Dhiab v. Obama, Civil Action 05–1457 GK

Citation74 F.Supp.3d 16
Decision Date07 November 2014
Docket NumberCivil Action 05–1457 GK
PartiesAbu Wa'el (Jihad) Dhiab, Petitioner, v. Barack H. Obama, et al., Respondents.
CourtUnited States District Courts. United States District Court (Columbia)

Alka Pradhan, Elizabeth L. Marvin, Eric Leslie Lewis, Lewis Baach PLLC, Washington, DC, Clive A. Staffordsmith, Cori Crider, Ahmed Ghappour, Reprieve, London, UK, Jon B. Eisenberg, Oakland, CA, Lisa Jaskol Los Angeles, CA, Shayana Devendra Kadidal New York, NY, for Petitioner.

Scott Michael Marconda, Alexander Kenneth Haas, Terry Marcus Henry, Andrew I. Warden, August Edward Flentje, David Hugh White, James J. Schwartz, Julia A. Berman, Kathryn Celia Davis, Patrick D. Davis, Robert J. Prince, Timothy Burke Walthall, U.S. Department Of Justice, Washington, DC, for Respondents.

MEMORANDUM OPINION

Gladys Kessler, United States District Judge

On April 18, 2014, Petitioner Abu Wa'el (Jihad) Dhiab (“Dhiab” or Petitioner) filed an Application for Preliminary Injunction and an Immediate Order for Disclosure of Protocols Forthwith.1 [Dkt. No. 203.] On May 7, 2014, the Government (“the Government” or Respondents) filed its Opposition [Dkt. No. 214], and on May 12, 2014, Petitioner filed his Reply [Dkt. No. 215].

Thereafter, parties engaged in discovery and on June 20, 2014, Petitioner filed a Motion for Further Discovery in Aid of Application for Preliminary Injunction [Dkt. No. 265]. Following a hearing on August 12, 2014, the Court granted in part and denied in part Petitioner's Motion and ordered the Parties to complete all discovery [Dkt. No. 304].

On October 6, 7, and 8, 2014, the Court held a Hearing on Petitioner's Application for Preliminary Injunction (“the Hearing”). On October 17, 2014, the Parties filed Post–Hearing Briefs summarizing their positions in light of the evidence presented at the hearing [Dkt. Nos. 361, 362].

Upon consideration of the Application, the Opposition, the Response, Post–Hearing Briefs, testimony delivered by expert witnesses, representations made by the parties at the October Hearing including classified materials heard and viewed in camera, and the entire record herein, and for the reasons stated below, Petitioner's Application for Preliminary Injunction [Dkt. No. 203] must be denied.

I. BACKGROUND

On July 22, 2005, Petitioner filed a Petition for Habeas Corpus [Dkt. No. 1]. In 2009, Petitioner was cleared for release by President Obama's Guantanamo Review Task Force [Dkt. Nos. 152, 172]. After five years, and as of this writing, he still remains held at the United States Naval Station at Guantanamo Bay, Cuba.

To protest his continued confinement, Mr. Dhiab, along with other detainees, has intermittently engaged in a hunger strike since March or April of 2013. On June 30, 2013, Petitioner filed an Application for a Preliminary Injunction (2013 Application”) [Dkt. No. 175]. In the 2013 Application, Petitioner sought to enjoin the Government from “subjecting petitioners to force-feeding of any kind, including forcible nasogastric tube

feeding, and from administering medications related to force-feeding without the petitioners' consent.” 2013 Application at 1.

On July 8, 2013, the Court denied Petitioner's Application for lack of jurisdiction. Memorandum Order [Dkt. No. 183] and on August 29, 2013, the Court denied Petitioner's Motion for Reconsideration of that Memorandum Order [Dkt. No. 192].

On February 11, 2014, our Court of Appeals affirmed the denial, but found that the Court did, in fact, have jurisdiction over Petitioner's challenge to the conditions of his confinement. Aamer v. Obama, 742 F.3d 1023, 1028–38 (D.C.Cir.2014).2

On April 18, 2014, Petitioner filed his second Application for Preliminary Injunction (2014 Application”). [Dkt. Nos. 203, 204 (sealed); 226–1 (unsealed exhibit) ]. The Court then set a Motion Hearing on the 2014 Application for May 21, 2014. That hearing was converted to a Status Conference in order to resolve various discovery disputes that had arisen [Dkt. No. 221]. After the Status Conference, the Court ordered Respondents to produce certain items to Petitioner, including medical records and videotapes recording Mr. Dhiab's Forcible Cell Extractions and subsequent enteral feedings [Dkt. No. 225].

II. CURRENT STATUS OF PETITIONER'S POSITION

Petitioner no longer seeks to enjoin all force-feeding; rather, he seeks to enjoin several practices and protocols allegedly involved in the force-feeding process. See Proposed Order [Dkt. No. 203–10]; Statement of Claims Asserted and Relief Requested [Dkt. No. 304]. The list of practices Petitioner contests has changed significantly since he initially filed his Second Application for a Preliminary Injunction on April 28, 2014. On August 14, 2014, in order to clarify the scope of Petitioner's challenge, the Court ordered Petitioner to submit a brief statement of the claims pursued and relief sought under his Application. [Dkt. No. 304].3

On August 18, 2014, Petitioner filed his Statement clarifying his objection to the following practices:

— Use of Forcible Cell Extraction or a Five Point Restraint Chair to transport Mr. Dhiab to or from force-feedings when he is willing to go compliantly;
— Denial of the use of either a wheelchair or crutches to go to and from force-feedings;
— Use of the Five Point Restraint Chair during force-feedings;— Insertion and withdrawal of the nasogastric feeding tube on a daily or twice-daily basis instead of leaving the tube in place between feedings;4
— Vesting senior, non-medical military personnel, rather than physicians, with the final authority to determine whether detainees are force-fed; and
— Force feeding detainees before they are in imminent risk of death or great bodily injury [Dkt. No. 307].5

However, by the time of the hearing itself, Petitioner's requests had narrowed significantly and the Government had taken several positive actions which responded to his complaints. Those changes were:

First, Mr. Dhiab made it clear that he did not want to die.

Second, he agreed to comply with the force-feeding procedure if he could use a wheelchair to get to the room in which feedings were given.

Third, the Government entered a Medical Order allowing Petitioner to use a wheelchair to go for his enteral feedings that, the Government represents, will remain in effect until September 1, 2015. Resp'ts' Ex. 33 at 3; Hr'g Tr. 52, Oct. 8, 2014.

Fourth, the Government stopped using olive oil for the insertion of nasogastric tubes

and changed to a different lubricant.6

Fifth, the Government represented that there would be no Forcible Cell Extraction as long as Mr. Dhiab continued to walk from his cell to the wheelchair only a few steps away, used the wheelchair to go to the room in which the feedings were given, and was compliant with the feedings.

In short, many of the significant requests he had made in his Application were no longer subject to disagreement. The claims which now remain in dispute are:

— First, whether the nasogastric tube

should be left in place for at least three days rather than be inserted twice a day;

— Second, whether the method of auscultation should not be used to ensure that the nasogastric tube

has been properly inserted into Mr. Dhiab's stomach rather than his lungs;

— Third, whether the Five Point Restraint Chair should not be used during force-feeding;
— Fourth, whether current protocols lead to force-feeding before there is an immanent risk of death or serious physical injury; and
— Fifth, whether non-medical military personnel should not be the final authority over whether detainees should be force fed.
III. LEGAL ANALYSIS
A. Subject Matter Jurisdiction

Our Court of Appeals has recently acknowledged that “challenges to conditions of confinement [of detainees at Guantanamo Bay] can properly ‘be raised in a federal habeas petition under [28 U.S.C.] section 2241 [.] Hatim v. Obama, 760 F.3d 54, 58 (D.C.Cir.2014) (reh'g denied (D.C.Cir.No.13–5218)) (quoting Aamer, 742 F.3d at 1030, 1038 ). Accordingly, it is now clear that the Court has jurisdiction to hear Petitioner's claims. Id.7

B. Requirements for Granting a Preliminary Injunction

It has long been established that preliminary injunctions are “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” In re Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C.Cir.2012) (quoting Winter v. Natural Res. Def. Council Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ): see also Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006) (noting that preliminary injunction is an ‘extraordinary remedy that should ne granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion’) (quoting Cobell v. Norton, 391 F.3d 251, 258 (D.C.Cir.2004) ).

A party seeking a preliminary injunction must show: (1) a substantial likelihood of success on the merits; (2) that it would suffer irreparable injury if the injunction were not granted; (3) that an injunction would not substantially injure other interested parties; and (4) that the public interest would be furthered by the injunction. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006).

The “first and most important factor” is whether Petitioner has “established a likelihood of success on the merits.” Aamer, 742 F.3d at 1038. [I]t remains an open question [in this Circuit] whether the' likelihood of success' factor is ‘an independent, free-standing requirement,’ or whether, in cases where the other three factors strongly favor issuing an injunction, a plaintiff need only raise a ‘serious legal question’ on the merits.” Id. at 1043–44 (quoting Sherley v. Sebelius, 644 F.3d 388, 393, 398 (D.C.Cir.2011) ); see also Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291–92 (D.C.Cir.2009) (discussing but not deciding whether Winter, 555 U.S. at 7, 129 S.Ct. 365 abrogated the “sliding scale” standard, which, following “an unusually strong showing on one of the factors,” permit...

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