Case: 1:17-cv-2493 As of: 06/02/2020 08:50 PM MDT 1 of 11
ALLMTN,JD4,MJ CIV PP,STAYDI,TERMED
U.S. District Court − District of Colorado District of Colorado (Denver)
CIVIL DOCKET FOR CASE #: 1:17−cv−02493−RM−KMT

Abdulmutallab v. Sessions et al Assigned to: Judge Raymond P. Moore Referred to: Magistrate Judge Kathleen M. Tafoya Cause: 42:2000bb Religious Freedom Restoration Act.
Plaintiff

Date Filed: 10/18/2017 Date Terminated: 09/18/2019 Jury Demand: None Nature of Suit: 550 Prisoner − Civil Rights (U.S. not a defendant) Jurisdiction: Federal Question

Umar Farouk Abdulmutallab

represented by Umar Farouk Abdulmutallab #44107−039 FLORENCE ADMAX U.S. PENITENTIARY Inmate Mail/Parcels PO BOX 8500 FLORENCE, CO 81226 PRO SE

Aurora Lynn Randolph Johnson & Klein, PLLC 1470 Walnut Street Suite 101 Boulder, CO 80302 303−444−1885 Fax: 866−340−8286 Email: arandolph@johnsonklein.com TERMINATED: 11/13/2019 LEAD ATTORNEY

Gail Kathryn Johnson Johnson & Klein, PLLC 1470 Walnut Street Suite 101 Boulder, CO 80302 303−444−1885 Fax: 866−340−8286 Email: gjohnson@johnsonklein.com TERMINATED: 11/13/2019 LEAD ATTORNEY

Amy Bimla Kapoor Amy Kapoor, Attorney at Law 2921 West 38th Avenue Suite 317 Denver, CO 80211 703−346−0901 Email: amy.kapoor@gmail.com TERMINATED: 02/27/2018

V.
Intervenor Plaintiff
Mamdouh Salim TERMINATED: 07/06/2018

represented by Mamdouh Salim #42426−054 FLORENCE ADMAX U.S. PENITENTIARY Inmate Mail/Parcels PO BOX 8500

Case: 1:17-cv-2493 As of: 06/02/2020 08:50 PM MDT 2 of 11
FLORENCE, CO 81226 PRO SE

V. Defendant Jefferson Sessions Attorney General of the United States, in his official capacity TERMINATED: 09/18/2019
Defendant Federal Bureau of Prisons And John Does 1 through 20, in their official capacities
Defendant William P. Barr Attorney General of the United States, in his official capacity

represented by David Z. Moskowitz U.S. Attorney's Office−Denver 1801 California Street Suite 1600 Denver, CO 80202 303−454−0328 Email: david.moskowitz@usdoj.gov ATTORNEY TO BE NOTICED
represented by David Z. Moskowitz (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/18/2017
10/18/2017 10/23/2017
10/23/2017 10/24/2017 10/24/2017 10/25/2017
11/06/2017
12/01/2017 12/01/2017 12/01/2017

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 400,Receipt Number 1082−5764168)Attorney Gail Kathryn Johnson added to party Umar Farouk Abdulmutallab(pty:pla), filed by Umar Farouk Abdulmutallab. (Attachments: # 1 Civil Cover Sheet)(Johnson, Gail) (Entered: 10/18/2017)
2 Case assigned to Magistrate Judge Gordon P. Gallagher. Text Only Entry. (rsams, ) (Entered: 10/19/2017)
3 ORDER Drawing Case, by Magistrate Judge Gordon P. Gallagher on 10/23/2017. This case is randomly reassigned to Magistrate Judge Kathleen M. Tafoya for all further proceedings. All future pleadings should be designated as 17−cv−2493−KMT (angar, ) (Entered: 10/23/2017)
4 Magistrate Judge consent form issued pursuant to D.C.COLO.LCivR 40.1, direct assignment of civil actions to full time magistrate judges. (angar, ) (Entered: 10/23/2017)
5 CERTIFICATE of Service by Clerk of Court re 1 Complaint for Service of Process. (Attachments: # 1 US Postal Service Certified Mail Receipt) (rvill, ) (Entered: 10/24/2017)
6 Acknowledgement of Service on behalf of the United States Attorney's Office (jgonz, ) (Entered: 10/25/2017)
7 ORDER Setting Scheduling Conference for 12/26/2017 09:30 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya. Consent Form due by 12/19/2017, by Magistrate Judge Kathleen M. Tafoya on 10/25/17. (sgrim, ) (Entered: 10/25/2017)
8 Return Receipt re 5 Certificate of Service by Certified Mail by Clerk of Court to United States Attomey General. (tsher, ) Modified on 12/4/2017 to edit pursuant to incorrect event (tsher, ). (Entered: 11/06/2017)
9 SUMMONS REQUEST as to Bureau of Prisons by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 12/01/2017)
10 SUMMONS REQUEST as to Jefferson Sessions by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 12/01/2017)
11 SUMMONSES issued by Clerk. (Attachments: # 1 Summons, # 2 Magistrate Judge Consent Form) (jgonz, ) (Entered: 12/01/2017)

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12/01/2017 12/04/2017 12/04/2017
12/04/2017
12/13/2017 12/13/2017 12/13/2017 01/19/2018 01/19/2018 01/19/2018 01/22/2018 01/24/2018 01/24/2018 01/24/2018

12 CONSENT to Jurisdiction of Magistrate Judge by Plaintiff Umar Farouk Abdulmutallab All parties do not consent.. (Johnson, Gail) (Entered: 12/01/2017)
13 CASE REASSIGNED pursuant to 12 Consent/Non−Consent to Jurisdiction of Magistrate Judge. All parties do not consent. This case is randomly reassigned to Judge Raymond P. Moore. All future pleadings should be designated as 17−cv−02493−RM. (Text Only Entry) (jgonz, ) (Entered: 12/04/2017)
14 ORDER REFERRING CASE to Magistrate Judge Kathleen M. Tafoya. Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b), this case is referred to the assigned United States Magistrate Judge to (1) convene a scheduling conference under Fed. R. Civ. P. 16(b) and enter a scheduling order meeting the requirements of D.C.COLO.LCivR 16.2, (2) conduct such status conferences and issue such orders necessary for compliance with the scheduling order, including amendments or modifications of the scheduling order upon a showing of good cause, (3) hear and determine pretrial matters, including discovery and other non−dispositive motions, (4) conduct a pretrial conference and enter a pretrial order, and (5) conduct hearings, including evidentiary hearings, and submit proposed findings of fact and recommendations for rulings on dispositive motions. Court sponsored alternative dispute resolution is governed by D.C.COLO.LCivR 16.6. On the recommendation or informal request of the magistrate judge or on the request of the parties by motion, this court may direct the parties to engage in an early neutral evaluation, a settlement conference, or another alternative dispute resolution proceeding. Entered by Judge Raymond P. Moore on 12/4/2017. (Text Only Entry) (rmsec ) (Entered: 12/04/2017)
15 MINUTE ORDER: With the assignment of this matter, the parties are advised that throughout this case they are expected to be familiar and comply with not only the Local Rules of this District, but also Judge Raymond P. Moore's Civil Practice Standards, which may be found at: http://www.cod.uscourts.gov/JudicialOfficers/ActiveArticleIIIJudges/HonRaymondPMoore.aspx. SO ORDERED by Judge Raymond P. Moore on 12/4/2017. (Text Only Entry) (rmsec ) (Entered: 12/04/2017)
16 ORDER Setting Scheduling Conference for 1/31/2018 10:00 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya, by Magistrate Judge Kathleen M. Tafoya on 12/13/17. (sgrim) (Entered: 12/13/2017)
17 SUMMONS Returned Executed upon Bureau of Prisons defendant(s) Federal Bureau of Prisons served on 12/7/2017, answer due 2/5/2018. (Attachments: # 1 Exhibit, # 2 Exhibit)(Johnson, Gail) (Entered: 12/13/2017)
18 SUMMONS Returned Executed upon Jefferson Sessions defendant(s) Jefferson Sessions served on 12/7/2017, answer due 2/5/2018. (Attachments: # 1 Exhibit)(Johnson, Gail) (Entered: 12/13/2017)
19 NOTICE of Entry of Appearance by David Z. Moskowitz on behalf of Federal Bureau of Prisons, Jefferson SessionsAttorney David Z. Moskowitz added to party Federal Bureau of Prisons(pty:dft), Attorney David Z. Moskowitz added to party Jefferson Sessions(pty:dft) (Moskowitz, David) (Entered: 01/19/2018)
20 MOTION to Stay Discovery and Vacate Scheduling Conference by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered: 01/19/2018)
21 MEMORANDUM regarding 20 MOTION to Stay Discovery and Vacate Scheduling Conference filed by Federal Bureau of Prisons, Jefferson Sessions. Motion referred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 1/19/2018. Text Only Entry (cpear) (Entered: 01/19/2018)
22 MINUTE ORDER: Plaintiff shall file a response to 20 MOTION to Stay Discovery and Vacate Scheduling Conference no later than January 24, 2018. By Magistrate Judge Kathleen M. Tafoya on 1/22/18. Text Only Entry (kmtlc1 ) (Entered: 01/22/2018)
23 Proposed Scheduling Order by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 01/24/2018)
24 NOTICE of Entry of Appearance by Gail Kathryn Johnson on behalf of Umar Farouk Abdulmutallab (Johnson, Gail) (Entered: 01/24/2018)
25 NOTICE of Entry of Appearance by Gail Kathryn Johnson on behalf of Umar Farouk Abdulmutallab (Johnson, Gail) (Entered: 01/24/2018)

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01/24/2018 01/24/2018
01/24/2018
01/25/2018 01/25/2018 01/31/2018 01/31/2018 01/31/2018 02/02/2018 02/02/2018 02/02/2018
02/02/2018

26 RESPONSE to 20 MOTION to Stay Discovery and Vacate Scheduling Conference filed by Plaintiff Umar Farouk Abdulmutallab. (Attachments: # 1 Exhibit 1)(Johnson, Gail) (Entered: 01/24/2018)
27 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES:re: 24 Notice of Entry of Appearance filed by attorney Amy Kapoor. The s/signature did not match the filers name on the account for which the login and password are registered. DO NOT REFILE THE DOCUMENT. Action to take − future documents must be filed pursuant to D.C.COLO.LCivR 5.1(a) and 4.3(c) of the Electronic Case Filing Procedures (Civil cases).(Text Only Entry) (cthom, ) (Entered: 01/25/2018)
28 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES:re: 25 Notice of Entry of Appearance filed by attorney Aurora L. Randolph. The s/signature did not match the filers name on the account for which the login and password are registered. DO NOT REFILE THE DOCUMENT. Action to take − future documents must be filed pursuant to D.C.COLO.LCivR 5.1(a) and 4.3(c) of the Electronic Case Filing Procedures (Civil cases).(Text Only Entry) (cthom, ) (Entered: 01/25/2018)
29 REPLY to Response to 20 MOTION to Stay Discovery and Vacate Scheduling Conference filed by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Attachments: # 1 Exhibit 1 − Plea Transcript Excerpts, # 2 Exhibit 2 − Sentencing Transcript Excerpts)(Moskowitz, David) (Entered: 01/25/2018)
30 MINUTE ORDER: The Scheduling Conference set for January 31, 2018, is vacated, to be reset, if necessary, after ruling on the 20 MOTION to Stay Discovery, By Magistrate Judge Kathleen M. Tafoya on 1/25/18. Text Only Entry (kmtlc1 ) (Entered: 01/25/2018)
31 MOTION for Leave to File Excess Pages by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered: 01/31/2018)
32 MEMORANDUM regarding 31 MOTION for Leave to File Excess Pages filed by Federal Bureau of Prisons, Jefferson Sessions. Motion referred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 1/31/2018. (Text Only Entry) (rmsec ) (Entered: 01/31/2018)
33 MINUTE ORDER granting 31 Motion for Extension of Page Limits. Defendants may file a motion to dismiss not to exceed 32 pages. By Magistrate Judge Kathleen M. Tafoya on 1/31/18. Text Only Entry (kmtlc1 ) (Entered: 01/31/2018)
34 MOTION to Dismiss by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Attachments: # 1 Ex. 1 − Plea Transcript Excepts, # 2 Ex. 2 − Sentencing Transcript Excerpts, # 3 Ex. 3 − March 2012 SAMs, # 4 Ex. 4 − March 2017 SAMs Renewal, # 5 Ex. 5 − Special Security Unit Institution Supplement, # 6 Ex. 6 − October 2015 Hunger Strike Medical Records)(Moskowitz, David) (Entered: 02/02/2018)
35 STRICKEN Partial MOTION for Summary Judgment by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Attachments: # 1 Ex. 1 − Shelton Declaration, # 2 Ex. 2 − March 2017 SAMs Renewal)(Moskowitz, David) (Entered: 02/02/2018)
36 ORDER: Defendants Sessions and Federal BOP's Motion to Dismiss 34 , filed pursuant to Fed. R. Civ. P. 12(b), is before the Court sua sponte for failure to comply with Judge Raymond P. Moore's Civil Practice Standards. Specifically, although this District's Local Rules do not require conferral, the Judge's Civil Practice Standards require a party to confer before filing a motion to dismiss. See Civil Practice Standard IV.M(2)(a). The Motion to Dismiss 34 is therefore DENIED WITHOUT PREJUDICE. If, after conferral, refiling is appropriate, Defendants Sessions and Federal BOP are granted leave to refile on or before Thursday, February 8, 2018.SO ORDERED by Judge Raymond P. Moore on 2/2/2018. (Text Only Entry ) (rmsec ) (Entered: 02/02/2018)
37 ORDER: This matter is before the Court sua sponte. Defendants Sessions and Federal BOP's Motion for Partial Summary Judgment 35 is hereby STRICKEN for failure to provide a Separate Statement of Undisputed Material Facts ("Statement") as required by Judge Raymond P. Moore's Civil Practice Standards (Section IV.B.2 and Exhibit 1). In addition, for clarification:(1) all material facts which the parties contend are undisputed must be included in their Statement; (2) the parties need not include a statement of undisputed material facts section in their briefs; and (3) the parties' arguments section must refer to the Statement for any factual support (e.g., Statement at &para&para 3, 4), and not to any particular exhibit or document for support (e.g., Ex. 1, Shelton Decl. &para19 & Attach. 6). Defendants may submit a compliant Motion for Partial Summary Judgment on or before February 6, 2018. SO ORDERED by Judge Raymond P. Moore

Case: 1:17-cv-2493 As of: 06/02/2020 08:50 PM MDT 5 of 11

02/05/2018
02/05/2018 02/05/2018 02/05/2018 02/08/2018
02/11/2018 02/12/2018
02/12/2018
02/20/2018 02/21/2018 02/22/2018 02/22/2018 02/23/2018 02/23/2018 02/26/2018
02/27/2018

on 2/2/2018. Text Only Entry (rmsec ) (Entered: 02/02/2018)
38 MOTION to Dismiss by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Attachments: # 1 Ex. 1 − Plea Transcript Excepts, # 2 Ex. 2 − Sentencing Transcript Excerpts, # 3 Ex. 3 − March 2012 SAMs, # 4 Ex. 4 − March 2017 SAMs Renewal, # 5 Ex. 5 − Special Security Unit Institution Supplement, # 6 Ex. 6 − October 2015 Hunger Strike Medical Records)(Moskowitz, David) (Entered: 02/05/2018)
39 MOTION for Partial Summary Judgment by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Attachments: # 1 Ex. 1 − Statement of Undisputed Material Facts, # 2 Ex. 2 − Shelton Declaration, # 3 Ex. 3 − March 2017 SAMs Renewal)(Moskowitz, David) (Entered: 02/05/2018)
40 MEMORANDUM regarding 38 MOTION to Dismiss filed by Federal Bureau of Prisons, Jefferson Sessions. Motion referred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 2/5/2018. (Text Only Entry) (rmsec ) (Entered: 02/05/2018)
41 MEMORANDUM regarding 39 MOTION for Partial Summary Judgment filed by Federal Bureau of Prisons, Jefferson Sessions. Motion referred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 2/5/2018. (Text Only Entry) (rmsec ) (Entered: 02/05/2018)
42 ORDER granting 20 Motion to Stay Discovery... Pending Resolution of Dispositive Motions. All discovery in this action is STAYED pending ruling on the Motion to Dismiss and Motion for Partial Summary Judgment, by Magistrate Judge Kathleen M. Tafoya on 2/8/2018. (jgonz, ) (Entered: 02/08/2018)
43 Unopposed MOTION for Extension of Time to File Response/Reply as to 39 MOTION for Partial Summary Judgment , 38 MOTION to Dismiss by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 02/11/2018)
44 MEMORANDUM regarding 43 Unopposed MOTION for Extension of Time to File Response/Reply as to 39 MOTION for Partial Summary Judgment , 38 MOTION to Dismiss filed by Umar Farouk Abdulmutallab. Motion referred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 2/12/2018. (Text Only Entry) (rmsec ) (Entered: 02/12/2018)
45 MINUTE ORDER granting 43 Motion for Extension of Time to File Responses to Defendants' Motion to Dismiss and Motion for Partial Summary Judgment. Plaintiff shall file his responses no later than March 12, 2108. By Magistrate Judge Kathleen M. Tafoya on 2/12/18. Text Only Entry (kmtlc1 ) (Entered: 02/12/2018)
46 MOTION to Intervene by Intervenor Plaintiff Mamdouh Salim. (cthom, ) (Entered: 02/20/2018)
47 MEMORANDUM regarding 46 MOTION to Intervene filed by Mamdouh Salim. Motionsreferred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 2/21/2018. (Text Only Entry) (rmsec ) (Entered: 02/21/2018)
48 MOTION for Discovery Under Rule 56(d) by Plaintiff Umar Farouk Abdulmutallab. (Attachments: # 1 Exhibit 1)(Johnson, Gail) (Entered: 02/22/2018)
49 OBJECTION/Appeal of Magistrate Judge Decision to District Court re 42 Order on Motion to Stay, by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 02/22/2018)
50 MEMORANDUM regarding 48 MOTION for Discovery Under Rule 56(d) filed by Umar Farouk Abdulmutallab. Motion referred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 2/23/2018. (Text Only Entry) (rmsec) (Entered: 02/23/2018)
51 Unopposed MOTION to Withdraw as Attorney Amy Kapoor by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 02/23/2018)
52 MEMORANDUM regarding 51 Unopposed MOTION to Withdraw as Attorney Amy Kapoor filed by Umar Farouk Abdulmutallab. Motion referred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 2/26/2018. (Text Only Entry) (rmsec ) (Entered: 02/26/2018)
53 MINUTE ORDER granting 51 Motion to Withdraw as Attorney. Attorney Amy B. Kapoor is terminated, by Magistrate Judge Kathleen M. Tafoya on 02/26/2018. (ipark, ) (Entered: 02/27/2018)

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03/06/2018 03/06/2018 03/07/2018
03/07/2018 03/07/2018
03/08/2018 03/08/2018 03/09/2018
03/09/2018
03/12/2018 03/13/2018 03/15/2018 03/29/2018 04/10/2018 04/11/2018
04/11/2018 04/11/2018 04/11/2018

54 Unopposed MOTION to Stay DEADLINE FOR PLAINTIFF TO RESPOND TO DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 03/06/2018)
55 Unopposed MOTION for Leave to File Excess Pages by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 03/06/2018)
56 MEMORANDUM regarding 54 Unopposed MOTION to Stay DEADLINE FOR PLAINTIFF TO RESPOND TO DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT filed by Umar Farouk Abdulmutallab, 55 Unopposed MOTION for Leave to File Excess Pages filed by Umar Farouk Abdulmutallab. Motions referred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 3/7/2018. (Text Only Entry) (rmsec ) (Entered: 03/07/2018)
57 MINUTE ORDER granting 55 Motion for Extension of Page Limit. Plaintiff may file a response to 38 Motion to Dismiss not to exceed 32 pages. By Magistrate Judge Kathleen M. Tafoya on 3/7/18. Text Only Entry (kmtlc1 ) (Entered: 03/07/2018)
58 MINUTE ORDER granting in part 54 Motion to Stay Deadline for Plaintiff to Respond to Defendants' Motion for Partial Summary Judgment Pending Final Disposition of Plaintiff's Rule 56(d) Motion. Plaintiff's deadline to respond to the 39 Motion for Partial Summary Judgment is stayed pending ruling on the Rule 56(d) Motion. By Magistrate Judge Kathleen M. Tafoya on 3/7/19. Text Only Entry (kmtlc1 ) (Entered: 03/07/2018)
59 RESPONSE to 49 Objection/Appeal of Magistrate Judge Decision filed by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered: 03/08/2018)
60 Unopposed MOTION for Extension of Time to File Response/Reply as to 38 MOTION to Dismiss by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 03/08/2018)
61 MEMORANDUM regarding 60 Unopposed MOTION for Extension of Time to File Response/Reply as to 38 MOTION to Dismiss filed by Umar Farouk Abdulmutallab. Motion referred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 3/9/2018. (Text Only Entry) (rmsec ) (Entered: 03/09/2018)
62 MINUTE ORDER granting 60 Motion for Extension of Time to File Response to Defendants' Motion to Dismiss. Plaintiff shall file his response no later than April 11, 2108. No further extensions of this deadline will be permitted. By Magistrate Judge Kathleen M. Tafoya on 3/9/18. Text Only Entry (kmtlc1 ) (Entered: 03/09/2018)
63 RESPONSE to 46 MOTION to Intervene filed by Plaintiff Umar Farouk Abdulmutallab. (Attachments: # 1 Exhibit, # 2 Exhibit)(Johnson, Gail) (Entered: 03/12/2018)
64 RESPONSE to 46 MOTION to Intervene filed by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered: 03/13/2018)
65 RESPONSE to 48 MOTION for Discovery Under Rule 56(d) filed by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Attachments: # 1 Exhibit 1 − Remedy Request 763441)(Moskowitz, David) (Entered: 03/15/2018)
66 REPLY to Response to 48 MOTION for Discovery Under Rule 56(d) filed by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 03/29/2018)
67 Third MOTION for Extension of Time to File Response/Reply as to 38 MOTION to Dismiss by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 04/10/2018)
68 MEMORANDUM regarding 67 Third MOTION for Extension of Time to File Response/Reply as to 38 MOTION to Dismiss filed by Umar Farouk Abdulmutallab. Motion referred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 4/11/2018. (Text Only Entry) (rmsec ) (Entered: 04/11/2018)
69 NOTICE re 67 Third MOTION for Extension of Time to File Response/Reply as to 38 MOTION to Dismiss by Plaintiff Umar Farouk Abdulmutallab (Johnson, Gail) (Entered: 04/11/2018)
70 MOTION for Leave to File First Amended Complaint by Plaintiff Umar Farouk Abdulmutallab. (Attachments: # 1 Exhibit Redlined Version Amended Complaint, # 2 Exhibit Clean Version Amended Complaint)(Johnson, Gail) (Entered: 04/11/2018)
71 RESPONSE to 38 MOTION to Dismiss filed by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) Modified on 4/16/2018 to correct document linkage (jgonz, ). (Entered: 04/11/2018)

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04/12/2018 04/12/2018 04/13/2018 04/14/2018 04/14/2018 05/09/2018 05/09/2018 05/11/2018 05/11/2018 05/14/2018
05/14/2018
05/14/2018 05/14/2018

72 MEMORANDUM regarding 70 MOTION for Leave to File First Amended Complaint filed by Umar Farouk Abdulmutallab. Motion referred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 4/12/2018. (Text Only Entry) (rmsec) (Entered: 04/12/2018)
73 MINUTE ORDER granting 67 Motion for Extension of Time to File Response to Motion to Dismiss. The Response is accepted as filed. By Magistrate Judge Kathleen M. Tafoya on 4/12/18. Text Only Entry (kmtlc1 ) (Entered: 04/12/2018)
74 STIPULATION re 70 MOTION for Leave to File First Amended Complaint by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered: 04/13/2018)
75 MINUTE ORDER granting 70 Motion to Amend Complaint; finding as moot 38 Motion to Dismiss; finding as moot 39 Motion for Partial Summary Judgment; finding as moot 48 Motion for Discovery. Plaintiff shall file his First Amended Complaint no later than April 16, 2018; Defendants shall answer or otherwise respond no later than May 11, 2018. By Magistrate Judge Kathleen M. Tafoya on 4/14/18. Text Only Entry (kmtlc1 ) (Entered: 04/14/2018)
76 AMENDED COMPLAINT against Federal Bureau of Prisons, Jefferson Sessions, filed by Umar Farouk Abdulmutallab.(Johnson, Gail) (Entered: 04/14/2018)
77 Unopposed MOTION for Leave to File Excess Pages by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered: 05/09/2018)
78 ORDER: Upon consideration of the Unopposed Motion 77 and the court record, and being otherwise fully advised, the Motion 77 is GRANTED as Defendants have shown good cause for their request. Accordingly, Defendants are granted leave to file a motion to dismiss not to exceed 35 pages and Plaintiff is granted leave to file any response not to exceed 35 pages. SO ORDERED by Judge Raymond P. Moore on 5/9/2018. (rmsec ) (Entered: 05/09/2018)
79 MOTION to Dismiss Amended Complaint by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Attachments: # 1 Ex. 1 − Plea Transcript Excepts, # 2 Ex. 2 − Sentencing Transcript Excerpts, # 3 Ex. 3 − March 2012 SAMs, # 4 Ex. 4 − March 2018 SAMs Renewal, # 5 Ex. 5 − Special Security Unit Institution Supplement, # 6 Ex. 6 − October 2015 Hunger Strike Medical Records)(Moskowitz, David) (Entered: 05/11/2018)
80 MOTION for Partial Summary Judgment by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Attachments: # 1 Ex. 1 − Statement of Undisputed Material Facts, # 2 Ex. 2 − Shelton Declaration, # 3 Ex. 3 − March 2017 SAMs Renewal)(Moskowitz, David) (Entered: 05/11/2018)
81 MINUTE ORDER: This matter is before the Court sua sponte upon consideration of Attachment 6 to Exhibit 2 (ECF No. 80−2, page 42) of Defendants' Motion for Partial Summary Judgment 80 . In that Attachment, Plaintiff's full date of birth is disclosed. Rule 5.2(a) & (b) of the Federal Rules of Civil Procedure, however, provides that, unless the court orders otherwise or redaction is otherwise exempt, a party making a filing which contains an individual's birth date may include only "the year of the individual's birth." Accordingly, on or before Friday, May 18, 2018, (1) Defendants shall advise the Court whether Plaintiff's full date of birth is exempt from redaction; and (2) if it is not exempt, Defendants shall refile Exhibit 2 with Plaintiff's date of birth redacted in accordance with Rule 5.2(a)(2). In the interim, the Court has directed the Clerk to restrict public access to ECF No. 80−2 under a Level 1 restriction. SO ORDERED by Judge Raymond P. Moore on 5/14/2018. (Text Only Entry) (rmsec ) (Entered: 05/14/2018)
82 MINUTE ORDER: This matter is before the Court sua sponte upon consideration of ECF No. 79−6 of Defendants' Motion to Dismiss 79 . As with an attachment to Defendants' Motion for Partial Summary Judgment, this attachment also contains Plaintiff's full date of birth on some of the pages. On other pages, however, only Plaintiff's birth year is disclosed. For the reasons stated in this Court's prior Minute Order 81 regarding Fed. R. Civ. P. 5.2(a) & (b), the Court ORDERS as follows. On or before Friday, May 18, 2018: (1) Defendants shall advise the Court whether Plaintiff's full date of birth is exempt from redaction; and (2) if it is not exempt, Defendants shall refile ECF No. 79−6 with Plaintiff's date of birth redacted in accordance with Rule 5.2(a)(2). In the interim, the Court has directed the Clerk to restrict public access to ECF No. 79−6 under a Level 1 restriction. SO ORDERED by Judge Raymond P. Moore on 5/14/2018. (Text Only Entry) (rmsec ) (Entered: 05/14/2018)
83 RESPONSE to 82 Minute Order,,,, 81 Minute Order,,,, by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered: 05/14/2018)
84 Exhibits in Support of 79 MOTION to Dismiss Amended Complaint (Exhibit 6 Redacted) by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered:

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05/14/2018 05/14/2018
05/31/2018 05/31/2018
06/01/2018 06/06/2018 06/06/2018 06/07/2018
06/08/2018 06/13/2018
06/13/2018 06/18/2018 06/19/2018 06/19/2018 06/19/2018

05/14/2018)
85 Exhibits in Support of 80 MOTION for Partial Summary Judgment (Exhibit 2 Redacted) by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered: 05/14/2018)
86 MEMORANDUM regarding 79 MOTION to Dismiss Amended Complaint filed by Federal Bureau of Prisons, Jefferson Sessions, 80 MOTION for Partial Summary Judgment filed by Federal Bureau of Prisons, Jefferson Sessions. Motions referred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 5/14/2018. (Text Only Entry) (rmsec ) (Entered: 05/14/2018)
87 Unopposed MOTION for Extension of Time to File Response/Reply as to 79 MOTION to Dismiss Amended Complaint, 80 MOTION for Partial Summary Judgment by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 05/31/2018)
88 MEMORANDUM regarding 87 Unopposed MOTION for Extension of Time to File Response/Reply as to 79 MOTION to Dismiss Amended Complaint, 80 MOTION for Partial Summary Judgment filed by Umar Farouk Abdulmutallab. Motionsreferred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 5/31/2018. (Text Only Entry) (rmsec ) (Entered: 05/31/2018)
89 MINUTE ORDER granting 87 Motion for Extension of Time to File Responses to Defendants' Motion to Dismiss and Motion for Partial Summary Judgment. Plaintiff shall file responses no later than June 8, 2018. By Magistrate Judge Kathleen M. Tafoya on 6/1/18. Text Only Entry (kmtlc1 ) (Entered: 06/01/2018)
90 MOTION for Discovery Under Rule 56(d) by Plaintiff Umar Farouk Abdulmutallab. (Attachments: # 1 Exhibit)(Johnson, Gail) (Entered: 06/06/2018)
91 Unopposed MOTION to Stay DEADLINE FOR PLAINTIFF TO RESPOND TO DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 06/06/2018)
92 MEMORANDUM regarding 90 MOTION for Discovery Under Rule 56(d) filed by Umar Farouk Abdulmutallab, 91 Unopposed MOTION to Stay DEADLINE FOR PLAINTIFF TO RESPOND TO DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT filed by Umar Farouk Abdulmutallab. Motions referred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 6/7/2018. (Text Only Entry) (rmsec ) (Entered: 06/07/2018)
93 RESPONSE to 79 MOTION to Dismiss Amended Complaint filed by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 06/08/2018)
94 MINUTE ORDER granting in part and denying in part 91 Motion to Stay Deadline for Plaintiff to Respond to Defendants' Motion for Partial Summary Judgment Pending Final Disposition of Plaintiff's Rule 56(d) Motion. The deadline for the plaintiff to respond is stayed until this court rules on the Rule 56(d) motion, at which time the court will set a deadline for the response. By Magistrate Judge Kathleen M. Tafoya on 6/13/18. Text Only Entry (kmtlc1 ) (Entered: 06/13/2018)
95 MINUTE ORDER: No later than 6/18/2018, Defendants shall respond to 90 MOTION for Discovery Under Rule 56(d). Plaintiff may file a reply no later than 6/22/2018. By Magistrate Judge Kathleen M. Tafoya on 6/13/18. Text Only Entry (kmtlc1 ) (Entered: 06/13/2018)
96 RESPONSE to 90 MOTION for Discovery Under Rule 56(d) filed by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Attachments: # 1 Ex. 1 − Remedy Request 763441)(Moskowitz, David) (Entered: 06/18/2018)
97 Unopposed MOTION for Extension of Time to File Response/Reply as to 79 MOTION to Dismiss Amended Complaint by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered: 06/19/2018)
98 Unopposed MOTION for Leave to File Excess Pages by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered: 06/19/2018)
99 MEMORANDUM regarding 97 Unopposed MOTION for Extension of Time to File Response/Reply as to 79 MOTION to Dismiss Amended Complaint filed by Federal Bureau of Prisons, Jefferson Sessions, 98 Unopposed MOTION for Leave to File Excess Pages filed by Federal Bureau of Prisons, Jefferson Sessions. Motions referred to Magistrate Judge Kathleen M.

Case: 1:17-cv-2493 As of: 06/02/2020 08:50 PM MDT 9 of 11

Tafoya. Entered by Judge Raymond P. Moore on 6/19/2018. (Text Only Entry) (rmsec ) (Entered: 06/19/2018)

06/19/2018 100 MINUTE ORDER granting 97 Motion for Extension of Time to File Response/Reply ; granting 98 Motion for Leave to File Excess Pages. No later than June 29, 2018, Defendants may file a reply in support of their motion to dismiss not to exceed 22 pages. By Magistrate Judge Kathleen M. Tafoya on 6/19/18. Text Only Entry (kmtlc1 ) (Entered: 06/19/2018)

06/22/2018 101 REPLY to Response to 90 MOTION for Discovery Under Rule 56(d) filed by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 06/22/2018)

06/27/2018 102 ORDER denying 90 Plaintiffs Fed. R. Civ. P. 56(d) Motion. Plaintiff shall file its response to Defendants 80 Motion for Partial Summary Judgment on or before 7/11/2018, by Magistrate Judge Kathleen M. Tafoya on 6/27/2018. (jgonz, ) (Entered: 06/27/2018)

06/28/2018 103 REPLY to Response to 79 MOTION to Dismiss Amended Complaint filed by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Attachments: # 1 Ex. 7 − ADX Hearing Notice, # 2 Ex. 8 − ADX Transfer Decision)(Moskowitz, David) (Entered: 06/28/2018)

07/06/2018 104 Unopposed MOTION for Extension of Time to File Response/Reply as to 80 MOTION for Partial Summary Judgment by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 07/06/2018)

07/06/2018 105 MEMORANDUM regarding 104 Unopposed MOTION for Extension of Time to File Response/Reply as to 80 MOTION for Partial Summary Judgment filed by Umar Farouk Abdulmutallab. Motion referred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 7/6/2018. Text Only Entry (cpear) (Entered: 07/06/2018)

07/06/2018 106 ORDER denying 46 Motion to Intervene. ORDERED by Judge Raymond P. Moore on 7/6/2018. (cthom, ) (Entered: 07/06/2018)

07/09/2018 107

ORDER Overruling Plaintiff's 49 Objections to Magistrate Judge's 42 Order Granting Defendants 20 Motion to Stay Discovery. The Magistrate Judge's 42 Order is AFFIRMED and the discovery in this action is STAYED pending resolution of the 79 Motion to Dismiss and 80 Motion for Partial Summary Judgment, unless otherwise ordered. ORDERED by Judge Raymond P. Moore on 7/9/2018. (cthom, ) (Entered: 07/09/2018)

07/11/2018 108

ORDER granting in part and denying in part 104 Unopposed Motion to Stay Deadline for Plaintiff to Respond to Defendants Motion for Partial Summary Judgment (Doc. 80 ) Pending Final Disposition of Plaintiffs Forthcoming Objection to the Courts Order Denying His Rule 56(d) Motion (Doc. 102 ). The requirement in the courts order that Plaintiff file a response to the Motion for Partial Summary Judgment on or before 7/11/2018 is stayed for a period of ten days only, until 7/21/2018. The motion is denied in all other respects. By Magistrate Judge Kathleen M. Tafoya on n. (jgonz, ) (Entered: 07/11/2018)

07/11/2018 109 OBJECTION/Appeal of Magistrate Judge Decision to District Court re 102 Order on Motion for Discovery by Plaintiff Umar Farouk Abdulmutallab. (Attachments: # 1 Exhibit BOP 30(b)(6) Transcript, Chapman v. BOP et al.)(Johnson, Gail) (Entered: 07/11/2018)

07/15/2018 110 OBJECTION/Appeal of Magistrate Judge Decision to District Court re 108 Order on Motion for Extension of Time to File Response/Reply,, by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 07/15/2018)

07/18/2018 111 RESPONSE to 109 Objection/Appeal of Magistrate Judge Decision filed by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered: 07/18/2018)

07/18/2018 112 RESPONSE to 110 Objection/Appeal of Magistrate Judge Decision filed by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered: 07/18/2018)

07/20/2018 113

MINUTE ORDER: This matter is before the Court sua sponte upon review of the pending matters. Upon such review, and in exercising its inherent authority to regulate its docket and promote judicial efficiency, the Court hereby extends the deadline for Plaintiff's response to Defendants' Motion for Partial Summary Judgment 80 . Such response shall be due on or before Monday, July 30, 2018. SO ORDERED by Judge Raymond P. Moore on 7/20/2018. (Text Only Entry) (rmsec ) (Entered: 07/20/2018)

07/24/2018 114 ORDER that "Plaintiffs Objections to Magistrate Judges Order (Doc. 102) Denying Plaintiffs Fed. R. Civ. P. 56(d) Motion (Doc. 90 )" (ECF No. 109 ) is OVERRULED in part and SUSTAINED in part as stated herein; the Magistrate Judges Order of June 27, 2018 (ECF No. 102 ) is

Case: 1:17-cv-2493 As of: 06/02/2020 08:50 PM MDT 10 of 11

ACCEPTED and AFFIRMED as to the finding that discovery under Fed. R. Civ. P. 56(d) may not be had, but REJECTED as to the finding "that the reason the discovery is being sought is likely to satisfy the Plaintiff's speculative hope of finding some evidence that might tend to support another complaint and is therefore improper."; and, the 110 OBJECTION/Appeal of Magistrate Judge Decision to District Court is DENIED AS MOOT. ORDERED by Judge Raymond P. Moore on 7/24/2018. (cthom, ) (Entered: 07/24/2018)

07/30/2018 115

RESPONSE to 80 MOTION for Partial Summary Judgment filed by Plaintiff Umar Farouk Abdulmutallab. (Attachments: # 1 Exhibit Statement of Undisputed Material Facts, # 2 Exhibit AR 746012 − Re Communication with All Family, # 3 Exhibit Re SAMs, # 4 Exhibit AR 756045 − Re Arizona Fed PD Contact, # 5 Exhibit AR 768920 − Re contact with all family, # 6 Exhibit AR 774879 − Re Retaliation for Hunger Striking, # 7 Exhibit AR 861387 − Re SAMs and religious rights, # 8 Exhibit AR 874164 − Re force feeding, # 9 Exhibit 2017−10−12 BOP Rejection Notice for Too Many Issues)(Johnson, Gail) (Entered: 07/30/2018)

08/13/2018 116 REPLY to Response to 80 MOTION for Partial Summary Judgment filed by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Attachments: # 1 Ex. 1 −− Statement of Undisputed Material Facts)(Moskowitz, David) (Entered: 08/13/2018)

09/10/2018 117 NOTICE of Supplemental Authorities re: 115 Response to Motion,, by Plaintiff Umar Farouk Abdulmutallab (Johnson, Gail) (Entered: 09/10/2018)

09/13/2018 118 RESPONSE to 117 Notice of Supplemental Authorities by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered: 09/13/2018)

03/06/2019 119

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kathleen M. Tafoya on 3/6/19 re 80 MOTION for Partial Summary Judgment filed by Federal Bureau of Prisons, Jefferson Sessions. This Court respectfully RECOMMENDS that Defendants Motion for Partial Summary Judgment (Doc.No. 80) be GRANTED and that Defendants be granted summary judgment as to Claims 1, 6, 8, 9, and paragraph 147 of the Amended Complaint; that Defendants be granted summary judgment as to Claims 2 through 5 regarding communication with his thirteen nieces and nephews; that Defendants be granted summary judgment as to Claims 7, 11, and 13 in which Plaintiff asserts he was force−fed in 2012 and 2015 without medical necessity, for purposes of retaliation, and/or without following the BOPs procedures on force−feeding; and that Defendants be granted summary judgment as to Claim 14 to the extent Plaintiff relies on allegations that this court has found to be unexhausted. (nmarb, ) Modified on 3/6/2019 (tsher, ). (Entered: 03/06/2019)

03/06/2019 120

AMENDED RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kathleen M. Tafoya on 3/6/2019 re 80 MOTION for Partial Summary Judgment filed by Federal Bureau of Prisons, Jefferson Sessions. this court respectfully RECOMMENDS that Defendants' Motion for Partial Summary Judgment (Doc.No. 80 ) be GRANTED and that Defendants be granted summary judgment as to Claims 1, 6, 8, 9, 10, 12, and paragraph 147 of the Amended Complaint; that Defendants be granted summary judgment as to Claims 2 through 5 regarding communication with his thirteen nieces and 5 nephews; that Defendants be granted summary judgment as to Claims 7, 11, and 13 in which Plaintiff asserts he was force−fed in 2012 and 2015 without medical necessity, for purposes ofretaliation, and/or without following the BOP's procedures on force−feeding; and that Defendants be granted summary judgment as to Claim 14 to the extent Plaintiff relies on allegations that this court has found to be unexhausted. (tsher, ) (Entered: 03/06/2019)

03/06/2019 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, ) (Entered: 03/06/2019)

03/07/2019 122 Joint MOTION for Extension of Time to FILE OBJECTIONS AND RESPONSES by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 03/07/2019)

03/08/2019 123 ORDER granting 122 Motion for Extension of Time to File. Objections due 4/19/2019, and response to objections due by 5/31/2019. SO ORDERED by Judge Raymond P. Moore on

Case: 1:17-cv-2493 As of: 06/02/2020 08:50 PM MDT 11 of 11
3/8/2019. (Text Only Entry ) (rmsec ) (Entered: 03/08/2019)
04/15/2019 124 Unopposed MOTION for Extension of Time to File Objections by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 04/15/2019)
04/16/2019 125 ORDER granting 124 Motion for Extension of Time to File. SO ORDERED by Judge Raymond P. Moore on 4/16/2019. (Text Only Entry ) (rmsec ) (Entered: 04/16/2019)
05/10/2019 126 Unopposed MOTION for Extension of Time to File Objections in Five Days by Plaintiff Umar Farouk Abdulmutallab. (Randolph, Aurora) (Entered: 05/10/2019)
05/10/2019 127 ORDER granting 126 Motion for Extension of Time to File. Entered by Judge Raymond P. Moore on 5/10/2019. (Text Only Entry)(rmsec ) (Entered: 05/10/2019)
05/15/2019 128 OBJECTION to 120 Report and Recommendations of United States Magistrate Judge filed by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 05/15/2019)
05/15/2019 129 OBJECTION to 121 Report and Recommendations by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) Modified to correct text on 5/16/2019 (cthom, ). (Entered: 05/15/2019)
05/31/2019 130 RESPONSE to Objection to 120 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 80 MOTION for Partial Summary Judgment filed by Federal Bureau of Prisons, Jefferson Sessions filed by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered: 05/31/2019)
05/31/2019 131 RESPONSE to Objection to 121 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 79 MOTION to Dismiss Amended Complaint filed by Federal Bureau of Prisons, Jefferson Sessions filed by Defendants Federal Bureau of Prisons, Jefferson Sessions. (Moskowitz, David) (Entered: 05/31/2019)
09/18/2019 132 ORDER granting 80 Motion for Partial Summary Judgment, dismissing certain claims, adopting 120 Report and Recommendations, and overruling 128 Objection to Recommendation. Entered by Judge Raymond P. Moore on 9/18/2019. (cpear) Modified on 9/18/2019 to add text (cpear). (Entered: 09/18/2019)
09/18/2019 133 ORDER granting in part and denying as moot in part 79 Motion to Dismiss, adopting 121 Report and Recommendations, dismissing remaining claims, and overruling 129 Objection to Recommendation. Judgment shall enter in favor of Defendants and against Plaintiff. Entered by Judge Raymond P. Moore on 9/18/2019. (cpear) (Entered: 09/18/2019)
09/18/2019 134 FINAL JUDGMENT pursuant to Orders 132 and 133 . Entered by the Clerk of the Court on 9/18/2019. (cpear) (Entered: 09/18/2019)
11/12/2019 135 Unopposed MOTION to Withdraw as Attorney by Plaintiff Umar Farouk Abdulmutallab. (Johnson, Gail) (Entered: 11/12/2019)
11/13/2019 136 MEMORANDUM regarding 135 Unopposed MOTION to Withdraw as Attorney filed by Umar Farouk Abdulmutallab. Motion referred to Magistrate Judge Kathleen M. Tafoya. Entered by Judge Raymond P. Moore on 11/13/2019. (Text Only Entry) (rmsec ) (Entered: 11/13/2019)
11/13/2019 137 MINUTE ORDER granting 135 Motion to Withdraw as Attorney. Attorney Gail Kathryn Johnson and Aurora Lynn Randolph terminated. By Magistrate Judge Kathleen M. Tafoya on 11/13/19. Text Only Entry(kmtlc1 ) (Entered: 11/13/2019)

 
 Case 1:17-cv-02493-GPG Document 1 Filed 10/18/17 USDC Colorado Page 1 of 73
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. ___________________ 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. ________________________________________________________________________
COMPLAINT FOR INJUNCTIVE RELIEF, DECLARATORY RELIEF, AND ATTORNEY’S FEES
________________________________________________________________________ Plaintiff Umar Farouk Abdulmutallab, through his attorneys, Gail K. Johnson and
Amy Kapoor of Johnson & Klein, PLLC, hereby submits this Complaint alleging violations of his rights under the First, Fifth, and Eighth Amendments to the United States Constitution as well as under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (RFRA).
I. INTRODUCTION 1. Plaintiff Umar Farouk Abdulmutallab, a native of Nigeria, has been in federal custody since December 25, 2009. He is serving four terms of life imprisonment plus 50 years for his convictions for the attempted use of a weapon of mass destruction

Case 1:17-cv-02493-GPG Document 1 Filed 10/18/17 USDC Colorado Page 2 of 73
on a commercial airliner that landed in Detroit, Michigan, and the attempted murder of the 289 people on board.
2. Mr. Abdulmutallab was indicted and prosecuted in the U.S. District Court for the Eastern District of Michigan for multiple federal criminal offenses. He pleaded guilty without a plea bargain to all counts charged against him. He received the maximum sentence possible on each count and cumulatively.
3. Mr. Abdulmutallab was only 23 years old on February 16, 2012, when he was sentenced to serve multiple life sentences in the federal prison system.
4. In March 2012, Mr. Abdulmutallab was transferred to the United States Penitentiary–Administrative Maximum in Florence, Colorado (ADX), to serve his life sentences there. ADX is the highest security prison operated by the Federal Bureau of Prisons (BOP).
5. The conditions of confinement at ADX are the most restrictive of any federal prison in the United States. As a result of his transfer to ADX, Mr. Abdulmutallab was placed in indefinite, long-term solitary confinement—potentially for decades.
6. The United States government believes that Mr. Abdulmutallab was recruited to commit his crimes of conviction by Anwar Al-Awlaki. On September 30, 2011, more than six years ago, and several months before Mr. Abdulmutallab was
2

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convicted and transferred to ADX, Mr. Al-Awlaki was killed by a United States drone strike in Yemen.
7. Before transferring Mr. Abdulmutallab to long-term solitary confinement at ADX, the United States government (through its Attorney General) placed Mr. Abdulmutallab under Special Administrative Measures (SAMs). The SAMs imposed on Mr. Abdulmutallab prohibit him from having any communication whatsoever with more than 7.5 billion people, the vast majority of people on the planet.
8. The BOP is among those entities responsible for implementing SAMs. Because he is under SAMs, Mr. Abdulmutallab is incarcerated in the H-Unit of ADX. All of the inmates at ADX who are under SAMs are housed in H-Unit, and all of the inmates housed in the H-Unit of ADX are under SAMs.
9. The social isolation inherent in Mr. Abdulmutallab’s placement in longterm solitary confinement at ADX is greatly exacerbated by his SAMs, which further isolate him from other people to a remarkable degree. There are currently more than 154,000 inmates in BOP custody. Of those 154,000 inmates, fewer than 30 are under SAMs and incarcerated at H-Unit in ADX.
10. The hundreds of inmates incarcerated at ADX who are not under SAMs are allowed to communicate with any persons they wish, with very few exceptions. Apart from attorney-client communications, such communications to and from ADX inmates are subject to monitoring by the BOP and other federal law-enforcement officials.
3

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11. Mr. Abdulmutallab’s SAMs have been renewed annually each year since their imposition, sometimes with minor modifications. For example, previous versions of Mr. Abdulmutallab’s SAMs in effect from March 2012 until August 2016 prohibited him from communicating with one of his own sisters, Maryam Mutallab. This is true even though the BOP had previously allowed Mr. Abdulmutallab to communicate with Maryam Mutallab while he was incarcerated during the pendency of his federal criminal case at the Federal Correctional Institution-Milan in Michigan (FCI Milan). Mr. Abdulmutallab’s current SAMs allow him to communicate with Maryam Mutallab.
12. Since their imposition in 2012 and continuing until the present time, the SAMs have prohibited and continue to prohibit Mr. Abdulmutallab from communicating in any manner whatsoever with his nieces and nephews. Mr. Abdulmutallab currently has thirteen nieces and nephews. Twelve of them are children. Nine of them are age 14 or younger. Six of them are age 11 or younger. Three of them are age 7 or younger.
13. According to 28 C.F.R. § 501.3(a), SAMs must be reasonably necessary to protect persons against the risk of death or serious bodily injury. Mr. Abdulmutallab’s SAMs are not reasonably necessary to protect persons against the risk of death or serious bodily injury.
14. According to 28 C.F.R. § 501.3(a), SAMs may be imposed on a BOP inmate only when there is a substantial risk that the inmate’s communications or contacts with persons could result in death or serious bodily injury to persons, or substantial
4

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damage to property that would entail the risk of death or serious bodily injury to persons. Neither when the SAMs were first imposed on Mr. Abdulmutallab, nor at any time thereafter, has there been evidence that Mr. Abdulmutallab’s communications pose such a substantial risk.
15. Prison walls do not form a barrier separating prison inmates from the protections of the United States Constitution.
16. The communication restrictions contained in Mr. Abdulmutallab’s SAMs and implemented by the BOP are an unconstitutional deprivation of his First-Amendment rights to free speech and association. This infringement of Mr. Abdulmutallab’s FirstAmendment rights is not reasonably related to any legitimate penological interest.
17. Mr. Abdulmutallab is a Muslim. His SAMs severely restrict his ability to practice his religion. These restrictions also violate Mr. Abdulmutallab’s rights under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (RFRA).
18. During the more than five years that Mr. Abdulmutallab has been incarcerated at ADX, he has not been able to participate in group prayer in accordance with his sincerely held religious beliefs. ADX categorically prohibits congregational prayer.
19. ADX does not currently have an imam on staff. Nor does ADX currently have an imam on contract. Mr. Abdulmutallab has not had regular access to an imam in several years.
5

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20. During the more than five years that Mr. Abdulmutallab has been incarcerated at ADX, he has not been provided with a halal diet and instead has been forced—sometimes forcibly, sometimes as a result of having no other options—to consume foods that are considered haram or religiously forbidden, in violation of his sincerely held religious beliefs.
21. During his incarceration at ADX, Mr. Abdulmutallab has behaved well and maintained respectful relationships with BOP officials.
22. Like other Muslim inmates in ADX’s H-Unit, Mr. Abdulmutallab has been subjected to frequent harassment regarding his religion. During prayer times, white supremacist inmates in H-Unit often curse, yell, scream, and say things that are religiously insulting and offensive to Muslims, including to Mr. Abdulmutallab.
23. ADX corrections officers have allowed this religious harassment by white supremacist inmates against Muslim inmates in H-Unit to take place.
24. Some corrections officers have themselves harassed Mr. Abdulmutallab by displaying to him during prayer times magazines containing photographs of naked women, which is religiously offensive to him. Corrections officers have also defiled religious items in Mr. Abdulmutallab’s cell, such as his prayer rug and Qu’ran.
25. This harassment has rendered it extremely difficult for Mr. Abdulmutallab to manage the difficulties of the harsh conditions of solitary confinement by taking solace in his religion and religious practices.
6

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26. In the face of this prolonged, systematic, mental, spiritual, and psychological cruelty, Mr. Abdulmutallab has tried to shed light on the illegal and unconstitutional conditions of his confinement at ADX and under SAMs by engaging in nonviolent and passive protest in the form of hunger striking.
27. Mr. Abdulmutallab has gone on hunger strike to protest his SAMs and in particular the fact that for several years, he was being arbitrarily denied any communication whatsoever with his own sister, Maryam Mutallab. Mr. Abdulmutallab has also gone on hunger strike at ADX to protest the fact that prison officials allow the white supremacist inmates in H-Unit to continually harass Muslim inmates in H-Unit during Islamic prayer times.
28. Hunger striking is a well-established means of drawing attention to—and nonviolently protesting—extreme human rights abuses and inhumane and illegal government oppression. Newly captured enslaved persons crossing the Atlantic Ocean on the brutal and dangerous journey from Africa to America would hunger strike, and were force fed. So too would enslaved persons in the United States sometimes hunger strike, and be force fed at the direction of their “owners.” Suffragettes in both the United Kingdom and in the United States sometimes protested the fact that the law denied women the right to vote by hunger striking, and were force fed. And from Pelican Bay, California, to Youngstown, Ohio, prisoners in the United States have engaged in hunger
7

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strikes in recent years in order to shine the light of public attention on the harshness of supermax prison conditions and encourage reform.
29. Instead of attempting to address Mr. Abdulmutallab’s legitimate concerns about the illegal and inhumane treatment he has received, Defendants have intentionally and repeatedly responded to and retaliated against Mr. Abdulmutallab for exercising his constitutional right to hunger strike by force-feeding him and by transferring him to Range 13 at ADX.
30. At ADX, Mr. Abdulmutallab has been repeatedly force fed in a manner that is excessively and unnecessarily painful, abusive, dangerous, and degrading. On one occasion, the force-feeding tube was placed down his windpipe instead of his esophagus, causing the nutritional supplement liquid to enter his lungs and resulting in Mr. Abdulmutallab feeling like he was being drowned in a manner akin to waterboarding. On other occasions, even when the force-feeding tube was placed down Mr. Abdulmutallab’s esophagus, the high speed and high volume used for the feeding has caused pain and discomfort and has been unnecessarily risky to Mr. Abdulmutallab’s health. The forcefeedings of Mr. Abdulmutallab at ADX have also violated his religion. His hunger striking is necessarily a religious practice given his sincerely held religious beliefs and the religious harassment he has experienced at ADX and is protesting when he hunger strikes. Additionally the BOP has force-fed him with substances that are “haram,” which he is religiously forbidden to consume.
8

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31. Range 13 is the most isolated range in ADX. The degree of isolation for the few inmates who are ever incarcerated there is more extreme than in H-Unit. There are four cells on Range 13, two on one side and two on the other. Range 13 was designed to hold up to two inmates, with one inmate being rotated between two cells on one side of the range while another inmate being rotated between the two cells on the other side. A wall was constructed between the two sides of the Range to prevent inmates from communicating with each other. Range 13 has no ranges of inmate cells above or below it. Inmates incarcerated on Range 13 are moved from their cells to a “recreation” facility without any human contact; a BOP official remotely opens and closes sliding doors electronically and then the inmate walks from his cell into the “recreation” facility. There is no exercise equipment in the Range 13 recreation facility and no view of other ADX inmates.
32. The BOP denies that it uses solitary confinement, instead preferring the euphemism “restrictive housing.”
33. The U.S. Department of Justice’s Office of Inspector General recently conducted an audit of “restrictive housing” and mental illness in the BOP, which culminated in a written report issued July 2017. According to that report, when asked whether placement on Range 13 could be considered a form of solitary confinement, an ADX psychologist responded by describing the inmate experience in Range 13 as a form of torture:
9

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[Y]ou have no contact, you don’t speak to anybody, and it’s a form of torture on some level.… [Inmates] still talk to officers and stuff like that, but they don’t really get a chance to see anybody…. They rec[reate] alone; we don’t even have to be back there to rec them. So, yes, I would say that they are in fact in solitary confinement.1 34. Based on his indefinite incarceration in H-Unit under SAMs and where his nonviolent protests of the inhumane conditions of his confinement are met with brutal force-feeding and incarceration in Range 13, Mr. Abdulmutallab is subject to conditions of confinement amounting to an atypical and significant hardship in relation to the ordinary incidents of prison life. Mr. Abdulmutallab has been and continues to be deprived of his liberty interest in avoiding such conditions of confinement without being provided adequate notice and a meaningful opportunity to be heard, in violation of due process of law as guaranteed by the Fifth Amendment to the United States Constitution. 35. The extreme communication restrictions of the SAMs violate Mr. Abdulmutallab’s rights to free speech and association, including his right to family relationships, under the First and Fifth Amendments to the United States Constitution. 36. By incarcerating Mr. Abdulmutallab under SAMs in H-Unit, the BOP has also significantly curtailed his ability to practice his religion. 37. Defendant BOP and its staff at ADX have substantially burdened Mr. Abdulmutallab’s practice of Islam in accordance with his sincerely held religious beliefs by denying him the opportunity for congregational prayer, access to an imam, a halal 1 Review of the Federal Bureau of Prisons’ Use of Restrictive Housing for Inmates with Mental Illness (July 2017), at 16 (emphasis added).
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diet, and the right to nonviolently protest the religious harassment that is an integral part of his harsh conditions of confinement without being brutally force fed and transferred to the extreme isolation of Range 13.
38. Mr. Abdulmutallab’s SAMs, his indefinite solitary confinement at ADX, the extreme conditions of confinement in H-Unit at ADX, and the use of force-feeding in response to nonviolent passive protest in the form of hunger striking inflict unnecessary psychological pain on Mr. Abdulmutallab and are contrary to the evolving standards of decency that are the hallmark of a maturing society. These factors together violate the proscription against cruel and unusual punishments in the Eighth Amendment to the United States Constitution.
39. Mr. Abdulmutallab seeks a judgment declaring that Defendants’ actions, policies, and practices described herein violate his constitutional rights under the First, Fifth, and Eighth Amendments to the United States Constitution and his statutory rights under RFRA.
40. Mr. Abdulmutallab seeks an injunction prohibiting Defendant BOP from force-feeding him as a response to his passive, nonviolent protest—in the form of hunger striking—of his conditions of confinement and the violations of his religious rights.
41. Mr. Abdulmutallab also seeks an injunction compelling Defendant Sessions to remove Mr. Abdulmutallab’s SAMs.
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42. Mr. Abdulmutallab also seeks an injunction compelling Defendants to remove him from solitary confinement (a/k/a/ “restrictive housing”).
43. Mr. Abdulmutallab also seeks injunctive relief requiring the BOP to allow him to engage in daily congregational prayers, provide him with regular access to an imam, and provide him with a halal diet in accordance with his sincerely held religious beliefs.
II. JURISDICTION AND VENUE 44. This Court has subject-matter jurisdiction over this case under 28 U.S.C. §§ 1331 and 1343(a)(4) because Mr. Abdulmutallab seeks equitable relief for the deprivation of rights secured by the United States Constitution and 42 U.S.C. § 2000bb-1(c) (RFRA), an Act of Congress providing or the protection of civil rights. 45. This Court further has jurisdiction to grant declaratory relief under 28 U.S.C. § 2201(a) because there is an actual controversy within this Court’s jurisdiction regarding whether Defendants violated Mr. Abdulmutallab’s constitutional and statutory rights. 46. Venue is proper in the District of Colorado under 28 U.S.C § 1391(b)(2), because a substantial part of the events or omissions giving rise to the claims occurred or will occur in the District of Colorado.
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III. PARTIES 47. Plaintiff Umar Farouk Abdulmutallab is a federal prisoner in the custody of the BOP who has been continuously confined at ADX since March 2012. Mr. Abdulmutallab is a devout Muslim who regularly practices the Islamic faith. 48. Defendant Jefferson Sessions is the Attorney General of the United States. Attorney General Sessions has decision-making authority regarding the placement, transfer, and treatment of prisoners within the BOP, as well as the power to direct the imposition, renewal, and cessation of SAMs affecting prisoners within the custody of the BOP pursuant to 28 C.F.R. § 501.3. He is sued in his official capacity. 49. Defendant BOP is an agency of the United States that is responsible for the administration of federal prisons, including ADX. The BOP maintains physical custody of Mr. Abdulmutallab. 50. Defendants John Does 1 through 20 (“John Does”) are one or more individuals, agencies, offices, or task forces that, upon information and belief, are associated with the United States Department of Justice, federal law-enforcement agencies, or agencies of the United States intelligence community and that have authority and influence over the renewal and implementation of SAMs pursuant to 28 C.F.R. § 501.3. They are sued in their official capacities.
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IV. FACTUAL BACKGROUND A. Mr. Abdulmutallab’s Arrest, Guilty Pleas, and Sentence
51. Mr. Abdulmutallab was arrested at Detroit Metropolitan Airport by U.S. Customs and Border Protection Officers on December 25, 2009.
52. The United States prosecuted Mr. Abdulmutallab for multiple federal crimes.
53. Mr. Abdulmutallab pleaded guilty to all counts charged against him in the Indictment.
54. He was sentenced to the maximum sentence on each count, resulting in a cumulative sentence of more than four consecutive terms of life imprisonment.
55. Mr. Abdulmutallab has been imprisoned at ADX for more than five years, where he is locked down alone in his cell for 22-23 hours a day. B. Mr. Abdulmutallab’s Initial Confinement
56. In early 2012, Mr. Abdulmutallab was initially confined to the special housing unit of FCI Milan, where he was incarcerated in solitary confinement for approximately 23 hours per day under highly restrictive conditions characterized by social isolation and sensory deprivation.
57. While in pretrial detention, Mr. Abdulmutallab was surveilled by correctional officers 24 hours a day.
58. As a Muslim, Mr. Abdulmutallab sincerely believes that his religion requires him to consume only food items that are “halal,” meaning lawful, as opposed to
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foods that are “haram,” or forbidden. Haram foods include, but are not limited to, pork and pork byproducts; meat from animals not slaughtered according to prescribed methods; and additives containing alcohol, including sugar alcohols, gelatin, animal shortening, and certain emulsifiers or enzymes.
59. Islamic doctrine dictates, and Mr. Abdulmutallab sincerely believes, that non-halal (“haram” or forbidden) food destroys the spirituality and morality of the consumer. Mr. Abdulmutallab further sincerely believes, as part of his religion, that a Muslim who consumes non-halal food is “faasiq” (dissolute) and considered a flagrant sinner, and that the prayers of a person eating haram food are considered ineffective.
60. The Qu’ran states “Allah knows best who strayed from His path: and He knows best who receives His guidance. So eat meat on which Allah's name has been pronounced, if you have faith in His signs.” Mr. Abdulmutallab believes that to fully observe this mandate of Islam, he must eat a completely halal diet with halal meats and that he is religiously forbidden from being vegetarian.
61. During his incarceration at FCI Milan, Mr. Abdulmutallab had no access to a halal diet.
62. At FCI Milan, Officer Polkinghorn and Officer Rutter would intentionally flip through sexually explicit magazines in Mr. Abdulmutallab’s line of sight while he was praying. This essentially forced Mr. Abdulmutallab to view naked images while praying in direct violation of his religion.
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63. Officer Polkinghorn and Officer Rutter also harassed Mr. Abdulmutallab by defiling his religious items during a shakedown of his cell. When Mr. Abdulmutallab returned to his cell following the shakedown by these officers, he saw that the condition of his Qur’an had changed; some pages of the Qur’an had been partially ripped, and a sticky liquid had been put on the Qur’an. Additionally, upon returning to his cell following this shakedown by these officers, Mr. Abdulmutallab saw that his prayer rug, which he had left neatly folded, was crumpled and lying in a different location, as if it had been kicked around.
64. In addition to the persistent religious harassment, FCI Milan correctional officers including Officer Marvin deliberately made noises to continually deprive Mr. Abdulmutallab of sleep.
65. The degrading and inhumane behavior of FCI Milan correctional officers toward Mr. Abdulmutallab foreshadowed the harsh and tormenting conditions of confinement he continues to face at ADX. C. Transfer to ADX
66. In the beginning of March 2012, Mr. Abdulmutallab was notified that he was being transferred to ADX.
67. Mr. Abdulmutallab’s family had already come all the way from Nigeria to visit him on a planned and authorized family visit.
68. Even though Mr. Abdulmutallab would not begin the transfer process until later that day, the BOP refused to allow Mr. Abdulmutallab to visit with his family.
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69. Mr. Abdulmutallab was temporarily housed at United States Penitentiary Florence pending his placement at ADX.
70. His family again attempted to visit him at USP Florence. 71. Despite that the family had already been approved for a visit, the BOP arbitrarily refused to allow the visit. It would be over a year before Mr. Abdulmutallab would be able to see his family again in person. 72. Mr. Abdulmutallab was placed in the special housing unit at USP Florence, where he had no access to a halal diet in violation of his sincerely held religious beliefs. 73. Mr. Abdulmutallab was placed in a cell full of vulgar writing and sexually explicit pictures. He was arbitrarily stripped searched in front of other inmates and female officers, in violation of his religion. 74. On March 30, 2012, Mr. Abdulmutallab was told he would be have his ADX placement hearing the next day. 75. Mr. Abdulmutallab immediately asked to speak to his attorneys in order to prepare for the hearing, but his request was ignored. 76. A few days earlier, Mr. Abdulmutallab had been interviewed by a BOP psychologist who specifically encouraged him to attend ADX placement hearing. According to the psychologist, given Mr. Abdulmutallab’s disposition, Mr. Abdulmutallab did not belong at ADX.
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77. The “hearing” was conducted in a prison counselor’s office. The hearing officer was on the telephone.
78. At the beginning of the hearing, Mr. Abdulmutallab was told that the only purpose for his attendance at the hearing was for to defend himself against any incident reports in his file.
79. Mr. Abdulmutallab fruitlessly attempted to present evidence that many organizations including the United Nations and Human Rights Watch have shown that solitary confinement is counterproductive to the goal of rehabilitation. He tried to explain to the hearing officer it was not necessary to designate him to ADX. But he was immediately shut down and told that the BOP already monitors evidence related to solitary confinement.
80. Mr. Abdulmutallab tried to recount to the hearing officer what the BOP psychologist had said, but the hearing officer told him that it was not relevant.
81. In less than fifteen minutes, the hearing was over. 82. A day later, Mr. Abdulmutallab received a report stating that he was designated to ADX. D. Background and Operation of ADX 83. At any given time, between 400 and 500 prisoners are housed at ADX. There are nine different maximum-security housing units, which are divided into six security levels: the Control Unit (or “Bravo” Unit); the disciplinary Special Housing
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Unit (also called “Charlie” Unit, “Zulu” Unit, the “SHU,” or the “Hole”); “Range 13,” an ultra-secure and isolated four-cell wing of Charlie Unit in which the BOP houses prisoners it believes require confinement with virtually no human contact; four “General Population” Units (“Delta,” “Echo,” “Fox,” and “Golf” Units); the Special Security Unit (also called the “SAMs” Unit or “H” Unit); and two units (“Joker” Unit and “Kilo” Unit) that in recent years have been used as transitional housing units for prisoners who have entered the ADX “Step-Down Program” can earn their way out of ADX and into a lower security classification.
84. ADX prisoners who are not in the ADX Step-Down Program spend from 23-24 hours per day locked alone in their cells. The cells measure approximately 12 feet by 7 feet and have solid walls that prevent prisoners from viewing the interiors of other cells or having direct contact with other prisoners. All ADX cells have a solid door with a small closable slot.
85. Each cell is furnished with a concrete bed, desk, and stool and a stainlesssteel combination sink and toilet. The beds are usually dressed with a thin mattress and blankets over concrete.
86. Each cell contains a single window, approximately 42 inches tall and 4 inches wide, which allows entry of some natural light but is designed to ensure that prisoners cannot see anything outside of their cells other than the building and sky.
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87. Meals are delivered three times a day, to be consumed alone inside the cell. With few exceptions, prisoners in most ADX units are allowed out of their cells only for limited social or legal visits, some forms of medical treatment, visits to the “law library” (a cell with a specialized computer terminal that provides access to a limited range of federal legal materials), and a few hours per week of indoor or outdoor recreation. Otherwise, prisoners remain locked in their cells.
88. ADX offers four meal options to prisoners: a regular diet, no-pork diet, nomeat diet, and the Common Fare diet (a Kosher diet).
89. Jewish prisoners are able to obtain their religiously-mandated kosher diet through the Common Fare diet.
90. Food that is kosher is not necessarily halal. 91. The prison commissary does not regularly sell meals that meet Mr. Abdulmutallab’s religious needs, i.e., halal-certified meals that include halal meats. 92. Kosher-certified meals with meat are regularly sold in the prison commissary. 93. The refusal to provide a halal diet means Mr. Abdulmutallab is faced with a Hobson’s choice at every meal—he must choose whether to eat or observe his religion. E. The ADX Step-Down Program 94. The ADX Step-Down Program involves prisoners being progressively transferred through a series of three transitional housing units in which they are afforded direct, although still extremely limited, contact with other prisoners.
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95. Successful completion of the ADX Step-Down Program is necessary for a prisoner to be allowed to transfer out of ADX. Still, prisoners who reside in the stepdown units are confined to their cells for all but a few hours a day.
96. Every prisoner intent on earning his way out of ADX is required to pass through Joker Unit. One side of Joker Unit, comprising 32 cells, houses the first stage in the Step-Down Program. Prisoners are eligible for transfer to Joker Unit only after completing an extended period of good conduct.
97. Prisoners who avoid trouble in Joker Unit are eligible to move, after a time, to the second phase of Step-Down, where they have more privileges.
98. The second phase of the ADX Step-Down Program is housed at USP Florence, which is directly across the street from ADX. Prisoners who successfully complete the second Step-Down phase are eligible to move to the final Step-Down phase (also housed at USP Florence), which provides even more privileges and a pathway to transfer to a regular, high-security federal penitentiary.
99. Unlike other ADX cells, the individual cells in the Step-Down units at ADX have no interior bars. Accordingly, only one sliding solid steel door separates prisoners from the open day room at the center of the unit. Joker-Unit prisoners are part of a “Recreation Group” of up to seven other prisoners housed on the same tier. Each Recreation Group is released at once into the day room or outside recreation yard, where they have unrestricted access to one another.
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100. Mr. Abdulmutallab has never been housed in Joker-Unit in the more than five years he has been incarcerated at ADX.
101. Successful completion of the Step-Down Program can take years, even if a prisoner behaves perfectly. But any transgression, however minor, can and often does result in the prisoner’s removal from the program, placement back in ADX’s Special Housing Unit, and a restarting of the good-conduct clock.
102. Many ADX prisoners have made it part way through the Step-Down Program several times, only to be returned to the SHU or general population based on a small transgression. F. H-Unit
103. On Wednesday April 11, 2012, Mr. Abdulmutallab was transferred to H-Unit.
104. H-Unit is one of the most restrictive units at ADX. With the exception of a period of approximately three weeks when he was sent to Range 13, Mr. Abdulmutallab has been and continues to be confined in H-Unit since he was transferred to ADX in April 2012. H-Unit contains only male inmates who are subject to SAMs.
105. Mr. Abdulmutallab’s H-Unit cell measures 75.5 square feet and contains a bed, table, cement slab, toilet, and television.
106. Mr. Abdulmutallab’s cell contains no shower. He must use the communal shower located within his particular range.
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107. The communal shower area is frequently used as a toilet by many inmates and therefore unsanitary.
108. Mr. Abdulmutallab’s cell has a narrow window through which he can see the wall of the outside hallway, but no other cells or people other than those who pass by the window. The cell has a smaller window to the outside that faces the recreation yard.
109. Mr. Abdulmutallab is locked down alone in his cell for 22-23 hours a day. 110. He is fed his meals in his cell and must eat every meal alone. 111. Access to books from ADX education department, library access, commissary access, television and radio access, and family and legal visitation are subject to significantly greater restrictions in H-Unit than in other ADX units. 112. Whenever Mr. Abdulmutallab leaves his unit, such as to attend a legal visit, he is placed in hand and leg shackles that are connected to chains circling his waist, and he is accompanied by multiple corrections officers. 113. Mr. Abdulmutallab is placed in leg shackles and belly chains during legal visits and when being escorted within H-Unit. 114. Mr. Abdulmutallab’s recreation schedule is as follows: two hours per day, either outside (six days a week) or inside (one day a week). The outside recreation facilities consist of a yard with six individual cages. The indoor recreation facilities consist of a large cell in which Mr. Abdulmutallab does not see any other inmates.
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G. Imposition of Special Administrative Measures (SAMs) 115. In April 2012, Mr. Abdulmutallab was placed under SAMs based on “his
proclivity for violence.” 116. Pursuant to 28 C.F.R. § 501.3, SAMs may be imposed only at the direction
of the Attorney General and, upon that direction, authorization to the Warden by the Director of the BOP, upon written notification “that there is a substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.”
117. Pursuant to 28 C.F.R. § 501.3, SAMs “may include housing the inmate in administrative detention and/or limiting certain privileges including, but not limited to, correspondence, visiting, interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to protect persons against the risk of acts of violence or terrorism.”
118. Pursuant to 28 C.F.R. § 501.3, SAMs may not be imposed for a period of longer than one year, though they may be extended in one-year increments thereafter by the Director of the BOP upon receipt of written notification from the Attorney General or, at the Attorney General’s direction, from the head of a federal law-enforcement agency or the head of a member agency of the U.S. intelligence community, “that there continues to be a substantial risk that the inmate's communications or contacts with other
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persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of serious bodily injury to persons.”
119. The SAMs imposed upon Mr. Abdulmutallab have been continually renewed on an annual basis since their imposition in April 2012.
120. Mr. Abdulmutallab has never been apprised of or provided meaningful notice of the reasons for his initial placement under SAMs nor of the reasons for their annual renewals.
121. Mr. Abdulmutallab was not provided a hearing or other opportunity to address the imposition of SAMs prior to their imposition.
122. While Mr. Abdulmutallab has availed himself of the opportunity to provide comments about at least some of the annual renewals of the SAMs, his requests for modification or removal of the SAMs have uniformly been rejected and denied without meaningful explanation.
123. Defendant Sessions continues to impose SAMs on Mr. Abdulmutallab without adequate justification or procedural protections for Mr. Abdulmutallab’s liberty interests. H. Mr. Abdulmutallab’s Right to Familial Relationships
124. BOP policy states that inmates at ADX “have the right to visit and correspond with family members and friends . . . in keeping with Bureau rules and institution guidelines.” ADX Admission and Orientation Handbook (November 2008), Attachment D at 2.
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125. Under his SAMs, Mr. Abdulmutallab is permitted to visit and correspond with no one other than his attorneys and his immediate family—narrowly defined as parents, siblings, children, and grandparents. Mr. Abdulmutallab is not permitted to communicate with his thirteen nieces and nephews, many of whom are young children.
126. Although Mr. Abdulmutallab is allowed to speak with his family on the phone three times a month, these calls are frequently cancelled without notice either Mr. Abdulmutallab or his family. These frequent, unannounced cancellations cause stress and anxiety for both Mr. Abdulmutallab and his family.
127. On information and belief, prisoners subjected to SAMs, such as Mr. Abdulmutallab, are each permitted to write one letter per week and that letter and its contents can be addressed only to one person, such as prisoner’s father or mother but not both, or that letter will not be permitted to be sent. Prisoners not subjected to SAMs are not similarly restricted when writing letters. Thus, the SAMs deprive Mr. Abdulmutallab of a significant First-Amendment interest.
128. Mr. Abdulmutallab has had more than 26 letters rejected by ADX solely based on the unconstitutional restraint on communication due to the SAMs.
129. Some of the individuals whose letters have been rejected by ADX were people Mr. Abdulmutallab had previously communicated with while incarcerated at FCI Milan.
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130. Mr. Abdulmutallab’s relationships with his family members have suffered great harm as a result of the prohibition against communicating with extended family members, especially his young nieces and nephews, and as a result of the excessive delays imposed on Mr. Abdulmutallab’s incoming and outgoing mail. I. The Right to Read Books
131. BOP regulations state that inmates have the right to “a wide range of reading materials for educational purposes and for [their] own enjoyment.” 28 C.F.R. § 540.70 (2007). The regulations specify that this includes “magazines and newspapers sent from the community, with certain restrictions.” Id. Further, BOP regulations permit inmates to receive subscriptions without obtaining prior approval, with limited exceptions in the case of publications containing nudity or sexually-explicit material. See id.
132. Whether due to the SAMs or other factors, Defendants have censored books coming into ADX for Mr. Abdulmutallab. For example, on July 26, 2017, two nonsexually-explicit and otherwise unobjectionable books were delivered to ADX for Mr. Abdulmutallab by amazon.com: The Life-Changing Magic of Tidying Up: The Japanese Art of Decluttering and Organizing, by Marie Kondo, and 168 Hours: You Have More Time Than You Think, by Laura Vanderkam. As of the filing of this Complaint, Mr. Abdulmutallab has not received these books, nor has he been given any reason why Defendants are refusing to allow him to read them.
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J. The Right to Legal Counsel from an Attorney of Choice 133. BOP regulations state that federal inmates have the right to “legal counsel
from an attorney of your choice by interviews and correspondence.” 28 C.F.R. § 541.12 (2007). Under the SAMs, Mr. Abdulmutallab is not permitted to write to lawyers or law clinics to request legal advice, assistance, or representation. He is restricted to communicating with legal counsel from pre-approved attorneys who have signed a document affirming the SAMs. In practice, Mr. Abdulmutallab is not allowed to communicate with an attorney unless that attorney has been approved by the U.S. Attorney’s Office for the Eastern District of Michigan.
134. The government’s requirement that an attorney agree to a SAMs affirmation before the attorney can even read a letter or talk to a SAMs inmate regarding a legal matter constitutes an unreasonable prior restraint on free speech.
135. At least two incoming letters from attorneys to Mr. Abdulmutallab were censored and disallowed by BOP solely due to his SAMs restrictions.
136. All attorneys are officers of the court and should be treated in such manner. For example, the government may wish to enclose the unopened envelope containing Mr. Abdulmutallab’s letter in its own envelope with a letter explaining that this communication is from a SAMs designated inmate, further explaining it is requested that the attorney does not forward anything to another person or communicate messages to others. Banning any initial consultation between a SAMS prisoner and his possible
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future lawyer is unreasonable, constitutes a prior restraint, and violates the First Amendment. K. Communication with the News Media
137. BOP regulations also state inmates are permitted to correspond with members of the news media, as long as such communications are “in keeping with Bureau rules and institution guidelines.” See 28 C.F.R. § 540.20 (2007). The SAMs prohibit Mr. Abdulmutallab from communicating with the media—either directly or through his attorney. This is a blanket prohibition of all contact by any means.
138. The SAMs unreasonably restrict Mr. Abdulmutallab from communicating with the media and commenting on matters of public interest. There is no law or regulation have that inmates are precluded from providing comments on political and non-political issues. This restriction imposed by the SAMs is unreasonable and overly broad in violation of the First Amendment. L. Lack of Meaningful Review
139. The BOP’s Administrative Remedy procedure does not afford Mr. Abdulmutallab a meaningful review of his claims in connection with the SAMs. On March 20, 2014, Harrell Watts, Administrator for the BOP Central Office’s National Inmate Appeals, informed Mr. Abdulmutallab: “You may object to the provisions of the SAMs, but as the Warden appropriately advised you, the Bureau merely informs you of the requirements of the SAMs, and ensures the measures are followed. The continued
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need of the restriction is reviewed annually by the Attorney General (AG), and will remain in place until the AG determines they are no longer necessary.”
140. The SAMs are renewed at the discretion of Defendant Sessions with input from federal prosecutors, the FBI, and other officials at the U.S. Department of Justice. The BOP has limited input and no control over whether SAMs are imposed or renewed. The BOP’s responsibility is restricted to the implementation of the SAMs.
141. Mr. Abdulmutallab has not been given meaningful notice of the reasons for the renewals of his SAMs, nor an opportunity to appear before the decision-makers, nor a meaningful explanation regarding why his SAMs are continually renewed.
142. The placement of Mr. Abdulmutallab in long-term segregation has been delegated by Congress to the BOP and not to federal prosecutors or the FBI. However, in reality, Defendant Sessions, federal prosecutors, and the FBI decide Mr. Abdulmutallab’s continued confinement in segregation through Defendant Sessions’s continual renewal of Mr. Abdulmutallab’s SAMs.
143. The renewals of Mr. Abdulmutallab’s SAMs were arbitrary and capricious and without penological justification. M. No Meaningful Opportunity to Participate in ADX Step-Down Program
144. ADX presently operates two remediation programs: ADX Step-Down Program for the general population at ADX and the H-Unit Special Security Unit Program for H-Unit inmates. As a result of Mr. Abdulmutallab’s SAMs, he will never be
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able to participate in ADX Step-Down Program or transfer out of ADX like other inmates.
145. As a result of his SAMs, Mr. Abdulmutallab is ineligible to participate in ADX Step-Down Program.
146. In 2008, ADX promulgated a separate internal program for H-Unit known as the Special Security Unit Program. This program provides for three phases through which an inmate, through good behavior, may earn greater privileges and less restrictive conditions of confinement while remaining within H-Unit under SAMs. However, the program does not provide an opportunity for the inmate to be transferred out of H-Unit.
147. Phase One is a baseline phase that is the most restrictive. Phase one inmates are permitted two non-legal phone calls per month, access to a commissary list, use of art and hobby craft items, escorted shower time on the inmate’s range three times each week, and have access to a minimum of ten hours of out-of-cell recreation per week.
148. Phase Two inmates are allowed three non-legal phone calls per month, access to an expanded commissary list use of additional art and hobby craft items, unescorted showers five times per week, and access to a minimum of ten hours of out-ofcell recreation per week.
149. Phase Three inmates are permitted to spend a minimum of one and a half hours per day on the range with as many as four other inmates, five days a week. They
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are not restrained or escorted while on the range, eat one meal together, engage in recreational activities together, and may shower at any time they are on the range.
150. Consideration for advancement within the H-Unit Special Security Program includes such factors as “safety concerns, length of sentence, disciplinary record, history of assaultive/disruptive behavior, and escape potential.” In addition, “sanitation, willingness to participate in or cooperate with institutional programs or procedures, interaction with other inmates as well as positive rapport with staff are elements that will be used to evaluate placement in each phase.”
151. Based upon these factors, the H-Unit Review Committee makes an evaluation, on information and belief, every six months as to whether each inmate within the H-Unit Special Security Program is qualified to advance to the next phase.
152. The H-Unit Review Committee is not empowered to authorize the removal of an inmate from H-Unit. Inmates in H-Unit are not eligible for entry into the ADX Step-Down Program that is available to inmates in ADX’s so-called “general population” solitary confinement units.
153. Advancement to Phase Three of the H-Unit Special Security Program is conditioned upon the granting of a request by the participating inmate and the H-Unit Review Committee to the Office of General Counsel of the BOP for a modification of the SAMs imposed on that inmate consistent with the greater privileges allowed in Phase Three of the program. For Mr. Abdulmutallab to be allowed into Phase Three, his SAMs
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would need to be modified to allow him to have contact with other inmates during recreation.
154. No individual within the BOP has the power to modify or remove the SAMs restrictions on Mr. Abdulmutallab.
155. Mr. Abdulmutallab has participated in Phase One of the program and is presently in Phase Two of the program. On information and belief, Mr. Abdulmutallab has satisfied all requirements for progression to Phase Three of the program and has been reviewed and recommended for progression to Phase Three by the BOP on two occasions. He has been rejected from the program twice, despite the BOP’s positive recommendations. He has repeatedly asked that his SAMs be modified to permit him to participate in Phase Three, but his requests have been denied.
156. Mr. Abdulmutallab has been unable to obtain an explanation as to why his requests for modification or removal of the SAMs cannot be approved, other than that the reasons for his initial placement under SAMs have not been sufficiently mitigated.
157. Having never been provided meaningful notice of the reasons for his initial placement under SAMs, the reasons for the annual denial of his request for removal and/or modification, or the reasons for his failure to be advanced to Phase Three, Mr. Abdulmutallab is being wholly prevented from addressing the reason for his placement under SAMs.
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158. Upon information and belief, the initial decision to place Mr. Abdulmutallab under SAMs restrictions, as well as the decision each year to renew the SAMs, were, are, and continue to be made by one or more individuals, groups of individuals, agencies, offices, or task forces associated with the U.S. Department of Justice, federal law-enforcement agencies, or agencies of the U.S. intelligence community, whose identities are unknown to Mr. Abdulmutallab. These individuals are joined in this action as Defendants John Does 1 through 20.
159. Further, the requirement for modification of the SAMs as a precondition for advancement to Phase Three of the H-Unit Special Security Unit Program, and under circumstances where the existence of the SAMs effectively blocks entry into ADX StepDown Program, renders ADX Step-Down Program unavailable and a sham as applied to Mr. Abdulmutallab.
160. Mr. Abdulmutallab has not been accepted into ADX Step-Down Program even though other inmates who have been incarcerated at ADX for less time than Mr. Abdulmutallab have been accepted into ADX Step-Down Program. N. The SAMs Prohibit Mr. Abdulmutallab from Practicing His Sincerely Held
Religious Beliefs. Mr. Abdulmutallab’s Sincerely Held Religious Beliefs
161. Mr. Abdulmutallab is a devout Muslim. His religious beliefs have been constant and unwavering throughout his life, including his years spent incarcerated.
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162. As a devout Muslim, Mr. Abdulmutallab follows the five pillars of Islam, to the extent he can, while he is incarcerated. The five pillars of Islam include: (1) declaration that there is no God except Allah and that the Prophet Muhammad is Allah’s messenger; (2) prayer five times a day; (3) fasting during Ramadan; (4) zakat (charity); and (5) haj (pilgrimage to Mecca) if financially and physically able to do so.
163. Mr. Abdulmutallab believes that the Qur’an is the word of Allah. Defendant BOP Has Substantially Burdened Mr. Abdulmutallab’s Ability to Participate in Daily Group Prayer
164. As a Sunni Muslim, Mr. Abdulmutallab believes that prayer is a religious requirement.
165. Whenever possible, Muslims will pray together during the five daily prayers.
166. These daily prayers are very short and take only a few minutes to complete. The prayers follow a prescribed sequence of actions and words. Prisoners do not converse among themselves during the prayers.
167. Defendant BOP completely prohibits Mr. Abdulmutallab from praying with other Muslims.
168. Mr. Abdulmutallab must conduct his prayers alone in his cell while whitesupremacist inmates in H-unit harass him.
169. Mr. Abdulmutallab desires to be able to engage in congregate prayer for all daily prayers that take place during the time that he can be out of his cell.
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170. The prohibition on Mr. Abdulmutallab’s ability to participate in daily group prayers imposes a substantial burden on his exercise of his religion, Islam.
171. The Bureau of Prisons allows Muslim inmates in its highly-restrictive Communication Management Units to pray together in groups.
172. The BOP allows ADX prisoners to interact with one another during their recreation time.
Defendant BOP Has Denied Mr. Abdulmutallab Regular Meetings with an Imam. 173. An Imam is the primary Islamic religious leader who leads others in formal prayers; outlines lessons from the Qur’an by explaining its meaning and application in daily life; gives advice and counseling on personal, family, and financial issues; and builds Muslim community and fellowship. 174. Islamic law mandates regular consultation with an Imam to ensure compliance with religious values in daily life. 175. Mr. Abdulmutallab sincerely believes that an Imam should/must provide him with much needed religious advice, both in general and specifically concerning the complicated spiritual challenges that prison presents. 176. Defendant BOP does not have a full-time imam employed at ADX, despite having full-time Christian and Jewish religious leaders employed there. 177. Defendant BOP has only rarely made a contract imam available to meet with Muslim prisoners incarcerated at ADX.
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178. Mr. Abdulmutallab has not had regular access to an imam at ADX in several years.
179. The BOP has employed and continues to employ full-time Chaplains for other religious groups, including Christian Chaplains and a Jewish Rabbi, at the Florence Correctional Complex (FCC), of which ADX is a part. Jewish and Native American prisoners at ADX have been allowed visits with volunteers from outside the prison who are members of the same faith. O. Harassment by Correctional Officers and Inmates Due to Mr.
Abdulmutallab’s Sincerely Held Religious Beliefs. 180. Since his arrival at ADX, Mr. Abdulmutallab has continuously been subjected to degrading behavior from correctional officers due to his religious beliefs. 181. Mr. Abdulmutallab is regularly subjected to insulting comments from correctional officers and inmates about Islam, including expletives to describe Allah and Prophet Muhammad. The deplorable comments include a sacrilegious process of describing vial sexual acts between Allah and Prophet Muhammad. 182. Certain correctional officers at ADX have deliberately harassed Mr. Abdulmutallab both directly and by failing to intervene when other inmates have abused him. 183. ADX houses inmate members of white supremacist gangs, including within H-Unit.
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184. Since Mr. Abdulmutallab’s arrival in H-Unit in 2012, inmate members of white supremacist gangs have persistently mocked and insulted every aspect of his sincerely held religious beliefs.
185. During Mr. Abdulmutallab’s prayer times, white supremacist gang member inmates in H-Unit at ADX will purposefully disrupt the prayers by banging on the walls.
186. Inmate members of white supremacist gangs who are incarcerated in ADX make insulting comments about Islam including: using expletives to describe the Prophet Muhammad and detailing sexual acts between God and the Prophet Muhammad.
187. Inmate members of white supremacist gangs who are incarcerated in ADX continuously taunt and whistle at Muslim inmates including Mr. Abdulmutallab during prayer time.
188. Although the correctional officers at ADX have a duty to protect inmates in their care, certain correctional officers themselves have white supremacist leanings and sympathies and are not only complicit with this humiliating treatment of Muslims by white supremacist inmates but also affirmatively participate in it.
189. During Mr. Abdulmutallab’s prayer times, some BOP correctional officers purposefully disrupt the prayers by making loud noise, such as by running a machine or moving a cart of food trays nearby in a particularly noisy manner.
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P. The Illegal Practice of Responding to Nonviolent and Passive Hunger Striking with Violent and Brutal Force-Feeding 190. Federal prisoners like Mr. Abdulmutallab are required to follow complex
administrative remedy procedures when seeking formal review of a complaint relating to their conditions of confinement.
191. However, as described above, because the BOP has no power or authority to remove or modify Mr. Abdulmutallab’s SAMs, the BOP’s administrative-remedy process cannot address and remedy Mr. Abdulmutallab’s concerns regarding his SAMs.
192. The overwhelming majority of prisoners in the United States—including the overwhelming majority of federal prisoners in the United States—are able to disclose and expose any inhumane and abusive treatment and conditions of confinement they experience through open communications with third parties, including without limitation international human rights entities, non-profit organizations concerned about human rights and prisoners’ rights, and members of the media. By contrast, prisoners under SAMs such as Mr. Abdulmutallab are prohibited from communicating with any such organizations or individuals to draw attention and seek outside assistance for the inhumane and abusive treatment and conditions of confinement they experience at ADX.
193. SAMs, combined with long-term indefinite solitary confinement is an extremely harsh and repugnant form of isolation that poses a grave risk of psychological and physical harm to all prisoners.
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194. Left with no other option to voice their serous concerns, inmates like Mr. Abdulmutallab therefore sometimes engage in hunger strikes to protest their unconstitutional and illegal conditions of confinement.
195. Hunger strikes have long been used as a means of nonviolent protest when a person has no other recourse to challenge grave injustices.
196. In August 2012, Mr. Abdulmutallab participated in a hunger strike to protest correctional officers’ and inmates’ persistent abuse and harassment described in this Complaint.
197. After Mr. Abdulmutallab refused food for 72 hours, Officers Wadas and Lozano removed him from his cell and told him he was being taken to “medical” for a health assessment.
198. Mr. Abdulmutallab told Officers Wadas and Lozano that he did not want to be medically assessed.
199. Officers Wadas and Lozano forcefully removed Mr. Abdulmutallab from his cell, threw him onto the concrete floor, shackled his hands painfully behind his back, and shackled his legs. SIS Officer Oliver and other officers then carried Mr. Abdulmutallab against his will to the medical unit at ADX.
200. When he again refused to be medically assessed, Mr. Abdulmutallab was taken to Range 13, a small unit that is the most isolated and high-security area of ADX.
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201. The next day, ADX Force Team took Mr. Abdulmutallab to medical to begin force-feeding procedures against his will.
202. After Mr. Abdulmutallab verbally protested the force-feeding, the officers decided against force-feeding him. They put Mr. Abdulmutallab in an empty cell in the medical unit for another two weeks.
203. After the two-week period, Mr. Abdulmutallab was then force-fed. He was placed in a six-point restraint chair and forcibly strapped down tightly at his hands, legs, waist, and shoulder.
204. The ADX Force Team surrounded Mr. Abdulmutallab and held his head in place so he could not avoid the forcible placement of the feeding tube.
205. BOP medical staff then thrust or shoved a nasogastric feeding tube through Mr. Abdulmutallab’s nose and down his throat against his will.
206. A very large amount of liquid nutritional supplement was fed through the nasogastric feeding tube in a very short amount of time. This made Mr. Abdulmutallab feel like he was drowning, and it caused him to vomit.
207. The speed of the force-feeding process used on Mr. Abdulmutallab amounted to “pumping,” a form “Water Cure” torture, which has been practiced since the Middle Ages. “Pumping,” featured prominently in the Spanish Inquisition, was also used
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by the Imperial Japanese Army against soldiers during World War II, and has historically been considered “one of the most fearful tortures.”2
208. Mr. Abdulmutallab was force fed three more times that week before he decided to end his hunger strike.
209. In October 2012, Mr. Abdulmutallab started to hunger strike to protest the continued harassment by correctional officers and inmates and the fact that his SAMs prohibited him from communicating by any means with his sister Maryam and his nieces and nephews.
210. In response to this hunger strike, BOP Defendants force fed Mr. Abdulmutallab more than four times against his will and then sent him to Range 13 for a month and a half. These responses were to punish Mr. Abdulmutallab from engaging in hunger striking as a form of nonviolent protest of his inhumane conditions of confinement and the unconstitutional communication restrictions placed on him by the SAMs.
211. In July 2015, Mr. Abdulmutallab again went on a hunger strike to protest the continued harassment by correctional officers and inmates and the fact that his SAMs prohibited him from communicating by any means with his sister Maryam and his nieces and nephews.
212. In response to this July 2015 hunger strike by Mr. Abdulmutallab, the ADX Force Team arrived to remove Mr. Abdulmutallab from his cell and take him to be force 2 Darius Rejali, Torture and Democracy (2007) at 279-80.
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fed. Faced with the prospect of yet again being brutally forcibly extracted from his cell by the Force Team, Mr. Abdulmutallab submitted to being cuffed and shackled and removed from his cell.
213. Mr. Abdulmutallab was again placed in a six-point restraint chair and forcibly strapped down tightly at his hands, legs, waist, and shoulders.
214. The ADX Force Team again surrounded Mr. Abdulmutallab and forcibly held his head while BOP medical staff inserted the feeding tube against Mr. Abdulmutallab’s will.
215. Unfortunately, the tube was inserted in the wrong place, into his trachea and down into his lungs, rather than through his esophagus and into his stomach. This caused Mr. Abdulmutallab to feel like he was being suffocated.
216. Because of the incorrect placement of the tube, Mr. Abdulmutallab subsequently developed serious breathing problems.
217. In March 2016, Mr. Abdulmutallab was unable to breathe properly. 218. Despite the fact that Mr. Abdulmutallab continually notified the officers that he was having trouble breathing, Officer Lancaster, Officer Garcia-Tunarod, and other, medical personnel at ADX did not consider his breathing problem serious enough to warrant treatment. 219. In addition, the officers deliberated restricted Mr. Abdulmutallab’s access to commissary to purchase medication to treat his serious breathing problems.
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220. After a week of suffering severe shortness of breath, Mr. Abdulmutallab was finally allowed to purchase medicine to treat his breathing problem.
221. The consensus of the United Nations Special Rapporteurs, the World Medical Association, the American Medical Association, bioethicists, and human-rights organizations is that force-feeding prisoners falls within the definition of torture and constitutes cruel, inhumane, and degrading treatment or punishment.
222. According to international law, force-feeding of prisoners under restraint and without proof of a life-threatening decrease in state of health constitutes “treatment of such a severe character warranting the characterization of torture.”3
223. On information and belief, the nutritional supplement forced into Mr. Abdulmutallab on each of these occasions was non-halal, or haram.
224. Mr. Abdulmutallab does not want to die, but he is faced with a “Hobson’s choice.” He may either continue to submit passively to his unconstitutional conditions of confinement—lingering in a twilight of half-death—or take the only peaceful course available to him to protest his situation, in the hope that he can obtain improvement in his daily living conditions and be confined under conditions that meet basic human standards of decency.
225. Hunger striking is his only recourse.
3 Nevmerzhitsky v. Ukraine, App. No. 548255/00, Final Judgment, ¶ 98, Dec. 10, 2005 (Eur. Ct. H.R.), available at https://www.legal-tools.org/doc/6420db/pdf (last visited on October 18, 2017).
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226. Indeed, Mr. Abdulmutallab has a sincerely-held religious belief that given his inability to practice other tenets of Islam he must hunger strike to express his fidelity to his faith.
227. Being forcibly made to end his hunger strikes substantially burdens Mr. Abdulmutallab’s right to exercise his religion.
228. Given the many ways in which the SAMs, BOP policies, and ongoing harsh conditions of confinement imposed on Mr. Abdulmutallab prevent him from communicating with family members and others and substantially burden his practice of his religion, Mr. Abdulmutallab anticipates that he will likely be forced to hunger strike again in the future.
229. In addition to unconstitutionally force-feeding Mr. Abdulmutallab against his will for hunger striking, officers also retaliate against him for hunger striking by frequently “shaking down” his cell for no reason, intentionally throwing away his meals and food purchased at commissary, severely limiting or denying him access to the phone, canceling recreation without notice, denying him access to the shower, refusing him access to the laundry, and denying him access to other regular H-unit programs.
230. The FCC Florence Complex Supplement on “Hunger Strikes,” under “Refusal to Accept Treatment,” states that “[p]rior to treatment being administered against the inmate’s will, every reasonable effort must be made and documented to
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convince the inmate to voluntarily accept treatment.” FCC Florence CS 5562.05(c)(d)(2) (Sept. 13, 2012).
231. The FCC Florence Complex Supplement on “Hunger Strikes” further states that “[i]f after reasonable efforts, or in an emergency preventing such efforts, and a medical necessity for treatment of a life threatening situation exists, treatment may be administered against the inmate’s will.” FCC Florence CS 5562.05(c)(d)(3) (Sept. 13, 2012) (emphasis added).
232. These procedures were not followed in the BOP’s repeated force-feedings of Mr. Abdulmutallab. The BOP did not make reasonable efforts to resolve the reasons for Mr. Abdulmutallab’s hunger strikes. And no life-threatening situation existed during any of the occasions Defendant BOP officials forcibly restrained Mr. Abdulmutallab and pumped him full of nutritional supplement.
233. Upon information and belief, force-feeding of hunger-striking BOP prisoners take places primarily at ADX.
234. Upon information and belief, within ADX, hunger-striking and forcefeeding takes place primarily with respect to prisoners assigned to H-Unit who are under SAMs.
235. Upon information and belief, within ADX, the prisoners who hunger strike and are force-fed are disproportionately Muslims.
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236. At BOP facilities other than ADX, legitimate concerns of prisoners about their conditions of confinement do not generally reach the level of desperation that causes a prisoner to hunger strike, because such legitimate prisoner concerns are resolved by BOP staff.
237. One of the reasons the legitimate concerns of Muslim prisoners incarcerated in H-Unit under SAMs are not resolved by BOP staff or other federal officials before the prisoners reach the level of desperation that they go on hunger strike is because of the veil of silence and secrecy resulting from the operation of the SAMs.
238. One of the reasons the legitimate concerns of Muslim prisoners incarcerated in H-Unit under SAMs are not resolved by BOP staff or other federal officials before the prisoners reach the level of desperation that they go on hunger strike is because BOP staff and federal officials are more responsive to the expressed concerns of white supremacist inmates under SAMs as compared to the expressed concerns of Muslim inmates under SAMs.
239. Abuse of prisoners thrives in secrecy. 240. Holding prisoners including Mr. Abdulmutallab under severe communication restrictions such as SAMs increases the frequency and severity of illegal practices, inhumane abuse, and violations of constitutional and statutory rights regarding those prisoners’ conditions of confinement.
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241. Allowing prisoners open communication with the outside world about their conditions of confinement within the BOP would decrease and possibly eliminate the perceived need for Muslim prisoners such as Mr. Abdulmutallab to engage in hunger striking to protest those conditions of confinement, because the open flow of information naturally leads to voluntary remedial measures and humanitarian and legal reforms. Q. Psychological Harms of Prolonged Solitary Confinement
242. The devastating psychological and physical effects of prolonged solitary confinement are well documented by social scientists. Prolonged solitary confinement causes prisoners significant mental harm and places them at grave risk of even more devastating future psychological harm.
243. Research has demonstrated that prolonged solitary confinement causes a persistent and heightened state of anxiety and nervousness, headaches, insomnia, lethargy or chronic fatigue (including lack of energy and lack of initiative to accomplish tasks), nightmares, heart palpitations, and fear of impending nervous breakdowns. Other documented effects include obsessive ruminations, confused thought processes, oversensitivity to stimuli, irrational anger, social withdrawal, hallucinations, violent fantasies, emotional flatness, mood swings, chronic depression, feelings of overall deterioration, and suicidal ideation. Individuals in prolonged solitary confinement frequently fear that they will lose control of their anger, and will thereby be punished further.
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244. In Justice Breyer’s dissent from the denial of an application for stay of execution in Ruiz v. Texas, 16-7792, he discusses the Court’s jurisprudence regarding the dangers of extended solitary confinement: “The Court pointed to studies showing that ‘[a] considerable number of the prisoners fell, after even a short confinement, into a semi fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases, did not recover sufficient mental activity to be of any subsequent service to the community. It became evident that some changes must be made in the system,’ as ‘its main feature of solitary confinement was found to be too severe.’”
245. Mr. Abdulmutallab suffers from and exhibits some of these symptoms. While these symptoms are reported by people who have suffered from being placed in solitary confinement for days, months, or a few years, they become more pronounced and cause greater pain and suffering when one is incarcerated in these conditions for many years without any meaningful hope of release, as Mr. Abdulmutallab is.
246. Mr. Abdulmutallab also suffers from significant concentration and memory problems.
247. Mr. Abdulmutallab experiences life in the H-Unit at ADX as a struggle to avoid becoming mentally ill. Faced with extraordinarily harsh conditions of long-term solitary confinement that prevent daily physical contact with other human beings,
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severely restrict communication with the outside world, and inhibit regular social communication within prison, he has developed psychological defense mechanisms that dampen and deaden his emotions.
248. Mr. Abdulmutallab experiences a range of other psychological symptoms stemming from his solitary confinement at FCI Milan, in H-Unit at ADX, and in Range 13 at ADX, including hallucinations, anxiety, hypersensitivity, severe mood swings, and panic attacks.
249. These psychological symptoms are precisely those reported in the literature about individuals placed in prolonged solitary confinement. Mr. Abdulmutallab’s symptoms are very similar to those described in psychological literature about the longterm effects of severe trauma and torture. R. International Standards Regarding Torture and Cruel, Inhumane or
Degrading Treatment 250. In light of the well-documented harms described above, there is an international consensus that the type of prolonged solitary confinement practiced at ADX violates international human rights standards and norms standards of humanity and human dignity. 251. International human rights organizations and bodies, including the United Nations, have condemned indefinite or prolonged solitary confinement as a human rights abuse that can amount to torture.
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252. As just one example, in August 2011, the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations Special Rapporteur on Torture and CIDT) concluded that the use of solitary confinement is acceptable in only exceptional circumstances, and that its duration must be as short as possible and for a definite term that is properly announced and communicated. Mr. Abdulmutallab’s prolonged detention meets none of these criteria.
253. The United Nations Special Rapporteur on Torture and CIDT concluded that prolonged solitary confinement constitutes torture or cruel, inhuman or degrading treatment or punishment and is prohibited by the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture. The United Nations Special Rapporteur on Torture and CIDT concluded that even 15 days in solitary confinement constitutes a human-rights violation.
254. The view of the United Nations Special Rapporteur on Torture and CIDT regarding prolonged solitary confinement comports with standards set forth by the Istanbul Statement on the Use and Effects of Solitary Confinement, the ICCPR Human Rights Committee, and the United Nations Office of the High Commissioner for Human Rights.
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255. Repeated requests by the United Nations Special Rapporteur on Torture and CIDT for full and unfettered access to ADX and other Defendant BOP institutions where inmates under SAMs are incarcerated have been denied.4
256. Mr. Abdulmutallab has been held in solitary confinement for more than 2000 days.
V. CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF Violation of the Fifth Amendment – Denial of Procedural Due Process in
Transfer to ADX (against Defendants Sessions and BOP) 257. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 258. Mr. Abdulmutallab brings this claim against Defendants Sessions and the BOP. 259. By transferring Mr. Abdulmutallab to ADX without meaningful notice, a hearing, the ability to present evidence to contest that transfer, regular review of his ongoing placement at ADX, notice of the projected duration of his confinement at ADX, and notice of any criteria for release, Defendants Sessions and the BOP, acting under color of law and their authority as federal officers, are intentionally or recklessly subjecting Mr. Abdulmutallab to an atypical and significant hardship in relation to the
4 Allard K. Lowenstein International Human Rights Clinic & The Center for Constitutional Rights, The Darkest Corner: Special Administrative Measures and Extreme Isolation in the Federal Bureau of Prisons (September 2017) at 27.
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ordinary incidents of prison life, and are depriving him of liberty without due process of law and without legitimate penological purpose, in violation of the Fifth Amendment to the United States Constitution.
260. Mr. Abdulmutallab has no effective means of enforcing his Fifth Amendment due-process rights other than by seeking declaratory and injunctive relief from the Court.
261. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab has suffered and will continue to suffer emotional distress, psychological injury, and destruction of family ties.
SECOND CLAIM FOR RELIEF Violation of the First Amendment – Denial of Free Speech
(against all Defendants) 262. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 263. Mr. Abdulmutallab brings this claim against all Defendants. 264. Under the Free-Speech Clause of the First Amendment to the United States Constitution, Mr. Abdulmutallab has the right to communicate with other persons. 265. By imposing, renewing, and implementing the SAMs against Mr. Abdulmutallab, Defendants have prohibited and are continuing to prohibit him from engaging in communications with a wide array of people, including close family members such as his thirteen nieces and nephews.
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266. As a result of the SAMs imposed on Mr. Abdulmutallab, Defendants are censoring and restricting his outgoing correspondence to a degree not consistent with the restrictions applicable to other high-security inmates not placed under SAMs.
267. Defendants are censoring and restricting Mr. Abdulmutallab’s correspondence to a degree greater than is necessary to the protection of the governmental interests of security, order, and rehabilitation.
268. Defendants are censoring and restricting Mr. Abdulmutallab’s correspondence to a degree greater than is reasonably necessary to protect persons against the risk of acts of violence or terrorism.
269. Mr. Abdulmutallab is entitled to immediate restoration of his FirstAmendment right to communicate with others except to the extent Defendants can demonstrate that restrictions upon that right are reasonably necessary to further a legitimate penological interest.
270. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right to free speech under the First Amendment other than by seeking declaratory and injunctive relief from the Court.
271. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab has suffered and will continue to suffer harm.
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THIRD CLAIM FOR RELIEF Violation of the First Amendment – Denial of Free Association
(against all Defendants) 272. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 273. Mr. Abdulmutallab brings this claim against all Defendants. 274. In subjecting Mr. Abdulmutallab to the SAMs and unreasonably and excessively restricted access to visits and to telephone calls with family members, and imposing arbitrary and unjustified rules regarding the scheduling of such communication, Defendants, without legitimate penological purpose, and acting under color of law and their authority as federal officers, are intentionally or recklessly interfering with Plaintiff’s right to free speech and association in violation of the First Amendment to the United States Constitution. 275. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his First-Amendment right to free association other than by seeking declaratory and injunctive relief from the Court. 276. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab is suffering psychological injury, emotional distress, and destruction of their familial relationships.
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FOURTH CLAIM FOR RELIEF Violation of the First Amendment – Deprivation of Familial Association
(against all Defendants) 277. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 278. Mr. Abdulmutallab brings this claim against all Defendants. 279. The First Amendment right of association includes the specific right to associate with family members and engage in family relationships. 280. Mr. Abdulmutallab has the right under the First Amendment to associate with and engage in family relationships with all members of his family, not just those “immediate family members” described in his SAMs. 281. In particular, Mr. Abdulmutallab has a First-Amendment right to associate with his nieces and nephews. 282. Mr. Abdulmutallab’s SAMs infringe on his right of familial association, and this infringement is not reasonably related to any legitimate penological interest. 283. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right to family relationships under the First Amendment other than by seeking declaratory and injunctive relief from the Court. 284. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab has suffered and will continue to suffer emotional distress, psychological injury, and destruction of family ties.
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FIFTH CLAIM FOR RELIEF Violation of the Fifth Amendment – Denial of Substantive Due Process
(against Defendants Sessions and John Does 1-20) 285. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 286. Mr. Abdulmutallab brings this claim against Defendants Sessions and John Does 1-20. 287. By prohibiting Mr. Abdulmutallab from communicating with all but a small group of narrowly defined immediate family members through the imposition and renewals of the SAMs, Defendants Sessions and John Does, acting under color of law and their authority as federal officers, are infringing upon Mr. Abdulmutallab’s right to family integrity, and this infringement is not reasonably related to any legitimate penological interest, in violation of the Fifth Amendment to the United States Constitution. 288. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his Fifth Amendment rights to substantive due process other than by seeking declaratory and injunctive relief from the Court. 289. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab is suffering psychological injury, emotional distress, and destruction of his familial relationships.
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SIXTH CLAIM FOR RELIEF Violation of the First Amendment – Retaliation Against Mr. Abdulmutallab for
Engaging in Protected First-Amendment Activity (Against Defendant BOP)
290. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein.
291. Mr. Abdulmutallab brings this claim against Defendant BOP. 292. The First Amendment to the United States Constitution protects the right to petition the government for redress of grievances, including the right to hunger strike in protest of unconstitutional conditions of confinement. 293. It is a violation of the First Amendment to the United States Constitution for government officials to retaliate against an individual for engaging in an activity protected by the First Amendment. 294. Defendant BOP has retaliated against Mr. Abdulmutallab for hunger striking, which is an activity protected by the First Amendment. 295. Following Mr. Abdulmutallab’s hunger strikes in August of 2012 and October 2012, Defendant BOP officials retaliated against him by confining him to the Special Housing Unit of ADX, without explanation or legitimate penological justification. 296. Imposition of these extreme conditions of confinement, including placement in the Special Housing Unit at ADX, is a serious deprivation that would deter a person of ordinary firmness from exercising his right to hunger strike.
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297. The timing of the imposition of these extreme conditions of confinement illustrates that Defendant BOP has retaliated against and punished Mr. Abdulmutallab for exercising his First-Amendment rights.
298. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right to be free from retaliation for exercising his First-Amendment rights, other than by seeking declaratory and injunctive relief from the Court.
299. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab has suffered and will continue to suffer emotional distress and psychological injury.
SEVENTH CLAIM FOR RELIEF Violation of the Fifth Amendment – Denial of Right to Refuse Medical Treatment
(Against Defendant BOP) 300. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 301. Mr. Abdulmutallab brings this claim against Defendant BOP. 302. The liberty interest guaranteed by the Due Process Clause of the Fifth Amendment to the United States Constitution protects an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water. 303. As a competent individual, Mr. Abdulmutallab has the right to refuse medical treatment, including the artificial delivery of food and water.
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304. Defendant BOP’s force-feeding nutrients into Mr. Abdulmutallab’s stomach against his will constitutes a substantial interference with his liberty and a violation of his constitutional rights to privacy and bodily integrity.
305. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right to refuse medical treatment under the Fifth Amendment other than by seeking declaratory and injunctive relief from the Court.
306. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab has suffered and will continue to suffer emotional distress and psychological injury.
EIGHTH CLAIM FOR RELIEF Violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (RFRA) –
Denial of Group Prayer (Against Defendant BOP) 307. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 308. Mr. Abdulmutallab brings this claim against Defendant BOP. 309. Defendant BOP is an agency of the federal government and therefore falls within the definition of “government” set forth in 42 U.S.C. § 2000bb-2(1). 310. As a devout Muslim, Mr. Abdulmutallab is obligated to perform prayer five times daily and participate in Jum’ah services. 311. Mr. Abdulmutallab sincerely believes he will receive punishment from Allah should he not participate in group prayer and Jum’ah.
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312. Defendant BOP substantially burdens Mr. Abdulmutallab’s practice of congregational prayer by prohibiting him and other Muslim inmates in H-Unit from engaging in congregational prayers.
313. Defendant BOP’s policies prohibiting congregational prayer within H-Unit at ADX are the proximate cause of the deprivation of Mr. Abdulmutallab’s rights under RFRA.
314. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right under RFRA to engage in daily group prayers other than by seeking declaratory and injunctive relief from the Court.
315. As a result of Defendant BOP’s policies prohibiting congregational prayer in H-Unit during the more than five years that Mr. Abdulmutallab has been incarcerated there, Mr. Abdulmutallab has suffered harm and remains at risk of suffering harm into the future.
NINTH CLAIM FOR RELIEF Violation of RFRA – Failure to Provide Meaningful Access to an Imam
(Against Defendant BOP) 316. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 317. Mr. Abdulmutallab brings this claim against Defendant BOP. 318. Defendant BOP is an agency of the federal government and therefore falls within the definition of “government” set forth in 42 U.S.C. § 2000bb-2(1).
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319. As a devout Muslim, Mr. Abdulmutallab sincerely believes he is required to consult with leaders of his religion and develop a more personal relationship with Allah through regular prayers and consultation with an imam.
320. Defendant BOP substantially burdens Mr. Abdulmutallab’s sincerely held religious belief by refusing to allow any access to an imam.
321. Defendant BOP’s failure to provide regular access to an imam is the proximate cause of the deprivation of Mr. Abdulmutallab’s rights under RFRA.
322. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right under RFRA to regularly meet with an imam other than by seeking declaratory and injunctive relief from the Court.
323. As a result of Defendant BOP’s failure to provide Mr. Abdulmutallab with regular access to an imam for several years, Mr. Abdulmutallab has suffered harm and remains at risk of suffering harm into the future.
TENTH CLAIM FOR RELIEF Violation of RFRA – Denial of a Halal Diet
(Against Defendant BOP) 324. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 325. Mr. Abdulmutallab brings this claim against Defendant BOP. 326. Defendant BOP is an agency of the federal government and therefore falls within the definition of “government” set forth in 42 U.S.C. § 2000bb-2(1).
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327. As a devout Muslim, Mr. Abdulmutallab is required to consume halal foods that meet guidelines established by Islamic law.
328. Defendants have refused for years to provide Mr. Abdulmutallab with meals that comply with his religious dietary requirements. After Mr. Abdulmutallab repeatedly told BOP Trust Fund and Religious Services staff that both the Food Service meals and commissary meals violated his religious beliefs, Defendant BOP told Mr. Abdulmutallab it is not required to ensure his access to halal meals with meat. Defendant BOP officials have not worked to provide Mr. Abdulmutallab access to halal meals with meat. This refusal substantially burdens Mr. Abdulmutallab’s right to exercise his sincerely held religious belief.
329. Defendant BOP’s failure to provide a halal diet is the proximate cause of the deprivation of Mr. Abdulmutallab’s rights under RFRA.
330. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right under RFRA to a halal diet other than by seeking declaratory and injunctive relief from the Court.
331. As a result of Defendant BOP’s failure to provide a halal diet for several years, Mr. Abdulmutallab has suffered harm and remains at risk of suffering harm into the future.
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ELEVENTH CLAIM FOR RELIEF Violation of RFRA – Responding to Sincerely Held Religious Belief in Need for
Hunger Striking by Force-Feeding (Against Defendant BOP)
332. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein.
333. Mr. Abdulmutallab brings this claim against Defendant BOP. 334. Defendant BOP is an agency of the federal government and therefore falls within the definition of “government” set forth in 42 U.S.C. § 2000bb-2(1). 335. As a devout Muslim, Mr. Abdulmutallab believes he must follow the religious tenets described supra. Given Defendants’ isolation of Mr. Abdulmutallab in solitary confinement under SAMs, and the years-long violations of his religious rights and harassment of him surrounding his religion and religious practices during his incarceration, Mr. Abdulmutallab’s conduct in engaging in passive, nonviolent hunger striking (to protest the inhumane conditions of his confinement and the ongoing violations of his religious rights) itself became a religious practice conducted in accordance with his sincerely held religious beliefs. 336. Defendant BOP has substantially burdened Mr. Abdulmutallab’s religious practices and sincerely held religious beliefs by responding to his passive, nonviolent hunger striking by brutally and violently force-feeding him, causing him physical pain and injury.
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337. Defendant BOP’s use of force-feeding in response to Mr. Abdulmutallab’s hunger-striking imposes a substantial burden on his exercise of his religion because hunger-striking is the only way Mr. Abdulmutallab can show Allah that he does not tolerate and accept Defendants and other inmates continually insulting his religion.
338. Defendant BOP’s policy and practices regarding force-feeding hungerstriking prisoners are the proximate cause of the deprivation of Mr. Abdulmutallab’s rights under RFRA.
339. As a result of Defendant BOP’s policies and practices regarding forcefeeding hunger-striking prisoners, Mr. Abdulmutallab has suffered harm and remains at risk of suffering harm into the future.
340. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right under RFRA not to be force fed other than by seeking declaratory and injunctive relief from the Court.
341. As a result of Defendant BOP’s unlawful conduct in responding to Mr. Abdulmutallab’s passive, nonviolent protest of his inhumane conditions of confinement and violations of his religious rights by brutally and violently force-feeding him, Mr. Abdulmutallab has been physically injured and continues to face an unconstitutional risk of physical injury, and he has suffered psychological pain, injury, and emotional distress and continues to face an unconstitutional risk of psychological pain, injury, and emotional distress.
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TWELFTH CLAIM FOR RELIEF Violation of RFRA – Force-Feeding Non-Halal Nutritional Supplement
(Against Defendant BOP) 342. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 343. Mr. Abdulmutallab brings this claim against Defendant BOP. 344. Defendant BOP is an agency of the federal government and therefore falls within the definition of “government” set forth in 42 U.S.C. § 2000bb-2(1). 345. As a devout Muslim, Mr. Abdulmutallab sincerely believes he is required to consume only halal foods that meet guidelines established by Islamic law. 346. Defendant BOP has repeatedly forced Mr. Abdulmutallab into a six-point restraint chair, strapped him down, and made him involuntary ingest non-halal (or “haram”) nutritional supplement. This completely involuntary force-feeding of haram substances substantially burdens Mr. Abdulmutallab’s sincerely held religious beliefs. 347. Defendant BOP’s policy and practice of force-feeding hunger-striking Muslim inmates with haram substances is the proximate cause of the deprivation of Mr. Abdulmutallab’s rights under RFRA. 348. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right under RFRA not to be force fed with haram substances other than by seeking declaratory and injunctive relief from the Court.
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349. As a result of Defendant BOP’s policy and practice of force-feeding him with haram substances, Mr. Abdulmutallab has suffered harm and remains at risk of suffering harm into the future.
THIRTEENTH CLAIM FOR RELIEF Violation of the Eighth Amendment – Force-Feeding as Excessive Force
(Against Defendant BOP) 350. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 351. Mr. Abdulmutallab brings this claim against Defendant BOP. 352. Defendant BOP maliciously and sadistically use excessive force on Mr. Abdulmutallab by brutally and violently force-feeding him, causing him pain and injury. 353. Defendant BOP uses brutal and violent force-feeding on Mr. Abdulmutallab for the purpose of retaliating against and punishing Mr. Abdulmutallab for exercising his legal rights by passively and nonviolently hunger striking to protest the inhumane conditions of his confinement and ongoing violations of his religious rights. Defendant BOP’s purpose in force-feeding Mr. Abdulmutallab at all and in the brutal and violent manner used is also for the purpose of deterring him and other ADX prisoners— including other ADX prisoners under SAMs—from protesting and drawing attention to the inhumane conditions of their confinement and violations of their religious rights by engaging in passive, nonviolent hunger striking.
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354. Defendant BOP has and will continue to use excessive force by forcefeeding Mr. Abdulmutallab, thereby subjecting him to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
355. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his Eighth-Amendment rights other than by seeking declaratory and injunctive relief from the Court.
356. As a result of Defendant BOP’s unlawful conduct in responding to Mr. Abdulmutallab’s passive, nonviolent protest of his inhumane conditions of confinement and violations of his religious rights by brutally and violently force-feeding him, Mr. Abdulmutallab has been physically injured and continues to face an unconstitutional risk of physical injury, and he has suffered psychological pain, injury, and emotional distress and continues to face an unconstitutional risk of psychological pain, injury, and emotional distress.
FOURTEENTH CLAIM FOR RELIEF Violation of the Eighth Amendment—Cruel and Unusual Punishment Arising From
the Totality of Circumstances, Including: Long-term, Indefinite Solitary Confinement; SAMs; Violations of Religious Rights; and Force-Feeding
(Against all Defendants) 357. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 358. Mr. Abdulmutallab brings this claim against all Defendants.
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359. Defendants willfully and maliciously subject Mr. Abdulmutallab to excessive, cruel, inhuman, and degrading conditions of confinement, including prolonged and complete denial of any opportunity for physical contact with their loved ones, excessive restriction of other means of communication with family members and members of the community; extended detention in a unit segregated from other inmates, without legitimate penological purpose; and restrictions on his ability to meaningfully practice his sincerely held religious beliefs.
360. If he were not under SAMs, Mr. Abdulmutallab, like the overwhelming majority of other federal prisoners in the United States, would be able to draw public attention and scrutiny of the unconstitutional and inhumane conditions of his confinement by communicating openly about such problems with members of the public, including human-rights advocates and entities as well as members of the media.
361. Because of overly restrictive nature of the SAMs, however, Mr. Abdulmutallab has had to resort to hunger striking in order to attempt to challenge the unconstitutional and inhumane conditions of his confinement in an effective manner.
362. Defendants use brutal force-feeding for the purpose of retaliating against and punishing Mr. Abdulmutallab for exercising his constitutional and legal rights.
363. Defendants also use brutal force-feeding for the purpose of deterring Mr. Abdulmutallab from exercising his constitutional and legal rights in the future.
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364. By incarcerating Mr. Abdulmutallab in indefinite, long-term solitary confinement under SAMS; subjecting him to inhumane conditions of confinement; violating his religious rights; and then force-feeding him when he passively and nonviolently protests, Defendants are imposing punishment on Mr. Abdulmutallab that violates the evolving standards of decency that are the hallmark of a maturing society, and that is cruel and unusual in violation of the Eighth Amendment to the United States Constitution.
365. By incarcerating Mr. Abdulmutallab in indefinite, long-term solitary confinement under SAMS; subjecting him to inhumane conditions of confinement; violating his religious rights; and then force-feeding him when he passively and nonviolently protests, Defendants are denying Mr. Abdulmutallab the minimal civilized measure of life’s necessities in violation of the Eighth Amendment to the United States Constitution.
366. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his Eighth-Amendment right to be free from cruel and unusual punishment other than by seeking declaratory and injunctive relief from the Court.
367. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab is suffering psychological pain and harm and unnecessary punishment and will continue to suffer such harms in the future.
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VI. PRAYER FOR RELIEF WHEREFORE, Mr. Abdulmutallab respectively requests that this Court enter judgment in his favor and against the Defendants, and grant him the following relief: a) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right to procedural protections under the Due Process Clause of the Fifth Amendment; b) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s rights under the Free-Speech Clause of the First Amendment; c) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right to Free Association guaranteed by the First Amendment; d) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right to Familial Association guaranteed by the First Amendment; e) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right to substantive due process under the Due Process Clause of the Fifth Amendment; f) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right to engage in First Amendment protected activity without retaliation; g) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right to refuse medical treatment under the Fifth Amendment;
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h) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s rights under the Religious Freedom Restoration Act (RFRA);
i) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right under the Eighth Amendment to be free from excessive force;
j) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right under the Eighth Amendment to be free from cruel and unusual punishments;
k) A permanent injunction ordering Defendant Sessions to remove the SAMs from Mr. Abdulmutallab and prohibiting Defendant Sessions or future Attorneys General from re-imposing SAMs on Mr. Abdulmutallab;
l) A permanent injunction ordering Defendant BOP to remove Mr. Abdulmutallab from solitary confinement (a/k/a “restrictive housing”);
m) A permanent injunction prohibiting Defendant BOP from retaliating against Mr. Abdulmutallab for engaging in First Amendment protected activity;
n) A permanent injunction prohibiting Defendant BOP from force-feeding Mr. Abdulmutallab;
o) A permanent injunction ordering Defendant BOP to allow and/or provide Mr. Abdulmutallab, at any and all BOP facilities where he is placed:
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i. the ability to engage in daily congregational group prayers during the times that he is otherwise allowed out of his cell;
ii. meaningful, regular access to an imam; iii. a nutritionally adequate, halal-certified diet with halal-certified meat products that fully conforms to his religious beliefs; and iv. information regarding the source(s) of halal certification of BOP inmate meals so that he may ensure the meals conform to his religious beliefs; p) Attorney’s fees and the costs associated with this action as allowed by law; and q) Any further relief that this Court deems just and proper, and any other relief as allowed by law. Dated this 18th day of October, 2017.
JOHNSON & KLEIN, PLLC s/Gail K. Johnson Gail K. Johnson Amy Kapoor 1470 Walnut Street, Suite 101 Boulder, CO 80302 (303) 444-1885 (866) 340-8286 (fax) gjohnson@johnsonklein.com akapoor@johnsonklein.com ATTORNEYS FOR PLAINTIFF UMAR FAROUK ABDULMUTALLAB
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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. ________________________________________________________________________
AMENDED COMPLAINT FOR INJUNCTIVE RELIEF, DECLARATORY RELIEF, AND ATTORNEY’S FEES ________________________________________________________________________ Plaintiff Umar Farouk Abdulmutallab, through his attorneys, Gail K. Johnson and Aurora L. Randolph of Johnson & Klein, PLLC, hereby submits this Complaint alleging violations of his rights under the First, Fifth, and Eighth Amendments to the United States Constitution as well as under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (RFRA).
I. INTRODUCTION 1. Plaintiff Umar Farouk Abdulmutallab, a native of Nigeria, has been in federal custody since December 25, 2009. He is serving four terms of life imprisonment plus 50 years for his convictions for the attempted use of a weapon of mass destruction

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on a commercial airliner that landed in Detroit, Michigan, and the attempted murder of the 289 people on board.
2. Mr. Abdulmutallab was indicted and prosecuted in the U.S. District Court for the Eastern District of Michigan for multiple federal criminal offenses. He pleaded guilty without a plea bargain to all counts charged against him. He received the maximum sentence possible on each count and cumulatively.
3. Mr. Abdulmutallab was only 23 years old on February 16, 2012, when he was sentenced to serve multiple life sentences in the federal prison system.
4. In March 2012, Mr. Abdulmutallab was transferred to the United States Penitentiary–Administrative Maximum in Florence, Colorado (ADX), to serve his life sentences there. ADX is the highest security prison operated by the Federal Bureau of Prisons (BOP).
5. The conditions of confinement at ADX are the most restrictive of any federal prison in the United States. As a result of his transfer to ADX, Mr. Abdulmutallab was placed in indefinite, long-term solitary confinement—potentially for decades.
6. The United States government believes that Mr. Abdulmutallab was recruited to commit his crimes of conviction by Anwar Al-Awlaki. On September 30, 2011, more than six years ago, and several months before Mr. Abdulmutallab was
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convicted and transferred to ADX, Mr. Al-Awlaki was killed by a United States drone strike in Yemen.
7. Before transferring Mr. Abdulmutallab to long-term solitary confinement at ADX, the United States government (through its Attorney General) placed Mr. Abdulmutallab under Special Administrative Measures (SAMs). The SAMs imposed on Mr. Abdulmutallab prohibit him from having any communication whatsoever with more than 7.5 billion people, the vast majority of people on the planet.
8. The BOP is among those entities responsible for implementing SAMs. Because he is under SAMs, Mr. Abdulmutallab is incarcerated in the H-Unit of ADX. All of the inmates at ADX who are under SAMs are housed in H-Unit, and all of the inmates housed in the H-Unit of ADX are under SAMs.
9. The social isolation inherent in Mr. Abdulmutallab’s placement in longterm solitary confinement at ADX is greatly exacerbated by his SAMs, which further isolate him from other people to a remarkable degree. There are currently more than 154,000 inmates in BOP custody. Of those 154,000 inmates, fewer than 30 are under SAMs and incarcerated at H-Unit in ADX.
10. The hundreds of inmates incarcerated at ADX who are not under SAMs are allowed to communicate with any persons they wish, with very few exceptions. Apart from attorney-client communications, such communications to and from ADX inmates are subject to monitoring by the BOP and other federal law-enforcement officials.
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11. Mr. Abdulmutallab’s SAMs have been renewed annually each year since their imposition, sometimes with minor modifications. For example, previous versions of Mr. Abdulmutallab’s SAMs in effect from March 2012 until August 2016 prohibited him from communicating with one of his own sisters, Maryam Mutallab. This is true even though the BOP had previously allowed Mr. Abdulmutallab to communicate with Maryam Mutallab while he was incarcerated during the pendency of his federal criminal case at the Federal Correctional Institution-Milan in Michigan (FCI Milan).
12. In response to his request for contact with his sister, the BOP told Mr. Abdulmutallab the FBI denied his request because of “security concerns.” Neither the BOP nor the FBI provided Mr. Abdulmutallab any specific information supporting these purported security concerns.
13. Mr. Abdulmutallab’s current SAMs allow him to communicate with Maryam Mutallab.
14. Since their imposition in 2012 and continuing until the present time, the SAMs have prohibited and continue to prohibit Mr. Abdulmutallab from communicating in any manner whatsoever with his nieces and nephews. Mr. Abdulmutallab currently has thirteen nieces and nephews. Twelve of them are children. Nine of them are age 14 or younger. Six of them are age 11 or younger. Three of them are age 7 or younger.
15. According to 28 C.F.R. § 501.3(a), SAMs must be reasonably necessary to protect persons against the risk of death or serious bodily injury. Mr. Abdulmutallab’s
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SAMs are not reasonably necessary to protect persons against the risk of death or serious bodily injury.
16. According to 28 C.F.R. § 501.3(a), SAMs may be imposed on a BOP inmate only when there is a substantial risk that the inmate’s communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons. Neither when the SAMs were first imposed on Mr. Abdulmutallab, nor at any time thereafter, has there been evidence that Mr. Abdulmutallab’s communications pose such a substantial risk.
17. Prison walls do not form a barrier separating prison inmates from the protections of the United States Constitution.
18. The communication restrictions contained in Mr. Abdulmutallab’s SAMs and implemented by the BOP are an unconstitutional deprivation of his First-Amendment rights to free speech and association. This infringement of Mr. Abdulmutallab’s FirstAmendment rights is not reasonably related to any legitimate penological interest.
19. Mr. Abdulmutallab is a Muslim. His SAMs severely restrict his ability to practice his religion. These restrictions also violate Mr. Abdulmutallab’s rights under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (RFRA).
20. During the more than five years that Mr. Abdulmutallab has been incarcerated at ADX, he has not been able to participate in group prayer in accordance
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with his sincerely held religious beliefs. ADX categorically prohibits congregational prayer, and Defendant BOP has a policy prohibiting group prayer in any facility unless in a designated area (generally only in a chapel) and at a designated time (generally only once a week). On information and belief, inmates cannot access prison chapels very often.
21. ADX does not currently have an imam on staff. Nor does ADX currently have an imam on contract. Mr. Abdulmutallab has not had regular access to an imam in several years.
22. During the more than five years that Mr. Abdulmutallab has been incarcerated at ADX, he has not been provided with a halal diet and instead has been forced—sometimes forcibly, sometimes as a result of having no other options—to consume foods that are considered haram or religiously forbidden, in violation of his sincerely held religious beliefs.
23. During his incarceration at ADX, Mr. Abdulmutallab has behaved well and maintained respectful relationships with BOP officials.
24. Like other Muslim inmates in ADX’s H-Unit, Mr. Abdulmutallab has been subjected to frequent harassment regarding his religion. During prayer times, white supremacist inmates in H-Unit often curse, yell, scream, and say things that are religiously insulting and offensive to Muslims, including to Mr. Abdulmutallab.
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25. ADX corrections officers have allowed this religious harassment by white supremacist inmates against Muslim inmates in H-Unit to take place.
26. Some corrections officers have themselves harassed Mr. Abdulmutallab by displaying to him during prayer times magazines containing photographs of naked women, which is religiously offensive to him. Corrections officers have also defiled religious items in Mr. Abdulmutallab’s cell, such as his prayer rug and Qu’ran.
27. This harassment has rendered it extremely difficult for Mr. Abdulmutallab to manage the difficulties of the harsh conditions of solitary confinement by taking solace in his religion and religious practices.
28. In the face of this prolonged, systematic, mental, spiritual, and psychological cruelty, Mr. Abdulmutallab has tried to shed light on the illegal and unconstitutional conditions of his confinement at ADX and under SAMs by engaging in nonviolent and passive protest in the form of hunger striking.
29. Mr. Abdulmutallab has gone on hunger strike to protest his SAMs and in particular the fact that for several years, he was being arbitrarily denied any communication whatsoever with his own sister, Maryam Mutallab. Mr. Abdulmutallab has also gone on hunger strike at ADX to protest the fact that prison officials allow the white supremacist inmates in H-Unit to continually harass Muslim inmates in H-Unit during Islamic prayer times.
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30. Hunger striking is a well-established means of drawing attention to—and nonviolently protesting—extreme human rights abuses and inhumane and illegal government oppression. Newly captured enslaved persons crossing the Atlantic Ocean on the brutal and dangerous journey from Africa to America would hunger strike, and were force fed. So too would enslaved persons in the United States sometimes hunger strike, and be force fed at the direction of their “owners.” Suffragettes in both the United Kingdom and in the United States sometimes protested the fact that the law denied women the right to vote by hunger striking, and were force fed. And from Pelican Bay, California, to Youngstown, Ohio, prisoners in the United States have engaged in hunger strikes in recent years in order to shine the light of public attention on the harshness of supermax prison conditions and encourage reform.
31. Instead of attempting to address Mr. Abdulmutallab’s legitimate concerns about the illegal and inhumane treatment he has received, Defendants have intentionally and repeatedly responded to and retaliated against Mr. Abdulmutallab for exercising his constitutional right to hunger strike by force-feeding him and by transferring him to Range 13 at ADX.
32. At ADX, Mr. Abdulmutallab has been repeatedly force fed in a manner that is excessively and unnecessarily painful, abusive, dangerous, and degrading. On one occasion, the force-feeding tube was placed down his windpipe instead of his esophagus, causing the nutritional supplement liquid to enter his lungs and resulting in Mr.
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Abdulmutallab feeling like he was being drowned in a manner akin to waterboarding. On other occasions, even when the force-feeding tube was placed down Mr. Abdulmutallab’s esophagus, the high speed and high volume used for the feeding has caused pain and discomfort and has been unnecessarily risky to Mr. Abdulmutallab’s health. The forcefeedings of Mr. Abdulmutallab at ADX have also violated his religion. His hunger striking is necessarily a religious practice given his sincerely held religious beliefs and the religious harassment he has experienced at ADX and is protesting when he hunger strikes. Additionally the BOP has force-fed him with substances that are “haram,” which he is religiously forbidden to consume.
33. Range 13 is the most isolated range in ADX. The degree of isolation for the few inmates who are ever incarcerated there is more extreme than in H-Unit. There are four cells on Range 13, two on one side and two on the other. Range 13 was designed to hold up to two inmates, with one inmate being rotated between two cells on one side of the range while another inmate being rotated between the two cells on the other side. A wall was constructed between the two sides of the Range to prevent inmates from communicating with each other. Range 13 has no ranges of inmate cells above or below it. Inmates incarcerated on Range 13 are moved from their cells to a “recreation” facility without any human contact; a BOP official remotely opens and closes sliding doors electronically and then the inmate walks from his cell into the “recreation” facility.
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There is no exercise equipment in the Range 13 recreation facility and no view of other ADX inmates.
34. The BOP denies that it uses solitary confinement, instead preferring the euphemism “restrictive housing.”
35. The U.S. Department of Justice’s Office of Inspector General recently conducted an audit of “restrictive housing” and mental illness in the BOP, which culminated in a written report issued July 2017. According to that report, when asked whether placement on Range 13 could be considered a form of solitary confinement, an ADX psychologist responded by describing the inmate experience in Range 13 as a form of torture:
[Y]ou have no contact, you don’t speak to anybody, and it’s a form of torture on some level.… [Inmates] still talk to officers and stuff like that, but they don’t really get a chance to see anybody…. They rec[reate] alone; we don’t even have to be back there to rec them. So, yes, I would say that they are in fact in solitary confinement.1 36. Based on his indefinite incarceration in H-Unit under SAMs and where his nonviolent protests of the inhumane conditions of his confinement are met with brutal force-feeding and incarceration in Range 13, Mr. Abdulmutallab is subject to conditions of confinement amounting to an atypical and significant hardship in relation to the ordinary incidents of prison life. Mr. Abdulmutallab has been and continues to be deprived of his liberty interest in avoiding such conditions of confinement without being
1 Review of the Federal Bureau of Prisons’ Use of Restrictive Housing for Inmates with Mental Illness (July 2017), at 16 (emphasis added).
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provided adequate notice and a meaningful opportunity to be heard, in violation of due process of law as guaranteed by the Fifth Amendment to the United States Constitution.
37. The extreme communication restrictions of the SAMs violate Mr. Abdulmutallab’s rights to free speech and association, including his right to family relationships, under the First and Fifth Amendments to the United States Constitution.
38. By incarcerating Mr. Abdulmutallab under SAMs in H-Unit, the BOP has also significantly curtailed his ability to practice his religion.
39. Defendant BOP and its staff at ADX have substantially burdened Mr. Abdulmutallab’s practice of Islam in accordance with his sincerely held religious beliefs by denying him the opportunity for congregational prayer, access to an imam, a halal diet, and the right to nonviolently protest the religious harassment that is an integral part of his harsh conditions of confinement without being brutally force fed and transferred to the extreme isolation of Range 13.
40. Mr. Abdulmutallab’s SAMs, his indefinite solitary confinement at ADX, the extreme conditions of confinement in H-Unit at ADX, and the use of force-feeding in response to nonviolent passive protest in the form of hunger striking inflict unnecessary psychological pain on Mr. Abdulmutallab and are contrary to the evolving standards of decency that are the hallmark of a maturing society. These factors together violate the proscription against cruel and unusual punishments in the Eighth Amendment to the United States Constitution.
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41. Mr. Abdulmutallab seeks a judgment declaring that Defendants’ actions, policies, and practices described herein violate his constitutional rights under the First, Fifth, and Eighth Amendments to the United States Constitution and his statutory rights under RFRA.
42. Mr. Abdulmutallab seeks an injunction prohibiting Defendant BOP from force-feeding him as a response to his passive, nonviolent protest—in the form of hunger striking—of his conditions of confinement and the violations of his religious rights.
43. Mr. Abdulmutallab also seeks an injunction compelling Defendant Sessions to remove Mr. Abdulmutallab’s SAMs.
44. Mr. Abdulmutallab also seeks an injunction compelling Defendants to remove him from solitary confinement (a/k/a/ “restrictive housing”).
45. Mr. Abdulmutallab also seeks injunctive relief requiring the BOP to allow him to engage in daily congregational prayers, provide him with regular access to an imam, and provide him with a halal diet in accordance with his sincerely held religious beliefs.
II. JURISDICTION AND VENUE 46. This Court has subject-matter jurisdiction over this case under 28 U.S.C. §§ 1331 and 1343(a)(4) because Mr. Abdulmutallab seeks equitable relief for the deprivation of rights secured by the United States Constitution and 42 U.S.C. § 2000bb-1(c) (RFRA), an Act of Congress providing or the protection of civil rights.
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47. This Court further has jurisdiction to grant declaratory relief under 28 U.S.C. § 2201(a) because there is an actual controversy within this Court’s jurisdiction regarding whether Defendants violated Mr. Abdulmutallab’s constitutional and statutory rights.
48. Venue is proper in the District of Colorado under 28 U.S.C § 1391(b)(2), because a substantial part of the events or omissions giving rise to the claims occurred or will occur in the District of Colorado.
III. PARTIES 49. Plaintiff Umar Farouk Abdulmutallab is a federal prisoner in the custody of the BOP who has been continuously confined at ADX since March 2012. Mr. Abdulmutallab is a devout Muslim who regularly practices the Islamic faith. 50. Defendant Jefferson Sessions is the Attorney General of the United States. Attorney General Sessions has decision-making authority regarding the placement, transfer, and treatment of prisoners within the BOP, as well as the power to direct the imposition, renewal, and cessation of SAMs affecting prisoners within the custody of the BOP pursuant to 28 C.F.R. § 501.3. He is sued in his official capacity. 51. Defendant BOP is an agency of the United States that is responsible for the administration of federal prisons, including ADX. The BOP maintains physical custody of Mr. Abdulmutallab. 52. Defendants John Does 1 through 20 (“John Does”) are one or more individuals, agencies, offices, or task forces that, upon information and belief, are
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associated with the United States Department of Justice, federal law-enforcement agencies, or agencies of the United States intelligence community and that have authority and influence over the renewal and implementation of SAMs pursuant to 28 C.F.R. § 501.3. They are sued in their official capacities.
IV. FACTUAL BACKGROUND A. Mr. Abdulmutallab’s Arrest, Guilty Pleas, and Sentence
53. Mr. Abdulmutallab was arrested at Detroit Metropolitan Airport by U.S. Customs and Border Protection Officers on December 25, 2009.
54. The United States prosecuted Mr. Abdulmutallab for multiple federal crimes.
55. Mr. Abdulmutallab pleaded guilty to all counts charged against him in the Indictment.
56. He was sentenced to the maximum sentence on each count, resulting in a cumulative sentence of more than four consecutive terms of life imprisonment.
57. Mr. Abdulmutallab has been imprisoned at ADX for more than five years, where he is locked down alone in his cell for 22-23 hours a day. B. Mr. Abdulmutallab’s Initial Confinement
58. In early 2012, Mr. Abdulmutallab was initially confined to the special housing unit of FCI Milan, where he was incarcerated in solitary confinement for approximately 23 hours per day under highly restrictive conditions characterized by social isolation and sensory deprivation.
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59. While in pretrial detention, Mr. Abdulmutallab was surveilled by correctional officers 24 hours a day.
60. As a Muslim, Mr. Abdulmutallab sincerely believes that his religion requires him to consume only food items that are “halal,” meaning lawful, as opposed to foods that are “haram,” or forbidden. Haram foods include, but are not limited to, pork and pork byproducts; meat from animals not slaughtered according to prescribed methods; and additives containing alcohol, including sugar alcohols, gelatin, animal shortening, and certain emulsifiers or enzymes.
61. Islamic doctrine dictates, and Mr. Abdulmutallab sincerely believes, that non-halal (“haram” or forbidden) food destroys the spirituality and morality of the consumer. Mr. Abdulmutallab further sincerely believes, as part of his religion, that a Muslim who consumes non-halal food is “faasiq” (dissolute) and considered a flagrant sinner, and that the prayers of a person eating haram food are considered ineffective.
62. The Qu’ran states “Allah knows best who strayed from His path: and He knows best who receives His guidance. So eat meat on which Allah's name has been pronounced, if you have faith in His signs.” Mr. Abdulmutallab believes that to fully observe this mandate of Islam, he must eat a completely halal diet with halal meats and that he is religiously forbidden from being vegetarian.
63. During his incarceration at FCI Milan, Mr. Abdulmutallab had no access to a halal diet.
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64. At FCI Milan, Officer Polkinghorn and Officer Rutter would intentionally flip through sexually explicit magazines in Mr. Abdulmutallab’s line of sight while he was praying. This essentially forced Mr. Abdulmutallab to view naked images while praying in direct violation of his religion.
65. Officer Polkinghorn and Officer Rutter also harassed Mr. Abdulmutallab by defiling his religious items during a shakedown of his cell. When Mr. Abdulmutallab returned to his cell following the shakedown by these officers, he saw that the condition of his Qur’an had changed; some pages of the Qur’an had been partially ripped, and a sticky liquid had been put on the Qur’an. Additionally, upon returning to his cell following this shakedown by these officers, Mr. Abdulmutallab saw that his prayer rug, which he had left neatly folded, was crumpled and lying in a different location, as if it had been kicked around.
66. In addition to the persistent religious harassment, FCI Milan correctional officers including Officer Marvin deliberately made noises to continually deprive Mr. Abdulmutallab of sleep.
67. The degrading and inhumane behavior of FCI Milan correctional officers toward Mr. Abdulmutallab foreshadowed the harsh and tormenting conditions of confinement he continues to face at ADX. C. Transfer to ADX
68. In the beginning of March 2012, Mr. Abdulmutallab was notified that he was being transferred to ADX.
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69. Mr. Abdulmutallab’s family had already come all the way from Nigeria to visit him on a planned and authorized family visit.
70. Even though Mr. Abdulmutallab would not begin the transfer process until later that day, the BOP refused to allow Mr. Abdulmutallab to visit with his family.
71. Mr. Abdulmutallab was temporarily housed at United States Penitentiary Florence pending his placement at ADX.
72. His family again attempted to visit him at USP Florence. 73. Despite that the family had already been approved for a visit, the BOP arbitrarily refused to allow the visit. It would be over a year before Mr. Abdulmutallab would be able to see his family again in person. 74. Mr. Abdulmutallab was placed in the special housing unit at USP Florence, where he had no access to a halal diet in violation of his sincerely held religious beliefs. 75. Mr. Abdulmutallab was placed in a cell full of vulgar writing and sexually explicit pictures. He was arbitrarily stripped searched in front of other inmates and female officers, in violation of his religion. 76. On March 30, 2012, Mr. Abdulmutallab was told he would be have his ADX placement hearing the next day. 77. Mr. Abdulmutallab immediately asked to speak to his attorneys in order to prepare for the hearing, but his request was ignored.
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78. A few days earlier, Mr. Abdulmutallab had been interviewed by a BOP psychologist who specifically encouraged him to attend ADX placement hearing. According to the psychologist, given Mr. Abdulmutallab’s disposition, Mr. Abdulmutallab did not belong at ADX.
79. The “hearing” was conducted in a prison counselor’s office. The hearing officer was on the telephone.
80. At the beginning of the hearing, Mr. Abdulmutallab was told that the only purpose for his attendance at the hearing was to defend himself against any incident reports in his file.
81. Mr. Abdulmutallab fruitlessly attempted to present evidence that many organizations including the United Nations and Human Rights Watch have shown that solitary confinement is counterproductive to the goal of rehabilitation. He tried to explain to the hearing officer it was not necessary to designate him to ADX. But he was immediately shut down and told that the BOP already monitors evidence related to solitary confinement.
82. Mr. Abdulmutallab tried to recount to the hearing officer what the BOP psychologist had said, but the hearing officer told him that it was not relevant.
83. In less than fifteen minutes, the hearing was over. 84. A day later, Mr. Abdulmutallab received a report stating that he was designated to ADX.
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85. Mr. Abdulmutallab has received no prison disciplinary charges for violence while he has been incarcerated at ADX. Mr. Abdulmutallab has not attempted to incite violence via communications with individuals outside of prison, and he does not intend to do so.
86. Mr. Abdulmutallab does not have an ongoing desire to commit violent jihad. Destined to serve his life in prison, Mr. Abdulmutallab wishes to serve out his sentence in peace and calm without causing trouble, as evidenced by his nonviolent record. D. Background and Operation of ADX
87. At any given time, between 400 and 500 prisoners are housed at ADX. There are nine different maximum-security housing units, which are divided into six security levels: the Control Unit (or “Bravo” Unit); the disciplinary Special Housing Unit (also called “Charlie” Unit, “Zulu” Unit, the “SHU,” or the “Hole”); “Range 13,” an ultra-secure and isolated four-cell wing of Charlie Unit in which the BOP houses prisoners it believes require confinement with virtually no human contact; four “General Population” Units (“Delta,” “Echo,” “Fox,” and “Golf” Units); the Special Security Unit (also called the “SAMs” Unit or “H” Unit); and two units (“Joker” Unit and “Kilo” Unit) that in recent years have been used as transitional housing units for prisoners who have entered the ADX “Step-Down Program” can earn their way out of ADX and into a lower security classification. Half of “Kilo” Unit – the K/B Unit – is used for the High Security
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Adult Alternative Housing Program, a program designed for prisoners who have been confined in ADX for an extended period of time but who cannot move through the ADX Step-Down Program for transfer to an open population institution. Under BOP policy, this program is “ . . . designed for inmates who have generally demonstrated that they can function in a less-secure environment within the ADX without posing a risk to institutional security.” The K/B Unit is separate and distinct from the ADX Step-Down Program, and prisoners in the K/B Unit are able to freely move within the unit for up to four hours per day. Prisoners must be over fifty years of age to live in the K/B Unit.
88. ADX prisoners who are not in the ADX Step-Down Program spend from 23-24 hours per day locked alone in their cells. The cells measure approximately 12 feet by 7 feet and have solid walls that prevent prisoners from viewing the interiors of other cells or having direct contact with other prisoners. All ADX cells have a solid door with a small closable slot.
89. Each cell is furnished with a concrete bed, desk, and stool and a stainlesssteel combination sink and toilet. The beds are usually dressed with a thin mattress and blankets over concrete.
90. Each cell contains a single window, approximately 42 inches tall and 4 inches wide, which allows entry of some natural light but is designed to ensure that prisoners cannot see anything outside of their cells other than the building and sky.
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91. Meals are delivered three times a day, to be consumed alone inside the cell. With few exceptions, prisoners in most ADX units are allowed out of their cells only for limited social or legal visits, some forms of medical treatment, visits to the “law library” (a cell with a specialized computer terminal that provides access to a limited range of federal legal materials), and a few hours per week of indoor or outdoor recreation. Otherwise, prisoners remain locked in their cells.
92. ADX offers four meal options to prisoners: a regular diet, no-pork diet, nomeat diet, and the Common Fare diet (a Kosher diet).
93. Jewish prisoners are able to obtain their religiously-mandated kosher diet through the Common Fare diet.
94. Food that is kosher is not necessarily halal. 95. The prison commissary does not regularly sell meals that meet Mr. Abdulmutallab’s religious needs, i.e., halal-certified meals that include halal meats. 96. Kosher-certified meals with meat are regularly sold in the prison commissary. 97. The refusal to provide a halal diet means Mr. Abdulmutallab is faced with a Hobson’s choice at every meal—he must choose whether to eat or observe his religion. E. The ADX Step-Down Program 98. The ADX Step-Down Program involves prisoners being progressively transferred through a series of three transitional housing units in which they are afforded direct, although still extremely limited, contact with other prisoners.
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99. Successful completion of the ADX Step-Down Program is necessary for a prisoner to be allowed to transfer out of ADX. Still, prisoners who reside in the stepdown units are confined to their cells for all but a few hours a day.
100. Every prisoner intent on earning his way out of ADX is required to pass through Joker Unit. One side of Joker Unit, comprising 32 cells, houses the first stage in the Step-Down Program. Prisoners are eligible for transfer to Joker Unit only after completing an extended period of good conduct.
101. Prisoners who avoid trouble in Joker Unit are eligible to move, after a time, to the second phase of Step-Down, where they have more privileges.
102. The second phase of the ADX Step-Down Program is housed at USP Florence, which is directly across the street from ADX. Prisoners who successfully complete the second Step-Down phase are eligible to move to the final Step-Down phase (also housed at USP Florence), which provides even more privileges and a pathway to transfer to a regular, high-security federal penitentiary.
103. Unlike other ADX cells, the individual cells in the Step-Down units at ADX have no interior bars. Accordingly, only one sliding solid steel door separates prisoners from the open day room at the center of the unit. Joker-Unit prisoners are part of a “Recreation Group” of up to seven other prisoners housed on the same tier. Each Recreation Group is released at once into the day room or outside recreation yard, where they have unrestricted access to one another.
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104. Mr. Abdulmutallab has never been housed in Joker-Unit in the more than five years he has been incarcerated at ADX.
105. Successful completion of the Step-Down Program can take years, even if a prisoner behaves perfectly. But any transgression, however minor, can and often does result in the prisoner’s removal from the program, placement back in ADX’s Special Housing Unit, and a restarting of the good-conduct clock.
106. Many ADX prisoners have made it part way through the Step-Down Program several times, only to be returned to the SHU or general population based on a small transgression. F. H-Unit
107. On Wednesday April 11, 2012, Mr. Abdulmutallab was transferred to H-Unit.
108. H-Unit is one of the most restrictive units at ADX. With the exception of a period of approximately three weeks when he was sent to Range 13, Mr. Abdulmutallab has been and continues to be confined in H-Unit since he was transferred to ADX in April 2012. H-Unit contains only male inmates who are subject to SAMs.
109. Mr. Abdulmutallab’s H-Unit cell measures 75.5 square feet and contains a bed, table, cement slab, toilet, and television.
110. Mr. Abdulmutallab’s cell contains no shower. He must use the communal shower located within his particular range.
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111. The communal shower area is frequently used as a toilet by many inmates and therefore unsanitary.
112. Mr. Abdulmutallab’s cell has a narrow window through which he can see the wall of the outside hallway, but no other cells or people other than those who pass by the window. The cell has a smaller window to the outside that faces the recreation yard.
113. Mr. Abdulmutallab is locked down alone in his cell for 22-23 hours a day. 114. He is fed his meals in his cell and must eat every meal alone. 115. Access to books from ADX education department, library access, commissary access, television and radio access, and family and legal visitation are subject to significantly greater restrictions in H-Unit than in other ADX units. 116. Whenever Mr. Abdulmutallab leaves his unit, such as to attend a legal visit, he is placed in hand and leg shackles that are connected to chains circling his waist, and he is accompanied by multiple corrections officers. 117. Mr. Abdulmutallab is placed in leg shackles and belly chains during legal visits and when being escorted within H-Unit. 118. Mr. Abdulmutallab’s recreation schedule is as follows: two hours per day, either outside (six days a week) or inside (one day a week). The outside recreation facilities consist of a yard with six individual cages. The indoor recreation facilities consist of a large cell in which Mr. Abdulmutallab does not see any other inmates.
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G. Imposition of Special Administrative Measures (SAMs) 119. In April 2012, Mr. Abdulmutallab was placed under SAMs based on “his
proclivity for violence.” 120. Pursuant to 28 C.F.R. § 501.3, SAMs may be imposed only at the direction
of the Attorney General and, upon that direction, authorization to the Warden by the Director of the BOP, upon written notification “that there is a substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.”
121. Pursuant to 28 C.F.R. § 501.3, SAMs “may include housing the inmate in administrative detention and/or limiting certain privileges including, but not limited to, correspondence, visiting, interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to protect persons against the risk of acts of violence or terrorism.”
122. Pursuant to 28 C.F.R. § 501.3, SAMs may not be imposed for a period of longer than one year, though they may be extended in one-year increments thereafter by the Director of the BOP upon receipt of written notification from the Attorney General or, at the Attorney General’s direction, from the head of a federal law-enforcement agency or the head of a member agency of the U.S. intelligence community, “that there continues to be a substantial risk that the inmate's communications or contacts with other
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persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of serious bodily injury to persons.”
123. The SAMs imposed upon Mr. Abdulmutallab have been continually renewed on an annual basis since their imposition in April 2012.
124. Mr. Abdulmutallab has never been apprised of or provided meaningful notice of the reasons for his initial placement under SAMs nor of the reasons for their annual renewals.
125. Mr. Abdulmutallab was not provided a hearing or other opportunity to address the imposition of SAMs prior to their imposition.
126. While Mr. Abdulmutallab has availed himself of the opportunity to provide comments about at least some of the annual renewals of the SAMs, his requests for modification or removal of the SAMs have uniformly been rejected and denied without meaningful explanation.
127. Defendant Sessions continues to impose SAMs on Mr. Abdulmutallab without adequate justification or procedural protections for Mr. Abdulmutallab’s liberty interests.
128. On information and belief, Mr. Abdulmutallab’s SAMs are imposed on him based on assumptions about his beliefs. During his SAMs renewal process, Mr. Abdulmutallab has not even been asked if he has an ongoing commitment to violence or violent jihad.
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129. There is no reasonable connection between the proffered justifications for Mr. Abdulmutallab’s SAMs and those restrictions. This is illustrated by Defendants nonimposition of SAMs on inmates whose criminal records (and institutional conduct) raise similar or more grave concerns than those Defendants proffer to justify the imposition of Mr. Abdulmutallab’s SAMs.
130. For example, another inmate imprisoned at ADX, Theodore (“Ted”) Kaczynski, was convicted of terrorism-related charges based on actions that resulted in the deaths of three individuals and the injuries of twenty-eight others.2 During the trial, the prosecution presented diary entries in which Mr. Kaczynski said he had found it “'frustrating, but I can't seem to make a lethal bomb.”3 During his criminal trial, Mr. Kaczynski responded “Yes, Your Honor” in “what sounded like cheerful tones as Judge Burrell asked him repeatedly if he acknowledged committing the acts” described by prosecutors, and “he seemed self-confident to the point of defiance…seem[ing] to see the situation as comic or absurd.”4 Mr. Kaczynski is well known for his persistent media messaging to spread the political messages behind his crimes of conviction. In 1995, during his 17-year spree of bombings, Mr. Kaczynski coerced The Washington Post and The New York Times to publish a 35,000-word essay explaining his motives and views
2 See Unabomber, Federal Bureau of Investigation – Famous Cases & Criminals, https://www.fbi.gov/history/famous-cases/unabomber (last accessed on Apr. 8, 2018). 3 William Glaberson, The Unabomber Case: The Overview; Kaczynski Avoids a Death Sentence With Guilty Plea, The New York Times (Jan. 23, 1998), https://www.nytimes.com/1998/01/23/us/unabomber-case-overview-kaczynski-avoids-deathsentence-with-guilty-plea.html (last accessed on Apr. 8, 2018). 4 Id.
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of the ills of modern society under the threat of more bombings if they refused.5 Since his imprisonment, Mr. Kaczynski has continued to spread his messages through prolific correspondence and regular interviews with the media.6 Despite these factual circumstances, Mr. Kaczynski is not under SAMs. And, on information and belief, Mr. Kaczynski is housed in the K/B Unit at ADX.
131. Similarly, for example, despite Defendant BOP’s explicit recognition that “[Matthew Hale] has used his subtle and sophisticated communications skills to solicit the murder of a federal judge,” Mr. Hale is not under SAMs or, according to Defendant BOP, any correspondence restrictions whatsoever.7 Before his incarceration, Mr. Hale was the worldwide leader of Creativity (also referred to as “Church of the Creator”), a BOP-designated Security Threat Group (STG) because of its long history of racially motivated violence, on the streets and in prison. The BOP defines an STG as “an inmate group, gang, or organization acting in concert to promote violence, escape, drug, disruptive, and/or terrorist activity.”8 Mr. Hale was convicted by a federal jury in 2004 of plotting the death of U.S. District Court Judge Joan Lefkow after she ruled against him and ordered his supremacist group to change its name in a trademark-infringement case.
5 Id. 6 Holly Bailey, The Unabomber’s Media Strategy, Yahoo! News (Jan. 29, 2016) https://www.yahoo.com/news/the-unabomber-s-media-strategy-204008303.html (last accessed on Apr. 8, 2018). 7 14-cv-00245-MSK-MJW, Doc. 186, “Defendant[ BOP’s] Motion for Summary Judgment on All Remaining Claims,” at 2 (D. Colo. August 1, 2017) (“Mr. Hale does not have standing to pursue these claims. The last set of correspondence restrictions was removed in July 2013.”) 8 Id. at 51.
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132. Mr. Hale was incarcerated at ADX after his sentencing. In 2010, Defendant BOP imposed a temporary mail restriction on Mr. Hale because he had designated himself as “Pontifex Maximus Pro Tempore” in correspondence to other Creativity affiliates, appearing to again assume a leadership role. Defendant BOP went to great lengths to ensure Mr. Hale could communicate before they imposed this restriction. For example, between August 2009 and June 2010, the BOP managed Mr. Hale’s communications on a letter-by-letter basis. In January 2011, the restriction on Mr. Hale was lifted. Then in December 2012, Mr. Hale wrote to the leader of the National Socialist Movement, a Neo-Nazi organization, encouraging it to pursue “mass activism tactics”—specifically, “street demonstrations, rallies in parks, and meetings in public libraries”—to “reach people who don’t necessarily wish to be reached” with “the Holy Swastika.” In response, in 2013 Defendant BOP again imposed a temporary mail restriction on Mr. Hale while he was imprisoned at ADX, putting him on Restricted General Correspondence Status.9
133. This restriction was lifted in July 2013. In May 2016, Mr. Hale was transferred to the Federal Correctional Institution in Terre Haute, Indiana (“FCI Terre Haute”), “where he had broad communications privileges, including access to email.”10 While at FCI Terre Haute, “Mr. Hale reestablished contact with his associates and followers in the Creativity Movement. He learned through communications with his
9 See 28 C.F.R. § 540.15 (authorizing Warden to place individualized restrictions on inmate correspondence after receiving process). 10 14-cv-00245-MSK-MJW, Doc. 186, at 2.
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followers that one of them was willing to ‘take out’ a federal judge or prosecutor for Mr. Hale. Within a few weeks, Mr. Hale wrote, and the BOP email system inadvertently released, a ‘press release’ about a federal judge. BOP officials considered the ‘press release’ to constitute a credible threat against the judge, in light of its racially inflammatory language and its potential impact on Mr. Hale’s like-minded and pliant followers outside the prison. As a result of Mr. Hale’s communications at FCI Terre Haute, he was returned to the ADX in April 2017.”11 At ADX, “Mr. Hale is now subject to a different approach to mail monitoring by the BOP. Under that approach, Mr. Hale is permitted to send and receive mail. But his mail must comply with the rules the Bureau of Prisons imposes on Security Threat Groups or ‘STGs.’ Mr. Hale cannot be allowed to hold a position of authority in his STG, to communicate about his STG, or to be involved in the business of running his STG.”12
134. Mr. Hale has made statements suggesting he has no remorse for his crimes or violent beliefs.13 “In 1999, apparently in response to the Illinois bar refusing to grant a law license to Mr. Hale, a Creativity adherent named Benjamin Smith when on a shooting rampage, targeting black, Asian, and Jewish victims, killing two and injuring nine before turning the gun on himself. Mr. Hale eulogized Mr. Smith, praising his willingness to ‘take action for his people . . . and spread our sacred message.’ Mr. Hale later gave an
11 14-cv-00245-MSK-MJW, Doc. 186, at 2-3. 12 Id. 13 14-cv-00245-MSK-MJW, Doc. 212, “Opinion and Order on Motion for Summary Judgment,” at 25 (D. Colo. March 28, 2018) (quoting United States v. Hale, 448 F.3d 971, 975-77 (7th Cir. 2006)).
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ambiguous statement on behalf of Creativity, refusing to condemn Mr. Smith’s actions. Mr. Hale stated that ‘it’s not he policy of the church to commit crimes, but [due to racial grievances] do not be surprised when a white man of the character and honor of Ben Smith stands up and fights back in the way that he did.’ Suggesting that ‘the future will see more, more Ben Smiths,’ Mr. Hale announced that ‘we cannot condemn a man for doing what he feels in his heart is right, whether it’s outside the tactics of the church or not… In 2000, when the Supreme Court refused to hear Mr. Hale’s challenge to Illinois’ denial of his law license, Mr. Hale left a message to Creativity followers, stating that he ‘can no longer in good faith and good conscience urge, recommend, or instruct my adherents and supporters in general to obey the laws of this land.’ He encouraged his followers to ‘take whatever actions we deem necessary to resist this tyranny’ and stated that ‘whatever blood is spilled will be on the hands of those who so severely wronged us today.’”14
135. Mr. Hale’s beliefs and actions serve as an inspiration for individuals seeking to commit crimes. “Between 2005 and 2008, at least two individuals, William White and Hal Turner, were convicted of soliciting the murder of jurors and others connected with Mr. Hale’s criminal trial.” 15 And Mr. Hale is still able to communicate
14 Id. 15 Id. at 26 (citing United States v. White, 698 F.3d 1005 (7th Cir. 2012); United States v. Turner, 720 F.3d 411 (2d Cir. 2013)).
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messages to his followers.16 Despite his underlying conviction and his continued behavior, Mr. Hale is not—and never was—under SAMs. According to Defendant BOP, as of August 1, 2017, “[n]o mail ban has been imposed on him since [2013].”17 There are no restrictions on the persons outside the prison with whom Mr. Hale can correspond, including his followers in the Creativity Movement (they just cannot talk about the business of the Creativity Movement because it is a designated STG). Indeed, from April 7, 2017, to July 26, 2017, Mr. Hale had sent 64 pieces of non-legal mail and received 109 pieces of non-legal mail. Mr. Hale is allowed to possess—in his ADX cell—a copy of Nature’s Eternal Religion (Creativity’s “Bible”)—which the BOP has said contains extensive racially-inflammatory language and ideas, the dissemination of which in a multi-racial prison environment is highly likely to lead to violent conflict among inmates.
136. As yet another example, Eric Robert Rudolph—who pled guilty to four bombings: the Olympic attack in Atlanta in the summer of 1996, attacks on an Atlanta abortion clinic and gay club in 1997, and an explosion at an all-woman clinic in Birmingham in 1998—is not now and never has been on SAMs. Collectively, the bombings perpetrated by Mr. Rudolph killed two people and injured 150. At one of his hearings, Mr. Rudolph “nodded vigorously as a narrative account of the bombings was
16 See Mohammed Kloub, From prison, white supremacist Matthew Hale endorses Roy Moore, Chicago Tribune (November 27, 2017), http://www.chicagotribune.com/news/ct-met-matthewhale-roy-moore-chicago-inc-20171127-story.html (last accessed on Apr. 10, 2018) (noting Mr. Hale’s press release from prison). 17 14-cv-00245-MSK-MJW, Doc. 186, at 2.
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read aloud, and at one point he appeared to wink in the direction of the prosecutors.”18 When the judge asked if Mr. Rudolph had detonated the clinic bomb, which killed an offduty police officer and maimed a nurse, Mr. Rudolph said “I certainly did, Your Honor.”19 In a statement issued after he made his plea deal, Mr. Rudolph said “after the agreement has been signed the talking heads on the news opine that I am ‘finished,’ that I will ‘languish broken and unloved in the bowels of some supermax,’ but I say to you people that by the grace of God I am still here-a little bloodied, but emphatically unbowed.”20 Mr. Rudolph has had essays he has written from prison posted on the internet.21 In one essay, Mr. Rudolph justified violence against abortion clinics by saying Jesus would condone “militant action in defense of the innocent.”22 In 2013, Mr. Rudolph published his autobiography from prison with help from his brother.23
137. On March 16, 2018, Mr. Abdulmutallab’s SAMs were renewed. The 2018 SAMs are virtually identical to his previous SAMs, with a few non-substantive word changes.
18 Shaila Dewan, Bomber Offers Guilty Pleas, and Defiance, The New York Times (April 14, 2005), https://www.nytimes.com/2005/04/14/us/bomber-offers-guilty-pleas-and-defiance.html (last accessed Apr. 10, 2018). 19 Id. 20 Id. 21 Jay Reeves, Extremist Taunts His Victims From Prison, Fox News (May 14, 2007), https://web.archive.org/web/20070516044017/http://www.foxnews.com/wires/2007May14/0,467 0,EricRudolph,00.html (last accessed Apr. 10, 2018). 22 Id. 23 See Bomber Eric Rudolph self-published autobiography from prison, The Denver Post, https://www.denverpost.com/2013/02/23/bomber-eric-rudolph-self-publishes-autobiographyfrom-prison/ (last accessed Apr. 10, 2018).
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138. The only process Mr. Abdulmutallab received as to his 2018 SAMs renewal was the opportunity to fill out a standardized form regarding his SAMs. On this form, Mr. Abdulmutallab specifically requested that his attorneys meet with officials to discuss his SAMs on his behalf. Mr. Abdulmutallab’s attorneys were not contacted for such a meeting. After submitting his form, Mr. Abdulmutallab received no further information regarding his SAMs until he was presented with the finalized 2018 SAMs in March. H. Mr. Abdulmutallab’s Right to Familial Relationships
139. BOP policy states that inmates at ADX “have the right to visit and correspond with family members and friends . . . in keeping with Bureau rules and institution guidelines.” ADX Admission and Orientation Handbook (November 2008), at 2.
140. Under his SAMs, Mr. Abdulmutallab is permitted to visit and correspond with no one other than his attorneys and his immediate family—narrowly defined as parents, siblings, children, and grandparents. Mr. Abdulmutallab is not permitted to communicate with his thirteen nieces and nephews, many of whom are young children.
141. Although Mr. Abdulmutallab is allowed to speak with his family on the phone three times a month, these calls are frequently cancelled without notice either Mr. Abdulmutallab or his family. These frequent, unannounced cancellations cause stress and anxiety for both Mr. Abdulmutallab and his family.
142. On information and belief, prisoners subjected to SAMs, such as Mr. Abdulmutallab, are each permitted to write one letter per week and that letter and its
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contents can be addressed only to one person, such as prisoner’s father or mother but not both, or that letter will not be permitted to be sent. Prisoners not subjected to SAMs are not similarly restricted when writing letters. Thus, the SAMs deprive Mr. Abdulmutallab of a significant First-Amendment interest.
143. Mr. Abdulmutallab has had more than 26 letters rejected by ADX solely based on the unconstitutional restraint on communication due to the SAMs.
144. Some of the individuals whose letters have been rejected by ADX were people Mr. Abdulmutallab had previously communicated with while incarcerated at FCI Milan.
145. Mr. Abdulmutallab’s relationships with his family members have suffered great harm as a result of the prohibition against communicating with extended family members, especially his young nieces and nephews, and as a result of the excessive delays imposed on Mr. Abdulmutallab’s incoming and outgoing mail. I. The Right to Read Books
146. BOP regulations state that inmates have the right to “a wide range of reading materials for educational purposes and for [their] own enjoyment.” 28 C.F.R. § 540.70 (2007). The regulations specify that this includes “magazines and newspapers sent from the community, with certain restrictions.” Id. Further, BOP regulations permit inmates to receive subscriptions without obtaining prior approval, with limited exceptions in the case of publications containing nudity or sexually-explicit material. See id.
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147. Whether due to the SAMs or other factors, Defendants have censored books coming into ADX for Mr. Abdulmutallab. For example, on July 26, 2017, two nonsexually-explicit and otherwise unobjectionable books were delivered to ADX for Mr. Abdulmutallab by amazon.com: The Life-Changing Magic of Tidying Up: The Japanese Art of Decluttering and Organizing, by Marie Kondo, and 168 Hours: You Have More Time Than You Think, by Laura Vanderkam. As of the filing of this Complaint, Mr. Abdulmutallab has not received these books, nor has he been given any reason why Defendants are refusing to allow him to read them. J. The Right to Legal Counsel from an Attorney of Choice
148. BOP regulations state that federal inmates have the right to “legal counsel from an attorney of your choice by interviews and correspondence.” 28 C.F.R. § 541.12 (2007). Under the SAMs, Mr. Abdulmutallab is not permitted to write to lawyers or law clinics to request legal advice, assistance, or representation. He is restricted to communicating with legal counsel from pre-approved attorneys who have signed a document affirming the SAMs. In practice, Mr. Abdulmutallab is not allowed to communicate with an attorney unless that attorney has been approved by the U.S. Attorney’s Office for the Eastern District of Michigan.
149. The government’s requirement that an attorney agree to a SAMs affirmation before the attorney can even read a letter or talk to a SAMs inmate regarding a legal matter constitutes an unreasonable prior restraint on free speech.
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150. At least two incoming letters from attorneys to Mr. Abdulmutallab were censored and disallowed by BOP solely due to his SAMs restrictions.
151. All attorneys are officers of the court and should be treated in such manner. For example, the government may wish to enclose the unopened envelope containing Mr. Abdulmutallab’s letter in its own envelope with a letter explaining that this communication is from a SAMs designated inmate, further explaining it is requested that the attorney does not forward anything to another person or communicate messages to others. Banning any initial consultation between a SAMs prisoner and his possible future lawyer is unreasonable, constitutes a prior restraint, and violates the First Amendment. K. Communication with the News Media
152. BOP regulations also state inmates are permitted to correspond with members of the news media, as long as such communications are “in keeping with Bureau rules and institution guidelines.” See 28 C.F.R. § 540.20 (2007). The SAMs prohibit Mr. Abdulmutallab from communicating with the media—either directly or through his attorney. This is a blanket prohibition of all contact by any means.
153. The SAMs unreasonably restrict Mr. Abdulmutallab from communicating with the media and commenting on matters of public interest. There is no law or regulation have that inmates are precluded from providing comments on political and non-political issues. This restriction imposed by the SAMs is unreasonable and overly broad in violation of the First Amendment. L. Lack of Meaningful Review
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154. The BOP’s Administrative Remedy procedure does not afford Mr. Abdulmutallab a meaningful review of his claims in connection with the SAMs.
155. The SAMs are renewed at the discretion of Defendant Sessions with input from federal prosecutors, the FBI, and other officials at the U.S. Department of Justice. The BOP has limited input and no control over whether SAMs are imposed or renewed. The BOP’s responsibility is restricted to the implementation of the SAMs.
156. Mr. Abdulmutallab has not been given meaningful notice of the reasons for the renewals of his SAMs, nor an opportunity to appear before the decision-makers, nor a meaningful explanation regarding why his SAMs are continually renewed.
157. The placement of Mr. Abdulmutallab in long-term segregation has been delegated by Congress to the BOP and not to federal prosecutors or the FBI. However, in reality, Defendant Sessions, federal prosecutors, and the FBI decide Mr. Abdulmutallab’s continued confinement in segregation through Defendant Sessions’s continual renewal of Mr. Abdulmutallab’s SAMs.
158. The renewals of Mr. Abdulmutallab’s SAMs were arbitrary and capricious and without penological justification. M. No Meaningful Opportunity to Participate in ADX Step-Down Program
159. ADX presently operates two remediation programs: ADX Step-Down Program for the general population at ADX and the H-Unit Special Security Unit Program for H-Unit inmates. As a result of Mr. Abdulmutallab’s SAMs, he will never be
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able to participate in ADX Step-Down Program or transfer out of ADX like other inmates.
160. As a result of his SAMs, Mr. Abdulmutallab is ineligible to participate in ADX Step-Down Program.
161. In 2008, ADX promulgated a separate internal program for H-Unit known as the Special Security Unit Program. This program provides for three phases through which an inmate, through good behavior, may earn greater privileges and less restrictive conditions of confinement while remaining within H-Unit under SAMs. However, the program does not provide an opportunity for the inmate to be transferred out of H-Unit.
162. Phase One is a baseline phase that is the most restrictive. Phase one inmates are permitted two non-legal phone calls per month, access to a commissary list, use of art and hobby craft items, escorted shower time on the inmate’s range three times each week, and have access to a minimum of ten hours of out-of-cell recreation per week.
163. Phase Two inmates are allowed three non-legal phone calls per month, access to an expanded commissary list use of additional art and hobby craft items, unescorted showers five times per week, and access to a minimum of ten hours of out-ofcell recreation per week.
164. Phase Three inmates are permitted to spend a minimum of one and a half hours per day on the range with as many as four other inmates, five days a week. They
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are not restrained or escorted while on the range, eat one meal together, engage in recreational activities together, and may shower at any time they are on the range.
165. Consideration for advancement within the H-Unit Special Security Program includes such factors as “safety concerns, length of sentence, disciplinary record, history of assaultive/disruptive behavior, and escape potential.” In addition, “sanitation, willingness to participate in or cooperate with institutional programs or procedures, interaction with other inmates as well as positive rapport with staff are elements that will be used to evaluate placement in each phase.”
166. Based upon these factors, the H-Unit Review Committee makes an evaluation, on information and belief, every six months as to whether each inmate within the H-Unit Special Security Program is qualified to advance to the next phase.
167. The H-Unit Review Committee is not empowered to authorize the removal of an inmate from H-Unit. Inmates in H-Unit are not eligible for entry into the ADX Step-Down Program that is available to inmates in ADX’s so-called “general population” solitary confinement units.
168. Advancement to Phase Three of the H-Unit Special Security Program is conditioned upon the granting of a request by the participating inmate and the H-Unit Review Committee to the Office of General Counsel of the BOP for a modification of the SAMs imposed on that inmate consistent with the greater privileges allowed in Phase Three of the program. For Mr. Abdulmutallab to be allowed into Phase Three, his SAMs
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would need to be modified to allow him to have contact with other inmates during recreation.
169. According to the BOP’s own policy, “[t]he review by the Committee is not a hearing. The inmate is not entitled to be present, to have counsel, or to call witnesses.” ADX Institutional Supplement 5321.07(3)I(II)(c)(7) (May 15, 2015).
170. No individual within the BOP has the power to modify or remove the SAMs restrictions on Mr. Abdulmutallab. Mr. Abdulmutallab’s 2018 SAMs state that “[i]f there is a conflict between USMS/BOP/DF policies and the SAM, as set forth herein, where the SAM are more restrictive than usual USMS/BOP/DF policies, then the SAM shall control.”
171. Mr. Abdulmutallab has participated in Phase One of the program and is presently in Phase Two of the program. On information and belief, Mr. Abdulmutallab has satisfied all requirements for progression to Phase Three of the program and has been reviewed and recommended for progression to Phase Three by the BOP on two occasions. He has been rejected from the program twice, despite the BOP’s positive recommendations.
172. On information and belief, this denial is based upon Mr. Abdulmutallab’s SAMs. He has repeatedly asked that his SAMs be modified to permit him to participate in Phase Three, but his requests have been denied.
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173. According to BOP policy, an inmate may appeal the decision through the BOP’s Administrative Remedy Program. ADX Institutional Supplement 5321.07(3)I(II)(c)(7) (May 15, 2015). However, as noted, the BOP does not impose and cannot modify Mr. Abdulmutallab’s SAMs.
174. Mr. Abdulmutallab has been unable to obtain an explanation as to why his requests for modification or removal of the SAMs cannot be approved, other than that the reasons for his initial placement under SAMs have not been sufficiently mitigated.
175. Having never been provided meaningful notice of the reasons for his initial placement under SAMs, the reasons for the annual denial of his request for removal and/or modification, or the reasons for his failure to be advanced to Phase Three, Mr. Abdulmutallab is being wholly prevented from addressing the reason for his placement under SAMs.
176. Upon information and belief, the initial decision to place Mr. Abdulmutallab under SAMs restrictions, as well as the decision each year to renew the SAMs, were, are, and continue to be made by one or more individuals, groups of individuals, agencies, offices, or task forces associated with the U.S. Department of Justice, federal law-enforcement agencies, or agencies of the U.S. intelligence community, whose identities are unknown to Mr. Abdulmutallab. These individuals are joined in this action as Defendants John Does 1 through 20.
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177. Further, the requirement for modification of the SAMs as a precondition for advancement to Phase Three of the H-Unit Special Security Unit Program, and under circumstances where the existence of the SAMs effectively blocks entry into ADX StepDown Program, renders ADX Step-Down Program unavailable and a sham as applied to Mr. Abdulmutallab.
178. Mr. Abdulmutallab has not been accepted into ADX Step-Down Program even though other inmates who have been incarcerated at ADX for less time than Mr. Abdulmutallab have been accepted into ADX Step-Down Program.
179. Mr. Abdulmutallab receives a “review” of his placement. Currently, these reviews are a brief conversation with a case manager, Ms. Kinney, which do not provide Mr. Abdulmutallab any guidance on the reasons for his placement. For example, his most recent review was a conversation lasting a few minutes with a brand new case manager, Ms. Kinney, who came to his cell door and discussed his fines and emergency contacts and left, without even mentioning Phase Three. The review Mr. Abdulmutallab received previously was conducted by a different case manager who told him he needed to take more educational courses to be considered for Phase Three. Following that case manager’s guidance, Mr. Abdulmuttalab completed three educational courses and is currently enrolled in three others. However, in the most recent review, Ms. Kinney, did not acknowledge with Mr. Abdulmutallab’s educational progress. N. The SAMs Prohibit Mr. Abdulmutallab from Practicing His Sincerely Held
Religious Beliefs.
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Mr. Abdulmutallab’s Sincerely Held Religious Beliefs 180. Mr. Abdulmutallab is a devout Muslim. His religious beliefs have been constant and unwavering throughout his life, including his years spent incarcerated. 181. As a devout Muslim, Mr. Abdulmutallab follows the five pillars of Islam, to the extent he can, while he is incarcerated. The five pillars of Islam include: (1) declaration that there is no God except Allah and that the Prophet Muhammad is Allah’s messenger; (2) prayer five times a day; (3) fasting during Ramadan; (4) zakat (charity); and (5) haj (pilgrimage to Mecca) if financially and physically able to do so. 182. Mr. Abdulmutallab believes that the Qur’an is the word of Allah.
Defendant BOP Has Substantially Burdened Mr. Abdulmutallab’s Ability to Participate in Daily Group Prayer 183. As a Sunni Muslim, Mr. Abdulmutallab believes that prayer is a religious requirement. 184. Whenever possible, Muslims will pray together during the five daily prayers. 185. These daily prayers are very short and take only a few minutes to complete. The prayers follow a prescribed sequence of actions and words. Prisoners do not converse among themselves during the prayers. 186. Defendant BOP completely prohibits Mr. Abdulmutallab from praying with other Muslims.
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187. Mr. Abdulmutallab must conduct his prayers alone in his cell while whitesupremacist inmates in H-unit harass him.
188. Mr. Abdulmutallab desires to be able to engage in congregate prayer for all daily prayers that take place during the time that he can be out of his cell.
189. The prohibition on Mr. Abdulmutallab’s ability to participate in daily group prayers imposes a substantial burden on his exercise of his religion, Islam.
190. The Bureau of Prisons allows Muslim inmates in its highly-restrictive Communication Management Units to pray together in groups.
191. Defendant BOP allows ADX prisoners to interact with one another during their recreation time.
192. Defendant BOP allows ADX prisoners—up to five at a time—to interact with each other while they are in individual cages for various groups, like group therapy, education courses, or health and wellness programs. In these cages, which are all together in the same small gymnasium at ADX, prisoners can see and talk to each other.
Defendant BOP Has Denied Mr. Abdulmutallab Regular Meetings with an Imam. 193. An Imam is the primary Islamic religious leader who leads others in formal prayers; outlines lessons from the Qur’an by explaining its meaning and application in daily life; gives advice and counseling on personal, family, and financial issues; and builds Muslim community and fellowship.
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194. Islamic law mandates regular consultation with an Imam to ensure compliance with religious values in daily life.
195. Mr. Abdulmutallab sincerely believes that an Imam should/must provide him with much needed religious advice, both in general and specifically concerning the complicated spiritual challenges that prison presents.
196. Defendant BOP does not have a full-time imam employed at ADX, despite having full-time Christian and Jewish religious leaders employed there.
197. Defendant BOP has only rarely made a contract imam available to meet with Muslim prisoners incarcerated at ADX.
198. Mr. Abdulmutallab has not had regular access to an imam at ADX in several years.
199. The BOP has employed and continues to employ full-time Chaplains for other religious groups, including Christian Chaplains and a Jewish Rabbi, at the Florence Correctional Complex (FCC), of which ADX is a part. Jewish and Native American prisoners at ADX have been allowed visits with volunteers from outside the prison who are members of the same faith.
200. On information and belief, Defendant BOP has not been able to fill postings for a full-time imam at the Florence Correctional Complex (where ADX is located) because the BOP’s hiring criteria for full-time chaplains of any faith group are biased towards applicants with a Judeo-Christian background. On information and belief,
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Defendant BOP knows that Muslim applicants will generally lack the required “practicum” experience because such experience is not generally required by Muslim religious leaders in the community. O. Harassment by Correctional Officers and Inmates Due to Mr.
Abdulmutallab’s Sincerely Held Religious Beliefs. 201. Since his arrival at ADX, Mr. Abdulmutallab has continuously been subjected to degrading behavior from correctional officers due to his religious beliefs. 202. Mr. Abdulmutallab is regularly subjected to insulting comments from correctional officers and inmates about Islam, including expletives to describe Allah and Prophet Muhammad. The deplorable comments include a sacrilegious process of describing vial sexual acts between Allah and Prophet Muhammad. 203. Certain correctional officers at ADX have deliberately harassed Mr. Abdulmutallab both directly and by failing to intervene when other inmates have abused him. 204. ADX houses inmate members of white supremacist gangs, including within H-Unit. 205. Since Mr. Abdulmutallab’s arrival in H-Unit in 2012, inmate members of white supremacist gangs have persistently mocked and insulted every aspect of his sincerely held religious beliefs. 206. During Mr. Abdulmutallab’s prayer times, white supremacist gang member inmates in H-Unit at ADX will purposefully disrupt the prayers by banging on the walls.
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207. Inmate members of white supremacist gangs who are incarcerated in ADX make insulting comments about Islam including: using expletives to describe the Prophet Muhammad and detailing sexual acts between God and the Prophet Muhammad.
208. Inmate members of white supremacist gangs who are incarcerated in ADX continuously taunt and whistle at Muslim inmates including Mr. Abdulmutallab during prayer time.
209. Although the correctional officers at ADX have a duty to protect inmates in their care, certain correctional officers themselves have white supremacist leanings and sympathies and are not only complicit with this humiliating treatment of Muslims by white supremacist inmates but also affirmatively participate in it.
210. During Mr. Abdulmutallab’s prayer times, some BOP correctional officers purposefully disrupt the prayers by making loud noise, such as by running a machine or moving a cart of food trays nearby in a particularly noisy manner.
211. Defendant BOP staff regularly interfere with Mr. Abdulmutallab’s ability to use the administrative remedy process to grieve his conditions of confinement by returning his administrative remedies for arbitrary reasons, slowing down the processing of his requests for administrative remedies, and failing to respond to them. P. The Illegal Practice of Responding to Nonviolent and Passive Hunger Striking
with Violent and Brutal Force-Feeding
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212. Federal prisoners like Mr. Abdulmutallab are required to follow complex administrative remedy procedures when seeking formal review of a complaint relating to their conditions of confinement.
213. However, as described above, because the BOP has no power or authority to remove or modify Mr. Abdulmutallab’s SAMs, the BOP’s administrative-remedy process cannot address and remedy Mr. Abdulmutallab’s concerns regarding his SAMs.
214. The overwhelming majority of prisoners in the United States—including the overwhelming majority of federal prisoners in the United States—are able to disclose and expose any inhumane and abusive treatment and conditions of confinement they experience through open communications with third parties, including without limitation international human rights entities, non-profit organizations concerned about human rights and prisoners’ rights, and members of the media. By contrast, prisoners under SAMs such as Mr. Abdulmutallab are prohibited from communicating with any such organizations or individuals to draw attention and seek outside assistance for the inhumane and abusive treatment and conditions of confinement they experience at ADX.
215. SAMs, combined with long-term indefinite solitary confinement is an extremely harsh and repugnant form of isolation that poses a grave risk of psychological and physical harm to all prisoners.
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216. Left with no other option to voice their serous concerns, inmates like Mr. Abdulmutallab therefore sometimes engage in hunger strikes to protest their unconstitutional and illegal conditions of confinement.
217. Hunger strikes have long been used as a means of nonviolent protest when a person has no other recourse to challenge grave injustices.
218. In August 2012, Mr. Abdulmutallab participated in a hunger strike to protest correctional officers’ and inmates’ persistent abuse and harassment described in this Complaint.
219. After Mr. Abdulmutallab refused food for 72 hours, Officers Wadas and Lozano removed him from his cell and told him he was being taken to “medical” for a health assessment.
220. Mr. Abdulmutallab told Officers Wadas and Lozano that he did not want to be medically assessed.
221. Officers Wadas and Lozano forcefully removed Mr. Abdulmutallab from his cell, threw him onto the concrete floor, shackled his hands painfully behind his back, and shackled his legs. SIS Officer Oliver and other officers then carried Mr. Abdulmutallab against his will to the medical unit at ADX.
222. When he again refused to be medically assessed, Mr. Abdulmutallab was taken to Range 13, a small unit that is the most isolated and high-security area of ADX.
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223. The next day, ADX Force Team took Mr. Abdulmutallab to medical to begin force-feeding procedures against his will.
224. After Mr. Abdulmutallab verbally protested the force-feeding, the officers decided against force-feeding him. They put Mr. Abdulmutallab in an empty cell in the medical unit for another two weeks.
225. After the two-week period, Mr. Abdulmutallab was then force-fed. He was placed in a six-point restraint chair and forcibly strapped down tightly at his hands, legs, waist, and shoulder.
226. The ADX Force Team surrounded Mr. Abdulmutallab and held his head in place so he could not avoid the forcible placement of the feeding tube.
227. BOP medical staff then thrust or shoved a nasogastric feeding tube through Mr. Abdulmutallab’s nose and down his throat against his will.
228. A very large amount of liquid nutritional supplement was fed through the nasogastric feeding tube in a very short amount of time. This made Mr. Abdulmutallab feel like he was drowning, and it caused him to vomit.
229. The speed of the force-feeding process used on Mr. Abdulmutallab amounted to “pumping,” a form “Water Cure” torture, which has been practiced since the Middle Ages. “Pumping,” featured prominently in the Spanish Inquisition, was also used
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by the Imperial Japanese Army against soldiers during World War II, and has historically been considered “one of the most fearful tortures.”24
230. Mr. Abdulmutallab was force fed three more times that week before he decided to end his hunger strike.
231. In October 2012, Mr. Abdulmutallab started to hunger strike to protest the continued harassment by correctional officers and inmates and the fact that his SAMs prohibited him from communicating by any means with his sister Maryam and his nieces and nephews.
232. In response to this hunger strike, BOP Defendants force fed Mr. Abdulmutallab more than four times against his will and then sent him to Range 13 for a month and a half. These responses were to punish Mr. Abdulmutallab from engaging in hunger striking as a form of nonviolent protest of his inhumane conditions of confinement and the unconstitutional communication restrictions placed on him by the SAMs.
233. In July 2015, Mr. Abdulmutallab again went on a hunger strike to protest the continued harassment by correctional officers and inmates and the fact that his SAMs prohibited him from communicating by any means with his sister Maryam and his nieces and nephews.
234. In response to this July 2015 hunger strike by Mr. Abdulmutallab, the ADX Force Team arrived to remove Mr. Abdulmutallab from his cell and take him to be force
24 Darius Rejali, Torture and Democracy (2007) at 279-80.
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fed. Faced with the prospect of yet again being brutally forcibly extracted from his cell by the Force Team, Mr. Abdulmutallab submitted to being cuffed and shackled and removed from his cell.
235. Mr. Abdulmutallab was again placed in a six-point restraint chair and forcibly strapped down tightly at his hands, legs, waist, and shoulders.
236. The ADX Force Team again surrounded Mr. Abdulmutallab and forcibly held his head while BOP medical staff inserted the feeding tube against Mr. Abdulmutallab’s will.
237. Unfortunately, the tube was inserted in the wrong place, into his trachea and down into his lungs, rather than through his esophagus and into his stomach. This caused Mr. Abdulmutallab to feel like he was being suffocated.
238. Because of the incorrect placement of the tube, Mr. Abdulmutallab subsequently developed serious breathing problems.
239. In March 2016, Mr. Abdulmutallab was unable to breathe properly. 240. Despite the fact that Mr. Abdulmutallab continually notified the officers that he was having trouble breathing, Officer Lancaster, Officer Garcia-Tunarod, and other, medical personnel at ADX did not consider his breathing problem serious enough to warrant treatment. 241. In addition, the officers deliberated restricted Mr. Abdulmutallab’s access to commissary to purchase medication to treat his serious breathing problems.
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242. After a week of suffering severe shortness of breath, Mr. Abdulmutallab was finally allowed to purchase medicine to treat his breathing problem.
243. On April 9, 2018, Mr. Abdulmutallab went on hunger strike for almost two days because of the restrictions he faces and the ongoing harassment he experiences from Defendant BOP officials. According to BOP Officer Tsuffis, the BOP classified him as a hunger striker when he refused to eat three meals in a row. Pursuant to their procedures as to prisoners on hunger strikes, BOP officials took Mr. Abdulmutallab out of his cell and performed a shake down of his cell on April 10, 2018. Mr. Abdulmutallab was seen by BOP medical staff regarding the hunger strike. On information and belief, Mr. Abdulmutallab lost weight as a result of this hunger strike.
244. By policy, Defendant BOP conducts shakedowns of every prisoner it deems to be hunger striking.
245. The consensus of the United Nations Special Rapporteurs, the World Medical Association, the American Medical Association, bioethicists, and human-rights organizations is that force-feeding prisoners falls within the definition of torture and constitutes cruel, inhumane, and degrading treatment or punishment.
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246. According to international law, force-feeding of prisoners under restraint and without proof of a life-threatening decrease in state of health constitutes “treatment of such a severe character warranting the characterization of torture.”25
247. On information and belief, the nutritional supplement forced into Mr. Abdulmutallab on each of these occasions was non-halal, or haram.
248. Mr. Abdulmutallab does not want to die, but he is faced with a “Hobson’s choice.” He may either continue to submit passively to his unconstitutional conditions of confinement—lingering in a twilight of half-death—or take the only peaceful course available to him to protest his situation, in the hope that he can obtain improvement in his daily living conditions and be confined under conditions that meet basic human standards of decency.
249. Hunger striking is his only recourse. 250. Indeed, Mr. Abdulmutallab has a sincerely-held religious belief that given his inability to practice other tenets of Islam he must hunger strike to express his fidelity to his faith. 251. Being forcibly made to end his hunger strikes substantially burdens Mr. Abdulmutallab’s right to exercise his religion. 252. Given the many ways in which the SAMs, BOP policies, and ongoing harsh conditions of confinement imposed on Mr. Abdulmutallab prevent him from
25 Nevmerzhitsky v. Ukraine, App. No. 548255/00, Final Judgment, ¶ 98, Dec. 10, 2005 (Eur. Ct. H.R.), available at https://www.legal-tools.org/doc/6420db/pdf (last visited on October 18, 2017).
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communicating with family members and others and substantially burden his practice of his religion, Mr. Abdulmutallab anticipates that he will likely be forced to hunger strike again in the future.
253. In addition to unconstitutionally force-feeding Mr. Abdulmutallab against his will for hunger striking, officers also retaliate against him for hunger striking by frequently “shaking down” his cell for no reason, intentionally throwing away his meals and food purchased at commissary, severely limiting or denying him access to the phone, canceling recreation without notice, denying him access to the shower, refusing him access to the laundry, and denying him access to other regular H-unit programs.
254. Since Mr. Abdulmutallab filed this lawsuit, his recreation time has been regularly cancelled for arbitrary reasons even when other in his Unit or recreation group have been allowed to recreate.
255. The FCC Florence Complex Supplement on “Hunger Strikes,” under “Refusal to Accept Treatment,” states that “[p]rior to treatment being administered against the inmate’s will, every reasonable effort must be made and documented to convince the inmate to voluntarily accept treatment.” FCC Florence CS 5562.05(c)(d)(2) (Sept. 13, 2012).
256. The FCC Florence Complex Supplement on “Hunger Strikes” further states that “[i]f after reasonable efforts, or in an emergency preventing such efforts, and a medical necessity for treatment of a life threatening situation exists, treatment may be
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administered against the inmate’s will.” FCC Florence CS 5562.05(c)(d)(3) (Sept. 13, 2012) (emphasis added).
257. These procedures were not followed in the BOP’s repeated force-feedings of Mr. Abdulmutallab. The BOP did not make reasonable efforts to resolve the reasons for Mr. Abdulmutallab’s hunger strikes. And no life-threatening situation existed during any of the occasions Defendant BOP officials forcibly restrained Mr. Abdulmutallab and pumped him full of nutritional supplement.
258. Upon information and belief, force-feeding of hunger-striking BOP prisoners take places primarily at ADX.
259. Upon information and belief, within ADX, hunger-striking and forcefeeding takes place primarily with respect to prisoners assigned to H-Unit who are under SAMs.
260. Upon information and belief, within ADX, the prisoners who hunger strike and are force-fed are disproportionately Muslims.
261. At BOP facilities other than ADX, legitimate concerns of prisoners about their conditions of confinement do not generally reach the level of desperation that causes a prisoner to hunger strike, because such legitimate prisoner concerns are resolved by BOP staff.
262. One of the reasons the legitimate concerns of Muslim prisoners incarcerated in H-Unit under SAMs are not resolved by BOP staff or other federal
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officials before the prisoners reach the level of desperation that they go on hunger strike is because of the veil of silence and secrecy resulting from the operation of the SAMs.
263. One of the reasons the legitimate concerns of Muslim prisoners incarcerated in H-Unit under SAMs are not resolved by BOP staff or other federal officials before the prisoners reach the level of desperation that they go on hunger strike is because BOP staff and federal officials are more responsive to the expressed concerns of white supremacist inmates under SAMs as compared to the expressed concerns of Muslim inmates under SAMs.
264. Abuse of prisoners thrives in secrecy. 265. Holding prisoners including Mr. Abdulmutallab under severe communication restrictions such as SAMs increases the frequency and severity of illegal practices, inhumane abuse, and violations of constitutional and statutory rights regarding those prisoners’ conditions of confinement. 266. Allowing prisoners open communication with the outside world about their conditions of confinement within the BOP would decrease and possibly eliminate the perceived need for Muslim prisoners such as Mr. Abdulmutallab to engage in hunger striking to protest those conditions of confinement, because the open flow of information naturally leads to voluntary remedial measures and humanitarian and legal reforms.
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Q. Psychological Harms of Prolonged Solitary Confinement 267. The devastating psychological and physical effects of prolonged solitary
confinement are well documented by social scientists. Prolonged solitary confinement causes prisoners significant mental harm and places them at grave risk of even more devastating future psychological harm.
268. Mr. Abdulmutallab is also unable to benefit from the limited psychological services offered by Defendant BOP at ADX because the officials who work in psychological services at ADX also harass him. For example, psychology services officials will disturb Mr, Abdulmutallab’s prayer by making noises and mocking faces at him.
269. Social interaction is critical for mental and physical health and is a basic human need. Deprivation of social interaction has been shown to impact mortality rates and result in significant physical as well as emotional harm.26
270. Research has demonstrated that prolonged solitary confinement causes a persistent and heightened state of anxiety and nervousness, headaches, insomnia, lethargy or chronic fatigue (including lack of energy and lack of initiative to accomplish tasks), nightmares, heart palpitations, and fear of impending nervous breakdowns. Other documented effects include obsessive ruminations, confused thought processes,
26 See Jane Brody, Social Interaction Is Critical for Mental and Physical Health, The New York Times (June 12, 2017), https://www.nytimes.com/2017/06/12/well/live/having-friends-is-goodfor-you.html (last accessed April 9, 2018) (collecting research regarding the physical and mental effects of deprivation of social interaction).
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oversensitivity to stimuli, irrational anger, social withdrawal, hallucinations, violent fantasies, emotional flatness, mood swings, chronic depression, feelings of overall deterioration, and suicidal ideation. Individuals in prolonged solitary confinement frequently fear that they will lose control of their anger, and will thereby be punished further.
271. In Justice Breyer’s dissent from the denial of an application for stay of execution in Ruiz v. Texas, 16-7792, he discusses the Court’s jurisprudence regarding the dangers of extended solitary confinement: “The Court pointed to studies showing that ‘[a] considerable number of the prisoners fell, after even a short confinement, into a semi fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases, did not recover sufficient mental activity to be of any subsequent service to the community. It became evident that some changes must be made in the system,’ as ‘its main feature of solitary confinement was found to be too severe.’”
272. Mr. Abdulmutallab suffers from and exhibits some of these symptoms. While these symptoms are reported by people who have suffered from being placed in solitary confinement for days, months, or a few years, they become more pronounced and cause greater pain and suffering when one is incarcerated in these conditions for many years without any meaningful hope of release, as Mr. Abdulmutallab is.
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273. Mr. Abdulmutallab also suffers from significant concentration and memory problems.
274. Mr. Abdulmutallab experiences life in the H-Unit at ADX as a struggle to avoid becoming mentally ill. Faced with extraordinarily harsh conditions of long-term solitary confinement that prevent daily physical contact with other human beings, severely restrict communication with the outside world, and inhibit regular social communication within prison, he has developed psychological defense mechanisms that dampen and deaden his emotions.
275. Mr. Abdulmutallab experiences a range of other psychological symptoms stemming from his solitary confinement at FCI Milan, in H-Unit at ADX, and in Range 13 at ADX, including hallucinations, anxiety, hypersensitivity, severe mood swings, and panic attacks.
276. These psychological symptoms are precisely those reported in the literature about individuals placed in prolonged solitary confinement. Mr. Abdulmutallab’s symptoms are very similar to those described in psychological literature about the longterm effects of severe trauma and torture.
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R. International Standards Regarding Torture and Cruel, Inhumane or Degrading Treatment 277. In light of the well-documented harms described above, there is an
international consensus that the type of prolonged solitary confinement practiced at ADX violates international human rights standards and norms standards of humanity and human dignity.
278. International human rights organizations and bodies, including the United Nations, have condemned indefinite or prolonged solitary confinement as a human rights abuse that can amount to torture.
279. As just one example, in August 2011, the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations Special Rapporteur on Torture and CIDT) concluded that the use of solitary confinement is acceptable in only exceptional circumstances, and that its duration must be as short as possible and for a definite term that is properly announced and communicated. Mr. Abdulmutallab’s prolonged detention meets none of these criteria.
280. The United Nations Special Rapporteur on Torture and CIDT concluded that prolonged solitary confinement constitutes torture or cruel, inhuman or degrading treatment or punishment and is prohibited by the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture. The United Nations Special Rapporteur on Torture and CIDT concluded that even 15 days in solitary confinement constitutes a human-rights violation.
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281. The view of the United Nations Special Rapporteur on Torture and CIDT regarding prolonged solitary confinement comports with standards set forth by the Istanbul Statement on the Use and Effects of Solitary Confinement, the ICCPR Human Rights Committee, and the United Nations Office of the High Commissioner for Human Rights.
282. Repeated requests by the United Nations Special Rapporteur on Torture and CIDT for full and unfettered access to ADX and other Defendant BOP institutions where inmates under SAMs are incarcerated have been denied.27
283. Mr. Abdulmutallab has been held in solitary confinement for more than 2000 days.
V. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Violation of the Fifth Amendment – Denial of Procedural Due Process in
Transfer to ADX (against Defendants Sessions and BOP) 284. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 285. Mr. Abdulmutallab brings this claim against Defendants Sessions and the BOP.
27 Allard K. Lowenstein International Human Rights Clinic & The Center for Constitutional Rights, The Darkest Corner: Special Administrative Measures and Extreme Isolation in the Federal Bureau of Prisons (September 2017) at 27.
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286. By transferring Mr. Abdulmutallab to ADX without meaningful notice, a hearing, the ability to present evidence to contest that transfer, regular review of his ongoing placement at ADX, notice of the projected duration of his confinement at ADX, and notice of any criteria for release, Defendants Sessions and the BOP, acting under color of law and their authority as federal officers, are intentionally or recklessly subjecting Mr. Abdulmutallab to an atypical and significant hardship in relation to the ordinary incidents of prison life, and are depriving him of liberty without due process of law and without legitimate penological purpose, in violation of the Fifth Amendment to the United States Constitution.
287. Mr. Abdulmutallab has no effective means of enforcing his Fifth Amendment due-process rights other than by seeking declaratory and injunctive relief from the Court.
288. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab has suffered and will continue to suffer emotional distress, psychological injury, and destruction of family ties.
SECOND CLAIM FOR RELIEF Violation of the First Amendment – Denial of Free Speech
(against all Defendants) 289. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 290. Mr. Abdulmutallab brings this claim against all Defendants.
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291. Under the Free-Speech Clause of the First Amendment to the United States Constitution, Mr. Abdulmutallab has the right to communicate with other persons.
292. By imposing, renewing, and implementing the SAMs against Mr. Abdulmutallab, Defendants have prohibited and are continuing to prohibit him from engaging in communications with a wide array of people, including close family members such as his thirteen nieces and nephews.
293. As a result of the SAMs imposed on Mr. Abdulmutallab, Defendants are censoring and restricting his outgoing correspondence to a degree not consistent with the restrictions applicable to other high-security inmates not placed under SAMs.
294. Defendants are censoring and restricting Mr. Abdulmutallab’s correspondence to a degree greater than is necessary to the protection of the governmental interests of security, order, and rehabilitation.
295. Defendants are censoring and restricting Mr. Abdulmutallab’s correspondence to a degree greater than is reasonably necessary to protect persons against the risk of acts of violence or terrorism.
296. Mr. Abdulmutallab is entitled to immediate restoration of his FirstAmendment right to communicate with others except to the extent Defendants can demonstrate that restrictions upon that right are reasonably necessary to further a legitimate penological interest.
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297. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right to free speech under the First Amendment other than by seeking declaratory and injunctive relief from the Court.
298. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab has suffered and will continue to suffer harm.
THIRD CLAIM FOR RELIEF Violation of the First Amendment – Denial of Free Association
(against all Defendants) 299. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 300. Mr. Abdulmutallab brings this claim against all Defendants. 301. In subjecting Mr. Abdulmutallab to the SAMs and unreasonably and excessively restricted access to visits and to telephone calls with family members, and imposing arbitrary and unjustified rules regarding the scheduling of such communication, Defendants, without legitimate penological purpose, and acting under color of law and their authority as federal officers, are intentionally or recklessly interfering with Plaintiff’s right to free speech and association in violation of the First Amendment to the United States Constitution. 302. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his First-Amendment right to free association other than by seeking declaratory and injunctive relief from the Court.
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303. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab is suffering psychological injury, emotional distress, and destruction of their familial relationships.
FOURTH CLAIM FOR RELIEF Violation of the First Amendment – Deprivation of Familial Association
(against all Defendants) 304. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 305. Mr. Abdulmutallab brings this claim against all Defendants. 306. The First Amendment right of association includes the specific right to associate with family members and engage in family relationships. 307. Mr. Abdulmutallab has the right under the First Amendment to associate with and engage in family relationships with all members of his family, not just those “immediate family members” described in his SAMs. 308. In particular, Mr. Abdulmutallab has a First-Amendment right to associate with his nieces and nephews. 309. Mr. Abdulmutallab’s SAMs infringe on his right of familial association, and this infringement is not reasonably related to any legitimate penological interest. 310. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right to family relationships under the First Amendment other than by seeking declaratory and injunctive relief from the Court.
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311. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab has suffered and will continue to suffer emotional distress, psychological injury, and destruction of family ties.
FIFTH CLAIM FOR RELIEF Violation of the Fifth Amendment – Denial of Substantive Due Process
(against Defendants Sessions and John Does 1-20) 312. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 313. Mr. Abdulmutallab brings this claim against Defendants Sessions and John Does 1-20. 314. By prohibiting Mr. Abdulmutallab from communicating with all but a small group of narrowly defined immediate family members through the imposition and renewals of the SAMs, Defendants Sessions and John Does, acting under color of law and their authority as federal officers, are infringing upon Mr. Abdulmutallab’s right to family integrity, and this infringement is not reasonably related to any legitimate penological interest, in violation of the Fifth Amendment to the United States Constitution. 315. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his Fifth Amendment rights to substantive due process other than by seeking declaratory and injunctive relief from the Court.
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316. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab is suffering psychological injury, emotional distress, and destruction of his familial relationships.
SIXTH CLAIM FOR RELIEF Violation of the First Amendment – Retaliation Against Mr. Abdulmutallab for
Engaging in Protected First-Amendment Activity (Against Defendant BOP)
317. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein.
318. Mr. Abdulmutallab brings this claim against Defendant BOP. 319. The First Amendment to the United States Constitution protects the right to petition the government for redress of grievances, including the right to hunger strike in protest of unconstitutional conditions of confinement. 320. It is a violation of the First Amendment to the United States Constitution for government officials to retaliate against an individual for engaging in an activity protected by the First Amendment. 321. Defendant BOP has retaliated against Mr. Abdulmutallab for hunger striking, which is an activity protected by the First Amendment. 322. Following Mr. Abdulmutallab’s hunger strikes in August of 2012 and October 2012, Defendant BOP officials retaliated against him by confining him to the Special Housing Unit of ADX and Range 13, without explanation or legitimate penological justification.
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323. Imposition of these extreme conditions of confinement, including placement in the Special Housing Unit at ADX, is a serious deprivation that would deter a person of ordinary firmness from exercising his right to hunger strike.
324. The timing of the imposition of these extreme conditions of confinement illustrates that Defendant BOP has retaliated against and punished Mr. Abdulmutallab for exercising his First-Amendment rights.
325. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right to be free from retaliation for exercising his First-Amendment rights, other than by seeking declaratory and injunctive relief from the Court.
326. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab has suffered and will continue to suffer emotional distress and psychological injury.
SEVENTH CLAIM FOR RELIEF Violation of the Fifth Amendment – Denial of Right to Refuse Medical Treatment
(Against Defendant BOP) 327. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 328. Mr. Abdulmutallab brings this claim against Defendant BOP. 329. The liberty interest guaranteed by the Due Process Clause of the Fifth Amendment to the United States Constitution protects an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water.
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330. As a competent individual, Mr. Abdulmutallab has the right to refuse medical treatment, including the artificial delivery of food and water.
331. Defendant BOP’s force-feeding nutrients into Mr. Abdulmutallab’s stomach against his will constitutes a substantial interference with his liberty and a violation of his constitutional rights to privacy and bodily integrity.
332. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right to refuse medical treatment under the Fifth Amendment other than by seeking declaratory and injunctive relief from the Court.
333. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab has suffered and will continue to suffer emotional distress and psychological injury.
EIGHTH CLAIM FOR RELIEF Violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (RFRA) –
Denial of Group Prayer (Against Defendant BOP) 334. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 335. Mr. Abdulmutallab brings this claim against Defendant BOP. 336. Defendant BOP is an agency of the federal government and therefore falls within the definition of “government” set forth in 42 U.S.C. § 2000bb-2(1). 337. As a devout Muslim, Mr. Abdulmutallab is obligated to perform prayer five times daily and participate in Jum’ah services.
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338. Mr. Abdulmutallab sincerely believes he will receive punishment from Allah should he not participate in group prayer and Jum’ah.
339. Defendant BOP substantially burdens Mr. Abdulmutallab’s practice of congregational prayer by prohibiting him and other Muslim inmates in H-Unit from engaging in congregational prayers.
340. Defendant BOP’s policies prohibiting congregational prayer within H-Unit at ADX are the proximate cause of the deprivation of Mr. Abdulmutallab’s rights under RFRA.
341. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right under RFRA to engage in daily group prayers other than by seeking declaratory and injunctive relief from the Court.
342. As a result of Defendant BOP’s policies prohibiting congregational prayer in H-Unit during the more than five years that Mr. Abdulmutallab has been incarcerated there, Mr. Abdulmutallab has suffered harm and remains at risk of suffering harm into the future.
NINTH CLAIM FOR RELIEF Violation of RFRA – Failure to Provide Meaningful Access to an Imam
(Against Defendant BOP) 343. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 344. Mr. Abdulmutallab brings this claim against Defendant BOP.
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345. Defendant BOP is an agency of the federal government and therefore falls within the definition of “government” set forth in 42 U.S.C. § 2000bb-2(1).
346. As a devout Muslim, Mr. Abdulmutallab sincerely believes he is required to consult with leaders of his religion and develop a more personal relationship with Allah through regular prayers and consultation with an imam.
347. Defendant BOP substantially burdens Mr. Abdulmutallab’s sincerely held religious belief by refusing to allow any access to an imam.
348. Defendant BOP’s failure to provide regular access to an imam is the proximate cause of the deprivation of Mr. Abdulmutallab’s rights under RFRA.
349. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right under RFRA to regularly meet with an imam other than by seeking declaratory and injunctive relief from the Court.
350. As a result of Defendant BOP’s failure to provide Mr. Abdulmutallab with regular access to an imam for several years, Mr. Abdulmutallab has suffered harm and remains at risk of suffering harm into the future.
TENTH CLAIM FOR RELIEF Violation of RFRA – Denial of a Halal Diet
(Against Defendant BOP) 351. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 352. Mr. Abdulmutallab brings this claim against Defendant BOP.
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353. Defendant BOP is an agency of the federal government and therefore falls within the definition of “government” set forth in 42 U.S.C. § 2000bb-2(1).
354. As a devout Muslim, Mr. Abdulmutallab is required to consume halal foods that meet guidelines established by Islamic law.
355. Defendants have refused for years to provide Mr. Abdulmutallab with meals that comply with his religious dietary requirements. After Mr. Abdulmutallab repeatedly told BOP Trust Fund and Religious Services staff that both the Food Service meals and commissary meals violated his religious beliefs, Defendant BOP told Mr. Abdulmutallab it is not required to ensure his access to halal meals with meat. Defendant BOP officials have not worked to provide Mr. Abdulmutallab access to halal meals with meat. This refusal substantially burdens Mr. Abdulmutallab’s right to exercise his sincerely held religious belief.
356. Defendant BOP’s failure to provide a halal diet is the proximate cause of the deprivation of Mr. Abdulmutallab’s rights under RFRA.
357. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right under RFRA to a halal diet other than by seeking declaratory and injunctive relief from the Court.
358. As a result of Defendant BOP’s failure to provide a halal diet for several years, Mr. Abdulmutallab has suffered harm and remains at risk of suffering harm into the future.
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ELEVENTH CLAIM FOR RELIEF Violation of RFRA – Responding to Sincerely Held Religious Belief in Need for
Hunger Striking by Force-Feeding (Against Defendant BOP)
359. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein.
360. Mr. Abdulmutallab brings this claim against Defendant BOP. 361. Defendant BOP is an agency of the federal government and therefore falls within the definition of “government” set forth in 42 U.S.C. § 2000bb-2(1). 362. As a devout Muslim, Mr. Abdulmutallab believes he must follow the religious tenets described supra. Given Defendants’ isolation of Mr. Abdulmutallab in solitary confinement under SAMs, and the years-long violations of his religious rights and harassment of him surrounding his religion and religious practices during his incarceration, Mr. Abdulmutallab’s conduct in engaging in passive, nonviolent hunger striking (to protest the inhumane conditions of his confinement and the ongoing violations of his religious rights) itself became a religious practice conducted in accordance with his sincerely held religious beliefs. 363. Defendant BOP has substantially burdened Mr. Abdulmutallab’s religious practices and sincerely held religious beliefs by responding to his passive, nonviolent hunger striking by brutally and violently force-feeding him, causing him physical pain and injury.
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364. Defendant BOP’s use of force-feeding in response to Mr. Abdulmutallab’s hunger-striking imposes a substantial burden on his exercise of his religion because hunger-striking is the only way Mr. Abdulmutallab can show Allah that he does not tolerate and accept Defendants and other inmates continually insulting his religion.
365. Defendant BOP’s policy and practices regarding force-feeding hungerstriking prisoners are the proximate cause of the deprivation of Mr. Abdulmutallab’s rights under RFRA.
366. As a result of Defendant BOP’s policies and practices regarding forcefeeding hunger-striking prisoners, Mr. Abdulmutallab has suffered harm and remains at risk of suffering harm into the future.
367. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right under RFRA not to be force fed other than by seeking declaratory and injunctive relief from the Court.
368. As a result of Defendant BOP’s unlawful conduct in responding to Mr. Abdulmutallab’s passive, nonviolent protest of his inhumane conditions of confinement and violations of his religious rights by brutally and violently force-feeding him, Mr. Abdulmutallab has been physically injured and continues to face an unconstitutional risk of physical injury, and he has suffered psychological pain, injury, and emotional distress and continues to face an unconstitutional risk of psychological pain, injury, and emotional distress.
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TWELFTH CLAIM FOR RELIEF Violation of RFRA – Force-Feeding Non-Halal Nutritional Supplement
(Against Defendant BOP) 369. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 370. Mr. Abdulmutallab brings this claim against Defendant BOP. 371. Defendant BOP is an agency of the federal government and therefore falls within the definition of “government” set forth in 42 U.S.C. § 2000bb-2(1). 372. As a devout Muslim, Mr. Abdulmutallab sincerely believes he is required to consume only halal foods that meet guidelines established by Islamic law. 373. Defendant BOP has repeatedly forced Mr. Abdulmutallab into a six-point restraint chair, strapped him down, and made him involuntary ingest non-halal (or “haram”) nutritional supplement. This completely involuntary force-feeding of haram substances substantially burdens Mr. Abdulmutallab’s sincerely held religious beliefs. 374. Defendant BOP’s policy and practice of force-feeding hunger-striking Muslim inmates with haram substances is the proximate cause of the deprivation of Mr. Abdulmutallab’s rights under RFRA. 375. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his right under RFRA not to be force fed with haram substances other than by seeking declaratory and injunctive relief from the Court.
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376. As a result of Defendant BOP’s policy and practice of force-feeding him with haram substances, Mr. Abdulmutallab has suffered harm and remains at risk of suffering harm into the future.
THIRTEENTH CLAIM FOR RELIEF Violation of the Eighth Amendment – Force-Feeding as Excessive Force
(Against Defendant BOP) 377. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 378. Mr. Abdulmutallab brings this claim against Defendant BOP. 379. Defendant BOP maliciously and sadistically use excessive force on Mr. Abdulmutallab by brutally and violently force-feeding him, causing him pain and injury. 380. Defendant BOP uses brutal and violent force-feeding on Mr. Abdulmutallab for the purpose of retaliating against and punishing Mr. Abdulmutallab for exercising his legal rights by passively and nonviolently hunger striking to protest the inhumane conditions of his confinement and ongoing violations of his religious rights. Defendant BOP’s purpose in force-feeding Mr. Abdulmutallab at all and in the brutal and violent manner used is also for the purpose of deterring him and other ADX prisoners— including other ADX prisoners under SAMs—from protesting and drawing attention to the inhumane conditions of their confinement and violations of their religious rights by engaging in passive, nonviolent hunger striking.
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381. Defendant BOP has and will continue to use excessive force by forcefeeding Mr. Abdulmutallab, thereby subjecting him to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
382. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his Eighth-Amendment rights other than by seeking declaratory and injunctive relief from the Court.
383. As a result of Defendant BOP’s unlawful conduct in responding to Mr. Abdulmutallab’s passive, nonviolent protest of his inhumane conditions of confinement and violations of his religious rights by brutally and violently force-feeding him, Mr. Abdulmutallab has been physically injured and continues to face an unconstitutional risk of physical injury, and he has suffered psychological pain, injury, and emotional distress and continues to face an unconstitutional risk of psychological pain, injury, and emotional distress.
FOURTEENTH CLAIM FOR RELIEF Violation of the Eighth Amendment—Cruel and Unusual Punishment Arising From
the Totality of Circumstances, Including: Long-term, Indefinite Solitary Confinement; SAMs; Violations of Religious Rights; and Force-Feeding
(Against all Defendants) 384. Mr. Abdulmutallab incorporates by reference the foregoing paragraphs of this Complaint as if set forth fully herein. 385. Mr. Abdulmutallab brings this claim against all Defendants.
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386. Defendants willfully and maliciously subject Mr. Abdulmutallab to excessive, cruel, inhuman, and degrading conditions of confinement, including prolonged and complete denial of any opportunity for physical contact with their loved ones, excessive restriction of other means of communication with family members and members of the community; extended detention in a unit segregated from other inmates, without legitimate penological purpose; and restrictions on his ability to meaningfully practice his sincerely held religious beliefs.
387. If he were not under SAMs, Mr. Abdulmutallab, like the overwhelming majority of other federal prisoners in the United States, would be able to draw public attention and scrutiny of the unconstitutional and inhumane conditions of his confinement by communicating openly about such problems with members of the public, including human-rights advocates and entities as well as members of the media.
388. Because of overly restrictive nature of the SAMs, however, Mr. Abdulmutallab has had to resort to hunger striking in order to attempt to challenge the unconstitutional and inhumane conditions of his confinement in an effective manner.
389. Defendants use brutal force-feeding for the purpose of retaliating against and punishing Mr. Abdulmutallab for exercising his constitutional and legal rights.
390. Defendants also use brutal force-feeding for the purpose of deterring Mr. Abdulmutallab from exercising his constitutional and legal rights in the future.
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391. By incarcerating Mr. Abdulmutallab in indefinite, long-term solitary confinement under SAMS; subjecting him to inhumane conditions of confinement; violating his religious rights; and then force-feeding him when he passively and nonviolently protests, Defendants are imposing punishment on Mr. Abdulmutallab that violates the evolving standards of decency that are the hallmark of a maturing society, and that is cruel and unusual in violation of the Eighth Amendment to the United States Constitution.
392. By incarcerating Mr. Abdulmutallab in indefinite, long-term solitary confinement under SAMS; subjecting him to inhumane conditions of confinement; violating his religious rights; and then force-feeding him when he passively and nonviolently protests, Defendants are denying Mr. Abdulmutallab the minimal civilized measure of life’s necessities in violation of the Eighth Amendment to the United States Constitution.
393. These distinct constitutional violations have a mutually reinforcing effect of depriving Mr. Abdulmutallab of social interaction—a basic human need—through prolonged solitary confinement and restrictive communication measures coupled with depriving Mr. Abdulmutallab of the opportunity to remediate his harsh conditions of confinement with either religious practice or peaceful protest.
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394. Mr. Abdulmutallab has no adequate remedy at law or other effective means of enforcing his Eighth-Amendment right to be free from cruel and unusual punishment other than by seeking declaratory and injunctive relief from the Court.
395. As a result of Defendants’ unlawful conduct, Mr. Abdulmutallab is suffering psychological pain and harm and unnecessary punishment and will continue to suffer such harms in the future.
VI. PRAYER FOR RELIEF WHEREFORE, Mr. Abdulmutallab respectively requests that this Court enter judgment in his favor and against the Defendants, and grant him the following relief: a) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right to procedural protections under the Due Process Clause of the Fifth Amendment; b) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s rights under the Free-Speech Clause of the First Amendment; c) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right to Free Association guaranteed by the First Amendment; d) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right to Familial Association guaranteed by the First Amendment;
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e) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right to substantive due process under the Due Process Clause of the Fifth Amendment;
f) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right to engage in First Amendment protected activity without retaliation;
g) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right to refuse medical treatment under the Fifth Amendment;
h) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s rights under the Religious Freedom Restoration Act (RFRA);
i) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right under the Eighth Amendment to be free from excessive force;
j) A declaration that the acts and omissions described herein are in violation of Mr. Abdulmutallab’s right under the Eighth Amendment to be free from cruel and unusual punishments;
k) A permanent injunction ordering Defendant Sessions to remove the SAMs from Mr. Abdulmutallab and prohibiting Defendant Sessions or future Attorneys General from re-imposing SAMs on Mr. Abdulmutallab;
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l) A permanent injunction ordering Defendant BOP to remove Mr. Abdulmutallab from solitary confinement (a/k/a “restrictive housing”);
m) A permanent injunction prohibiting Defendant BOP from retaliating against Mr. Abdulmutallab for engaging in First Amendment protected activity;
n) A permanent injunction prohibiting Defendant BOP from force-feeding Mr. Abdulmutallab;
o) A permanent injunction ordering Defendant BOP to allow and/or provide Mr. Abdulmutallab, at any and all BOP facilities where he is placed:
i. the ability to engage in daily congregational group prayers during the times that he is otherwise allowed out of his cell;
ii. meaningful, regular access to an imam; iii. a nutritionally adequate, halal-certified diet with halal-certified meat products that fully conforms to his religious beliefs; and iv. information regarding the source(s) of halal certification of BOP inmate meals so that he may ensure the meals conform to his religious beliefs; p) Attorney’s fees and the costs associated with this action as allowed by law; and q) Any further relief that this Court deems just and proper, and any other relief as allowed by law.
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Dated this 14th day of April, 2018.

JOHNSON & KLEIN, PLLC
s/Gail K. Johnson Gail K. Johnson Aurora L. Randolph 1470 Walnut Street, Suite 101 Boulder, CO 80302 (303) 444-1885 (866) 340-8286 (fax) gjohnson@johnsonklein.com arandolph@johnsonklein.com
ATTORNEYS FOR PLAINTIFF UMAR FAROUK ABDULMUTALLAB

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CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of April 2018, I electronically filed the foregoing FIRST AMENDED COMPLAINT with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record, including the following:
David Z. Moskowitz Assistant United States Attorney 1801 California Street, Suite 1600 Denver, CO 80202 david.moskowitz@usdoj.gov
s/ Gail K. Johnson Gail K. Johnson
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 Case 1:17-cv-02493-RM-KMT Document 42 Filed 02/08/18 USDC Colorado Page 1 of 5
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Kathleen M. Tafoya
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.
ORDER
This matter is before the court on the “Motion to Stay Discovery . . . Pending Resolution of Dispositive Motions” (Doc. No. 20, filed January 1, 2018). Plaintiff filed his response on January 24, 2018 (Doc. No. 26), and Defendants filed their reply on January 25, 2018 (Doc. No. 29).
In his Complaint (Doc. No. 1), Plaintiff asserts various constitutional claims challenging the conditions of his confinement at the United States Penitentiary – Administrative Maximum in Florence, Colorado. Defendants, since filing the present Motion to Stay, filed a Motion to Dismiss Plaintiff’s procedural due process claim (Claim 1), his free speech and substantive due process claims (Claims 2-5), and his claims regarding actions the defendants allegedly took during Plaintiff’s hunger strikes (Claims 6-7 and 11-13) for failure to state a claim upon which relief can be granted. (See Doc. No. 38 at 7-20; 23-30.) Defendants also move to dismiss

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Plaintiff’s claims regarding his hunger strikes for lack of subject matter jurisdiction. (Id. at 2023.) Defendants also filed a Motion for Partial Summary Judgment on Plaintiff’s Claims 1, 6, 810, and 12, as well as portions of Claims 2-5, 7, 11, and 13 for Plaintiff’s failure to exhaust his administrative remedies. (See Doc. No. 39.) Defendants move for a stay of all discovery in this matter until ruling on their Motion to Dismiss and Motion for Partial Summary Judgment.
The Federal Rules of Civil Procedure do not expressly provide for a stay of proceedings. See String Cheese Incident, LLC v. Stylus Shows, Inc., 02-CV-01934-LTB-PA, 2006 WL 894955, at *2 (D. Colo. March 30, 2006) (unpublished). Federal Rule of Civil Procedure 26 does, however, provide that
[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending . . . . The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . . Fed. R. Civ. P. 26(c). Moreover, [t]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936) (citing Kansas City S. Ry. Co. v. United States, 282 U.S. 760, 763 (1931)). An order staying discovery is thus an appropriate exercise of this court’s discretion. Id. Although the stay of proceedings in a case is generally disfavored, the court has discretion to stay discovery while a dispositive motion is pending. Wason Ranch Corp. v. Hecla Mining Co., No. 07–cv–00267–EWN–MEH, 2007 WL 1655362, at *1 (D. Colo. June 6, 2007)
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(“A stay of all discovery is generally disfavored in this District.” (citation omitted)). See also Gilbert v. Ferry, 401 F.3d 411, 415–16 (6th Cir.2005) (finding that ordering a stay of discovery is not an abuse of discretion when a defendant has filed a motion to dismiss challenging the court’s actual subject matter jurisdiction); Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 804 (Fed. Cir. 1999) (“When a particular issue may be dispositive, the court may stay discovery concerning other issues until the critical issue is resolved.”); String Cheese Incident, LLC v. Stylus Shows, Inc., No. 02–cv–01 934–LTB–PAC, 2006 WL 894955, at *2 (D. Colo. Mar. 30, 2006) (finding that a thirty day stay of discovery was appropriate when a motion to dismiss for lack of personal jurisdiction was pending); Chavous v. D.C. Fin. Responsibility & Mgmt. Assistance Auth., 201 F.R.D. 1, 2 (D.D.C. 2005) (“A stay of discovery pending the determination of a dispositive motion is an eminently logical means to prevent wasting the time and effort of all concerned, and to make the most efficient use of judicial resources.” (internal quotation omitted)); Nankivil v. Lockheed Martin Corp., 216 F.R.D. 689, 692 (M.D. Fla. 2003) (A stay may be appropriate if “resolution of a preliminary motion may dispose of the entire action.”).
When considering a stay of discovery, this court considers: (1) the plaintiff’s interests in proceeding expeditiously with the civil action and the potential prejudice to plaintiff of a delay; (2) the burden on the defendants; (3) the convenience to the court; (4) the interests of persons not parties to the civil litigation; and (5) the public interest. See String Cheese Incident, 2006 WL 894955, at *2 (citing FDIC v. Renda, No. 85-2216-O, 1987 WL 348635, at *2 (D. Kan. 1987)).
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First, the court recognizes that the plaintiff has an interest in proceeding in an expeditious manner. However, Plaintiff has failed to provide any “specific examples of how [his] ability to conduct discovery might be adversely affected by a stay.” Stone v. Vail Resorts Dev. Co., Civil Action No. 09-cv-02081-WYD-KLM, 2010 WL 148278, at *1 (D. Colo. Jan. 7, 2010). As such, the court finds that Plaintiff’s general interest in proceeding expeditiously does not overcome other factors that weigh in favor of a stay.
Second, the court agrees with Defendants that proceeding with discovery may be wasteful, and thus may be a burden to Defendants, if the Motion to Dismiss and Motion for Partial Summary Judgment are granted. See Chavous, 201 F.R.D. at 2. See also String Cheese Incident, 2006 WL 894955, at *2.
Third, although the court has an interest in managing its docket by seeing the case proceed expeditiously, the court finds that any inconvenience that might result from rescheduling the docket is outweighed by the potential waste of judicial resources that would result from allowing discovery to proceed only to have a large portion of the case subsequently dismissed on the grounds raised in the motions to dismiss. Davidson v. Bank of America N.A., No. 14-cv01578-CMA-KMT, 2015 WL 5444308, at *2 (D. Colo. Sept. 16, 2015) (“[I]t is more convenient for the court to stay discovery until it is clear that the case will proceed.”). See Chavous, 201 F.R.D. at 5 (concluding that stay discovery pending a decision on a dispositive motion that may resolve the case “furthers the ends of economy and efficiency, since if either [parties’] dispositive motion is granted, there will be no need for discovery”).
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Finally, neither the interest of nonparties nor the public interest in general prompts the court to reach a different result. Accordingly, on balance, the court finds that a stay of discovery is appropriate in this case. Therefore, it is
ORDERED that the “Motion to Stay Discovery . . . Pending Resolution of Dispositive Motions” (Doc. No. 20) is GRANTED. All discovery in this action is STAYED pending ruling on the Motion to Dismiss and Motion for Partial Summary Judgment.
Dated this 8th day of February, 2018.
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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, and JOHN DOES 1 THROUGH 20, in their official capacities,
Defendants.
MOTION TO DISMISS AMENDED COMPLAINT [76]
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defendants Attorney General Jefferson Sessions, in his official capacity, and the Bureau of Prisons (“Defendants”) move to dismiss Claims 1-7 and 11-14 of the amended complaint. Defendants certify that, pursuant to Judge Moore’s Practice Standards, the parties conferred via email on January 30-31, 2018 and May 8, 2018 regarding the grounds for this motion. Plaintiff opposes the motion.
INTRODUCTION Plaintiff Umar Farouk Abdulmutallab is an unrepentant terrorist, who attempted to blow up a commercial airliner and kill 289 people on board. He testified in court that he believes his participation in jihad against the United States is among the most virtuous deeds and that he is obligated and proud to kill in the name of God. He brings this civil action, challenging his conditions of confinement at the United States Penitentiary – Administrative Maximum, in Florence, Colorado (“ADX”). As detailed in this motion and an accompanying motion for partial

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summary judgment, all 14 of these claims are subject to dismissal for lack of jurisdiction, failure to exhaust administrative remedies, and/or failure to state a claim.
In Claim 1, Plaintiff alleges his transfer to the ADX violates due process, but the Tenth Circuit has ruled that there is no protected liberty interest in transfer to the ADX. In Claims 2-5, Plaintiff challenges his Special Administrative Measures (“SAMs”) and argues that restrictions on his communications violate the law. But the Tenth Circuit and this Court have repeatedly upheld such restrictions in cases, like this one, where there is a rational relationship between the restrictions and the inmate’s offense as well as his statements declaring an obligation to participate in jihad. In Claims 6-7 and 11-13, Plaintiff challenges the BOP’s actions related to his hunger strikes in 2012 and 2015, seeking to bar the BOP from force-feeding him during any hypothetical future hunger strike. Plaintiff lacks standing to bring this claim for prospective relief based on years-old allegations. Moreover, as federal courts have repeatedly held, force-feeding a hunger-striking inmate is justified based on the government’s compelling interests in preserving inmate health and maintaining order and discipline. Finally, in Claim 14, Plaintiff challenges that his overall conditions of confinement violate the Eighth Amendment, but the Supreme Court and Tenth Circuit have rejected such overall conditions of confinement claims. For these reasons, as detailed further below, the Court should dismiss Claims 1-7 and 11-14.1
FACTUAL BACKGROUND Plaintiff Umar Farouk Abdulmutallab is a convicted terrorist, often referred to in the media as the “Underwear Bomber.” He is serving four terms of life imprisonment plus 50 years
1 Defendants have separately moved for partial summary judgment for failure to exhaust administrative remedies with regard to Claims 1, 6, 8-10, and 12, as well as with respect to portions of Claims 2-5, 7, 11, 13, 14 and the allegations in paragraph 147.
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for his convictions for attempting to use a weapon of mass destruction on a commercial airliner that landed in Detroit, Michigan, and attempting to murder 289 people on board. Dkt. 76 ¶ 1. As Plaintiff testified under oath at his plea colloquy, “in fulfillment of a religious obligation, I decided to participate in jihad against the United States.”2 Ex. 1 at 25:25-26:2, United States v. Abdulmutallab, No. 10-cr-200005 (E.D. Mich.) (Dkt. 114, Plea Transcript). Plaintiff testified that “[t]he Koran obliges every able Muslim to participate in jihad and fight in the way of Allah, those who fight you, and kill them where you find them.” Id. at 26:2-4. Plaintiff further testified that “[p]articipation in jihad against the United States is considered among the most virtuous deeds in Islam and is highly encouraged in the Koran.” Id. at 27:1-3. Plaintiff admitted that he attempted to use a weapon of mass destruction—which he called “a blessed weapon”—in order to destroy a commercial airliner and kill those on board. Id. at 26:15-20, 25:18-25. He testified that “the U.S. should await a great calamity that will befall them through the hands of the mujahideen soon by God’s willing permission.” Id. at 29:9-11.
During his sentencing, when the government presented video evidence demonstrating the destructive nature of his explosive device, Plaintiff repeatedly interrupted with chants of “Allahu Akbar”—“God is great.” Ex. 2 at 42:10-43:2, United States v. Abdulmutallab, No. 10-cr-200005 (E.D. Mich.) (Dkt. 139, Sentencing Transcript). In his statement to the court, Plaintiff praised Osama Bin Laden and Anwar Al-Awlaki as “rightly guided” and proclaimed that they are “alive
2 On a motion to dismiss, a 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. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); 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).
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and shall be victorious by God’s grace.” Id. at 39:22-25. “The mujahedeen are proud to kill in the name of God, and that is exactly what God told us to do in the Koran.” Id. at 40:9-10. As the district court summed up following Plaintiffs’ various statements, “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.” Id. at 54:18-20. The court stated that Plaintiff “poses a significant, ongoing threat to the safety of American citizens everywhere.” Id. at 54:8-10.
Plaintiff is a federal prisoner who has been housed at the ADX since 2012. Dkt. 76 ¶ 4. In March 2012, the Attorney General imposed Special Administrative Measures (“SAMs”) against Plaintiff pursuant to 28 C.F.R. § 501.3, after finding “there is a substantial risk that [Plaintiff’s] communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.”3 Ex. 3, March 2012 SAMs at 3; see also Dkt. 76 ¶¶ 7, 119-20. The SAMs list numerous reasons for the restrictions, including that Plaintiff engaged in a martyrdom mission to destroy a passenger plane and kill those on board, an action for which he has yet to show any remorse; Plaintiff recorded a martyrdom video released by al Qaeda in which he exhorted others to the call of jihad; Plaintiff desires to harm the United States; Plaintiff made statements during his criminal proceeding and to government officials that he is proud to kill in the name of God and has a religious obligation to engage in jihad against the United States; there is a substantial risk that he will attempt to radicalize others, including fellow inmates, if his communications are
3 The Court may consider Plaintiff’s SAMs on a motion to dismiss because they are referenced in the complaint, are central to the claims, and the authenticity of the documents is not in dispute. Gee, 627 F.3d at 1186; Al-Owhali v. Mukasey, No. 07-cv-02214-LTB-BNB, 2010 WL 5651033, at *10 n.3 (D. Colo. June 17, 2010), adopted in relevant part, 2011 WL 288523 (D. Colo. Jan. 27, 2011), aff’d, 687 F.3d 1236 (10th Cir. 2012).
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not appropriately restricted; he remains loyal to al Qaeda; there is a substantial risk that, if given the opportunity, he will seek to facilitate additional terrorist acts; and he has a proclivity for violence. Ex. 3 at 2; Ex. 4, March 2018 SAMs Renewal at 2-3. The SAMs explain that when Plaintiff “was asked if [he] still had an obligation to commit jihad in light of the fact that his martyrdom mission failed, [he] replied that the obligation to jihad still existed.” Ex. 3 at 2; Ex. 4 at 2. The initial SAMs expired in March 2013 and have been renewed on an annual basis, with the latest renewal in March 2018. Dkt. 76 ¶ 123; Ex. 4. During that renewal, it was found that Plaintiff “has never expressed any regret or remorse for [his] conduct, but instead view[s] [his] crimes as compelled by religious duty” and “believes that [he] and others have a continuing obligation to carry out such crimes.” Ex. 4 at 3.
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. Ex. 4 at ¶¶ 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
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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.
Plaintiff brings this civil action with 14 claims challenging his conditions of confinement. In Count 1, Plaintiff alleges that his transfer to the ADX in 2012 violated due process. Dkt. 76 ¶¶ 284-88. In Counts 2-5, Plaintiff alleges his SAMs violate the First and Fifth Amendments. Id. ¶¶ 289-316. In Counts 6-7 and 11-13, Plaintiff alleges 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 Counts 8-10, 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 Count 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. Prayer for Relief.
STANDARDS OF REVIEW A. Federal Rule of Civil Procedure 12(b)(1)
The plaintiff bears the burden of establishing the Court’s subject matter jurisdiction. Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005). Federal Rule of Civil Procedure 12(b)(1) serves as the appropriate vehicle to challenge subject matter jurisdiction in a particular matter. See, e.g., Satterfield v. Malloy, 700 F.3d 1231, 1234 (10th Cir. 2012). When considering a Rule 12(b)(1) motion, a court may review evidence outside of the complaint. Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1255 (10th Cir. 2001).
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B. Federal Rule of Civil Procedure 12(b)(6) In adjudicating a motion to dismiss pursuant to Rule 12(b)(6), a court must determine
whether a complaint fails to state a claim upon which relief can be granted. Although a court must accept as true all well-pleaded factual allegations in a complaint, it need not credit allegations that are merely conclusory. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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.’” Id. This is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 678. Where the well-pleaded facts are “merely consistent with a defendant’s liability” or “mere possibility of misconduct,” the complaint fails to state a claim for relief that is plausible on its face, and the complaint must be dismissed. Id. 678-79.
ARGUMENT I. The Tenth Circuit has repeatedly held that there is no protected liberty interest in a
transfer to the ADX (Claim 1). In Claim 1, Plaintiff alleges that his transfer to the ADX violated his procedural due process rights because he claims that he was not provided meaningful notice and or meaningful opportunity to be heard. Dkt. 76 ¶¶ 284-88. This claim has been repeatedly rejected because, as the Tenth Circuit has held, there is no protected liberty interest in the transfer to the ADX. Rezaq v. Nalley, 677 F.3d 1001, 1011 (10th Cir. 2012); Gowadia v. Stearns, 596 F. App’x 667, 673-74 (10th Cir. 2014); Allmon v. Wiley, 2011 WL 4501941, at *15 (D. Colo. Aug. 25, 2011), adopted, 2011 WL 4501937 (D. Colo. Sept. 27, 2011), aff’d, 483 F. App’x 430 (10th Cir. 2012). An inmate has a “heavy burden” to establish that a prison restriction violates his due process rights. Shaw v. Murphy, 532 U.S. 223, 226 (2001). A prisoner must show two elements:
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(1) he was deprived of a protected liberty or property interest; and, if so, (2) the procedures followed were constitutionally insufficient. Swarthout v. Cooke, 562 U.S. 216, 219 (2011). Here, Plaintiff has failed to allege facts showing either element of a due process violation.4
A. Element not met: Deprivation of a protected liberty interest. Prisoners retain “only a narrow range of protected liberty interests.” Abbott v. McCotter, 13 F.3d 1439, 1442 (10th Cir. 1994). “[T]he transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.” Hewitt v. Helms, 459 U.S. 460, 468 (1982), overruled in part on other grounds, Sandin v. Conner, 515 U.S. 472 (1995). “[A] deprivation occasioned by prison conditions or a prison regulation does not reach protected liberty interest status and require procedural due process protection unless it imposes an ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006). The Tenth Circuit has developed a four-factor analysis for evaluating this question: (1) whether the conditions relate to and further the government’s legitimate interests in prison safety and national security; (2) whether the conditions are extreme; (3) whether the conditions increase the duration of the inmate’s confinement; and (4) whether the length of time the inmate will be subject to the conditions is indeterminate. Rezaq, 677 F.3d at 1012-13; see also Estate of DiMarco v. Wyoming Dep’t of Corrs., 473 F.3d 1334, 1342-44 (10th
4 In addition, the relief Plaintiff seeks is unavailable. He seeks an injunction ordering the BOP to remove Plaintiff from the ADX. Dkt. 76 ¶ 5, Prayer for Relief. This remedy is improper for numerous reasons, not the least of which is that the proper remedy for a procedural due process violation is the process that is due, not the substantive grant of relief. See, e.g., Codd v. Velger, 429 U.S. 624, 627 (1977); Davis v. Holder, No. 12-cv-02122-REB-KMT, 2014 WL 1713429, at *9 (D. Colo. Apr. 23, 2014) (“[I]n the procedural due process context, the appropriate remedy is not damages, but ‘procedural protections as the particular situation demands.’”).
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Cir. 2007). Applying these four factors, the Tenth Circuit and this Court have repeatedly held that the conditions of confinement at the ADX do not implicate a protected liberty interest.
Under the first factor, there is a reasonable connection between Plaintiff’s incarceration at the ADX and the government’s “uniquely federal penological interest in addressing national security risks by segregating inmates with ties to terrorist organizations.” Rezaq, 677 F.3d at 1014. As the Tenth Circuit has held, there need only be a “reasonable relationship,” and the BOP may properly consider the underlying nature of Plaintiff’s crime in designating him to the ADX. Gowadia, 596 F. App’x at 673. Here, Plaintiff was convicted of a terrorist act in attempting to blow up a passenger plane with a weapon of mass destruction and murder 289 people on board. He testified that participating in jihad against the United States is among the most virtuous deeds, that he has an obligation and is proud to kill in the name of God, and that he remains loyal to al Qaeda leaders. Ex. 1 at 26-27; Ex. 2 at 39-40; Ex. 3, 4. This more than establishes a reasonable relationship between Plaintiff’s crimes, his statements regarding an obligation to engage in jihad and desire to harm the United States, and his placement at the ADX.
Under the second factor, the Tenth Circuit “has already established that the conditions at ADX are not atypically ‘extreme,’” including those conditions in the unit where Plaintiff is housed. Gowadia, 596 F. App’x at 673; Rezaq, 677 F.3d at 1015; Allmon, 2011 WL 4501941, at *15 (“[C]onditions 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.”); Ayyad v. Holder, No. 05-cv-02342WYD-MJW, 2014 WL 4747451, at *34-35 (D. Colo. Sept. 24, 2014) (concluding that conditions in H Unit are not extreme, are common to many high-security prisons, and that convicted terrorists “are the very types of inmate who are routinely subject to nonpunitive restrictive
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confinement and who can reasonably expect to find themselves in such conditions”). Plaintiff can write and receive correspondence, receive visitors, make telephone calls, talk with others in the prison, access books and other publications, and obtain information by means of the mass media. “The conditions at ADX are comparable to those routinely imposed in the administrative segregation setting,” and are thus neither atypical nor extreme. Rezaq, 677 F.3d at 1015.
Under the third factor, Plaintiff’s placement at the ADX does not increase the duration of his confinement. Rezaq, 677 F.3d at 1016; Gowadia, 596 F. App’x at 673. Plaintiff is already serving four life sentences plus 50 years for his crimes.
Under the fourth factor, Plaintiff’s placement at the ADX, as a matter of law, is not considered “indeterminate.” Plaintiff’s allegation that there is no finite length to his placement is irrelevant because duration must be “considered in tandem with indeterminacy.” Rezaq, 677 F.3d at 1016. The Tenth Circuit holds that duration of conditions becomes atypical and significant only when an inmate does not receive “regular reevaluations” or periodic reviews of the conditions. Id. (holding no indeterminacy after 13 years at the ADX, even when those conditions are not of a “predictably finite” length, because of regular reevaluations); see also Gambina v. Fed. Bureau of Prisons, No. 10-cv-02376-MSK-KLM, 2013 WL 791428, *3 (D. Colo. Mar. 4, 2013) (holding inmate’s confinement in ADX since 1998 was not indeterminate because of regular, periodic reviews). Plaintiff receives the same twice-yearly Program Reviews as in Rezaq and Gowadia, plus he receives annual reviews to assess whether the SAMs should be renewed.5
5 The Special Security Unit Supplement describes the periodic Program Reviews, which occur at least every six months. Ex 5, Inst. Supp. FLM 5321.07(3)I, Special Security Unit (H-Unit), § IV. The Supplement further describes the annual SAMs review process. During that process, the inmate may submit written comments. Id. § III.B. Further, approximately 90 days before the SAM expires, BOP and FBI personnel meet with the inmate to discuss “information concerning
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See Ex. 3, 4; Ex. 5 (detailing periodic Program Reviews); Dkt. 76 ¶ 123; 28 C.F.R. § 501.3(c). Under Tenth Circuit precedent, this confinement is not considered indeterminate.
In sum, as the Tenth Circuit and this Court have previously held for inmates in similar circumstances, all four factors weigh in favor of no protected liberty interest. Plaintiff’s procedural due process claim should therefore be dismissed.
B. Element not met: Lack of constitutionally sufficient process. Because Plaintiff has no protected liberty interest in his transfer to the ADX, his procedural due process claim fails. The Court therefore need not reach the second element, whether the process afforded was constitutionally sufficient. But even if the Court examines this element, the process Plaintiff received satisfies any constitutional requirement in this context. Once incarcerated, inmates are not entitled to full process, such as an adversary hearing or the right to present witnesses. The Supreme Court has explained that, “[w]here the inquiry draws more on the experience of prison administrators, and where the State’s interest implicates the safety of other inmates and prison personnel, the informal, nonadversary procedures set forth in Greenholtz [v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1 (1979)] . . . and Hewitt v. Helms[, 459 U.S. 460 (1983)], . . . provide the appropriate model.” Wilkinson v. Austin, 545 U.S. 209, 228-29 (2005). Under those procedures, some notice and opportunity to be heard
possible renewal [or] modification of the SAM,” and “any other issues concerning the SAM.” Id. The information provided at the meeting by the inmate, along with the inmate’s written comments, are forwarded to the appropriate United States Attorney’s Office, the FBI or other relevant law enforcement agency, and the Office of Enforcement Operations in the criminal division of the United States Department of Justice for review in determining whether the SAMs should be renewed and/or modified. Id.
The Court may take judicial notice of the institution supplement. See Matthews v. Wiley, 744 F. Supp. 2d 1159, 1172 (D. Colo. 2010).
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are constitutionally sufficient, even if significantly limited. Hewitt, 459 U.S. at 462, 464. Likewise, officials need only “engage in some sort of periodic review of the confinement of such inmates. This review will not necessarily require that prison officials permit the submission of any additional evidence or statements.” Id. at 477 n.9.
Plaintiff acknowledges he received notice prior to the hearing on his ADX placement, and that he presented arguments at that hearing. Dkt. 76 ¶¶ 76, 79-84. While Plaintiff may disagree with the outcome, and may believe his arguments were not adequately taken into account, there is no dispute that Plaintiff had notice, was present at the hearing, and presented arguments. In addition, Plaintiff had the opportunity to file an Administrative Remedy regarding any perceived inadequacies with his hearing or placement at the ADX. 28 C.F.R. §§ 542.13542.15. Finally, as described above, Plaintiff receives regular reevaluations both for his placement at the ADX and for his SAMs. Consequently, even if Plaintiff had a protected liberty interest, the BOP provided the “relaxed” procedures that more than satisfy due process in this particular context. DiMarco, 473 F.3d at 1344. II. The SAMs are reasonably related to protecting national security and therefore do
not violate the Constitution (Claims 2-5). In Claims 2-5, Plaintiffs alleges that his SAMs violate his First and Fifth Amendment rights by restricting his communications and association with other persons. Dkt. 76 ¶¶ 289-316. As a remedy, Plaintiff seeks a “permanent injunction ordering Defendant Sessions to remove the SAMs” and “prohibiting Defendant Sessions or future Attorneys General from re-imposing SAMs.” Id. Prayer for Relief. As detailed below, the SAMs were imposed for legitimate penological reasons to protect national security and therefore do not violate the Constitution.
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A. The SAMs do not violate the First Amendment (Claims 2-4). Plaintiff alleges in Claims 2-4 that the SAMs violate his First Amendment rights by restricting his communications and his associations. Plaintiff fails to state a claim because he fails to allege facts, taken as true, that show there is no rational connection between the SAMs restrictions and the government’s penological interest in protecting national security. 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 “lawful incarceration brings about the necessary withdrawal or 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, 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.
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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 State to prove the validity of prison regulations but on the prisoner to disprove it.” Id.
In order 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) (upholding dismissal of a First Amendment claim brought by a SAMs inmate). “Government conduct that would be unacceptable, even 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. 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, 677 F.3d at 1014 (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
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Ziglar v. Abbasi, 137 S. Ct. 1843 (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 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.6 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) (Dkt. 95). As the Tenth Circuit concluded in Gowadia, there is “an obvious and reasonable relationship between
6 The SAMs restrictions here are similar to those restrictions in prior cases. Compare Ex. 3, 4; with Nicholson v. Brennan, No. 15-cv-01999-KLM (D. Colo.) (Dkt. 57-5); Salim v. Lynch, No. 13-cv-03175-RM-CBS (D. Colo.) (Dkt. 34-1); Gowadia v. Stearns, No. 13-cv-00077-KMT (D. Colo.) (Dkt. 43-2); Al-Owhali v. Holder, No. 07-cv-02214-LTB-BNB (D. Colo.) (Dkt. 51-1).
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Gowadia’s crimes and the measures the BOP implemented to restrict his communications.” 596 F. App’x at 673. Similarly here, 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.
Plaintiff is a terrorist who has testified that he has a religious obligation to engage in jihad against the United States. He 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. Ex. 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. Ex. 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.” 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. 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. Ex. 3 at 2-3; Ex. 4 at 2-3. Based on such actions and statements, the Attorney General concluded there is a likelihood that
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Plaintiff would, if given the opportunity, attempt to radicalize others and attempt to advocate or incite terrorism and violence. 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 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. Dkt. 76 ¶¶ 289-316, Prayer for Relief. Plaintiff repeatedly asserts that his rights are being violated. But nowhere in the complaint does he show, based on alleged facts (as opposed to conclusory assertions), that the government lacks any legitimate, rational basis for the restrictions.
Plaintiff’s primary complaint appears to be that he is unable to communicate “with more than 7.5 billion people, the vast majority of people on the planet.” Dkt. 76 ¶ 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. 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
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further terrorist attacks. The government is not required to permit Plaintiff’s unfettered
communications until such time as he may orchestrate another attack.
Plaintiff also complains that he is unable to communicate with the media. Dkt. 76 ¶ 153.
But 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. 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.7 Id. at 2.
Finally, Plaintiff challenges that he is not permitted to communicate with his nieces and nephews.8 Dkt. 76 ¶ 308. Plaintiff appears to argue that there is no legitimate penological
interest for this restriction because most of his nieces and nephews are minors. Id. ¶ 140. But this
allegation alone fails to demonstrate that there is no rational basis for the restriction. Children, of
7 Plaintiff also alleges that the SAMs restrict his access to books, but the SAMs provide that he “may have access to all books that do not facilitate criminal activity or present a substantial threat to national security or the security, discipline, or good order of the institution.” Ex. 4 ¶ 9. This restriction is lawful. To the extent Plaintiff disagrees with any particular denial, he may file administrative remedies, and if still unhappy, he may then file suit for access to the book. But as detailed in the accompanying motion for partial summary judgment, Plaintiff has never exhausted any administrative remedies with respect to access to any particular reading materials.
Plaintiff likewise offers various allegations about access to attorneys. Plaintiff obviously has attorneys at this time. If he wishes to obtain other attorneys, he merely needs to notify his Unit Team, and he will be permitted to contact other lawyers. But such hypothetical issues are not presently before the Court. Again, if Plaintiff has particular issues regarding communications with his attorneys, he may file administrative remedies regarding such issues, and if that does not resolve his concern, he may then file suit on the limited question. But there is plainly a legitimate, rational basis for including attorney communication protocols within the SAMs. See United States v. Stewart, 590 F.3d 93, 100-08 (2d Cir. 2009). 8 As discussed in the accompanying motion for summary judgment, the Court should not reach this issue because Plaintiff did not first exhaust his administrative remedies related to his request to communicate with his nieces and nephews.
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course, are highly vulnerable to influence. The government has a legitimate interest in preventing Plaintiff from attempting to inspire or otherwise recruit any of his young family members from following in his path and becoming a terrorist. Because there is a rational relationship between the SAMs restrictions and the government’s legitimate penological interest in protecting national security, the restrictions do not violate the Constitution.
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 Ex. 3, 4 (detailing justifications). He 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. His new allegations in his Amended Complaint rebut none of the stated justifications.
First, Plaintiff alleges that he has not received any disciplinary charges for violence while incarcerated. Dkt. 76 ¶ 85. This is a complete red herring because the government has never justified the SAMs restrictions based on Plaintiff’s violence in prison. See Ex. 3, 4. In any event, as Plaintiff’s own allegations suggest, Plaintiff has no opportunity to engage in violence in the restrictive conditions at the ADX. This allegation is not sufficient to state a claim. Al-Owhali, 687 F.3d at 1241 (allegation that prisoner did not violate SAMs restrictions did not state a claim that SAMs restrictions were unconstitutional).
Second, Plaintiff alleges, in his Amended Complaint, that he no longer wishes to engage in jihad and wants to live in “peace and calm.” Dkt. 76 ¶ 86. This too fails to state a claim for
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numerous reasons. Plaintiff does not allege that he has ever told this information to any government officials, even though he admits he has opportunity to provide information each year while the SAMs are reevaluated. Id. ¶ 126. Without having apprised any officials of his supposed change of heart, it is impossible to suggest the officials lacked a rational justification.
More fundamentally, even if Plaintiff had told officials he will not engage in jihad in the future—which he does not allege—officials would not be obliged to believe him. Plaintiff misunderstands the relevant Turner standard, which does not focus on whether the challenged restrictions are actually necessary, but whether Defendants might rationally believe they advance the stated national security interests. See Johnson, 543 U.S. at 513 (Turner does not require proof that the policy advanced the stated goal, but only that the officials “might reasonably have thought” it would); Sperry v. Werholtz, 413 F. App’x 31, 40 (10th Cir. 2011) (“[I]t ‘does not matter whether we agree with’ the defendants or whether the policy ‘in fact advances’ the jail’s legitimate interests. The only question that we must answer is whether the defendants’ judgment was ‘rational,’ that is, whether the defendants might reasonably have thought that the policy would advance its interests.” (quoting Amatel v. Reno, 156 F.3d 192, 199 (D.C. Cir. 1998)); Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999) (same); Bruscino v. Pugh, No. 02-cv02362-LTB-PAC, 2006 WL 980580, at *8 (D. Colo. Apr. 11, 2006) (same).
Just as officials are not required to remove cell locks simply because an inmate alleges he will not escape, officials are not required to remove restrictions when a convicted terrorist alleges he will not engage in jihad. Because officials cannot know with certainty Plaintiff’s true beliefs, they must exercise predictive judgment. Plaintiff lied in order to enter the United States to try blow up a plane kill and 289 people on board, and has said he has a religious obligation to
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engage in jihad. Plaintiff offers no reason why any reasonable person might not rely on that history. The Supreme Court has emphasized that courts must grant substantial deference to the government’s predictive judgment and uphold the restrictions if there is any rational basis. Overton, 539 U.S. at 132; Humanitarian Law Project, 561 U.S. at 34-35. Plaintiff’s limited allegations cast no doubt on the fact that Defendants might reasonably believe that the SAMs restrictions advance their national security interests in light of Plaintiff’s crime, his martyrdom video imploring others to engage in jihad, and his numerous statements detailed above.9 As a result, he fails to state a claim.10
B. The SAMs do not violate Plaintiff’s substantive due process rights (Claim 5). 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 purportedly violating his substantive due process rights. Dkt. 76 ¶¶ 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 “where a particular Amendment provides an
9 Notably, Plaintiff does not allege that any of his actions were wrong, that he has remorse for his conduct, or that he disavowed any of his prior statements. 10 Plaintiff also alleges that there are other inmates, whom he believes committed similar crimes, that are not subject to SAMs restrictions. Dkt. 76, ¶¶ 129-38. But such allegations are irrelevant. The standard is not a least restrictive means test. Plaintiff’s personal views about other inmates do not cast doubt on whether there is a logical relationship between him and his restrictions. In any event, Defendants have a reasonable basis for believing that Plaintiff is dangerous to the national security of the United States because of his ties and allegiance to al Qaeda and his willingness to recruit others for al Qaeda, having taped a martyrdom video imploring others to engage in jihad. This type of predictive judgment regarding the relative dangers of various inmates is exactly the type of decision that mandates deference and is not subject to judicial scrutiny. 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).
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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.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 841 (1998) (internal quotations and citations omitted); 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-00823MJW, 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).
In any event, Plaintiff falls short of alleging a substantive due process violation. In order to state a claim, Plaintiff must allege conduct “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Cty. of Sacramento, 523 U.S. at 847 & n.8. “The ultimate standard for determining whether there has been a substantive due process violation is whether the challenged government action shocks the conscience of federal judges.” Hernandez v. Ridley, 734 F.3d 1254, 1261 (10th Cir. 2013) (quoting Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006)). This Court and the Tenth Circuit have upheld challenges to communications
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restrictions in SAMs. Gowadia, 596 F. App’x at 673-74; Al-Owhali, 687 F.3d at 1240-43; Nicholson, 2017 WL 4337896, at *4-7; Salim v. Lynch, No. 1:13-cv-03175-RM-CBS (D. Colo. Nov. 30, 2016) (Dkt. 95); Ayyad, 2014 WL 4747451, at *29. The fact that similar restrictions have been upheld demonstrates that such restrictions for an unrepentant terrorist do not shock the conscience. Further, the restrictions are rationally related to legitimate penological interests, as described above, and are thus constitutional under Turner. Finally, the imposition of a SAMs does not implicate any protected liberty interest, thus further barring the claim. Gowadia, 596 F. App’x at 674; Salim v. Lynch, No. 1:13-cv-03175-RM-CBS (D. Colo. Nov. 30, 2016) (Dkt. 95); Yousef v. United States, No. 1:12-cv-02585-RPM, 2014 WL 1908711, at *5 (D. Colo. May 13, 2014). For all of these reasons, the substantive due process claim should be dismissed. III. Plaintiff lacks standing to challenge the BOP’s actions related to his hunger strikes
in 2012 and 2015 and, in any event, the claims lack merit (Claims 6-7, 11-13). In claims 6-7 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. A. Plaintiff lacks standing to seek prospective declaratory and injunctive relief
based on allegations of conduct in 2012 and 2015. “Article III of the Constitution limits federal courts’ jurisdiction to certain ‘Cases’ and
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‘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.
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.”11 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.’”);
11 The Supreme Court has emphasized that a plaintiff must demonstrate standing separately for each claim and for “each form of relief sought.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006); Lyons, 461 U.S. at 109.
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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. Dkt. 76 ¶¶ 218, 231, 233. Based on these three allegations from years ago, Plaintiff brings various claims concerning the BOP’s actions during the 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, 11-13, Prayer for Relief. Plaintiffs’ 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. At bottom, Plaintiff’s standing argument is based on speculation that he may undertake a hunger strike at some future unspecified time, and the BOP may force-feed him. Indeed, during his last two hungers strikes, medical staff determined that no intervention was necessary.12 Ex. 6, Dkt. 76 ¶ 243. Plaintiff merely points to past conduct and suggests it is repeatable in the future, exactly
12 Plaintiff omits any allegations regarding his October 2015 hunger strike; however, this Court may consider it in evaluating where Plaintiff has standing to sue. The medical records show that Plaintiff started a hunger strike in October 2015 because he was not receiving double-portion meals. Ex. 6. The medical staff determined that no intervention was necessary, even after missing 40 meals. Id. Likewise, Plaintiff alleges that he went on a hunger strike after filing his original complaint, but medical staff did not intervene. Dkt. 76 ¶ 243.
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the type of claim that has been repeatedly rejected. As a result, Plaintiff lacks standing to bring any of his challenges concerning the BOP’s alleged past acts in 2012 and 2015.
The Court should dismiss Claims 6-7 and 11-13 for lack of standing, but these principles apply with even greater force to two of Plaintiff’s allegations. First, in Claim 6, Plaintiff alleges that in 2012, the BOP retaliated against him by placing him in a Special Housing Unit (Range 13). Dkt. 76 ¶¶ 317-26. An allegation that the BOP retaliated against Plaintiff more than five years ago is insufficient to establish a certainly impending future injury necessary for standing to obtain prospective relief, especially where Plaintiff does not allege this conduct repeated.
Likewise, these principles apply with even greater forcer to the extent Plaintiff relies on his conclusory assertion that medical staff ordered force-feeding in 2012 or 2015 without medical necessity, in contravention of BOP regulations. Such allegations do not give rise to a claim for certainly impending future injury. 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 an unidentified BOP physician may deliberately violate BOP regulation and order him force-fed without medical necessity.13 Such a claim is wholly speculative and falls woefully shorts of meeting Plaintiff’s burden to demonstrate a certainly impending future injury. For similar reasons, this claim is not ripe for judicial review. “A claim is not ripe for adjudication if it rests upon contingent future events that
13 Even if the Court were to accept Plaintiff’s conclusory allegation that a prior physician ordered Plaintiff force-fed without medical necessity, the allegation does not support the inference that a different future physician will act in the same manner during some hypothetical future hunger strike. Lyons, 461 U.S. at 109 (past chokehold was not sufficient to demonstrate a real and immediate threat of a future chokehold necessary for standing).
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may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300, 118 S. Ct. 1257, 1259, 140 L. Ed. 2d 406 (1998) (quotation marks omitted). Here, the entire allegation is based wholly on speculation as to events that may not occur. Because Plaintiff faces no certainly impending injury based on these allegations, and because this claim is entirely dependent on contingent future events, the Court lacks jurisdiction to hear this allegation.
B. Plaintiff also fails to state a claim that force-feeding violates his rights (Claims 7, 11, 13). 1. Force-feeding a hunger-striking inmate does not violate the Constitution (Claims 7, 13).
In Claims 7 and 13, Plaintiff alleges that force-feeding him while on a hunger strike will violate his constitutional rights by denying him the right to refuse medical treatment and constituting cruel and unusual punishment. The federal courts have repeatedly rejected this claim, holding that force-feeding inmates on a hunger strike does not violate the Constitution. Aamer v. Obama, 742 F.3d 1023, 1039-41 (D.C. Cir. 2014); Owens v. Hinsley, 635 F.3d 950, 955 (7th Cir. 2011); Freeman v. Berge, 441 F.3d 543, 546-47 (7th Cir. 2006); In re Grand Jury Subpoena, 150 F.3d 170, 172 (2d Cir. 1998); Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992); Garza v. Carlson, 877 F.2d 14, 17 (8th Cir. 1989); In re Soliman, 134 F. Supp. 2d 1238 (N.D. Ala. 2001), vacated as moot, 296 F.3d 1237 (11th Cir. 2002); see also Bezio v. Dorsey, 989 N.E.2d 942, 950-51 (N.Y. 2013); Laurie v. Senecal, 666 A.2d 806, 809 (R.I. 1995); Comm’r of Corr. v. Coleman, 38 A.3d 84, 95-97 (Conn. 2012). In fact, various courts have held that not force-feeding inmates in need of care would violate the Eighth Amendment. Owens, 635 F.3d at 955 (holding officials have “a right and a duty to step in and force an inmate to take nourishment if a hunger strike has progressed to the point where continuation risks serious injury or death”).
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BOP’s regulations governing management of inmates engaging in hunger strikes “authorize medical officers to force-feed an inmate if they determine that the inmate’s life or permanent health is in danger.” Martinez, 977 F.2d at 423; see 28 C.F.R. §§ 549.60-66. The regulations provide that “[w]hen, as a result of inadequate intake or abnormal output, a physician determines that the inmate’s life or health will be threatened if treatment is not initiated immediately,” then “staff shall make reasonable efforts to convince the inmate to voluntarily accept treatment,” but if such efforts fail, or in an emergency, “the physician may order that treatment be administered without the consent of the inmate.” 28 C.F.R. § 549.65.
Under Turner, 482 U.S. at 89, the BOP’s actions and regulations must be upheld if they are “reasonably related to legitimate penological interests.” Id. As noted earlier, in undertaking such 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. Again, the burden “is not on the State to prove the validity of prison regulations but on the prisoner to disprove it.” Id.
Applying the Turner test, federal courts have uniformly held that force-feeding a hungerstriking inmate in need of care furthers “compelling government interests, such as the preservation of life, prevention of suicide, and enforcement of prison security, order, and discipline.” In re Grand Jury Subpoena, 150 F.3d at 172; see also Aamer, 742 F.3d 1023, 1039 (recognizing interests in preserving lives and maintaining security and discipline); Freeman, 441 F.3d at 547 (“If prisoners were allowed to kill themselves, prisons would find it even more difficult than they do to maintain discipline, because of the effect of a suicide in agitating the
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other. Prison officials who let prisoners starve themselves to death would also expose themselves to lawsuits by the prisoners’ estates.”); Garza, 877 F.2d at 17 (holding the “preservation of prisoners’ health is certainly a legitimate objective”); Wilson v. Hardy, No. 11 C 6862, 2012 WL 400927, at *2 (N.D. Ill. Feb. 7, 2012) (“Correctional officers are responsible for the prisoner and they cannot allow him to take actions that would result in his own injury.”); Bezio, 989 N.E.2d at 950 (“[T]here is virtually universal recognition among appellate courts that an inmate hunger strike can have a significant destabilizing impact on the institution[.]”). Accordingly, based on these established compelling interests, the federal courts have uniformly concluded that forcefeeding a hunger-striking inmate does not violate the Constitution. This Court should rule likewise and dismiss Plaintiff’s allegations in Claims 7 and 13 as well as his request to enjoin BOP from force-feeding him in the future.
To the extent Plaintiff refocuses his challenge on his conclusory assertion that BOP medical staff ordered him force-fed without medical necessity during any past hunger strike, that claim fails for numerous reasons. First, past medical judgment from multiple years ago cannot serve as the basis to establish standing for future prospective relief. As explained earlier, Plaintiff may not obtain prospective relief based on speculation as to the medical judgment that may be exercised at some hypothetical time by some unidentified physician in the future. Second, in any event, disagreements with medical judgment do not rise to the level of a constitutional violation. Green v. Branson, 108 F.3d 1296, 1303 (10th Cir. 1997); Sherman v. Klenke, 653 F. App’x 580, 588 (10th Cir. 2016) (explaining courts do not sit as “a medical review board” and where there is a “disagreement with considered medical judgment, we will not second guess the doctors”). Third, Plaintiff’s conclusory allegations without any specific facts, including any allegations as
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to the state of mind of the BOP physician(s), is not sufficient to state a constitutional claim. Under Iqbal, Plaintiff is required to allege specific facts, and not just his personal belief that medical intervention was unnecessary. Fourth, Plaintiff never exhausted this claim, as explained in the motion for partial summary judgment. In sum, Plaintiff’s conclusory assertion that medical intervention was unnecessary during any prior hunger strike fails to save his claims.
2. Force-feeding Plaintiff during a hunger strike does not violate RFRA (Claim 11).
In Claim 11, Plaintiff alleges that force-feeding him violates RFRA. Plaintiff alleges that he undertook hunger strikes in August 2012, October 2012, and July 2015 to protest harassment and that he was prohibited from communicating with his sister. Dkt. 76 ¶¶ 218, 231, 233. Plaintiff alleges that he hunger strikes to protest what he believes to be “unconstitutional and illegal conditions of confinement.” Id. ¶ 216. Plaintiff alleges that force-feeding him “imposes a substantial burden on his exercise of religion because hunger-striking is the only way [Plaintiff] can show Allah that he does not tolerate and accept Defendants and other inmates continually insulting his religion.” Id. ¶ 364. This claim must be rejected because force-feeding is the least restrictive means to further the government’s compelling interests.
Even assuming Plaintiff’s hunger striking is motivated by a sincerely held religious belief, the BOP’s well-established compelling interests justify force-feeding a hunger-striking inmate. Under RFRA, even if a government action substantially burdens a person’s free exercise of religion, that action must be upheld where the government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §§ 2000bb–1(b). In conducting this analysis, “[c]ourts should continue to give ‘due deference to
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the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Werner v. McCotter, 49 F.3d 1476, 1479-80 (10th Cir. 1995) (quoting S. Rep. No. 111, 103d Cong., 1st Sess. 9-11, reprinted in 1993 U.S.C.C.A.N. 1892, 1900) (superseded by statute on other grounds).
In this case, both prongs of the test are met. As discussed previously, there are wellestablished compelling government interests when a hunger-striking inmate’s health is in jeopardy. These interests include “the preservation of life, prevention of suicide, and enforcement of prison security, order, and discipline.”14 In re Grand Jury Subpoena, 150 F.3d at 172; 139 Cong. Rec. S14,468 (daily ed. Oct. 27, 1993) (statement of Sen. Hatch) (“[P]rison officials clearly have a compelling interest in maintaining order, safety, security, and discipline. The sponsors of this bill have emphasized this point repeatedly.”) (cited approvingly in Kikumura v. Hurley, 242 F.3d 950, 962 (10th Cir. 2001)); Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (“prison security is a compelling state interest” and “deference is due to institutional
14 The compelling nature of the interest is further demonstrated by the fact that, under the Eighth Amendment, prison officials have “a duty to step in and force an inmate to take nourishment if a hunger strike has progressed to the point where continuation risks serious injury or death.” Owens, 635 F.3d at 955; see also, e.g., Anderson v. Colo. Dep’t of Corr., No. 16-cv-02113CMA-MJW, 2017 WL 6033681, at *8 (D. Colo. Sept. 27, 2017) (quoting Owens approvingly); Aamer v. Obama, 953 F. Supp. 2d 213, 221 (D.D.C. 2013) (“Numerous courts have recognized the Government’s affirmative duty to prevent suicide and to provide life-saving nutritional and medical care to persons in custody.”). The Tenth Circuit and other courts have repeatedly analyzed Eighth Amendment claims for inadequate medical care during a hunger strike, recognizing that where a medical provider believes care and nourishment are required to prevent serious harm, care must be provided even when refused by a hunger-striking inmate. Williams v. Miller, 696 F. App’x 862, 869 (10th Cir. 2017); Austin v. Tennis, 381 F. App’x 128, 133 (3d Cir. 2010); Anderson, 2017 WL 6033681, at *8. That the Constitution mandates care in these circumstances clearly establishes that the government’s interest here is of the highest order.
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officials’ expertise in this area”). Given the uniform acknowledgement of these interests, including in the context of hunger-striking inmates, there can be no doubt that the government has compelling interests in preserving inmate health and maintaining order and discipline.
Under the second prong, the government must show that “it lacks other means of achieving its desired goal.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2780 (2014). “[I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it.” United States v. Playboy Ent. Group, Inc., 529 U.S. 803, 815 (2000). The government “need not refute every conceivable alternative, but [it] ‘must refute the alternative schemes offered by the challenger.’” Newland v. Sebelius, 881 F. Supp. 2d 1287, 1298 (D. Colo. 2012) (quoting United States v. Wilgus, 638 F.3d 1274, 1289 (10th Cir. 2011)).
Here, there are no less restrictive alternatives that would achieve the government’s desired goals. The government has compelling interests in both preserving the health of the inmate and maintaining order and discipline. When a hunger-striking inmate is in need of medical care and refuses to voluntarily accept such care, the BOP has determined, based on its substantial expertise, to “authoriz[e] medical officers to force-feed an inmate if they determine that the inmate’s life or permanent health is in danger.” Martinez, 977 F.2d at 423; see also 28 C.F.R. § 549.65. This approach achieves both of the government’s compelling interests.
Neither of the other two potential alternatives achieves both compelling interests. First, if the government allows the inmate to continue hunger striking without care, that would place the inmate at serious risk of harm or death. As discussed above, this is not a viable alternative. Allowing the inmate to harm himself would plainly not achieve either of the government’s
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compelling interests, both because the inmate’s health would be placed in serious jeopardy and because it would disrupt the order and discipline of the prison. Freeman, 441 F.3d at 547.
Alternatively, if the government simply acceded to the inmate’s demands (hoping the inmate would voluntarily end the hunger strike), that alternative would destroy the government’s compelling interest in maintaining order and discipline. Giving in to demands will “lead other inmates to ‘copy the same tactic, manipulating the system to get a change in conditions.’” Aamer, 742 F.3d at 1040 ((quoting Bezio, 989 N.E.2d at 951)). Obviously, if the BOP were required to accede to demands during every hunger strike, that would severely harm order and discipline, leading to never-ending hunger strikes by prisoners seeking to rewrite the rules. Rodriguez v. Briley, 403 F.3d 952, 953 (7th Cir. 2005) (explaining that “[a] prisoner cannot force the prison to change its rules by going on a hunger strike”); Dep’t of Homeland Sec. v. Ayvazian, No. 15-23213-CIV, 2015 WL 5315206, at *4 (S.D. Fla. Sept. 11, 2015) (explaining that hunger striking inmates present the agency with three options: (1) allow them to die, (2) force-feed them, or (3) submit to their demands and concluding that “[o]ptions 1 and 3 are not reasonable” leaving the agency “with the single option of involuntarily administering nutrients and hydration”—“the only viable response”). Because force-feeding is the only alternative that would achieve both of the government’s compelling interests, it is the least restrictive means. The Court should therefore dismiss Plaintiff’s RFRA claim. IV. The Supreme Court and Tenth Circuit have rejected “overall condition” claims
under the Eighth Amendment (Claim 14). In his final claim, Plaintiff alleges that all of his conditions of confinement—the “totality of circumstances”—combine to constitute cruel and unusual punishment. Dkt. 76 ¶¶ 384-95. Both the Supreme Court and the Tenth Circuit have rejected such a challenge. “Nothing so
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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, in order 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 fails to allege that he was denied any basic human need, such as food, warmth, or exercise. Instead, Plaintiff alleges exactly the amorphous claim that the Supreme Court held insufficient, making a conclusory assertion that his various conditions of confinement somehow combine to deny Plaintiff the minimal civilized measures of life’s necessities. Dkt. 76 ¶ 392. As a result, this claim must be dismissed under established law.
Plaintiff’s suggestion that his conditions combine to deny social interaction is meritless. Dkt. 76 ¶ 392. To begin with, the Tenth Circuit has never determined that a lack of social interaction could rise to an Eighth Amendment violation. Silverstein v. Fed. Bureau of Prisons,
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559 F. App’x 739, 755-56 (10th Cir. 2014). More importantly, the Tenth Circuit has held that

even if such claim could theoretically 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, Dkt. 76 ¶ 33—does

not violate the Eighth Amendment. 559 F. App’x at 755-56. Nor is there any basis to Plaintiff’s

suggestion that force-feeding him while on a hunger strike or allegedly denying him halal meals

combines to deprive him of social stimuli. Plaintiff is simply lumping his claims together in

exactly the fashion that the Supreme Court held to be impermissible. In light of the precedent

holding that Plaintiff’s conditions do not violate the Eighth Amendment, the Court must dismiss

this claim.

CONCLUSION

For the foregoing reasons, the Court should dismiss Claims 1-7 and 11-14.

Dated May 11, 2018

Respectfully Submitted,

ROBERT C. TROYER United States Attorney

s/ David Z. Moskowitz David Z. Moskowitz Assistant United States Attorney 1801 California Street, Suite 1600 Denver, Colorado 80202 Telephone:(303) 454-0100 Fax: (303) 454-0407 david.moskowitz@usdoj.gov Counsel for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on May 11, 2018, I electronically filed the foregoing with the Clerk of Court using the ECF system, which will send notification of such filing to the following email addresses: gjohnson@johnsonklein.com arandolph@johnsonklein.com
s/ David Z. Moskowitz Office of the U.S. Attorney
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~ffirt of f~t l\ttcrncll Qftttcnii
)JÇlgl~ingtittl, m. QI. 2i1.5;30
March 19, 2012 LIMITED OFFICIAL USE

MEMORANDUM FOR CHARLES E. SAMUELS, JR. DIRECTOR FEDERAL BUREAU OF PRISONS
FROM:~TORNEY GENERAL

SUBJEC~iginatiOn of Special Administrative Measures Pursuant to 28 c.P.R. § 501.3

for Federal Bureau of

Prisons Inmate Umar Farouk Abdulmutalla1)

On October 12,2011, Federal Bureau of

Prisons (BOP) inmate Umar Farouk

Abdulmutallab pleaded guilty to one count of conspiracy to commit an act of tel1mism

transcending national boundaries,

in violaticnof 18 U.S.C. § 2332b(a)(I) and (2), one count of

attempted murder, in violation of 18 U.S.c. § 1113, one count of

wilfully placing a destructive

devic~ in proximity to a civil aircraft, in violation of 18 U.S.C. § 32(a)(2), one count of attempted

use of a weapon of

mass destruction, in violation of 18 U.S.C. § 2332a(a)(2), on0 count of

wilirully attempting to destroy and wreck a civil aircraft, in violation of 18 U.S.C. § 32(a)(1)

and (8), and three counts of possessing or using a destructive device in furtheranr.;e of or during a

crime of violence, in violation of 18 U.S.C. § 924(c), all in connection with the uttempted Christmas Day bombing ofa passenger airplane bound for Detroit in December 2009. As

detailed in the attached request from the United States Attorney's Offce for the Eastern District

of Michigan (USAOIEDMI), Abdulmutallab has been in custody since his arrest on or about

December 25, 2009. On February 16,2012, Abdu1mutallab was sentenced to life in prison

without the possibility of

parole. He is currently housed with the BOP in the Special Housing

Unit at FCC Florence. It is anticipated that he wil be transferred to ADX Florence in the near

future.

Abdulmutallab, a twenty-five-yenr old man from a wealthyNigerian family, became interested in the online teachings of Anwar al-Awlaki (a United States-born radical imam
afíliated with al Qaeda) while studying at University College in London, where Ìle earned an
engineering degree in 2008. In the summer of2009, he traveled to Yemen, made contact with Awlaki, stayed in his home, and received training at an al Qaeda camp in Yemen,
Abdulmutallab made clear to Awlaki his wilingness to conduct a martyrdom operation or any
other te11orist act that he might be asked to undciiake.

LIMITED OFFICIAL USE

Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 2 of 18

SPECIAL ADMINISTRATIVE MEASURS (SAM) Pursuant to 28 C.F.R. § 501.3 '
Inmate - Abdulmutallab'

Page 2

At Awlaki's request, Abdulmutallab agreed to carry out a martrdom mü.sion by bombing
an aircraft over the United States. He was subsequently trained in the operation 'ofa bomb built into a pair of underwear. On December 6, 2009, Abdulmutallab was given that liomb. In a portion of a martyrdom video that he recorded prior to departing Yemen for his fJUicide mission and subsequently released by al Qaeda, Abdu1mutallab, who is praised in the video as a hero,
exhOlis "Muslim brothers in the Arabian Peninsula" to "answer thecall of Jihad, because the enemy is inyour land, along with their Jewish and Christian armies."

After leaving Yemen, Abdulmutallab traveled to Ghana, where he purchased a nonstop round-trip ticket from Amsterdam to Detroit on Northwest-Delta Flight 253 for December 25,2009. On December 24,2009, Abdulmutallab traveled from Gha.la to Nigeria, and then to Amsterdam. At the airpoit in Amsterdam, he was able to clear airpcl't security and permitied to board the Detroit-bound plane. As the aircraft began its descent into Detroit, Abdulmutallab detonated the bomb, which did not function as intended. PassenJers and flght
attendants were able to put out the fire with extinguishers and subdue Abdulmu~allab.

After the plane custody. At the time of

landed, Customs and Border Protection offcers took Abdulmutallab into his an-est, he told the officers that he was acting on behalfof al Qacda

and had intended to "bring the plane down" over the United States. Later, at the hospital where

he received medical care for his burns, he provided the Federal Burea'J ofInvest:,gation (FBI)

with extensive details about the explosive device, the bombmaker, and how and'when he had

been radicalized. When asked if

he stil had an

obligation to commit

jihad in light of

the fact that

his martyrdom mission had failed, Abdulmutallab replied that the obligation to j~had stil existed.

On December 15, 2010, Abdulmutallab was charged with eight counts of

terrorism-

related offenses, as set forth above. On October 12, 2011, he entered a plea of guilty to all counts

withc\ut the benefit of a plea agreement. On February 16, 2012, he was sentenced to life in prison

without the possibilty of parole. He showeò no remorse at either

court hearing.

Based on the information set forth above, the USAOIEDMI believes that imposition of

Speeia1 Administrative Measures (SAM) is 'appropriate and Ihat there is evidennofa substantial

fisk that Abdulmutdlab's communications or contacts could result in death or 8(Tious bodily

injury to others. As described in the attached request, Abdu1l1utallabattempted to destroy a

passenger plane and its passengers in flght,

an action for which he has yet to sl:nw any remorse.

He remains a committed terrorist who continues to harbor

the desire to harm the United States.

If his communications and contacts with others are not appropriately restricted, :lierc is a

substantial risk that

he wil make every effort to radícalizcothers, induding fellow inmates who

may be released from prison at a later time. In additon, it is apparentthat Abdülmutallab

remains loyal to al Qaeda. There is a substantial

risk that; given the oppOliunity, he wil

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Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 3 of 18

SPECIAL ADMINISTRATIVE MEASURS (SAM) Pursuant to 28 C.F.R. §501,3. Imuate - Abdulmutallab

Page 3
.\

communicate with al Qaeda members and seek to facilitate additionalterrorist acts. The FBI concúrs in this request.

Based upon information provided to mc of Abdu1mutallab's proclivity fo1' violence, I find

that there is substantial risk that his communications or contacts with persons could result in

death or serious bodily injury to persons, or substantial damage to propert that would entail the

risk òf serious bodily injury to persons. Therefóre, I am reqúesting that you, pursuant to

28 C.F.R. § 501.3, implement

SAM to restrict Abdulmutallab's access to the mail, the media, the

telephone, and visitors. Implementation of

the SAM wil commence immediately upon notice to

the inmate, and the SAM wil be in effect for one year from the date of my approval, subject to

my fiuther direction.

1. General Provisions:

a. Adherence to Usual United States Marshals Service (USMS), BOP, and

DeteIltion Facilty (DF) Policy Requirements - In addition to the below-listed

SAM, the inmate must comply with all usual BOp! policies regading restrictions,

activities, privileges, communications, etc. If

there is a conflct between BOP

policies and the SAM, as set forth herein, where the SAM is morc restrictive than

usual BOP policies, then the SAM shall control. If

usual BOP policies are more

restrictive than the SAM, then BOP policies shall control.

b. Interim SAM Modification Authority - During the term of

this directive, the

Director, Offee of

Enforeement Operations (OEO), Criminal Division, may

modify the inmate's SAM as long as any SAM modification authorized by OEO:

i. Does not create a more restrictive SAM;

ii. Is not in conflct with the request of
applicable regulations; and

the USAO/EDMI, FBI, or BOP, or

iii. Is not objected to by the USAOIEDMI, FBI, or BOP,

1 While Abdulmutallab is currently in the BOP's custody, in the event of a transfer to any

other BOP/uSMS facility or other DF, ahy provisions of
apply' equally to those entities.

the SAM referencing the BOP wil

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Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 4 of 18

SPECIAL ADMINISTRATIVE MEASURES (SAM)

Pursuant

to 28 C.F.R. § 501.3

Inmate ~ Abdulmutallab

Page

4

c. Inmate Communications ProhibitiQns - The inmate is limited, within the BOP's reasonable efforts and existing eonfinement conditions, from having contact

(including passing or receiving any oral, written, or recorded communications)

with any

other inmate, visitor,

attorney, or anyone else,

except as outlned and

allowed by this document, that could reasonably foreseeably result in the inmate

communicating (sending or receiving) information that could circumvent the

SAM's intent of significantly limiting the inmate's abilty to comnunicate (send

or receive) threatening or other terrorism-related information.

d. Use of Interpreters/Translators by BOP - Interpreter/Translato~' ("Interpreter")
approval requirement:

i. The BOP may use Department of Justice (DOJ) approved interpreters as necessary for the purpose of facilitating communication with the inmate,

ii. No person shall act as an interpreter without prior written
clearance/approval from the BOP, which shall only be granted after consultation with the FBI and USAO/EDMI.

iii. Interpreters utilzed by the BOP shall not be allowed to ei:gage in, or
overhear, unmonitored conversations with the inmate. Interpreters shall not be alone with the inmate, either in a room or on a tele)hone or other
communications medium.

2. Attorney-Client Provisions:

a. Attorney2 Affrmation of Receipt of the SAM Restrictions D()~ument - The

inmate's

attorney (01' counsel) - individually by each if

more thauone - must sign

an affnnation acImowledging receipt of

the SAM restrictions do~.ument. By

signing the affirmation, the

attorney acknowledges his/ber aware:iess and

understanding of

the SAM provisions and hisfher agreement to al.ide by these

provisions, particularly those that relate to contact between the ir,mate and his

2 The term "attorney" refers to the inmate's attorney of

record, who has been verified and

documented by the USAO/EDMI, and who has

received and aclmowledged recdpt of

the SAM

restrictions document. As used in this document, "attorney" also refers to more than one attorney

where the inmate is represented by two or more attorneys, and the provisions of this document

shall be fully applicable to each such attorney in his/her individual capacity.

LIMITED OFFICIAL USE
1.

"

Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 5 of 18

SPECIAL ADMINISTRATIVE MEASURES (SAM)
Pursuant to 28 C.F.R. § 501.3
Inmate - Abdulmutallab .

Page 5

attorney and the attorney's staff. The signing of

the affirmation does not serve as

an endorsement of the SAM or the conditions of confinement, and does not

serve

to attest to any of the factors set forth in the conclusions supporting the SAM.

However, in signing the affirmation, the inmate's attorney and precleared3 staff

members acknowledge the restriction that they wil not forward third-party

messages to or fìom the inmate.

1. The USAOÆDMI shall present, or forward, the attorney affirmation of receipt of the SAM restrictions document to the inmate's attorney.

11, After initiation of

the SAM and prior to the inmate's attorney being

permitted to have attorney-client privileged contact with inmate's attorney sh::ll execute a document affrming receipt of

the inmate, the
the SAM

restrictions document and return the original to the USAO/EDMI.

ll. The USAOIEDMJ shall maintain the original of

the SAM

acknowledgment document and forward a copy of the signed document to

OEO in Washington, D.C., and the BOP.

b. Attorney Use of Interpreters -

i. Necessity Requirement - No interpreter shall be utilized unless absolutely

necessary where the inmate does not speak a common

language with the

attorney. Any interpreter shall be precleared.4

3 "Precleared," when used with regard to an attorney's staff, or "preclea1'~d staff

member," refers to a co-counsel, paralegal, or investigator who is actively assisting the imnate's

attorney with the inmate's post-sentencing proceedings, who has submitted to a background

check by the FBI and USAO/EDMI, who has successfully been cleared by the FBI and

USAO/EDMI, and who has received a copy of

the inmate's SAli and has agreed - as evidenced

by his/her signature - to adhere to the SAM restrictions and requirements. As used in this .

document, "staff member" also refers to more than one staffmember, and the pi~6visions of this

document shall be fully applicable to each such staff

member in hislherii1dividi'ul capacity. A

:'paralegal" wil also be governed by any additional DF rules and regulations concerning ,

paralegals.

4 "Precleared," when used with regard to an interpreter, refers to an interpreter who is

actively assisting the inmate's attorney with the inmate's post-sentencing procel'dings, who has

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Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 6 of 18

SPECIAL ADMINISTRATIVE MEASURES (SAM)
Pursuant to 28 C.F.R. § 501.3
Inmate - Abdulmutallab

Page 6

ii. Attorney Immediate Presence Requirement - Anyuse of an interpreter by

the attorney shall be i1i the physical and immediate presence of the .

attorney, in the same r'oom. The attorney shall

not patch through telephone

calls, or any other communications, to ot from the inmate.

iH. Translation of

Inmate's Correspondence - An attorney of

record may only

allow a federally approved translator to translate the il1ua:e's

correspondence a~ necessary for attorney-client privileged communication.

c. Attorney-Client Privileged Visits - Attorney-client privileged visits may be

contaet or non-contact, at the discretion of

the BOP.

d. Attorney May Disseminate Inmate Conversations - The inmatç's attorney may

disseminate the contents of

the inmate's communication to third parties for the

sole purpose of

providing necessary legal services related to the hmate's post-

sentencing proeeedings - and not for any other reason- on the ur~derstanding that
any such dissemination shall be made solely by the inmate's attorney, and not by the attorney's staff.

e. Unaccompanied Attorney's Precleared Paralegal(s) May Me( t With Client The inmate's attorney's precleared para1cga1(s) may meetwith tb e inmate without

thc need for the inmate's attorney to be present. An itlvestigatoror

interpreter/translator may not meet alone with the inmate. These

meetings may be

contact or non-contact, at the discretion cif the BOP.

f. Simultaneous Multiple Legal Visitors - The inate may have Llultiple legal
visitors provided that at least one of the multiple legal visitors is ~he inmate's
attorney or pre cleared paralegaL. These meetings may be contact or non-contact, at the discretion of the BOP.

g. Legally Privileged Telephone Calls - The following rules refer to all
privileged telephone calls or communications:

legally

submitted to a background check by the FBI and USAO/EDMI, who has succesdully been

cleared by the FBI and USAO/EDMI, and who has received a copy of

the inmat')'s SAM and has

agreed - as evidenced by his/her signature - to adhere to the SAM restrictions riüd requirements.

LIMITED OFFICIAL USE

,.~

Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 7 of 18

SPECIAL ADMINISTRATIVE MEASURES (SAM)
Pursuant to 28 C.F.R. § 501.3
Inmate - Abdu1mutallab

Page 7

i. Inmate's Attorney's PreclearedStaffMay Participate in inmate Telephone
Calls - The inmate's attorney's prec1eared staff are permitted to communieate directly with the inmate by telephone, provided that the inmate's attorney is physically presentaiid participating bthe legal call as
welL.

ii. Inate's Initiation of

Legally Privileged Telephone Calls -

Inate-initiated telephone eommunications with his attorney or preclearcd

staff are to be placed by a BOP staff member and the telephone handcd to

the inmate only after the BOP staff member confirms that the person on

the other end ofthe line is the inmate's attorney. This pri'!Ilege is

contingent upon the following additional restrictions:

(1) The inmate's attorney wil not allow any non-precleared person to
communicate with the inmate, or to takc part in and/or listen to or overhear any communications with the inmate.

(2) The inmate's attorney must instruct his/her staff

that:

(a) The inmate's attorney and preclcared staff are the only
persons allowed to engage in communicaf ems with the
inmate.

(b) The ettorney's staff (including the attorney) are not to patch through, forward, transmit, or send the inmate's
communications to third parties.

(3) No telephone eall/communication, or portion ther(~of, except as
specifically authorized by this document:

(a) Is to be overheard by a third party.s
(b) Wil be patched through, or in any manner forwarded or
transmitted to a third party.

S For purposes of

the SAM, "third party" does not include officials ofthc BOP, FBI, DOl,

or other duly authorized federal authorities when acting in cOlmection with their official duties.

This section does not allow monitoring of attorney-client privileged eommunications.

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Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 8 of 18

SPECIAL ADMINISTRATIVE MEASURES (SAM)

Pursuant

to 28 C.F.R. § 501.3

Iiunate - Abdulmutallab

Page 8

(c) Shall be divulged in any manner to a third party, except as
otherwise provided in Section 2.d. above.

(d) Shall be in any manner recorded or prcserved.6 The

inniate's attorney.

may make written notes of

attorney/client~privileged communications.

the BOP, FBI orUSAOIEDMI determines that the inmate has
(4) If
used or is using the opportunity to make a legal call to speak with

another inmate or for any other non-legal reason tbat would

circumvent the intent of

the SAM, the inmate's ability to contict

his attorney by telephone may be suspended or eliminated.

h. Doi~unients Provided by Attorney to Inmate - During a visit, the inmate's

attorney may provide the inmate with, or review with the inmate, documents

related to his post-sentencing proceedings and/or material prepared by the

inmate's attorney related to sueh proceedings, so long as any of the foregoing

documents are translated, if

translation is necessary, by a preclear;:d translator.

Any documents not related to the iiunate's post-sentendng proctf)dings must be

sent to the inmate vìa general correspondence and wil he subjec\ to the mail

provisions of subparagraphs 2.i. and 3.g. Documents previously reviewed and

eleared for receipt by the inmate, and already in the inniate's pos~:ession at the

outset of the vìsit, may be discussed or reviewed by the inmate and the inmate's

attorney during the visit.

i. None of the materials provided may include inflammatory materials,
materials inciting violence or military training materials, or materials that may be used to pass messages from inmate to inmate, unless such materials have been precleared by the USAO/EDMI and rBI.
ii. The USAO/EDMI mciy authorize additonal documents 18 be presented to the inmate. If any document not listed or described abov~ needs to be transmitted to the inmate, consent for the transmission of the document . may be obtained frorJlthe USAO/EDMI without the neeci to formally seek approval for an amendment to the SAM.

6 Except by the BOP, FBI, DOJ 01' oJier duly authorized federal authorit;cs. This se;;tion does not allow monitorin8 of attorney-cHeut privileged communications.
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Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 9 of 18

SPECIAL ADMINISTRATIVE MEASURES (SAM)
Pursuant to 28 C.P,R. § 501.3
Inmate - Abdulmutallab

Page

9

i. Legal MaW - The inmate's attorney may not send, communicate; distribute, or

divulge the inmate's mail, or any portion of

its contents (legal or otherwise), to

third parties.

In signing the SAM aclmowledgment document, the inmate's att¿rney and

prec1eared staff wil acknowledge the restriction that only inmate case-related

documents wil be presented to the inmate, and

that neither the attorney nor

his/her staff wil forward third-part mail to or from the inmate.

3. Inmate's Non-legal Contacts:

a. Non-legally Privileged Telephone Contacts -

1. The inmate is limited to non-legally privileged telephone calls with his immediate family members.8

ii. The quantity and duration of

the inmate's non-legally privileged telephone

calls with his immediate family members shall be set by the BOP, with a

minimum of one call per month.

b. Rules for Telephone Calls - For all non-legally privileged telephone calls or communications, no telephone call/communication, or portion thr.reof:

i. Is to be overheard by a third pary.

ll. Is to be patched through, or in any manner forwarded or transmitted, to a
third party.

iii. Shall be divulged in any manner to a third part.

7 "Legal mail" is defined as properly marked correspondence (marked "Legal Mail") addressed to or from the inmate's attorney. All other mail, ineluding that otherviise defined by the BOP as Special Mail, shall be processed as "non-legal maiL."
8 The inmate's "immediate family members" are defined as the inmate's (BOP- or FBIverifiable) spouse, children, parents, and siblings. Requests for additional non-legal contacts may be submitted and wil be considered on a case-by-case basis.
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Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 10 of 18

SPECIAL ADMINISTRATIVE MEASURES (SAM)
Pursuant to 28 C.F.R. § 501.3
Inmate - Abdulmutallab

Page 10

iv. Shall be in any m~nner recorded or preserved.9

All telephone calls shall be in English unless a

fluent FBI- or BOP-approved

interpreter is available to contemporaneously monitor the telepho:ic calL.

Arranging for an interpreter may require at least fourteen (14) days' advance

notice.

c. Telephone SAM Restriction Notifications - For all

non-legally privileged

telephone calls to the inmate's immediate family member(s):

i. The BOP shall inform the inmate ofthe telephone SAM r\.strictions prior
to each telephone calL.

ii. The BOP shall verbally inform the inmate's immediate family membcr(s)

on the opposite end of

the inmate's telephone communication of

the SAM

restrictions. The BOP is only required to notify the inmat:/s

communication recipient in English.

iii. The BOP shall document each such telephone notification.

d. FaiiilyCall Monitoring - All calls with the inmate's immediate family
member(s) shall be:

i. Contemporaneously monitored by the FBI.

it Contemporaneously recorded (as directed by the FBI) in u manner that
allows such telephone calls to be analyzed for indications the call is being used to pass messages soliciting or encouraging acts of vi, iIenee or other crimes, or to otherwise attempt to circumvent the SAM.

iii. A copy of each inmate/immediate family member telephoi,e call recording
shall be provided by the BOP on a single, individual cassette tape or compact disk (per call) for forwarding to the FBI. These recordings shall be forwarded on a call -by-call basis as. soon as practicable.

9 Except by the BOP, FBI, DOJ, or other duly authorized federal authorit'es. LIMITED OFFICIAL USE

Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 11 of 18

SPECIAL ADMINISTRATIVE MEASURES (SAM)
Pursuant to 28 C.P.R. § 501.3
Inmate - Abdulmutallab

Page 11

e. Improper Communications" If

telephone call monitoring or analysis reveals that

any call or portion of a call involving the inmate contains any indi.cation of a

discussion of ilegal activity, the soliciting of or encouraging of a~ts of

violence or

terrorism, or actual or attcIIlpted circumvention ofihe SAM, the iiuuate shall not

be permitted any further calls to his immediate family members for a period of time to be determined by the BOP. If contemporaneous monitoring reveals such inappropriate activity, the telephone call may be immediately terminated,

f, Non-legal Visits -
1. Limited Visitors - The inmate shall be permitted to visit \111y with his immediate family members. The visitor's identity and family memher relationship to the inmate wil be confirmed by the BOP anù FBI in
advance.

ii, English RequireinerH " All communications during non-legal inmate
visits wil be in English unless a i1uent FBI- or BOP~appr~)Ved interpreter
is readily available to contemporaneously monitor the
cOl1munication/visi t.

iii. Visit Criteria - All non-legal visits shall be:

(1) Contemporaneously monitored by the BOP and/or FBI in a mam-ior
that allows such visits to be analyzed for indicatiotls the visit is being used to pass messages soliciting or encouraf:ingacts of . violence or other crimes, or to otherwise attempt to circumvent the SAM.

(2) Permitted only with a minimum of fourteen (14) calendar days'
advance written notice to the BOP facility where t)le inmate is
housed.

(3) Without any physical contact. All such meetings shall be non-
contact to protect against harm to visitors or staff.

(4) Limited tà Cr1e adult visitor at a time. However, the FBI-verified
children of the inmate may visit with a pre-approvêd adult visitor.

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Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 12 of 18

SPECIAL ADMINISTRATIVE MEASURES (SAM)
Pursuant to 28 C.F.R. § 501.3 Inmate - Abdu1mutallab

Page 12

g. Non-legal Mail- Non-legal mail is any mail not clearly and properly addressed

to/from the inmate's attorney and marked "Legal Mail" (incominfS or outgoing).

Non-legal mail is limited to.on1ytheinmate'simmediate family,,U.S. courts,

federal

judges, U.S. Attomeys' Offices, members of

U.S. Congre,ss, BOP, Ol'other

federal law enforcement entities. .

i. General correspondence with limitations: 'Correspondence is restricted

to immediate familyniembers. The volume and frequency of outgoing

general correspondence with immediate family members may be limited to

three pieees of

paper (not larger than 8Yz" x 1 I"), double-dded, once per

calendar week to a single recipient, at the discretion ofthc BOP. The

identity and family mcmber relationship to the inmate wil be confirmed

by the BOP and FBI.

ii. General correspondence without limitations: There is no volume or

frequency lirritation0n correspondence to/from U.S. courts, federal

judges, U.S. Attorneys' Offces, members of

U.S. Congre;;s, BOP, and

other federal law enforeement entities, unless there is evic~ence of abuse of

these ptivileges, threatening corresponùence is detected, (,;rcumvention of

the SAM is detected, or the quantity to be processed beco:.nes

unreasonable to the extent that effcient processing to protect the security,

good order, or discipline of

the institution, the public, or i,ational security

may be jeopardized.

iii. All non-legal mail shall be:

is housed. . (1) Copied - Shall be copied (including the surface o~dthe envelope) by the warden, 0:' his/her designee, of the facility in v'hich the inmate

(2) Forwarded - Shall be forwarded, in copy form, to the location
designated by the FBI.
(3) Analyzed - After government analysis and approv:il, if appropriate, the inmate's incoming/outgoing non-legal mail shall be forwarded to the BOP for delivery to the inmate (incoming), or directly to the addressee (outgoing).

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Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 13 of 18

SPECIAL ADMINISTRATIVE MEASURES (SAM)
Pursuant to 28 C.F.R. § 501.3
Inma:e - Abdulmutallab

Page 13

iv. The federal government shall forward the inmate's non-legal mail to the
BOP for delivery to the inmate or directly to the addressee after a review . and analysis period of:

(1) A reasonable time not to exceed fourteen (14) business days for mail that is written entirely in the English languagí'.

(2) A reasonable time not to exceed sixty (60) business days for any
. mail that includes writing in any language other them English, to
allow for translation.

(3) A reasonable time not to exceed sixty ((íO) businc8s days for any
mail where the federal government has reasonable suspicion to
believe that a code was used, to allow for decodir~g.

v, Mail Seizure ~ If ou~going/incoming mail is determined by the BOP or

FBI to contain ovcrt or covert discussions of or requests fJr ilegal

activities, the soliciting or encouraging of acts of violence or tcrrorism, or

actual

or attempted circumvention of

the SAM, the

mail ~;haii not be

delivered/forwardedta the intended recipient, but referreò.to the FBI for

appropriate action. The inmate shall be notified in W1itin¡~ofthe seizure

of any maiL.

4. Communication With News Media:

The inmate shall not be permitted tö speak, meet, correspond, or otherwbe communicate

with any mcmber or representative of

the news media, in person, by telephone, by

furnishing a recordeù message, through the mail, his attorney,. a third patty, or otherwise.

5. Religious Visitation:

a, The inmate shall not be allowed to engage in group prayer with other inmates.

b. If an FBI- and/or BOP-approved religious representative is to be present for prayer

with the inmate, the prayer s1:ll be conducted as part of a contact or non-contact

visit, at the discretion of

the BOP.

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Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 14 of 18

SPECIAL ADMINISTRATIVE MEASURES (SAM)
Purs',iant to 28 C.P.R. § 501.3
Inmate - Abdulmutallab

Page 14

6. No Communal Cells and No Communication Between Cells:

a. The inmate shall not be allowed to share a cell with another inmate.

b. The inmate shall be limited \vithin the BOP's reasonable efforts ::md existing confinement conditions, from communicating with any other imnate by making

statements audible to other inmates or by sending notes

to other jiimates.

7. Cellblock Procedures:

a. The inmate shall be kept sepnrated from other inmates as much af, possible while
in the cellblock area.

b. The inmate shall be limited, within the BOP's reasonable efforts and existing
ccnfinement conditions, from communicating with any other inmate while in the cellblock area.

8. Commissary Privileges:

The BOP shall restrict access to conunissary items or any other objects dr.~termined by the
BOP to be capable of being converted into dangerous instruments.

9. Access to

Mass Communications:

To prevent thc imnate from receiving and acting upon

critically timed in

"ormation or

information coded in a potentially 1J.tdetectable manner, the inmate's ac( ess to materials

of mass communication is restricted

as follows:

a. PublicationslNewspapcrs -

1. The inmate may have access to publications determined Lot to facilbte

criminal activity

or be detrimental to: national fiecurity; t~'.e security, good

order, or discipline of

the institution; or the protection of the public. This

determination is to he made by the BOP, in consultation i,vith the

USAO/EDMI.

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Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 15 of 18

SPECIAL ADMINISTRATIVE MEASURES (SAM)
. Pursuant to 28 C.F.R. § 501.3 Inmate - Abdulmutallab

Page 15

ii. Sections of

the publication/newspaper that offer a forum for information to

be passed by unknown and/or unverified individuals, including, but not

limited to, classified advertisements and letters to the editor, should be

removed from the publications/ncwspapers prior to distribution to the

inmate.

iii. If restricted by BOP rules, access to à publication shall be denied. If

acceptable, upon delivery, the BOP wil review the publication and make

the initial determination. If

the FBI's expertise on national security or

intelligence matters is required, the publication wil be forwarded to the

FBI for review, The BOP shall also fbrward the publication to the FBI if

translations

are needed to make that determination. (In these cases, the

FBI shall respond to the BOP within fourteen (14) business days.) The

inmate shall then have access to the remaining portions of the

publications/newspapers deemed acceptable, in accordanç~ with BOP

policy.

iv. In order to avoid passing messages/information from inmate to inmate, the

inmate shall be allowed to share institutionally purchased

publications/newspapers with other SAM inmates only after each

publication/newspaper is physically screened by staff

to ensure that

messages cannot be passed between the SAM inmates.

Publications/newspapers individually purchased by the inniate may not be

shared with any other inmate.

b. Television and Radio - The inmate is authorized to have television and radio viewing and listening privileges, in aceordance with standard and applicable BOP
policies and procedures. .

c. Termination or Limitation -.If

the BOP determines that mass communications

are being used as a vehicle to send messages to the inmate relating to the

furtherance of terrorist or criminal activities, the inmate's access may be limited

or terminated for a period of

time to be determined by the BOP.

10. Access to Books:

The inmate may have access to all books that do not facilitate criminal activity or present

a substantial threat to national security or the security, discipline, 01' good order of

the

institution, This initial determination is to be made by the BOP and, if

the BOP

LIMITED OFFICIAL USE

Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 16 of 18

SPECIAL ADMINISTRATIVE MEASURES (SAM)
Pursuant to 28 C.F.R. § 501.3
Inmate - Abdu1mutallab

Page 16

determines that the FBI's expertise on national security or intelligence matters is required, the book(s) wil be forwarded to the FBI for review. In conducting its ar.:i1ysis, the FBI
wil determine whether the book advocates or promotes acts of terrorism ')1' violence
and/or whether access to the book by this particular inmate would pose a substantial
threat to national security.
In order to avoid passing messages/information from inmate to inmate, the inmate shall be allowed to share institutionally purchased books with other SAM inmates only after each book is physically scrccned by staffto ensure that messages cannot be passed between the SAM inmates. Books individually purchased by the inmate may not be shared with any other inmate.

11. Transfe.r of Custody:
In the event that th~ inmate is transferred to or from the custoòy of the U~)MS, BOP, or any other DF, the SAM provisions authorized for this inmate shall contir:ue in effect,
without need for any additional DOJ authorization.

12, Inmate's Consular Contacts:

The inmate, who is a citizen of a foreign country, shall be allowed Const'lar

eommunications and visits, consistent with BOP

policy. The Consular c'mtacts shall

comply with the U.S. Department of State (DOS) Consular notiiication ~rid access.

requirements.1O Prior to permitting any Consular contact, the FBI wil verify the Consular

representative's credentials with the DOS.

CONCLUSION

The SAM set forth herein, especially as they relate to attorney-client privileged' communications and family contact, are reasonably necessary to prevent the inmate from committing, soliciting, or conspiring to commit additional criminal activity, Moreover, these measures are the least restrictive that can be tolerated in light of the ability ofthig inmate to aid,

10 See Consular Notification and Access, Instruètions for Federal, State, i:d Local Law
Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Offcials to Assist Them, DOS. The DOS contact is the Con.su1ar Notification and Outreach Division, Offce of Policy Coordination and Public Affairs, DOS,
telephone (202) 647-4110 or http://www.trave1.state.govllaw/consu1ar/consular )53 .htmL.
LIMITED OFFICIAL USE

Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 17 of 18

SPECIAL ADMINISTRATIVE MEASURES (SAM)
Pursuant to 28 C.F.R. § 501.3 Inate - Abdu1mutallab

Page 17

knowingly or inadvertently, in plans that ere

ate a substantial risk that the inmate's

communieations or contacts with persons could result in death or serious bodily injury to

persons.

With respect to telephone privileges, the SAM are reasonably necessary because of

the

high probabilty of calls to co-conspirators to arrange terrorist.01 criminal activities.

With respect to mail privileges, the SAM are reasonably necessary to pi;event the inate

from receiving or passing rilong critically-timed messages. Although I recogniz~ that eliminating

the inmate's mail privileges entirely iray be an excessive iicasurccxcept in the ;nost egregious

of eircumstances, 1 believe that delaying mail delivery and allowing authorized p~rsonnei to

examine a copy of

the mail

is suffcient

at this time

to adeqnately

ensure

that the. mail is notused

to deliver requests for, or to assist in, violent and/or terrorist

activities, Under th~se procedures,

the inmate can relatc personal news to family members, even if delayed, but he may find it

difficult or unwise to pass along restricted information.

To the extent that the use of an interpreter is necessary, the government has the right to ensure that the interpreter given access to the inmate is worthy of trust.

The SAM's prohibition of contact with the media is reasonably necessary. Communication with the media could pose ii substantial risk to public safety ifúe inmate advocates violent and/or terrorist offens'Js, or ifhe makes statements designed to incite such acts, Based upon the inmate's past behavior, I believe that it would be unwise to wait until after the inmate solicits or attempts to arrange a violent or terrorist act to justify such media restrictions.

The SAM's limitations on access to

newspapers, publications, television, and radio are

reasonably necessary to prevent the inmate fiom receiving and acting upon critkally timed

messages. Such messages may be placed in

advertisements or communicated through other

means, such as the television and/or radio. Although I recognize that diminatin:? the inmate's

access to such media may he an excessive p.ieasureexcept in the most .egregiousof

circumstances) I believe that limiting and/or delaying such access may interrupteommunication

patterns the inmate may develop

with the cutside world, and ensure tbat the met:ia is not used to

communicate information that furthers tcnol'ist, violent and/or criminal activitiç..~.

LIMITED OFFICIAL USE

Case 1:17-cv-02493-RM-KMT Document 79-3 Filed 05/11/18 USDC Colorado Page 18 of 18

SPECIAL ADMINISTRATIVE MEASURES (SAM)
Pursuant to 28 C.F.Ri § 501.3
Inmate - Abdulmutallab

Page 18

SAM CONTACT INFORMATION

-";',

Any questions that you or your staff may have about this memorandum or the SAM directed herein should be directed to the Office of Enforccment Operations, Crii;inal Division, U.S, Department of Justice, 1301 New York Avenue, N.W., JCK Building, Room 1200, Washington, D.C. 20530-0001; telephone (202) 514-6809; and facsimile (202) (;16-8256.

LIMITED OFFICIAL USE

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 Case 1:17-cv-02493-RM-KMT Document 80 Filed 05/11/18 USDC Colorado Page 1 of 10
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, and JOHN DOES 1 THROUGH 20, in their official capacities,
Defendants.
MOTION FOR PARTIAL SUMMARY JUDGMENT
Pursuant to Federal Rule of Civil Procedure 56, Defendants Attorney General Jefferson Sessions, in his official capacity, and the Federal Bureau of Prisons (“Defendants”) move for partial summary judgment based on Plaintiff’s failure to exhaust his administrative remedies.
INTRODUCTION The Prison Litigation Reform Act requires that an inmate exhaust all administrative remedies that are available before filing suit. Plaintiff Umar Farouk Abdulmutallab brings this action, alleging 14 claims challenging his conditions of confinement. Leaving aside the various flaws in his Amended Complaint, which are addressed in Defendants’ motion to dismiss, Plaintiff failed to exhaust his administrative remedies with respects to Claims 1, 6, 8-10, and 12, as well as with respect to portions of Claims 2-5, 7, 11, 13, 14 and the allegations in paragraph 147. Accordingly, Defendants are entitled to partial summary judgment because Plaintiff has

Case 1:17-cv-02493-RM-KMT Document 80 Filed 05/11/18 USDC Colorado Page 2 of 10
failed to exhaust his administrative remedies with respect to these claims, or portions of claims, prior to filing this lawsuit.
STATEMENT OF UNDISPUTED MATERIAL FACTS In accordance with Judge Moore’s Practice Standards, a Statement of Undisputed Material Facts is presented in Exhibit 1.
STANDARD OF REVIEW A motion for summary judgment should be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
ARGUMENT The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement applies to all suits regarding prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731, 741 (2001). An inmate must exhaust all administrative remedies that are available to him before seeking judicial review of the decision. See, e.g., United States v. Wilson, 503 U.S. 329, 335-36 (1992); Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1236-37 (10th Cir. 2005). The Supreme Court has reaffirmed that “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007); see also Ross v. Blake, 136 S. Ct. 1850, 185657 (2016) (holding that the exhaustion requirement “suggests no limits on an inmate’s obligation to exhaust—irrespective of any ‘special circumstances’” and the “mandatory language means a
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Case 1:17-cv-02493-RM-KMT Document 80 Filed 05/11/18 USDC Colorado Page 3 of 10
court may not excuse a failure to exhaust, even to take such circumstances into account”). The defendant bears the burden to demonstrate the affirmative defense of failure to exhaust administrative remedies. See Jones, 549 U.S. at 212.
The Bureau of Prisons (“BOP”) maintains a four-step administrative remedy program, which permits inmates to raise grievances. 28 C.F.R. §§ 542.10–542.19; see also Statement ¶ 25. In Step 1, the inmate must attempt informal resolution of his complaint with the appropriate BOP staff member by filing an Informal Resolution Form (“BP-8”). 28 C.F.R. § 542.13; see also Statement ¶ 23. Assuming no satisfactory resolution is achieved, the inmate must file an Administrative Remedy Request (“BP-9”) within 20 calendar days of the event giving rise to the grievance. 28 C.F.R. § 542.14; see also Statement ¶ 25. Any request filed after 20 calendar days of such event is untimely. Id. If the inmate is dissatisfied with the outcome at Step 2, he must file an appeal (“BP-10”) to the Regional Director within 20 days. 28 C.F.R. § 542.15(a); see also Statement ¶ 23. If the Step 3 appeal is unsuccessful, the inmate must file an appeal (“BP-11”) to the General Counsel of the BOP within 30 days. 28 C.F.R. § 542.15(a); see also Statement ¶ 25. The General Counsel has 40 days to respond to the BP-11 appeal, and may extend the response time by 20 days. 28 C.F.R. § 542.18. Any appeal at Step 2 or Step 3 is strictly limited to the issues raised in the BP-9 Administrative Remedy Request and may not be expanded to other issues. 28 C.F.R. § 542.15(b) (“An inmate may not raise in an Appeal issues not raised in the lower level filings.”); see also Statement ¶ 25.
In order to “properly exhaust,” the plaintiff prisoner must comply with all prison grievance procedures. Jones, 549 U.S. at 205; see also Woodford v. Ngo, 548 U.S. 81, 85 (2006) (holding the PLRA “demands compliance with an agency’s deadlines and other critical
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Case 1:17-cv-02493-RM-KMT Document 80 Filed 05/11/18 USDC Colorado Page 4 of 10
procedural rules”). The grievance must further give sufficient notice to provide officials with “a fair opportunity to consider the grievance” and enable them to “tak[e] appropriate measures to resolve the complaint internally.” Kikumura v. Osagie, 461 F.3d 1269, 1283 (10th Cir. 2006) (internal quotation marks and citations omitted). A prisoner must exhaust all of his available administrative remedies before filing his civil action. Jones, 549 U.S. at 202; Jernigan v. Stuchell, 304 F.3d 1030, 1033 (10th Cir. 2002)).
As detailed in the accompanying exhibits, even though Plaintiff has filed 93 individual administrative remedy requests and appeals of those requests, he has not exhausted any administrative remedies with respects to Claims 1, 6, 8-10, and 12, as well as with respect to portions of Claims 2-5, 7, 11, 13, and 14 and the allegations in paragraph 147. Statement ¶¶ 2-24.
With respect to Claims 1, 6, 8-10, and 12, Plaintiff seeks to brings claims that he never exhausted through the BOP administrative remedy process. In Claim 1, Plaintiff alleges that his due process rights were violated in his transfer to the ADX in 2012, but he never filed any administrative remedies related to his transfer to the ADX or any purported inadequacies with the process he received. Statement ¶¶ 2-3. In Claims 9, 10, and 12, Plaintiff alleges that his rights under the Religious Freedom Restoration Act (“RFRA”) were violated because he was allegedly denied access to an imam, denied a halal diet, and force-fed a non-halal nutritional supplement. Statement ¶¶ 9, 11, 13. But again, Plaintiff never filed any administrative remedies related to such claims. Statement ¶¶ 10, 12, 14.
In Claim 6, Plaintiff alleges that following his hunger strikes in August 2012 and September 2012, the BOP retaliated against him by confining him in a Special Housing Unit in Range 13. Statement ¶ 5. But the only remedy request Plaintiff filed related to his 2012 hunger
4

Case 1:17-cv-02493-RM-KMT Document 80 Filed 05/11/18 USDC Colorado Page 5 of 10
strikes complained that he was segregated from his legal materials, medical items, and regular institutional supplies. Statement ¶ 6. Not only is this remedy substantially different from the claim that Plaintiff presents in his complaint, Plaintiff never exhausted this remedy. Id. After Plaintiff received a response from the Warden on November 2, 2012, he did not file an appeal at the regional or central office levels. Id. Thus, Plaintiff failed to exhaust the last two levels of the administrative remedy process and is therefore barred from bringing this claim. Jernigan, 304 F.3d at 1032 (“An inmate who begins the grievance process but does not complete it is barred from pursuing [his] claim under the PLRA for failure to exhaust his administrative remedies.”).
Plaintiff similarly failed to complete the administrative remedy process prior to filing suit with respect to Claim 8. In this claim, Plaintiff alleges that the BOP’s policies prohibiting congregational prayer within H-Unit violate RFRA because Plaintiff believes he is religiously obligated to perform group prayer five times daily and participate in Jum’ah services. Statement ¶ 7. Plaintiff filed an administrative remedy in which he requested to pray in congregation five times per day. Statement ¶ 8. Plaintiff received a response from the Warden on December 3, 2015, but he did not file an appeal at the regional or central office levels. Id. Again, because Plaintiff failed to exhaust the last two levels of the administrative remedy process, he is barred from bringing this claim. Jernigan, 304 F.3d at 1032.
With respect to Claims 2-5, Plaintiff contends that his Special Administrative Measures (“SAMs”) violate the Constitution and seeks a “permanent injunction ordering Defendant Sessions to remove the SAMs” and “prohibiting Defendant Sessions or future Attorneys General from re-imposing SAMs on [him].” Statement ¶ 15.
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Case 1:17-cv-02493-RM-KMT Document 80 Filed 05/11/18 USDC Colorado Page 6 of 10
The Attorney General has promulgated regulations providing that an inmate may seek review of any restrictions imposed by a SAMs through the Administrative Remedy Program. 28 C.F.R. § 501.3; see also Yousef v. Reno, 254 F.3d 1214, 1222-23 (10th Cir. 2001) (holding that such remedies are available and must be exhausted before an inmate may bring suit). Defendants do not contest that Plaintiff has exhausted his overall facial challenge seeking to have the SAMs entirely removed.
Plaintiff’s complaint, however, also appears to contain a narrower claim that he did not exhaust—seeking permission to communicate with his 13 nieces and nephews. Statement ¶ 15. Plaintiff was told that if he wanted to add any additional approved contacts, he would need to make a request with full contact information for each individual that he wished to be added to his approved contact list. Statement ¶ 16. This obligation is consistent with the SAMs, which state that Plaintiff is permitted to make requests for specific additional contacts, which are considered on a case-by-case basis. Statement ¶ 17. 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. Plaintiff made several administrative remedy requests to add additional family contacts, including, for example, two of his sisters. Statement ¶ 18. Plaintiff, however, never filed any administrative remedies regarding communications with his 13 nieces and nephews. Statement ¶ 19. Because Plaintiff failed to exhaust his administrative
6

Case 1:17-cv-02493-RM-KMT Document 80 Filed 05/11/18 USDC Colorado Page 7 of 10
remedies regarding communications with these individuals, he cannot bring any claim challenging this issue or seeking to have his SAMs modified to allow such contacts.1
In paragraph 147, Plaintiff alleges that, whether due to SAMs or other factors, the BOP restricted his access to certain books, identifying two books that he claims were never delivered to him. Statement ¶ 23. This allegation must be dismissed for failure to exhaust because Plaintiff has not exhausted any administrative remedy requests alleging that the BOP has denied him access to these two books or any other specific reading materials. Statement ¶ 24.
In Claims 7, 11, and 13, Plaintiff alleges that force-feeding him while on a hunger strike violates the Constitution and RFRA, and he seeks a “permanent injunction prohibiting Defendant BOP from force-feeding” him. Statement ¶ 20. Defendants again do not contest that Plaintiff has exhausted his overall facial challenge to the BOP’s force-feeding regulations. However, parts of his allegations appear to challenge that he was force-fed in 2012 and 2015 without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures on forcefeeding. Id. Such complaints were never exhausted through any level of the BOP administrative remedy process. Statement ¶ 22. Under the BOP’s regulations, any such allegations needed to have been raised in an administrative remedy filed within 20 calendar days of the force-feeding
1 To the extent Plaintiff argues that he notified other governmental entities of his desire to communicate with his nieces and nephews, that is insufficient under PLRA because he failed to exhaust the available administrative remedy process. The PLRA demands that all available administrative remedies must be exhausted prior to filing suit. 42 U.S.C. § 1997e(a); Porter, 534 U.S. at 988 (holding that “[a]ll ‘available’ remedies must now be exhausted,” even if such remedies do “not meet federal standards,” are not plain, speedy, or effective, and even if “the prisoner seeks relief not available in grievance proceedings”); Yousef, 254 F.3d at 1221 (holding that raising issues regarding SAMs restrictions through a letter to the Attorney General did not have any impact on inmate’s obligation to exhaust his administrative remedies).
7

Case 1:17-cv-02493-RM-KMT Document 80 Filed 05/11/18 USDC Colorado Page 8 of 10
event giving rise to the grievance. 28 C.F.R. § 542.14. The only remedy request that Plaintiff filed regarding any of the BOP’s actions in response to his hunger strikes in 2012 and 2015 complained that he was segregated from his legal materials, medical items, and regular institutional supplies while on a hunger strike. Statement ¶ 21. And Plaintiff never exhausted this remedy after receiving a response from the Warden. Id.
Plaintiff is therefore barred from bringing any claims alleging that he was force-fed without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures. Plaintiff plainly never raised any such allegations within 20 calendar days after he was force-fed in 2012 and 2015. As a result, any such grievance is untimely and subject to dismissal with prejudice. Kikumara, 461 F.3d at 1290.
Finally, in Claim 14, Plaintiff alleges that all of his allegations throughout his complaint combine to constitute an Eighth Amendment violation. To the extent Plaintiff relies on allegations that he did not exhaust, as described above, Plaintiff is barred from relying on such allegations as part of this amorphous claim. For example, where Plaintiff failed to exhaust his various religious liberty allegations, he cannot raise such allegations either as a distinct claim or under a combination theory. Claim 14 is therefore barred to the extent it is dependent on allegations that Plaintiff did not exhaust.
CONCLUSION In sum, the Court should award summary judgment in favor of Defendants with respects to Claims 1, 6, 8-10, and 12, as well as with respect to portions of Claims 2-5, 7, 11, 13, and 14 and the allegations in paragraph 147, because Plaintiff failed to exhaust his administrative remedies prior to filing suit as required by the Prison Litigation Reform Act.
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Case 1:17-cv-02493-RM-KMT Document 80 Filed 05/11/18 USDC Colorado Page 9 of 10

Dated May 11, 2018

Respectfully Submitted,
ROBERT C. TROYER United States Attorney
s/ David Z. Moskowitz David Z. Moskowitz Assistant United States Attorney 1801 California Street, Suite 1600 Denver, Colorado 80202 Telephone:(303) 454-0100 Fax: (303) 454-0407 david.moskowitz@usdoj.gov Counsel for Defendants

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Case 1:17-cv-02493-RM-KMT Document 80 Filed 05/11/18 USDC Colorado Page 10 of 10
CERTIFICATE OF SERVICE I hereby certify that on May 11, 2018, I electronically filed the foregoing with the Clerk of Court using the ECF system, which will send notification of such filing to the following email addresses: gjohnson@johnsonklein.com arandolph@johnsonklein.com
s/ David Z. Moskowitz Office of the U.S. Attorney
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Case 1:17-cv-02493-RM-KMT Document 80-1 Filed 05/11/18 USDC Colorado Page 1 of 7

EXHIBIT 1

STATEMENT OF UNDISPUTED MATERIAL FACTS

Moving Party’s Undisputed

Opposing Party’s

Moving Party’s Reply and

Material Facts and

Response/Additional Facts

Supporting Evidence

Supporting Evidence

and Supporting Evidence

1. Plaintiff Umar Farouk

Abdulmutallab is incarcerated at

the United States Penitentiary –

Administrative Maximum

(“ADX”) in Florence, Colorado,

following his convictions for

attempting to use a weapon of

mass destruction on a

commercial airliner that landed

in Detroit, Michigan, and

attempting to murder 289

people on board.

Dkt. 76 ¶¶ 1, 4; Ex. 2, Shelton

Decl. ¶ 8 & Attach. 1.

2. Since Plaintiff’s incarceration,

he has filed 93 individual

administrative remedies and

appeals of those remedies.

Ex. 2, Shelton Decl. ¶ 9 & Attach.

3.

3. In Claim 1, Plaintiff alleges that

his transfer to the ADX in 2012

violated his due process rights.

Dkt. 76 ¶¶ 284-88.

4. Plaintiff has not filed any

administrative remedies related

to his transfer to the ADX or

any purported inadequacies with

the process he received. Ex. 2,

Shelton Decl. ¶ 12 & Attach. 3.

5. In Claim 6, Plaintiff alleges that

following his hunger strikes in

August 2012 and September

2012, the Bureau of Prisons

(“BOP”) retaliated against him

by confining him in a Special

Housing Unit at Range 13.

Dkt. 76 ¶¶ 222, 232, 317-26.

1

Case 1:17-cv-02493-RM-KMT Document 80-1 Filed 05/11/18 USDC Colorado Page 2 of 7

Moving Party’s Undisputed Material Facts and Supporting Evidence
6. Plaintiff filed one remedy request related to his 2012 hunger strikes in which he complained that he was segregated from his legal materials, medical items, and regular institutional supplies. Plaintiff received a response from the Warden on November 2, 2012. Plaintiff did not file an appeal at the regional or central office levels.
Ex. 2, Shelton Decl. ¶ 14 & Attach. 5. 7. In Claim 8, Plaintiff alleges that
BOP’s policies prohibiting congregational prayer within HUnit violate RFRA because Plaintiff believes he is religiously obligated to perform group prayer five times daily and participate in Jum’ah services. Dkt. 76 ¶¶ 334-42. 8. Plaintiff filed one administrative remedy wherein he requested to pray in congregation five times per day. Plaintiff received a response from the Warden on December 3, 2015. Plaintiff did not file an appeal at the regional or central office levels. Ex. 2, Shelton Decl. ¶ 15 & Attach. 6. 9. In Claim 9, Plaintiff alleges that the BOP has violated RFRA by failing to provide regular access to an imam. Dkt. 76 ¶¶ 343-50.

Opposing Party’s Response/Additional Facts and Supporting Evidence

Moving Party’s Reply and Supporting Evidence

2

Case 1:17-cv-02493-RM-KMT Document 80-1 Filed 05/11/18 USDC Colorado Page 3 of 7

Moving Party’s Undisputed Material Facts and Supporting Evidence
10. Plaintiff has not filed any administrative remedies related to access to an imam.
Ex. 2, Shelton Decl. ¶ 16 & Attach. 3. 11. In Claim 10, Plaintiff alleges
that the BOP has violated RFRA by denying him a halal diet. Dkt. 76 ¶¶ 351-58. 12. Plaintiff has not filed any administrative remedies related to a halal diet. Ex. 2, Shelton Decl. ¶ 17 & Attach. 3. 13. In Claim 12, Plaintiff alleges that the BOP has violated RFRA by force-feeding him with a non-halal nutritional supplement during hunger strikes in 2012 and 2015. Dkt. 76 ¶¶ 369-76. 14. Plaintiff has not filed any administrative remedies related to a non-halal nutritional supplement. Ex. 2, Shelton Decl. ¶ 18 & Attach. 3.

Opposing Party’s Response/Additional Facts and Supporting Evidence

Moving Party’s Reply and Supporting Evidence

3

Case 1:17-cv-02493-RM-KMT Document 80-1 Filed 05/11/18 USDC Colorado Page 4 of 7

Moving Party’s Undisputed Material Facts and Supporting Evidence
15. In Claims 2-5, Plaintiff alleges that his Special Administrative Measures (“SAMs”) violate the Constitution and seeks a “permanent injunction ordering Defendant Sessions to remove the SAMs” and “prohibiting Defendant Sessions or future Attorneys General from re-imposing SAMs on [him].” Part of Plaintiff’s claim appears to challenge that he is not permitted to communicate with his 13 nieces and nephews.
Dkt. 76 ¶¶ 289-316, Prayer for Relief; id. ¶¶ 14, 140, 292, 308. 16. Plaintiff was told that if he
wanted to communicate with any additional individuals, he would need to make a request with full contact information for each individual that he wished to be added to his approved contact list. Ex. 2, Shelton Decl. ¶ 13 & Attach. 4. 17. The SAMs state that Plaintiff is permitted to make requests for specific additional contacts, which are considered on a case-by-case basis. Ex. 3, SAMs March 2018 Renewal at 10 n.7.

Opposing Party’s Response/Additional Facts and Supporting Evidence

Moving Party’s Reply and Supporting Evidence

4

Case 1:17-cv-02493-RM-KMT Document 80-1 Filed 05/11/18 USDC Colorado Page 5 of 7

Moving Party’s Undisputed Material Facts and Supporting Evidence
18. Plaintiff made several administrative remedy requests to add additional family contacts, including, for example, two of his sisters.
Ex. 2, Shelton Decl. ¶ 13 & Attach. 5. 19. Plaintiff never filed any
administrative remedies regarding communications with his 13 nieces and nephews. Ex. 2, Shelton Decl. ¶ 13 & Attach. 3. 20. In Claims 7, 11, and 13, Plaintiff alleges that forcefeeding him while on a hunger strike violates the Constitution and RFRA seeks a “permanent injunction prohibiting Defendant BOP from force-feeding” him. Part of Plaintiff’s claim appears to challenge that he was forcefed in 2012 and 2015 without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures on force-feeding. Dkt. 76 ¶¶ 327-33, 359-68, 377-83, Prayer for Relief; id. ¶¶ 257, 380.

Opposing Party’s Response/Additional Facts and Supporting Evidence

Moving Party’s Reply and Supporting Evidence

5

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Moving Party’s Undisputed Material Facts and Supporting Evidence
21. Plaintiff filed a single administrative remedy related to his 2012 hunger strikes on October 11, 2012, in which he complained that he was segregated from his legal materials, medical items, and regular institutional supplies while on a hunger strike. On November 2, 2012, Plaintiff received a response from the Warden but did not file an appeal at the regional or central office levels.
Ex. 2, Shelton Decl. ¶ 19 & Attach. 6. 22. Plaintiff did not file any other
remedy requests complaining about any actions taken in response to his hunger strikes in 2012 or 2015 and has not filed any remedy requests alleging that he was force-fed without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures on force-feeding. Ex. 2, Shelton Decl. ¶ 19 & Attach. 3, 8. 23. In paragraph 147, Plaintiff alleges that, whether due to SAMs or other factors, the BOP has restricted his access to certain books, identifying two books that he claims were never delivered to him. Dkt. 76 ¶ 147.

Opposing Party’s Response/Additional Facts and Supporting Evidence

Moving Party’s Reply and Supporting Evidence

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Moving Party’s Undisputed Material Facts and Supporting Evidence
24. Plaintiff has not exhausted any remedy requests alleging that he was denied access to these two books or any other specific reading materials.
Ex. 2, Shelton Decl. ¶ 20 & Attach. 3. 25. BOP has a four-tiered
Administrative Remedy Program for inmate grievances. The first step is informal resolution with prison staff. The second step is the filing of a formal Request for Administrative Remedy (also known as a BP9) at the institution in which the inmate is incarcerated. An administrative remedy at this level, and subsequent levels, is assigned a Remedy ID number and tracked in SENTRY. The third step is an appeal to the Regional Director, by filing a Regional Office Administrative Remedy Appeal (also known as a BP-10). The fourth step is an appeal to the Director, National Inmate Appeals, in the Office of the General Counsel in Washington D.C., by filing a Central Office Administrative Remedy Appeal (also known as a BP11). An inmate may not assert in an appeal an issue he did not raise in a lower-level filing. Ex. 2, Shelton Decl. ¶ 3; 28 C.F.R. §§ 542.10–542.19.

Opposing Party’s Response/Additional Facts and Supporting Evidence

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Moving Party’s Reply and Supporting Evidence

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 Case 1:17-cv-02493-RM-KMT Document 120 Filed 03/06/19 USDC Colorado Page 1 of 15
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.
AMENDED RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Kathleen M. Tafoya This case comes before the court on the defendants’ “Motion for Partial Summary
Judgment” (Doc .No. 80 [Mot.], filed May 11, 2018. Plaintiff filed his response on July 30, 3018 (Doc. No. 115 [Resp.]), and Defendants filed their reply on August 13, 2018 (Doc. No. 116 [Reply]).
BACKGROUND 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

Case 1:17-cv-02493-RM-KMT Document 120 Filed 03/06/19 USDC Colorado Page 2 of 15
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.) Plaintiff filed his Amended Complaint alleging various claims related to his transfer to ADX, the SAMs, the BOP’s actions related to hunger strikes in 2012 and 2014, and his conditions of confinement at ADX. (See, generally, Am. Compl.)
Defendants move for summary judgment with respect to Plaintiff’s Claims 1, 6, 8–10, and 12, as well as with respect to portions of Claims 2–5, 7, 11, 13, 14 and the allegations in paragraph 147 of the Amended Complaint. (See Mot.)
UNDISPUTED MATERIAL FACTS In accordance with Judge Moore’s Practice Standards, the parties have submitted their Statement of Undisputed Material Facts and Response to Statement of Undisputed Material Facts in Exhibit 1. The court addresses the facts as it addresses each argument, infra.
STANDARD OF REVIEW Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate “specific facts
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showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is “material” if “under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).
When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209–10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Concrete Works, 36 F.3d at 1517. At the summary judgment stage of litigation, a plaintiff’s version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d at 1312.
ANALYSIS Defendants move for summary judgment on Plaintiff’s claims for failure to exhaust his administrative remedies under the Prison Litigation Reform Act of 1996 (“PLRA”), 42 U.S.C. § 1997e(a).
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The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The “PLRA’s exhaustion requirement applies to all inmate suits about prison life.” Porter v. Nussle, 534 U.S. 516, 532 (2002). See also Booth v. Churner, 532 U.S. 731, 731–32 (2001) (PLRA requires exhaustion in all matters regardless of remedy sought and availability of remedy at the agency level).
The PLRA’s requirement that an inmate exhaust all available administrative remedies before initiating suit is mandatory. See Woodford v. Ngo, 548 U.S. 81, 85 (2006) (“Exhaustion is no longer left to the discretion of the district court, but is mandatory.”). See also Jones v. Bock, 549 U.S. at 210–212 (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”). “To exhaust administrative remedies an inmate must properly comply with grievance procedures; substantial compliance is insufficient.” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). “[T]o properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with the applicable procedural rules,—rules that are defined not by the PLRA, but by the prison grievance process itself.” Bock, 549 U.S. at 218 (internal quotation marks and citation omitted). Thus, it is the prison’s own grievance procedures that set forth what the prisoner must do to exhaust his or her administrative remedies. 549 U.S. at 218 (citation omitted). After Jones v. Bock, a failure to exhaust administrative remedies constitutes an affirmative defense which must proved by defendants. Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007).
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The BOP provides a four-tiered Administrative Remedy Program for inmate grievances.1 28 C.F.R. § 542.13(a). The first step requires a prisoner to present an issue of concern informally to prison staff. 28 C.F.R. § 542.13(a). The prisoner has 20 days from the date of the incident to complete the informal resolution and file a formal Administrative Remedy Request, known as a BP-9.3 28 C.F.R. § 542.14(a). The warden must respond within 20 days. If dissatisfied with the warden’s response, the prisoner may appeal to the Regional Director by filing a Regional Office Administrative Remedy Appeal, also known as a BP-10 request, within 20 days. 28 C.F.R. § 542.15(a). The Regional Director must respond to the BP-10 within 30 days. 28 C.F.R. § 542.18. Finally, if the prisoner is dissatisfied with the Regional Director’s response, he may appeal to the Director of National Inmate Appeals by filing a Central Office Administrative Remedy Appeal, known as a BP-11, within 30 days. 28 C.F.R. § 542.15(a). The Director of the Central Office Administrative Remedy Appeal must respond within 40 days. 28 C.F.R. § 542.18. A prisoner has not exhausted his administrative remedies until he has properly and timely sought review at all three formal levels. 28 C.F.R. § 542.15(b)(2).
A. Claims 1 and 9 and Paragraph 147 In Claim 1, Plaintiff alleges that his due process rights were violated in his transfer to the ADX in 2012. (Compl. at 63–64.) In Claim 9, Plaintiff alleges that his rights under the Religious Freedom Restoration Act (“RFRA”) were violated because he was allegedly denied access to an imam, denied a halal diet, and force-fed a non-halal nutritional supplement. (Id. at 72–73.) In paragraph 147 of his Amended Complaint, Plaintiff alleges that, whether due to
1 The BOP grievance procedures applicable to this case are described in the Declaration of Belinda Shelton, a Paralegal Specialist at the United States Department of Justice. (Mot., Ex. 2 [Shelton Decl.].)
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SAMs or other factors, the BOP restricted his access to certain books, identifying two books that he claims were never delivered to him. (Id., ¶ 147.)
Defendants provide evidence that Plaintiff failed to exhaust his administrative remedies regarding Claims 1 and 9 and paragraph 147. (Shelton Decl., ¶¶ 3, 12, 16, 20 & Attach. 3.) Plaintiff does not dispute this evidence.2 (See Resp., Ex. 1, ¶¶ 4, 10, 24.) Accordingly, Defendants should be granted summary judgment on Plaintiff’s Claims 1 and 9 and paragraph 147 of the Amended Complaint.
B. Claim 6 In Claim 6, Plaintiff alleges that following his hunger strikes in August 2012 and October 2012, the BOP retaliated against him by confining him in a Special Housing Unit in Range 13. (Compl., ¶¶ 222, 232, 317–26.) Defendants submit evidence that the only remedy request Plaintiff filed related to his 2012 hunger strikes complained that he was segregated from his legal materials, medical items, and regular institutional supplies. (Shelton Decl.,¶ 4 & Attach. 5.) Defendants argue that, not only is this remedy substantially different from the claim Plaintiff presents in his Amended Complaint, Plaintiff never exhausted this remedy because after Plaintiff received a response from the Warden on November 2, 2012, he did not file an appeal at the regional or central office levels. (Mot. at 4; Shelton Decl., ¶ 14 & Attach. 5.) In his response, Plaintiff identifies three remedy requests to demonstrate exhaustion of this claim. (Resp. at 6–7, Ex. 6–8.) Plaintiff filed Administrative Remedy 778479 on April 8, 2014. (Id., Ex. 6.) However, the Administrative Remedy concerns allegations from January 27,
2 Plaintiff offers to voluntarily dismiss Claims 1 and 9 (Resp. at 2, n.1); however, he has not filed a motion or stipulation to dismiss the claims.
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2014, and not any hunger strikes in 2012. (Resp., Ex. 6.) The Administrative Remedy does not mention the Special Housing Units or Range 13. (Id.)
Plaintiff filed Administrative Remedy 874164 on August 22, 2015. (Resp., Ex. 8.) This Administrative Remedy concerns a request to be allowed to hunger strike in the future without being force-fed and contains no allegations of retaliation, let alone about placement in any special housing unit. (Id.)
In Plaintiff’s Administrative Remedy 861387, Plaintiff requested at the institution level (BP-9) only that the SAMs be removed. (Resp., Ex. 7 at 6.) At the regional level (BP-10), the grievance states, “SAM not removed: Request SAM . . . removed.” (Id. at 4.) Then, at the national level (BP-11), Plaintiff complained, “SAM violates 1st, 5th, 8th, 14th Amendments and should be removed.” (Id. at 2.) Plaintiff then provided a list of complaints. However, Plaintiff does not complaint of retaliation, even in his BP-10. (See id.) The national response recognized that Plaintiff requested that his SAM be removed. (Id. at 1.)
Plaintiff’s general complaints of the denial of rights are not sufficient to exhaust Plaintiff’s retaliation allegations. Kikumura v. Osagie, 461 F.3d 1269, 1283 (10th Cir. 2006) (holding that a grievance must give sufficient detail and notice to provide officials with “a fair opportunity to consider the grievance” and enable them to “tak[e] appropriate measures to resolve the complaint internally”); Ross v. Cnty. of Bernalillo, 365 F.3d 1181, 1188 (10th Cir. 2004) (a grievance should allow “prisons to address specific complaints internally to obviate the need for litigation . . . and creat[e] a useful administrative record”), overruled on other grounds Jones, 549 U.S. 199. Moreover, pursuant to 28 C.F.R. § 542.15(b)(2), “[a]n inmate may not raise in an Appeal issues not raised in the lower level filings.” Plaintiff did not raise any issues
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concerning retaliation in his initial request or at the regional level, and thus he could not raise the issue at the national level.
Defendants should be granted summary judgment on Plaintiff’s Claim 6. C. Claim 8 In Claim8, Plaintiff alleges that the BOP’s policies prohibiting congregational prayer within H-Unit violate RFRA because Plaintiff believes he is religiously obligated to perform group prayer five times daily and participate in Jum’ah services. (Compl., ¶¶ 334–42.) Plaintiff filed an administrative remedy in which he requested to pray in congregation five times per day. (Mot., Shelton Decl., ¶ 15 & Attach. 6.) Plaintiff received a response from the Warden on December 3, 2015, but he did not file an appeal at the regional or central office levels. (Id.) Plaintiff again argues that he exhausted this claim based on Administrative Remedy 861387. (Resp. at 8, Ex. 7.) However, as discussed supra, Plaintiff’s failure to raise concerns regarding this claim at the initial and regional level prohibited him from raising the issue at the national level. 28 C.F.R. § 542.15(b)(2). Additionally, Plaintiff’s general complaint, even at the national level, is insufficient to exhaust his administrative remedies. Kikumura, 461 F.3d at 1283. Defendants should be granted summary judgment on Plaintiff’s Claim 8. D. Claims 10 and 12 In Claims 10, and 12, Plaintiff alleges that his rights under RFRA were violated because he was allegedly denied access to an imam, denied a halal diet, and force-fed a non-halal nutritional supplement. (Compl., ¶¶ 351–58; 369-76.) Defendants provide evidence that
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Plaintiff never filed any administrative remedies related to such claims. (Mot., Shelton Decl., ¶¶ 17–18 & Attach. 3.)
Plaintiff admits that he has not filed an administrative remedy complaint about the lack of a halal diet through each level. Therefore, he has not properly exhausted this issue. Woodford, 548 U.S. at 90 (mandating “using all the steps that the agency holds out, and doing so properly”). Nevertheless, Plaintiff again cites Administrative Remedy 861387 as evidence that he exhausted both Claims 10 and 12. (Resp. at 8.) However, the court has already determined that Plaintiff did not exhaust claims in which he attempts to rely on Administrative Remedy 861387, supra.
Defendants should be granted summary judgment on Plaintiff’s Claims 10 and 12. E. Claims 2, 3, 4, and 5 In Claims 2 through 5, Plaintiff contends that his SAMs violate his First Amendment rights to free speech, free association, and familial association and his Fifth Amendment right to substantive due process. (Compl., ¶¶ 289–316.) Defendants argue that, to the extent Plaintiff asserts claims regarding communication with his thirteen nieces and nephews, he has failed to exhaust his administrative remedies. (Mot. at 6–7.) In the Warden’s response to Plaintiff’s Administrative Remedy requesting approval for all of Plaintiff’s family members to write, visit, and telephone Plaintiff (Mot., Shelton Decl., ¶ 13, Attach. 4 at 6), Plaintiff was advised that if he wanted to add any additional approved contacts, he would need to make a request with full contact information for each individual that he wished to be added to his approved contact list (id. at 5). Plaintiff made several administrative remedy requests to add additional family contacts, including, for example, two of
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his sisters. (Id., Attach. 5.) Plaintiff, however, never filed any administrative remedies regarding communications with his thirteen nieces and nephews. (Id., Attach. 3.)
Plaintiff does not dispute that he was specifically told by the BOP that if he wanted to communicate with any additional individuals, including any additional family members, he would need to make a request with contact information for each individual that he wished to communicate. (See Resp., Ex. 1, ¶¶ 16–17.) Nevertheless, Plaintiff contends this narrower claim is exhausted because he once requested contact with “all other family members.” (Id., ¶ 19.) Defendants argue that because the government does not know the names or contact information for all the individuals Plaintiff considers to be his “family” it does not have the information it needs to provide a response. (Reply at 11.) It is undisputed that Plaintiff did not comply with the BOP’s request to provide the full name and contact information for his 13 nieces and nephews. (See Resp., Ex. 1, ¶ 19.) He thus may not bring this narrower claim as part of his overall challenge to his SAMs.3
Defendants should be granted summary judgment on Plaintiff’s Claims 2 through 5 regarding communication with his thirteen nieces and nephews.
F. Claims 7, 11, and 13 In Claims 7, 11, and 13, Plaintiff alleges that force-feeding him while on a hunger strike violates his Fifth Amendment right to refuse medical treatment (Compl., ¶¶ 327–33); violates his sincerely held religious rights (id., ¶¶ 359–68), and violates his Eighth Amendment right to be free of excessive force (id., ¶¶ 377–83). Defendants do not contest that Plaintiff has exhausted 3 Plaintiff takes issues with the BOP’s rule requiring him to make requests on an individual basis. However, the Supreme Court has held that the agency’s rules control. Woodford, 548 U.S. at 90 (holding that proper exhaustion demands compliance with agency rules). That Plaintiff does not like this rule is not a reason to excuse his failure to comply with it.
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his overall facial challenge to the BOP’s force-feeding regulations. (Mot. at 7.) However, they argue that, to the extent Plaintiff’s allegations challenge that he was force-fed in 2012 and 2015 without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures on force-feeding, Plaintiff has failed to exhaust his administrative remedies. (Mot. at 7–8.)
The court first notes that Plaintiff’s Claims 7, 11, and 13, on their face, do not allege First Amendment retaliation violations or violations for failure to comply with BOP regulations4, but rather claims under the Fifth and Eighth Amendments and RFRA. (See Compl. at70, 75, 78.) Moreover, to the extent Plaintiff does assert claims that he was force-fed in 2012 and 2015 without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures on force-feeding, Defendants submit evidence that such complaints were never exhausted through any level of the BOP administrative remedy process. (Id., Shelton Decl., ¶ 19 & Attach. 3.)
Under the BOP’s regulations, any such allegations needed to have been raised in an administrative remedy filed within 20 calendar days of the force-feeding event giving rise to the grievance. 28 C.F.R. § 542.14. The only remedy request that Plaintiff filed regarding any of the BOP’s actions in response to his hunger strikes in 2012 and 2015 complained that he was segregated from his legal materials, medical items, and regular institutional supplies while on a hunger strike. (Mot., Shelton Decl., ¶ 19 & Attach. 3.) Even as to those complaints, Plaintiff never exhausted this remedy after receiving a response from the Warden. (Id.) 4 Even if prison officials do not strictly follow the prison’s internal regulations, such failure does not constitute a constitutional violation. See Malik v. Kindt, No. 95–6057, 1996 WL 41828, at *2 (10th Cir. Feb. 2, 1996) (“a failure to adhere to administrative regulations does not equate to a constitutional violation”) (quoting Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir. 1993)).
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Plaintiff again identifies the same three remedy requests discussed supra to support his argument that he exhausted claims that he was force-fed in 2012 and 2015 without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures on forcefeeding. (Resp. at 8–9, Exs. 6, 7, 8.) None of these remedy requests was filed within 20 days of any hunger strike as required by the regulation, 28 C.F.R. § 542.14(a), and none even hint at any allegation that Plaintiff believed he was force-fed without medical necessity or for purposes of retaliation. (See Resp., Exs. 6–8.)
Plaintiff argues he is not required to identify every fact related to his claims. (Id. at 10– 12.) In support of this argument, Plaintiff cites only one case from this Circuit, Kikumura v. Hurley, 242 F.3d 950, 956 (10th Cir. 2001), in which the plaintiff claimed that his religious liberties under the First Amendment and RFRA were violated but failed to specifically allege that his religious beliefs included elements of both the Buddhist and Christian religions. Id. The Court found Plaintiff was not required to do so to satisfy the exhaustion requirement because the plaintiff’s “lengthy written administrative appeals adequately reveal[ed] his claim.” Id. In Hurley, however, Plaintiff asserted religious claims in which only details related to those specific claims were omitted from his administrative appeals. Id.
In this case, the three remedy requests provided by Plaintiff to support his argument that he exhausted his administrative remedies are devoid of any mention of being force-fed in 2012 and 2015 without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures on force-feeding (Resp., Exs. 6, 7, 8.), all of which are separate from Plaintiff’s facial challenge to the BOP’s force-feeding regulations, which the defendants do not challenge for failure to exhaust his administrative remedies. Thus, the remedies failed to
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“provide[ ] prison officials a fair opportunity to investigate and resolve the complaint[s] internally.” Kikumura, 461 F.3d at 1284. See, e.g., Saleh v. Wiley, No. 09–CV–02563–PAB– KLM, 2012 WL 4356219, at *2 (D. Colo. Sept. 24, 2012), aff’d, 588 F. App’x 758 (10th Cir. 2014); Ross, 365 F.3d at 1188 (a grievance should allow “prisons to address specific complaints”).
Accordingly, the portions of Claims 7, 11, and 13 in which Plaintiff asserts he was forcefed in 2012 and 2015 without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures on force-feeding are not exhausted, and the defendants are entitled to summary judgment on the same.
G. Claim 14 Plaintiff challenges his overall conditions, claiming that all of his allegations throughout his Amended Complaint combine to constitute an Eighth Amendment violation. To the extent Plaintiff relies on allegations that he did not exhaust, as described supra, Plaintiff is barred from relying on such allegations as part of his Claim 14, and the defendants are entitled to summary judgment.5 WHEREFORE, for the foregoing reasons, this court respectfully RECOMMENDS that Defendants’ “Motion for Partial Summary Judgment” (Doc .No. 80) be GRANTED and that Defendants be granted summary judgment as to Claims 1, 6, 8, 9, 10, 12, and paragraph 147 of the Amended Complaint; that Defendants be granted summary judgment as to Claims 2 through 5 regarding communication with his thirteen nieces and
5 The court will address Defendants’ argument that this type of claim is clearly contrary to Supreme Court and Tenth Circuit precedent (Reply at 12) in its Recommendation on the Motion to Dismiss..
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nephews; that Defendants be granted summary judgment as to Claims 7, 11, and 13 in which Plaintiff asserts he was force-fed in 2012 and 2015 without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures on force-feeding; and that Defendants be granted summary judgment as to Claim 14 to the extent Plaintiff relies on allegations that this court has found to be unexhausted.
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. 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
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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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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

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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).
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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)
2 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.)
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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
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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
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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
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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
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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.
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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.
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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.
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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.
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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
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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–
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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–
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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
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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.
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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.
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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
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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.
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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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 Case 1:17-cv-02493-RM-KMT Document 132 Filed 09/18/19 USDC Colorado Page 1 of 15
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Raymond P. Moore
Civil Action No. 17-cv-02493-RM-KMT UMAR FAROUK ABDULMUTALLAB,
Plaintiff, v. WILLIAM P. BARR,1 Attorney General of the United States, in his official capacity, FEDERAL BUREAU OF PRISONS, and JOHN DOES 1 THROUGH 20, in their official capacities,
Defendants. ______________________________________________________________________________
ORDER ON AMENDED RECOMMENDATION ______________________________________________________________________________
This matter is before the Court on the Amended Recommendation of United States Magistrate Judge (the “Recommendation”) (ECF No. 120) to grant Defendants’ “Motion for Partial Summary Judgment” (the “Motion”) (ECF No. 80) alleging that Plaintiff failed to exhaust his administrative remedies under 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act of 1966 (“PLRA”) as to certain claims and allegations. Plaintiff filed an objection (the “Objection”) (ECF No. 128) to which Defendants filed a response (ECF No. 130). The matter is ripe for resolution.
I. LEGAL STANDARD A. Review of a Magistrate Judge’s Recommendations When a magistrate judge issues a recommendation on a dispositive matter, Fed. R. Civ.
P. 72(b)(3) requires that the district court judge “determine de novo any part of the magistrate
1 Pursuant to Fed. R. Civ. P. 25(d), Mr. Barr is substituted for former Attorney General Jefferson Sessions

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judge’s [recommendation] that has been properly objected to.” Upon review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. In the absence of a timely and specific objection, “the district court may review a magistrate’s report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed. R. Civ. P. 72 Advisory Committee’s Note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”).
B. Motions for Summary Judgment The Magistrate Judge correctly set forth the standards applicable to motions filed under Fed. R. Civ. P. 56. Accordingly, the Court incorporates them by reference. C. The PLRA “The PLRA attempts to eliminate unwarranted federal-court interference with the administration of prisons.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). Therefore it “seeks to afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Id. (quotations, alteration, and citation omitted). The prison grievance system is to be given “a fair opportunity” to consider the grievance and can do so only if “the grievant complies with the system’s critical procedural rules.” Id. at 94. Thus, “proper exhaustion of administrative remedies is necessary.” Id. at 84. For exhaustion to be proper, this means exhaustion is required “even where the relief sought…cannot be granted by the administrative process.” Id. at 82-83 (citing Booth v. Churner, 532 U.S. 731, 734 (2001)). This also means starting the grievance process is not enough; the process must be completed. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). This
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also means that a grievant is not excused from compliance with the process based on his disagreement with prison officials as to the appropriateness of a particular procedure or belief that he should not have to correct a procedural deficiency. See Thomas v. Parker, 609 F.3d 1114, 1119 (10th Cir. 2010).
The BOP provides a four-tiered Administrative Remedy Program for inmate grievances – one informal and three formal. The required steps and their timing of these four tiers are not disputed, including the requirement that the inmate has 20 days following the date on which the basis for the request occurred to complete a first step informal resolution and file a formal written Administrative Remedy Request known as a BP-9. See 28 C.R.F. §§ 542.13(a) & 542.14(a). An inmate exhausts his administrative remedies when he has properly and timely sought review at all three formal levels. See 28 C.R.F. § 542.15(a)
“Failure to exhaust is an affirmative defense.” Rachel v. Troutt, 764 F. App’x 778, 781 (10th Cir. 2019) (citing Jones v. Bock, 549 U.S. 199, 216 (2007)). Defendants’ Motion requesting dismissal is based on such alleged failure.
II. FACTUAL AND PROCEDURAL BACKGROUND2 Plaintiff was convicted 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. Plaintiff is from Nigeria and a Muslim. Plaintiff is housed at the United States Penitentiary–Administrative Maximum (“ADX”) in Florence, Colorado, and serving four terms of life imprisonment plus 50 years for his convictions. Prior to Plaintiff’s transfer to ADX, in
2 No party has objected to the Magistrate Judge’s “Background,” but there is a clerical error as to the hunger strike years at issue. The Recommendation stated it is 2012 and 2014 when it is 2012 and 2015. The Recommendation, however, recognized it is 2015 at issue. The amended complaint contains no allegations concerning hunger strikes in 2014.
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March 2012, the United States government placed Plaintiff under Special Administrative

Measures (“SAMs”). The SAMs have been renewed every year, with some modifications.

Plaintiff brought this action asserting the following 14 claims for relief arising from his

transfer to ADX, his SAMs, and his conditions of confinement at ADX. Defendants’ Motion

argues Plaintiff failed to exhaust his administrative remedies as to certain claims and allegations.

The Magistrate Judge agreed and recommended granting the Motion and dismissing certain

claims and allegations. Plaintiff’s Objection followed. The matters at issue and their

recommended disposition are as follows:

Claim # Summary of claim or allegation

Recommendation

1

Plaintiff’s transfer to ADX in 2012 in deprivation of Dismiss entirely

his liberty without due process in violation of the

Fifth Amendment

2-5

The imposition of SAMs in violation of the First

Dismissal as to allegations of

Amendment and in violation of substantive due

restricting communications

process rights under the Fifth Amendment

with 13 nieces and nephews

6

Retaliation against Plaintiff by confining him in

Dismiss entirely

Special Housing Unit in Range 13, for engaging in a

hunger strike to protest his conditions of

confinement in violation of the First Amendment;

7

Denial of Plaintiff’s right to refuse medical

Dismissal to extent alleges

treatment, i.e., the force feeding of nutrients related forced feeding without

to his hunger strikes, in violation of the Fifth

medical necessity, for

Amendment;

purposes of retaliation, and/or

without following the BOP’s

procedures on force-feeding

8

Denial of access to group prayer in violation of the Dismiss entirely

Religious Freedom Restoration Act (“RFRA”)

9

Failure to provide meaningful access to an imam in Dismiss entirely

violation of RFRA

10

Denial of a halal diet in violation of RFRA

Dismiss entirely

4

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11
12 13
14 ¶ 147

Responding to hunger striking by force feeding in violation of RFRA

Dismissal to extent alleges forced feeding without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures on force-feeding

Force feeding non-halal nutritional supplement in violation of RFRA

Dismiss entirely

Excess force by force feeding in violation of the Eighth Amendment

Dismissal to extent alleges forced feeding without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures on force-feeding

Cruel and unusual punishment under totality of

Dismissal to the extent it

circumstances in violation of the Eighth Amendment relies on unexhausted

allegations

Allegations that the BOP restricted Plaintiff’s access Dismissal of allegation to certain books, identifying two books that allegedly were not delivered.

Plaintiff objects to the recommended dismissals of paragraph 147 and of portions of claims 2-5, 7, 11, 13, and 14. Plaintiff’s arguments are three-fold. First, Plaintiff argues that dismissal of allegations or portions of claims is impermissible. Next, Plaintiff contends there are disputes of material facts which preclude summary judgment in favor of Defendants as to whether such issues or allegations were exhausted. Finally, Plaintiff asserts there are factual disputes as to whether there were “available” administrative remedies because there is a factual issue of whether Defendant Bureau of Prison (“BOP”) had authority to address concerns regarding SAMs (claims 2-5) and because Plaintiff was in the hospital when he had to submit administrative remedies based on the force feeding in 2012 and 2015 (claims 7, 11, and 13).

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III. ANALYSIS A. Matters to which there are no objections Plaintiff does not object to the recommended dismissal of claims 1, 6, 8, 9, 10, and 12.3
After conducting a review of the record and finding no clear error, the Court accepts the recommended dismissal of claims 1, 6, 8, 9, 10, and 12.
B. Matters to which there are objections 1. Exhaustion of claims versus allegations
Plaintiff argues the PLRA requires an exhaustion of claims, not of allegations. However, as Defendants assert, Plaintiff did not raise this argument or theory until his objection. It is therefore waived. United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001). Even if Plaintiff’s argument is not waived, claims are naught but allegations. As Plaintiff acknowledges, “‘[t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution.’” (ECF No. 128, p. 5 (quoting Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009).) Thus, in the absence of a prisoner alerting a prison of the problem which he alleges in his complaint, such allegation is not exhausted and cannot serve to support the prisoner’s claim or claims. As applied to the recommendation of dismissal here, this objection is overruled.
2. Claims 2-5: Communication with Plaintiff’s 13 nieces and nephews The Recommendation found Plaintiff failed to exhaust his administrative remedies regarding claims 2-5 based on allegations that he was improperly precluded from communicating with his 13 nieces and nephews. Plaintiff objects arguing he exhausted his request for his SAMs to be removed and “such exhaustion necessarily includes that his right to communicate with his family members—and anyone else, for that matter—be restored.” (ECF No. 128, p. 7.)
3 In fact, Plaintiff’s response to Defendants’ Motion states “he voluntarily dismisses Claims 1 and 9.” (ECF No. 115, p. 2 n.1.)
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Accordingly, Plaintiff contends whether Defendants were on fair notice about this “particular component” of Plaintiff’s challenges to his SAMs is a question of fact that precludes summary dismissal. The Court finds otherwise.
The material facts are not in dispute. Plaintiff filed a grievance seeking approval for communications with all of his family members. In response, the BOP told Plaintiff that if he wanted to communicate with any additional individuals, he would need to make a request with full contact information for each individual that he wished to be added to his approved contact list. Plaintiff’s SAMs state that he is permitted to make requests for specific additional contacts, which are considered on a case-by-case basis, and Plaintiff has in fact made administrative requests to add additional family contacts, e.g., his two sisters. (Ex. 4, AR 746012, ECF No. 802, pp. 22-28; Statement, ¶¶ 16-18.) However, in this grievance, Plaintiff never made a specific request. Thus, Plaintiff not only failed to make a specific request in compliance with the BOP’s procedure but also neglected to give Defendants enough information to investigate and address his complaint about his 13 nieces and nephews. See Thomas, 609 F.3d at 1119 (grievant required to follow procedure with which he disagreed); Kikumura v. Osagie, 461 F.3d 1269, 1285 (10th Cir. 2006), overruled on other grounds as recognized in Robbins v. Oklahoma, 519 F.3d 1242, 1246 (10th Cir. 2008) (A grievance satisfies the exhaustion requirement “so long as it provides prison officials with enough information to investigate and address the inmate’s complaint internally.”).4 Based on the undisputed material facts, the Court finds the evidence points only one way and no reasonable inferences could support Plaintiff’s position.
4 Plaintiff relies on two decisions from other jurisdictions to argue otherwise. They are not binding and distinguishable. For example, the court in Grant v. Cathel, No. 05-3956 (MLC), 2007 WL 119158, at *5 (D.N.J. Jan. 10, 2007), stated “substantial compliance” with the administrative procedure was sufficient. In the Tenth Circuit, “the doctrine of substantial compliance does not apply.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002); see also Thomas v. Parker, 609 F.3d 1114, 1118 (10th Cir. 2010) (same). And, in Underwood v. Mendez , No. 3:04-CV-1624, 2006 WL 860142, at *5 (M.D. Pa. Mar. 31, 2006), the court found all defendants had been on notice of the claim and the additional issues were just additional factual proofs under this claim. This is not the case here.
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Accordingly, the recommendation correctly found claims 2-5 are unexhausted to the extent they are based on communications with Plaintiff’s 13 nieces and nephews. Plaintiff’s objection is overruled.
3. Claims 7, 11, and 13 The Magistrate Judge recommended that summary judgment be granted for failure to exhaust as to “the portions of Claims 7, 11, and 13 in which Plaintiff asserts he was force-fed in 2012 and 2015 without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures on force-feeding.” (ECF No. 120, p. 13.) The recommendation stated the remedy requests Plaintiff relied on were not filed within 20 days of any hunger strike and none hinted that Plaintiff believed he was force-fed without medical necessity or for purposes of retaliation. Plaintiff objects, arguing he did exhaust and that the BOP never claimed his grievances were untimely but addressed them substantively. At issue are four administrative remedy (“AR”) requests and whether they show Plaintiff failed to exhaust his 2012 and 2015 force feedings-based claims at issue: AR 709948; AR 774879; AR 874164; and AR 861387. Defendants rely on the first AR while Plaintiff relies on the latter three ARs all of which Defendants contend are inapposite. The Court addresses each in turn. AR 709948 was filed in September 2012 concerning Plaintiff’s hunger strike in about August and September 2012. That remedy complains Plaintiff was segregated for about three weeks without his legal materials, medical items, and regular institutional supplies. (ECF No. 80-2, pp. 36-40.) This remedy was not exhausted. This filing also predates Plaintiff’s 2015 force feeding strike so it goes without saying this remedy could not have exhausted any complaint relating to any 2015 incident. Further, reasonable minds could not differ in
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concluding that this filing did not provide enough information for prison officials to investigate and address any complaint of force feeding without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures on force-feeding.
AR 774879 fares no better. This remedy challenges BOP actions relating to a hunger strike in 2014, of which there are no allegations in the amended complaint. (ECF No. 115-6.) Moreover, prison officials rejected this filing as untimely.
AR 874164 is also unavailing. This administrative remedy was filed in August 2015 where Plaintiff asked to be allowed to protest by hunger striking without being force fed against his will under Program Statement No. 5562.05. (ECF No. 115-8.) In his appeal to the Regional Director of the BOP, Plaintiff reiterated this request and also raised that forced feeding violates RFRA, First Amendment, Eighth Amendment, and “right to refuse treatment” grounded in the Fifth Amendment. Defendants argue nothing in this grievance alerted prison officials of any allegations of misconduct, nor could it have because it was well outside the time for Plaintiff to do so.
Plaintiff does not contest this grievance (or any of the other two grievances he relies on) was not timely filed within the 20 days of any challenged force feeding in 2012 or 2015. Instead, Plaintiff argues, in a footnote, the Recommendation inappropriately unilaterally rejected the ARs when the BOP addressed the grievances substantively.5 Plaintiff’s argument, however, misses the mark. While the BOP addressed AR 874164 substantively it was because Plaintiff requested future relief and the BOP viewed the remedy requested as such. That is the issue the BOP addressed substantively. Plaintiff did not request – and the BOP did not address – any remedy related to the alleged 2012 and 2015 force feedings. If this remedy request (and the other two
5 On the contrary, as stated, the BOP rejected AR 778479 as untimely. 9

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requests) did raise alleged force feeding in 2012 and 2015 – which they did not – the Recommendation recognized such requests would have been untimely.
Further, this remedy request raising “right to refuse treatment” was made at the regional level, see 28 C.R.F. § 542.15(b)(2),6 and did not give prison officials enough information to investigate and address allegations of force feeding without medical necessity, retaliation, or failure to follow procedures. At bottom, AR 874164 fails to support exhaustion as it relates to the 2012 and 2015 allegations at issue.
This leaves AR 861387 filed in April 2016. At the institutional level (BP-9) and regional level (BP-10), this remedy request asked that Plaintiff’s SAM be removed. It was not until the national level (BP-11) that Plaintiff complained – beyond the request that his SAM be removed – of the “denial of rights during non-violent hunger strike protest” among many other complaints. (ECF No. 115-7, p. 2.) The BOP did not address such additional complaints. And, such complaints were insufficient to satisfy Plaintiff’s responsibility to properly exhaust for at least two reasons. First, it was raised improperly for the first time at the national level. 28 C.R.F. § 542.15(b)(2). Second, it cannot be said that a complaint made in April of 2016 was sufficient to give Defendants fair notice of alleged issues with hunger strikes in 2012 and 2015. Accordingly, Plaintiff’s objection is overruled.7
4. Paragraph 147 Paragraph 147 of the amended complaint alleges that whether “due to the SAMs or other factors,” Defendants have censored Plaintiff’s books coming into ADX and specifically identifying two books from July 2017. It is undisputed that Plaintiff has not exhausted any
6 “An inmate may not raise in an Appeal issues not raised in the lower level filings.” 7 The Court agrees with the Recommendation that, facially, claims 7, 11, and 13 do not allege violations for failure to comply with BOP regulations. As the parties assume they do, the Court does so also.
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remedy requests alleging he was denied access to such books or any other specific reading material. The Magistrate Judge recommended summary judgment on paragraph 147.
Plaintiff raises three arguments but, as Defendants respond, Plaintiff did not raise these before and they are now waived. Garfinkle, 261 F.3d at 1031. Moreover, the Court finds none of the arguments persuasive.
Plaintiff argues that finding an allegation to be unexhausted is contrary to law, but this has been addressed and rejected above by the Court.
Plaintiff also argues the rule is burdensome especially considering his “totality-of-thecircumstances” claim (claim 14). As an initial matter, the Court does not find the summary judgment recommendation as to paragraph 147 is limited to claim 14. After all, Plaintiff incorporates all of his previous allegations in all his claims. Plaintiff’s cursory argument that it is somehow burdensome also does not save this allegation. The law requires Plaintiff to provide prison officials sufficient information to investigate and address an inmate’s complaint. That Plaintiff chose not to bring a separate claim based on his censorship complaint does not relieve him of this obligation.
Finally, Plaintiff appears to argue that there is a question of fact as to whether he could sufficiently raise his allegations in claim 14 in a single grievance. But, as Defendants contend, Plaintiff’s failure was that he did not exhaust this (and other) issues in any form, not that he failed to exhaust them in a single grievance. Accordingly, Plaintiff’s objections here are also overruled.
5. Count 14 In count 14 Plaintiff asserts that all of his allegations throughout his amended complaint combine to form a violation of the Eighth Amendment. The Recommendation found claim 14
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could proceed only to the extent it is based on exhausted issues. For the reasons set forth above, the Court agrees.
6. “Unavailability” of grievance process Plaintiff raises two arguments as to the alleged unavailability of the grievance process. Plaintiff asserts there are factual disputes regarding the availability of the administrative remedy process as to (1) claims 2-5 and 14 concerning the SAMs, and (2) claims 7, 11, and 13 because he was in the hospital. The SAMs and Claims 2-5, 14. Here, Plaintiff argues the Defendants’ or the BOP’s responses show there are factual issues regarding whether the BOP has the discretion or ability to address the SAMs and, accordingly, Yousef v. Reno, 254 F.3d 1214 (10th Cir. 2012), is distinguishable. The Court finds a review of the responses as a whole, however, shows no factual issues which preclude summary judgment. For example, Plaintiff relies on a BOP’s response which stated that BOP staff “neither impose nor rescind SAM restrictions” but omits the following sentence which stated the “Bureau staff facilitates specific requests relating to the [SAMs] restrictions and to that effect, institution staff will consult with other entities when appropriate, in an attempt to resolve or accommodate such concerns.” (ECF No. 115-5, p. 1.) Further, Defendants have presented evidence and authority to show that an administrative remedy was available. As Defendants argue, the federal regulations specifically provide “[t]he affected inmate may seek review of any special restrictions [SAMs] imposed in accordance with paragraph (a) of this section through the Administrative Remedy Program, 28 CFR part 542.” 28 C.F.R. § 501.3(e). Moreover, Plaintiff has utilized the administrative remedy previously and has obtained modifications of his SAMs through this process. (See ECF No. 115-5, p. 1; No. 96-1,
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pp. 2, 6 (SAM modified to allow more than one visitor at a time for recent visit, in response to specific SAM modification request).)
Finally, based on this record, the Court finds Yousef, supra, indistinguishable. What the Yousef court found important was that the BOP regulations provided an avenue for inmates to exhaust their administrative remedies and the BOP had discretion to implement the SAMs. That regulation still exists and while the BOP here does not have the same discretion as that in the Yousef case, the record nonetheless shows the administrative remedy process can – and has – provided Plaintiff relief from the SAMs imposed. Accordingly, the administrative remedy process was available to Plaintiff.
Plaintiff’s Hospitalization and claims 7, 11, 13. Plaintiff’s AR 774879 was rejected because it was untimely. (ECF No. 115-6.) Plaintiff contends there are factual issues as to the availability – and, therefore, timeliness – of this administrative remedy because he was allegedly in the hospital and did not have access to his legal materials until the last week of February 2014. Plaintiff objects to the Recommendation because it did not address this argument, but the Court finds this argument wanting for three reasons.
First, Plaintiff raised this argument for the Magistrate Judge to consider in a footnote. Arguments contained in a perfunctory manner in footnotes are waived. San Juan Citizens Alliance v. Stiles, 654 F.3d 1038, 1056 (10th Cir. 2011) (collecting cases).
Next, even if not waived, this AR relates to a 2014 hunger strike and, as previously stated, the amended complaint contains no allegations regarding a 2014 hunger strike. Further, an AR concerning an incident in 2014 is irrelevant to – and cannot serve as a basis for finding an administrative remedy was unavailable for – Plaintiff’s force-feeding claims from 2012 and 2015.
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Finally, as Defendants noted, Plaintiff had his materials by the last week of February 2014, but he did not file his administrative remedy until April 8, 2014. Even under Plaintiff’s argument, his filing was untimely as it was more than 20 days following the date on which the basis for the request occurred. Accordingly, this objection is also overruled.
IV. CONCLUSION Exhaustion is mandatory. Because Plaintiff has failed to exhaust his administrative
remedies as argued by Defendants, the Court orders dismissal of his unexhausted claims and issues.8 Based on the foregoing, the it is ORDERED
(1) That Plaintiff’s “Objection to Amended Recommendation of United States Magistrate Judge (Doc. 120)” (ECF No. 128) is OVERRULED;
(2) That the Amended Recommendation of United States Magistrate Judge (ECF No. 120) is ACCEPTED as stated herein;
(3) That Defendants’ Motion for Partial Summary Judgment (ECF No. 80) is GRANTED as stated herein;
(4) That the following are dismissed without prejudice: a) Claims 1, 6, 8, 9, 10, and 12 in their entirety; b) Claims 2-5 based on allegations that Plaintiff was improperly precluded from communicating with his 13 nieces and nephews; c) Claims 7, 11, and 13 to the extent Plaintiff asserts he was force-fed in 2012 and 2015 without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures on force-feeding;
8 This Order addresses Defendants’ Motion for Partial Summary Judgment. The Court recognizes Defendants also filed a Motion to Dismiss as to claims 1-7 and 11-14 and that the Magistrate Judge recommended granting this motion in part and dismissing certain claims in another recommendation. The Court addresses such overlap in its Order on Recommendation issued concurrently with this Order on Amended Recommendation.
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Case 1:17-cv-02493-RM-KMT Document 132 Filed 09/18/19 USDC Colorado Page 15 of 15 d) Paragraph 147 in its entirety; and e) Claim 14 to the extent it is based on unexhausted issues.
SO ORDERED. DATED this 18th day of September, 2019.
BY THE COURT: ____________________________________ RAYMOND P. MOORE United States District Judge
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Raymond P. Moore
Civil Action No. 17-cv-02493-RM-KMT UMAR FAROUK ABDULMUTALLAB,
Plaintiff, v. WILLIAM P. BARR,1 Attorney General of the United States, in his official capacity, FEDERAL BUREAU OF PRISONS, and JOHN DOES 1 THROUGH 20, in their official capacities,
Defendants. ______________________________________________________________________________
ORDER ON RECOMMENDATION ______________________________________________________________________________
This matter is before the Court on the Recommendation of United States Magistrate Judge (the “Recommendation”) (ECF No. 121) to grant in part and deny in part as moot Defendants’ Motion to Dismiss (ECF No. 79). Plaintiff filed an objection (the “Objection”) to which Defendants filed a Response (ECF Nos. 129, 131). The matter is ripe for resolution.
I. LEGAL STANDARD A. Review of a Magistrate Judge’s Recommendations When a magistrate judge issues a recommendation on a dispositive matter, Fed. R. Civ.
P. 72(b)(3) requires that the district court judge “determine de novo any part of the magistrate judge’s [recommendation] that has been properly objected to.” Upon review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. In the absence of a timely and specific
1 Pursuant to Fed. R. Civ. P. 25(d), Mr. Barr is substituted for former Attorney General Jefferson Sessions.

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objection, “the district court may review a magistrate’s report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed. R. Civ. P. 72 Advisory Committee’s Note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”).
B. Motions to Dismiss The Magistrate Judge correctly set forth the standards for motions filed under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Accordingly, the Court incorporates them by reference. II. BACKGROUND No party has objected to the Magistrate Judge’s “Statement of the Case.” Upon its review, the Court finds no clear error and accepts the statement. In order to provide context to this Order, the Court nonetheless provides a brief summary of the case. Plaintiff was convicted 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. Plaintiff is from Nigeria and a Muslim. The United States government believes that Plaintiff was recruited to commit his crimes of conviction by Anwar Al-Awlaki, who was killed by a United States drone in Yemen. Plaintiff is housed at the United States Penitentiary–Administrative Maximum (“ADX”) in Florence, Colorado, and serving four terms of life imprisonment plus 50 years for his convictions. Prior to Plaintiff’s transfer to ADX, in March 2012, the United States government placed Plaintiff under Special Administrative Measures (“SAMs”). The SAMs have been renewed every year, with some modifications.
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Plaintiff brought this action asserting the following 14 claims for relief arising from his

conditions of confinement at ADX:

Claim 1:

Plaintiff’s transfer to ADX in 2012 in deprivation of his liberty without due process in violation of the Fifth Amendment;

Claims 2-4: The imposition of SAMs which deny free speech, free association, and familial association, in violation of the First Amendment;

Claim 5:

The imposition of SAMs which violate substantive due process under the Fifth Amendment;

Claim 6:

Retaliation against Plaintiff by confining him in Special Housing Unit in Range 13, for engaging in a hunger strike to protest his conditions of confinement in violation of the First Amendment;

Claim 7:

Denial of Plaintiff’s right to refuse medical treatment, i.e., the force feeding of nutrients related to his hunger strikes, in violation of the Fifth Amendment;

Claim 8:

Denial of access to group prayer in violation of the Religious Freedom Restoration Act (“RFRA”);

Claim 9:

Failure to provide meaningful access to an imam in violation of RFRA;

Claim 10: Denial of a halal diet in violation of RFRA;

Claim 11: Responding to hunger striking by force feeding in violation of RFRA;

Claim 12: Force feeding non-halal nutritional supplement in violation of RFRA;

Claim 13: Excess force by force feeding in violation of the Eighth Amendment; and

Claim 14:

Cruel and unusual punishment under totality of circumstances in violation of the Eighth Amendment.

(ECF No. 76, Amended Complaint.)

Defendants moved for partial summary judgment as to claims 1, 6, 8-10, and 12; portions

of claims 2-5, 7, 11, 13, and 14; and allegations in paragraph 147 of the amended complaint.

The Magistrate Judge recommended (the “Amended Recommendation”) granting Defendants’

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partial summary judgment motion in its entirety, which recommendation the Court adopted. (ECF Nos. 120, 132.)
Defendants also moved to dismiss all claims except claims 8-10. That Motion to Dismiss is at issue in this Order. The Magistrate Judge recommended granting in part and denying in part as moot Defendants’ Motion to Dismiss as follow: dismissing without prejudice claims 7 and 1113 under Fed. R. Civ. P. 12(b)(1); dismissing with prejudice claims 2-5 and 14; and denying the Motion to Dismiss as moot as to claims 1 and 6 based on the Amended Recommendation that such claims be dismissed for failure to exhaust administrative remedies. Plaintiff’s Objection followed.
III. ANALYSIS A. Matters to which there are no objections Plaintiff’s Objection is stated to be addressed to claims 2-5, 11, 12, and 14. But, as
Defendants argue, the Objection fails to address claim 5 other than referencing it in a title. Accordingly, any objection to the recommendation as to claim 5 is waived or otherwise insufficient. See United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996) (An objection is proper if it is specific enough to enable the “district judge to focus attention on those issues—factual and legal—that are at the heart of the parties’ dispute.” (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). Accordingly, the Court conducts a clear error review as to the recommended disposition of claims 1, 5, 6, 7, and 13. Upon such review, the Court finds no clear error and accepts the recommendation (a) to dismiss claims 5 (with prejudice), 7 (without prejudice), and 13 (without prejudice) and (b) to deny Defendants’ Motion to Dismiss as moot as to claims 1 and 6.
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B. Matters to which there are objections 1. Claims 2-42
Plaintiff objects to the recommended dismissal of Claims 2-4 on more than one basis. The Court addresses each in turn.
a) Judicial Notice and Matters Referenced in Complaint In evaluating the Motion to Dismiss, the Recommendation relied on documents attached to Defendants’ papers, including the SAMs imposed upon Plaintiff and the contents of copies of the plea transcript and sentencing transcript in Plaintiff’s criminal case. It is well established that when ruling on a Rule 12(b)(6) motion, a court must consider the complaint but may consider other sources such as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citing 5B Wright & Miller § 1357 (3d ed. 2004 and Supp. 2007)); see also, e.g., Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017) (“A district court may…consider documents attached to or referenced in the complaint if they are central to the plaintiff’s claim and the parties do not dispute the documents’ authenticity.” (quotations and citation omitted)); Hodgson v. Farmington City, 675 F. App’x 838, 841 (10th Cir. 2017) (A court may take judicial notice of “another court’s publicly filed records concerning matters that bear directly upon the disposition of the case at hand.” (quotations and citation omitted)). Plaintiff argues the Recommendation improperly took judicial notice of such documents to contradict his factual allegations by accepting the truth of the statements within the SAMs and of the statements he made as shown in the plea transcripts and sentencing transcripts which lead to his incarceration at ADX. Defendants respond that a court may take judicial notice of the
2 As stated, Plaintiff includes claim 5 in his title but fails to address claim 5. 5

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contents of court transcripts and other court records and, further, the Recommendation did not rely on the truth of the statements Plaintiff made, e.g., that the “Koran obliges every able Muslim to participate in jihad and fight in the way of Allah, those who fight you, and kill them where you find them.” (ECF No. 79-1, 26:2-4.) Moreover, Defendants argue, the Recommendation did not rely on judicial notice when considering the SAMs. The Court agrees.
Starting with the SAMs, although the Recommendation stated that judicial notice was taken, that was in fact not what was done. Instead, the Recommendation considered the SAMs because they are referred to in the complaint, they are central to Plaintiff’s claim, and their authenticity is not in dispute. (See ECF No. 121, 2 n.1, 10 n.3.)
As for the Recommendation’s reliance on the contents of the transcripts and statements contained in them from Plaintiff’s criminal proceedings, the Court agrees the Recommendation could do so, and properly did do. See, e.g., Anderson v. Cramlet, 789 F.2d 840, 845 (10th Cir. 1986) (approving the district court’s consideration of a recording and Dateline episode in ruling on motion to dismiss). As the Recommendation indicated, it considered the contents to show that Plaintiff made certain statements, not that such statements were true, and that the government may reasonably rely on them in deciding to implement restrictions. Accordingly, Plaintiff’s objections here are overruled.
b) Deference to the government Scattered in the Objection are arguments that the Recommendation’s “near-absolute” deference to Defendants based on their assertion of national security concerns is in error. The Court finds it need not reach the issue of whether a “heightened” or “greater” level of deference beyond “substantial deference” is required in this case. Here, the Court finds on de novo review that Plaintiff’s allegations are insufficient under the “substantial deference” standard he
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advocates.3 In doing so, the Court recognizes “that concerns of national security and foreign relations do not warrant abdication of the judicial role,” Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010), and that though the reasonableness standard under Turner v. Safley, 482 U.S. 78, 89 (1987) is deferential, it is not “toothless.” Gee v. Pacheo, 627 F.3d 1178, 1188-89 (10th Cir. 2010) (quotation and citation omitted). And, of course, the Court recognizes that its review is under Rule 12(b)(1) and Rule 12(b)(6) and, under the latter Rule, it accepts as true all well-pleaded factual allegations in the complaint, views those allegations in the light most favorable to the plaintiff, and draws all reasonable inferences in plaintiff’s favor. Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014).
c) The adequacy of Plaintiff’s allegations Defendants contend the SAMs are reasonably related to a legitimate penological interest, that of protecting national security. To withstand a motion to dismiss, a prisoner must plead facts showing the absence of a rational connection between the challenged restriction and a legitimate penological interest. Al-Owhali v. Holder, 687 F.3d 1236, 1239 (10th Cir. 2012). The Recommendation found there was a rational connection between the restrictions imposed and the legitimate penological interest of national security and Plaintiff failed to rebut the stated justifications for the SAMs. Plaintiff contends, however, that he adequately alleged his SAMs violated his constitutional rights and are not reasonably related to a penological interest. First, Plaintiff supports his contentions by pointing to allegations that there were changes in the restrictions with his communications, allowing communications with certain unidentified people while incarcerated at Federal Correctional Institution – Milan, Michigan during the pendency of federal criminal case but disallowing such communications with them while
3 The Supreme Court has stated courts “must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining legitimate goals of a corrections system and for determining the most appropriate means to accomplish them.” Overton v. Bazzette, 539 U.S. 126, 132 (2003).
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incarcerated at ADX after his conviction;4 and to allegations that he has not received any charges for violence while incarcerated and does not have an ongoing desire to commit jihad. But the Court finds allegations that there were changes in restrictions in communications allowed does not, without more, show there was no rational connection between such restrictions and the legitimate penological interest of national security, especially where Plaintiff was allegedly advised that changes as to one of his sisters were based on security concerns. Further, as Defendants argue, that Plaintiff has not committed violence while in prison fails to rebut Defendants’ national security justification based primarily on Plaintiff’s danger outside of prison.
As for Plaintiff’s allegations that he does not have an “ongoing desire to commit violent jihad” and does not intend to incite violence via communications with individuals outside of prison, as Defendants respond, there are no allegations that such information was conveyed to any government officials for them to consider.5 Thus, this too fails to rebut Defendants’ stated justifications.
Next, Plaintiff argues that improper deference was afforded, an argument which the Court has already rejected above.
Third, Plaintiff asserts – cursorily – that a detailed, fact-specific analysis of the SAMs should be conducted. This assertion is so cursory as to be waived. Even if it was not waived, the Recommendation did so, addressing Plaintiff’s allegations concerning the restrictions and why there was a rational connection between his restrictions and Defendants’ legitimate penological interest. Plaintiff provides no specific argument as to how or why this was deficient.
4 Plaintiff did not identify these individuals, other than one of them was one of his sisters. As to her, Plaintiff alleges the changes in communications were stated to be based on “security concerns.” (ECF No. 76, ¶¶ 11-12.) 5 In light of this finding, the Court need not consider Defendants’ alternate argument that, even if such information was conveyed, they did not have to credit it in their assessment of restrictions.
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Finally, Plaintiff contends he distinguished the cases Defendants cited and the Recommendation gave his arguments concerning those cases short shrift. The Court finds, however, that the Recommendation did not agree with Plaintiff’s analysis does not mean there was error. Moreover, that the cases may not be factually identical to Plaintiff’s allegations do not render them inapposite. For example, the focus is not on whether Plaintiff’s crimes of conviction stem from any communications conducted while in prison but whether any communications restriction has a rational relationship to the legitimate penological interest of national security in light the bases for such restriction, e.g., Plaintiff’s criminal conviction and his statement that participation in jihad against the United States is highly encouraged in the Koran. At bottom, the Court is not persuaded that the cases do not support the proposition that Plaintiff has failed to meet his pleading burden.
In summary, the Court agrees with the Recommendation and finds the complaint fails to plead sufficient facts to plausibly infer that the SAMs at issue here were not – or are not – reasonably related to a legitimate penological interest. The Objection is overruled.
2. Claims 11 and 12 The Magistrate Judge recommended dismissal of these claims 11 and 12 without prejudice based on a lack of standing.6 Plaintiff objects by arguing the Recommendation incorrectly concluded he lacked standing and, further, even if Plaintiff was not facing an impending injury of force feeding “that does not foreclose his policy challenge.” According to Plaintiff, the existence of the policy of force feeding “substantially burdens his rights now because it forces him to abstain from engaging in his right to hunger strike” for fear of being
6 Except to the extent claim 11 was recommended to be dismissed based on Defendants’ motion for partial summary judgment. (ECF No. 120, pp. 10-13; No. 121, p. 19.)
Plaintiff’s argument about any improper burden shifting is irrelevant because, ultimately, the recommendation on these two claims was based on standing and not on the merits.
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forced fed non-halal food. (ECF No. 129, p. 11 (emphasis in original).) These arguments are rejected.
Plaintiff’s objection as to the finding that he lacks standing is – in a nutshell – nonspecific and conclusory. Accordingly, this objection is waived and overruled. See 2121 East 30th Street, 73 F.3d at 1060 (A party’s objection “must be both timely and specific to preserve an issue for de novo review by the district court.”). The same holds true for Plaintiff’s argument based on a new “policy challenge” theory. As Defendants respond, Plaintiff never presented this legal theory before and may not do so now in an objection to the Recommendation. United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (theories raised for the first time in objections to a recommendation are waived); Duran v. Donaldson, 663 F. App’x 684, 689 (10th Cir. 2016) (same). Accordingly, this objection is also overruled.
Even though Plaintiff’s objection is overruled, the Court nonetheless declines to accept the recommendation as to claim 12. Specifically, in the Order on Amended Recommendation, the Court accepted the recommendation to dismiss claim 12 for failure to exhaust administrative remedies. Thus, whether claim 12 also fails due to lack of standing is moot. Therefore, Defendants’ Motion to Dismiss is denied as moot as to claim 12.
3. Claim 14 The Magistrate Judge recommended dismissal of Plaintiff’s claim 14 alleging his combined conditions of confinement – the “totality of circumstances” – constitute cruel and unusual punishment in violation of the Eighth Amendment. In his complaint, Plaintiff alleged that various “distinct constitutional violations have a mutually reinforcing effect of depriving [him] of social interaction – a basic human need.” (ECF No. 76, ¶ 393.) In his objection, Plaintiff asserts he has sufficiently demonstrated his conditions deprive him of “several basic
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human needs” “including social interaction, medical care, well-being, and basic safety” and the cases the Recommendation relies on are distinguishable. And, according to Plaintiff, all of his alleged deprivations combined results in deprivation of his “basic human needs for physical and psychological well-being” sufficient to plausibly allege a claim under the Eighth Amendment. The Court finds otherwise.
In Rhodes v. Chapman, 452 U.S. 337, 347 (1981), the Supreme Court observed that conditions of confinement, “alone or in combination, may deprive inmates of the minimal civilized measure of life’s necessities.” By this statement, the Supreme Court meant “[s]ome conditions of confinement may establish an Eighth Amendment violation ‘in combination’ when each would not do so alone, but only 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.” Wilson v. Seiter, 501 U.S. 294, 304 (1991) (emphasis in original). “To say that some prison conditions may interact in this fashion is a far cry from saying that all prison conditions are a seamless web for Eighth Amendment purposes.” Id. at 305. And, “[n]othing 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.” Id. at 305. Thus, to state a valid claim, “a plaintiff must allege an unquestioned and serious deprivation of basic human needs…such as food, warmth, or exercise.” Gowadia v. Stearns, 596 F. App’x 667, 674 (10th Cir. 2014) (quotations and citations omitted).
An examination of Plaintiff’s allegations and attendant arguments shows the alleged basic human need(s) of which Plaintiff is allegedly deprived is as amorphous as the “totality of circumstances” upon which he relies. The amended complaint alleges the deprivation of basic human need at issue is social interaction. But, as the Recommendation found, such allegations
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are insufficient under Silverstein v. Fed. Bureau of Prisons, 559 F. App’x 739, 755-756 (10th Cir. 2014).7 As for Plaintiff’s argument that his basic human need is “physical and psychological well-being” which has been deprived by the combination of various unrelated allegations, e.g., force feeding and restraints on communications, this too fails the plausibility requirement. First, such combination is improper as the unrelated allegations have no “mutually enforcing effect.” Second, general “well-being” is simply not a qualifying basic human need, such as food, warmth, and exercise. Wilson, 501 U.S. at 304. See Gowadia, 596 F. App’x at 674 (noting that “‘reasonably adequate ventilation, sanitation, bedding, hygienic materials, and utilities’” are qualifying needs (citing Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir. 1980)); Cleveland v. Martin, 590 F. App’x 726, 732 (10th Cir. 2014) (“Visitation with [one’s] minor children does not involve one of life’s necessities.”); Womble v. Harvanek, 739 F. App’x 470, 473 (10th Cir. 2017) (“[A]ccess to a sufficient supply of uncontaminated drinking water is a basic human need” which plaintiff plausibly stated with allegations that water fountain and ice machine were broken, there was excessive heat in his cell, he received only six ounces of ice per day, and he couldn’t drink the water in his cell because it was contaminated (brown) and made him sick (vomited). (emphasis omitted)).
The Court has considered Plaintiff’s remaining arguments but is not persuaded. The Court overrules Plaintiff’s objections and accepts the recommendation to dismiss claim 14.
IV. CONCLUSION Based on the foregoing, the Court
7 The Court is not persuaded by Plaintiff’s argument that Silverstein was decided on a motion for summary judgment and that Silverstein’s claim withstood a motion to dismiss. The order on the motion to dismiss did not discuss whether Silverstein sufficiently alleged a serious deprivation of basic human needs or what such needs were. Instead, the district court relied on the length of Silverstein’s solitary confinement – 27 years – to find plausibility. Silverstein v. Fed. Bureau of Prisons, 704 F. Supp. 2d 1077, 1097-1099 (D. Colo. 2010).
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(1) OVERRULES “Plaintiff’s Objection to Recommendation of United States Magistrate Judge (Doc. 121)” (ECF No. 129);
(2) ACCEPTS the Recommendation of United States Magistrate Judge (ECF No. 121) as stated herein except as to the recommended dismissal of claim 12 based on lack of standing;
(3) GRANTS in part and DENIES in part as moot Defendants’ Motion to Dismiss Amended Complaint (ECF No. 79) as stated herein;
(4) DISMISSES WITHOUT PREJUDICE the remaining allegations as to claims 7, 11, and 13;
(5) DISMISSES WITH PREJUDICE the remaining allegations as to claims 2-5, and 14; and
(6) DIRECTS the Clerk to enter JUDGMENT in favor of Defendants and against Plaintiff as set forth in this Order on Recommendation and the Order on Amended Recommendation and to close this case.
DATED this 18th day of September, 2019. BY THE COURT:
____________________________________ RAYMOND P. MOORE United States District Judge
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