Al Janko v. Gates

• Decision Date: 22 December 2011
• Docket Number: Civil No. 10–1702(RJL).
• Citation: 831 F.Supp.2d 272
• Parties: Abdul Rahim Abdul Razak AL JANKO, Plaintiff, v. Robert M. GATES, Donald Rumsfeld, Paul Wolfowitz, Gordon England, Rear Adm. James M. McGarrah, Richard B. Myers, Peter Pace, Michael Glenn “Mike” Mullen, Gary Speer, James T. Hill, Bantz Craddock, James G. Stavridis, Maj. Gen. Geoffrey D. Miller, Brig. Gen. Jay Hood, Rear Adm. Harry B. Harris, Jr., Mark H. Buzby, David Thomas, Thomas H. Copeman III, Adolph McQueen, Brig. Gen. Nelson J. Cannon, Col. Michael Bumgarner, Col. Wade Dennis, Esteban Rodriguez, Paul Rester, Daniel McNeill, Frank Wiercinski, Does 1–100, Defendants.
• Court: U.S. District Court — District of Columbia

831 F.Supp.2d 272

Abdul Rahim Abdul Razak AL JANKO, Plaintiff,

v.Robert M. GATES, Donald Rumsfeld, Paul Wolfowitz, Gordon England, Rear Adm. James M. McGarrah, Richard B. Myers, Peter Pace, Michael Glenn “Mike” Mullen, Gary Speer, James T. Hill, Bantz Craddock, James G. Stavridis, Maj. Gen. Geoffrey D. Miller, Brig. Gen. Jay Hood, Rear Adm. Harry B. Harris, Jr., Mark H. Buzby, David Thomas, Thomas H. Copeman III, Adolph McQueen, Brig. Gen. Nelson J. Cannon, Col. Michael Bumgarner, Col. Wade Dennis, Esteban Rodriguez, Paul Rester, Daniel McNeill, Frank Wiercinski, Does 1–100, Defendants.

Civil No. 10–1702(RJL).

United States District Court, District of Columbia.

Dec. 22, 2011.

Terry P. Collingsworth, Conrad & Scherer, LLP, Washington, DC, Paul L. Hoffman, Schonbrun Desimone Seplow Harris & Hoffman, Venice, CA, for Plaintiff.

Siegmund F. Fuchs, Mary Hampton Mason, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

Plaintiff Abdul Rahim Abdul Razak Al Janko (“plaintiff”) is a Syrian national who was detained in Afghanistan by U.S. military forces in January 2002 and held in Guantánamo Bay, Cuba, from May 2002 until October 2009. First Amended Complaint (“FAC”) ¶¶ 11, 38, April 29, 2011 [Dkt. # 11]. On June 22, 2009, after determining that the Government failed to establish plaintiff's lawful detention as an enemy combatant, I granted plaintiff's petition for a writ of habeas corpus and ordered his release. See Al Ginco v. Obama,¹626 F.Supp.2d 123 (D.D.C.2009), final judgment634 F.Supp.2d 109 (D.D.C. July 17, 2009). Ultimately, plaintiff was released from Guantánamo Bay on October 7, 2009. FAC ¶ 38.

On October 5, 2010, plaintiff filed a Complaint seeking damages against 26 individual defendants, 100 unnamed “Jane” and “John Doe” defendants, and the United States, alleging that he was subjected to abusive treatment while detained by the U.S. military both in Afghanistan and at Guantánamo. Indeed he is the first detainee who was released pursuant to a successful habeas petition to seek damages for the acts he says occurred while in U.S. custody. ² In particular, he alleges three constitutional violations and four violations of the Alien Tort Statute, 28 U.S.C. § 1350, Compl. Oct. 5, 2010 ¶¶ 99–154 [Dkt. # 1], and seeks compensatory, punitive,and exemplary damages in addition to attorney's fees, id. at 39. Through his April 29, 2011, Amended Complaint, plaintiff added individual defendants; removed eight individual defendants; removed one Alien Tort Statute claim; added one constitutional claim; added nine Foreign Tort Claims Act allegations under 28 U.S.C. § 2675(a); and added one conspiracy claim under 42 U.S.C. § 1985.³See generally FAC; see also Defendant United States' Motion to Dismiss Counts Five Through Seventeen, (“Gov't Mot. to Dismiss”) at 2, June 29, 2011 [Dkt. # 13].

Now before the Court are two motions to dismiss: Defendant United States' Motion to Dismiss Counts Five Through Seventeen (“Gov't Mot. to Dismiss”), June 29, 2011 [Dkt. # 13], and Individual Defendants' Motion to Dismiss Counts One Through Four and Count Eighteen, (“Indiv. Defs.' Mot. to Dismiss”), June 29, 2011 [Dkt. # 14]. Upon review of the pleadings, the entire record, and the applicable law, the Court GRANTS the United States' Motion to Dismiss Counts Five Through Seventeen [Dkt. # 13]. The Court also GRANTS the Individual Defendants' Motion to Dismiss Counts One Through Four and Count Eighteen [Dkt. # 14].

BACKGROUND

I. Procedural History

The facts of this case are well known and largely undisputed. As I recounted in my June 22, 2009 Opinion, plaintiff is a Syrian citizen who spent his teen years in the United Arab Emirates. Al Ginco, 626 F.Supp.2d at 125;see also FAC ¶ 51. Around January 2000, he traveled to, and began living in, Afghanistan. FAC ¶¶ 53–55. After a brief stay at a Taliban guesthouse he attended the al Farouq training camp only to be accused by certain al Qaeda leaders of being a U.S. spy. Al Ginco, 626 F.Supp.2d at 127–28. Ultimately he was tortured so severely by al Qaeda that he gave a false “confession” that he was, indeed, a U.S. spy.⁴Id. at 127. Thereafter, he was imprisoned by the Taliban for over eighteen months at the infamous Sarpusa prison in Kandahar.⁵Id.; see also FAC ¶¶ 2, 56, 58–61. In January 2002, when U.S. forces learned of plaintiff's presence at the prison—which was by then abandoned—they took him into custody and questioned him at Kandahar Air Base. Al Ginco, 626 F.Supp.2d at 125, 127;see also FAC ¶ 63. At the time, the Government “mistook [Al] Janko as one of a number of suicide martyrs based on videotapes captured at an al Qaeda safehouse.” Al Ginco, 626 F.Supp.2d at 128, n. 4;see also FAC ¶¶ 4, 64. Not yet aware that “the tape involving [Al] Janko ... was actually an Al Qaeda torture tape,” U.S. forces transported plaintiff to Guantánamo Bay, Cuba. Al Ginco, 626 F.Supp.2d at 125, 128, n. 4;see also FAC ¶ 69.

During his time at Guantánamo, plaintiff's detention status was twice reviewed by Combatant Status Review Tribunals (“CSRTs”). On October 27, 2004, the first of two different CSRT panels determined that plaintiff was an enemy combatant. See FAC ¶ 94. That CSRT panel relied upon evidence such as the taped confession the Government later learned was coerced. See id. An Administrative Review Board (“ARB”) later affirmed plaintiff's status as an enemy combatant and continued his detention on October 24, 2005. See id. ¶ 95. Relying upon much of the same evidence, a second CSRT panel again determined in 2008 that plaintiff was properly detained as an enemy combatant. Id. ¶ 96.

Ultimately, however, in the aftermath of the Supreme Court's decision in Rasul v. Bush, 542 U.S. 466, 483, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (holding that 28 U.S.C. § 2241 extends statutory habeas corpus jurisdiction to detainees in Guantánamo Bay), plaintiff filed a petition for writ of habeas corpus with this Court on June 30, 2005. Al Ginco, 626 F.Supp.2d at 125;see also FAC ¶ 99. No action was taken on the petition until after the Supreme Court ruled on June 12, 2008, in Boumediene v. Bush, 553 U.S. 723, 771, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), that Guantánamo detainees are “entitled to the privilege of habeas corpus to challenge the legality of their detention.”

Shortly after Boumediene, I issued a Case Management Order (“CMO”) on August 27, 2008 for the handling of the 26 habeas petitions on my docket. After a protracted series of procedural issues, described more fully in my earlier Opinion, I commenced the habeas corpus proceedings for petitioner Al Janko on May 28, 2009. On June 22, 2009, I granted his petition and ordered his release, finding that “the limited and brief nature of [Al] Janko's relationship with al Qaeda (and/or the Taliban) ... was sufficiently vitiated” by his intervening mistreatment and imprisonment by al Qaeda and the Taliban such that “he was no longer ‘part of’ al Qaeda (or the Taliban) at the time he was taken into custody by U.S. forces in 2002,” and, as a result, the Government “failed to establish by a preponderance of the evidence that [Al] Janko was lawfully detainable as an enemy combatant ... at the time he was taken into custody.” Al Ginco, 626 F.Supp.2d at 130. Final judgment was entered in the case on July 17, 2009. The United States did not appeal the ruling, and the plaintiff was finally released from Guantánamo on October 7, 2009. FAC ¶¶ 99–100.

II. First Amended Complaint

Plaintiff now brings suit against the United States, 20 current and former high-ranking civilian and military officials,⁶ and 100 Jane and John Does, FAC ¶¶ 13–35—“the individual officers, military commanders, and policymakers” allegedly “responsible for [p]laintiff's wrongful detention, and for the conditions inflicted on him”—seeking money damages for the constitutional and statutory violations he allegedly suffered during his detentions in Afghanistan ⁷ and Guantánamo.⁸ Pl.'s Opp'n to Indiv. Defs.' Mot. to Dismiss (“Pl.'s Opp'n to Indiv. Defs.”), Aug. 29, 2011, at 5 [Dkt. # 17]. To be sure, plaintiff does not allege that any specific, identifiable defendant personally mistreated him. See Indiv. Defs.' Mot. to Dismiss at 4. Nevertheless, he alleges that while he was detained and believed to be an enemy combatant, U.S. forces used “abusive interrogation techniques” against him, such as “striking his forehead; threatening to remove his fingernails; sleep deprivation; exposure to very cold temperatures; ... humiliation; ... and rough treatment,” FAC ¶¶ 66–67.⁹ He claims that unidentified U.S. forces urinated upon him when he first arrived in Guantánamo, FAC ¶ 71; tied, shackled, and force-fed him, id. ¶ 72; stepped on plaintiff's Koran, id. ¶ 81; subjected him to solitary confinement, resulting in “extreme sleep deprivation,” id. ¶ 73; deprived him of adequate medical and psychological care, id. ¶ 74; and inflicted “severe beatings and threats against himself and his family,” id. ¶ 75. Plaintiff claims that as a result of these and other allegations of mistreatment, he attempted suicide seventeen times. Id. ¶ 78. He now seeks damages for the physical and psychological injuries he allegedly suffered.

ANALYSIS

I. Standard of Review

The jurisdiction of federal courts is, of course, limited. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Under Fed.R.Civ.P. 12(h)(3), “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Accordingly, “it is the duty of this court to dismiss whenever it becomes apparent that [this court] lack[s] jurisdiction.” Green v. Dep't of Commerce, 618 F.2d 836, 839 (D.C.Cir.1980).

When facing a Rule 12(b)(1) motion to dismiss, plaintiff bears the burden of demonstrating that jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C.Cir.2008). The Court, in turn, “must accept as true all...