Al–Owhali v. Holder

Decision Date07 August 2012
Docket NumberNo. 11–1274.,11–1274.
Citation687 F.3d 1236
PartiesMohamed Rashed D. AL–OWHALI, Plaintiff–Appellant, v. Eric H. HOLDER, in his official capacity as U.S. Attorney General; Harley G. Lappin, in his official capacity as Director, Federal Bureau of Prisons; Blake Davis, in his official capacity as Warden, USP Florence ADMAX; Federal Bureau of Investigation, Defendants–Appellees.
CourtU.S. Court of Appeals — Tenth Circuit


Jeffrey Hoard, Student Attorney (Daniel E. Manville, Director, Civil Rights Clinic, Michigan State University College of Law; Joyce Ellen Rosendahl, Law Offices of Joyce Ellen Rosendahl, on the briefs), Michigan State University College of Law, East Lansing, MI, for the PlaintiffAppellant.

John A. Drennan (John F. Walsh, United States Attorney, Susan Prose, Assistant United States Attorney, and Lisa O. Monaco, Assistant Attorney General for National Security, with him on the briefs), U.S. Department of Justice, National Security Division, Washington, DC, for the DefendantsAppellees.

Before LUCERO, EBEL, and MATHESON, Circuit Judges.

LUCERO, Circuit Judge.

Mohamed Rashed Al–Owhali, an inmate in a federal high-security prison, brought a suit challenging several Special Administrative Measures (“SAMs”) imposed upon him. The district court dismissed the suit, finding that Al–Owhali failed to allege plausible facts to support his claims. In light of concessions made by Al–Owhali before argument, we exercise jurisdiction under 28 U.S.C. § 1291 and affirm the district court's dismissal.


Al–Owhali was convicted of several terrorism-related offenses stemming from the 1998 bombing of the United States embassy in Nairobi, Kenya. He is currently serving a life sentence without the possibility of parole at the United States Penitentiary, Administrative Maximum, in Florence, Colorado. Since his arrest, Al–Owhali has been subject to SAMs, which impose special restrictions on his imprisonment.1 Starting in 2004, Al–Owhali's SAMs prohibited him from corresponding with his nieces and nephews through letters. His 2004 SAMs further forbid him from receiving two Arabic-language newspapers that he had previously been provided. In addition to these explicit SAMs restrictions, Al–Owhali alleges that officials prohibited him from receiving a copy of former President Jimmy Carter's book Palestine: Peace, Not Apartheid.

In 2009, Al–Owhali filed his second amended complaint in federal district court, alleging that these restrictions and others violated his constitutional rights. Invoking Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the court concluded that Al–Owhali had not alleged sufficient facts to make his claim facially plausible and dismissed the complaint under Fed.R.Civ.P. 12(b)(6). Al–Owhali then filed a motion to reconsider and a motion to file a third amended complaint, both of which were denied. He then appealed.

On the eve of oral argument, however, Al–Owhali conceded most of the arguments he had briefed. According to the concession, he continues to contest only the three restrictions listed above: the prohibitions on communication with his nieces and nephews, the two Arabic-language newspapers, and President Carter's book.


We review de novo a district court's dismissal of a claim under Fed.R.Civ.P. 12(b)(6). Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir.2012). Under Iqbal, “a complaint must contain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face.” 556 U.S. at 678, 129 S.Ct. 1937 (quotation omitted). “A claim has facial plausibility when the plaintiff pleads factualcontent that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although we must accept as true all factual allegations asserted in the complaint, dismissal is appropriate where “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.” Id. at 679, 129 S.Ct. 1937;see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

In addition to the pleading burden imposed by Iqbal, inmates face additional hurdles when challenging a prison regulation as unreasonable. As a general matter, “when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). We use four factors to guide our Turner inquiry:

(1) whether a rational connection exists between the prison policy regulation and a legitimate governmental interest advanced as its justification; (2) whether alternative means of exercising the right are available notwithstanding the policy or regulation; (3) what effect accommodating the exercise of the right would have on guards, other prisoners, and prison resources generally; and (4) whether ready, easy-to-implement alternatives exist that would accommodate the prisoner's rights.

Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir.2002) (citing Turner, 482 U.S. at 89–91, 107 S.Ct. 2254). Among these factors, the first is the most important; as we have noted, it is “not simply a consideration to be weighed but rather an essential requirement.” Boles v. Neet, 486 F.3d 1177, 1181 (10th Cir.2007) (quotation omitted).

Analysis of the four Turner factors is necessary at the summary judgment stage. See Jones v. Salt Lake Cnty., 503 F.3d 1147, 1153–59 (10th Cir.2007). But in ruling on a motion to dismiss, a court need only assess, as a general matter, whether a prison regulation is “reasonably related to a legitimate penological interest.” Gee v. Pacheco, 627 F.3d 1178, 1187 (10th Cir.2010). Thus, while it is critical that a complaint address Turner's core holding, the four Turner factors need not be part of the analysis at the pleading stage. See id.

Taken together, Iqbal and Turner require an inmate to “plead facts from which a plausible inference can be drawn that the action was not reasonably related to a legitimate penological interest.” Gee, 627 F.3d at 1188. “This is not to say that [Al–Owhali] must identify every potential legitimate interest and plead against it.” Id. However, he is required to “recite[ ] facts that might well be unnecessary in other contexts” to surmount a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Gee, 627 F.3d at 1185.2


In his pleadings, Al–Owhali asserts that the 2004 SAMs prohibited him from writing letters to his nieces and nephews, even though he had previously been permitted to do so. He further pleads that the government imposed these new restrictions despite his compliance with previous SAMs, and contends that they violate BOP regulations and his First Amendment rights. It is Al–Owhali's burden to demonstrate that there is no legitimate, rational basis for the increased communication restrictions. See Gee, 627 F.3d at 1185 (a prisoner must “explain why the usual justifications for the complained-of acts do not apply” in his pleadings). Yet nothing in the pleadings speaks to the rationale underlying the new restrictions or the apparent concerns surrounding Al–Owhali's contact correspondence with his nieces and nephews.

These deficiencies in his pleadings are especially clear given the government's proffered justifications for imposing SAMs. According to the 2008 SAMs extension,3 which included the correspondence restrictions at issue, the warden believed that Al–Owhali had a “proclivity for violence” based on his conviction for acts of terrorism. The warden expressed his concern that “communications or contacts with persons could result in death or serious bodily injury to persons.” Even if this reasoning does not explicitly address the new restrictions, it is a coherent explanation of the government's policy that Al–Owhali does not rebut in his pleadings. See Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 126, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (“The concept of incarceration itself entails a restriction on the freedom of inmates to associate with those outside of the penal institution.”). Al–Owhali's pleadings include no facts indicating that the government lacks a legitimate penological interest in limiting his correspondence or that the new restrictions are unrelated to this interest. See Turner, 482 U.S. at 89, 107 S.Ct. 2254.

In order to survive the government's 12(b)(6) motion, Al–Owhali was not required to substantively rebut the government's justifications for the new restrictions. See Gee, 627 F.3d at 1188 (We do not intend that pro se prisoners must plead, exhaustively, in the negative in order to state a claim.”). Rather, he simply needed to plead some plausible facts supporting his claim that the ban on communicating with his nieces and nephews did not serve the purpose of preventing future terrorist activity. See, e.g., Mohammed v. Holder, 07–CV–02697–MSK–BNB, 2011 WL 4501959 (D.Colo. Sept. 29, 2011) (concluding that an inmate's challenge to SAMs was plausible where his pleadings pointed to a recommendation from the warden that the inmate's privileges be expanded). Looking to his pleadings, the only supporting fact Al–Owhali offers is that he did not violate any SAMs before the new restrictions were imposed. This assertion fails to address whether the restriction was supported by a rational penal interest. Accordingly, dismissal of this claim was appropriate.


Al–Owhali's complaint also asserts that the 2004 SAMs violated his First Amendment rights by preventing him from subscribing to two Arabic-language newspapers— Al-Quds Al–Arabi and Al–Hayat. Although the government previously permitted Al–Owhali to receive these papers, the 2004 restrictions prevented him from accessing any media outlets other than television and radio news stations and USA Today. The 2008 SAMs explain that mass communications restrictions were imposed to “prevent [Al–Owhali] from receiving and acting upon...

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