he is allowed to communicate via phone three times per
month with his family (Compl., ¶ 141), he is allowed to have in-person social and legal visits
with his family and counsel (id., ¶ 140), and he is permitted to correspond with family and
counsel (id., ¶¶ 140, 142). Plaintiff alleges he is permitted two hours of recreation per day and
can interact with other inmates during this time. (Id., ¶¶ 118, 191.) There is no distinguishable
21
feature between Plaintiff’s conditions and Silverstein or the numerous other cases in which the
Tenth Circuit and this Court have held the conditions at ADX do not violate the Eighth
Amendment.
Accordingly, Plaintiff’s Claim 14 should be dismissed.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that Defendants’ “Motion to Dismiss Amended Complaint [76]” be
GRANTED in part, that Claims 7, 11, 12, and 13 be dismissed without prejudice pursuant to
Fed. R. Civ. P. 12(b)(1), and that Claims 2, 3, 4, 5, and 14 be dismissed with prejudice pursuant
to Fed. R. Civ. P. 12(b)(6). The court further
RECOMMENDS that the motion be DENIED in part as moot as to Claims 1 and 6,
which this court does not address in this Recommendation based on its previous
Recommendation (Doc. No. 120) that Defendants be granted summary judgment on those claims
for Plaintiff’s failure to exhaust his administrative remedies.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the district court on notice of the basis for the objection will
not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” United States v. One Parcel of Real Prop.
22
Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579–80 (10th Cir. 1999) (stating that a
district court’s decision to review a magistrate judge’s recommendation de novo despite the lack
of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real
Prop., 73 F.3d at 1059–60 (stating that a party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52
F.3d 901, 904 (10th Cir. 1995) (holding that cross-claimant had waived its right to appeal those
portions of the ruling by failing to object to certain portions of the magistrate judge’s order);
Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (holding that plaintiffs waived their
right to appeal the magistrate judge’s ruling by their failure to file objections). But see MoralesFernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (stating that firm waiver rule does not
apply when the interests of justice require review).
Dated this 6th day of March, 2019.
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