Mohamed v. Jones

• Decision Date: 22 February 2022
• Docket Number: Civil Action 20-cv-02516-RBJ-NYW
• Court: U.S. District Court — District of Colorado
• Parties: KHALFAN KHAMIS MOHAMED, Plaintiff, v. JONES, in his individual and official capacities, HUDDLESTON, in his individual and official capacities, OSAGIE, in his individual and official capacities, BRUSH, in his individual and official capacities, ESPINOZA, in his individual capacity, MILLER, in his individual capacity, LT. MURTON, in his individual capacity, LT. ARMIJO, in his individual capacity, and UNITED STATES OF AMERICA, Defendants.

KHALFAN KHAMIS MOHAMED, Plaintiff,
v.
JONES, in his individual and official capacities, HUDDLESTON, in his individual and official capacities, OSAGIE, in his individual and official capacities, BRUSH, in his individual and official capacities, ESPINOZA, in his individual capacity, MILLER, in his individual capacity, LT. MURTON, in his individual capacity, LT. ARMIJO, in his individual capacity, and UNITED STATES OF AMERICA, Defendants.

Civil Action No. 20-cv-02516-RBJ-NYW

United States District Court, D. Colorado

February 22, 2022

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Nina Y. Wang, United States Magistrate Judge

This matter is before the court on four Motions:

(1) The Motion to Dismiss Second Amended Complaint in Part Pursuant to Rules 12(b)(6) and 12(b)(1) (the “First Motion to Dismiss”) [Doc. 71, filed July 27, 2021];

(2) Defendant United States' Motion to Dismiss Claim Fifteen in the Second Amended Complaint (the “Second Motion to Dismiss”) [Doc. 81, filed September 9, 2021] (collectively, the “Motions to Dismiss”);

(3) Plaintiff's Motion to File Surreply to Defendants' Motion to Dismiss (the “Motion to File a Surreply”) [Doc. 94, filed November 4, 2021]; and

(4) The Prisoner Motion for Appointment of Counsel (the “Motion to Appoint Counsel”) [Doc. 98, filed November 8, 2021] (collectively, the “Motions”).

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The court considers the Motions pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated November 16, 2020, [Doc. 13], ^[1] and the Memoranda dated July 27, 2021 [Doc. 72]; September 9, 2021 [Doc. 82]; November 5, 2021 [Doc. 95] and November 9, 2021 [Doc. 99]. The court finds that oral argument will not materially assist in the resolution of these matters. For the following reasons, I respectfully RECOMMEND that: (1) the First Motion to Dismiss be GRANTED in part and DENIED in part and (2) the Second Motion to Dismiss be GRANTED. In addition, it is ORDERED that the Motion to File Surreply is DENIED and the Motion to Appoint Counsel is DENIED without prejudice.

BACKGROUND

This court draws the following facts from the Second Amended Complaint [Doc. 64] and presumes they are true for purposes of the Motions to Dismiss. Plaintiff Khalfan Khamis Mohamed (“Plaintiff” or “Mr. Mohamed”) is currently incarcerated at the United States Penitentiary Florence ADMAX in Florence, Colorado (“ADX Florence”) within the Federal Bureau of Prisons (“BOP”). See [Doc. 64 at 2]. On August 20, 2018, Plaintiff declared a hunger strike. [Id. at ¶ 2]. Mr. Mohamed gave notice of his hunger strike to “some senior staff members” at ADX Florence, so as to ensure that he could “be afforded all necessary medical attentions [in] accordance to the BOP's Program Statements.” [Id. at ¶¶ 3-4]. According to Plaintiff, BOP policies require that, when an inmate has missed nine consecutive meals, medical staff are required to perform a “medical assessment” of the inmate. [Id. at ¶ 7]. Plaintiff missed his ninth consecutive meal on August 22, 2018, but no such medical assessment was performed on Plaintiff. [Id.]. On August 23, 2018, Mr. Mohamed woke up feeling weak, dizzy, and tired. [Id. at ¶ 9].

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BOP policies also require the removal of food items and drinks from an inmate's cell once the inmate has refused his ninth consecutive meal. [Id. at ¶ 11]. Unit Officers Baca, Miller (“Defendant Miller”), and Brush (“Defendant Brush”) arrived at Plaintiff's cell on August 23, 2018 to remove food items from Plaintiff's cell. [Id. at ¶ 10]. Mr. Mohamed submitted to handcuffing and was taken to the law library; because he was too weak to put on training shoes, Mr. Mohamed was escorted wearing socks and shower shoes. [Id. at ¶¶ 10, 12, 14]. Observing Plaintiff's weakened state, Officer Baca asked Plaintiff if he was okay; when Plaintiff responded “no, ” Officer Baca replied, “I can see that, ” and told Plaintiff he needed to eat. [Id. at ¶ 15].

The law library was located approximately 30 feet from Mr. Mohamed's cell. [Id. at ¶ 12]. From the law library, Plaintiff observed Defendant Brush “removing almost [everything] from [his] cell.” [Id. at ¶ 17]. Defendant Brush then informed Plaintiff that Lieutenant Armijo (“Defendant Armijo”) wanted Plaintiff to take off his personal clothes and put on BOP-provided clothes. [Id. at ¶ 18]. Mr. Mohamed asked if he could speak with Defendant Armijo in his cell or in the law library; Defendant Brush agreed to take Plaintiff back to his cell. [Id. at ¶¶ 19-20].

Use of Force.

As Plaintiff was escorted back, he stopped when they reached his cell, “thinking that the officers ha[d] missed [his] cell, ” and reminded the officers that he was told he would be brought back to his cell. [Id. at ¶ 23]. Defendant Brush, “immediate[ly] without any warning nor any need, ” threw Plaintiff against the wall and smashed Plaintiff's head multiple times against the wall while shouting, “stop resisting, stop resisting.” [Id. at ¶ 25]. Plaintiff was not resisting and never resisted. [Id. at ¶¶ 25, 27]. Mr. Mohamed was then “crushed on to the ground, face-down, while [Defendant] Brush and another officer, ” who Plaintiff asserts was “most likely [Defendant] Miller, ” punched, kicked and spit on Plaintiff. [Id. at ¶ 29]. Officers restrained Plaintiff's legs with leg cuffs before “many officers, possibly 10 or more, ” began punching,

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kicking, and spitting on Plaintiff. [Id. at ¶¶ 30-31]. Defendant Brush, “with help from other officers, ” attempted to break Mr. Mohamed's arms, legs, feet, and toes by “twisting and manipulating them aggressively.” [Id. at ¶ 34]. Defendant Brush and other officers also made verbal threats to Plaintiff, threatening to “kill” Plaintiff, taunting Plaintiff that no one would believe him, and telling Plaintiff that “this [is] America, not an Iraq or Afghanistan.” [Id. at ¶ 36]. While Plaintiff was being struck during this incident and “in the following beatings, ” the officers forced his upper body and head down so that Plaintiff could not “identify most of the officers who were torturing and abusing [him].” [Id. at ¶ 39].

Plaintiff was then “violently made to stand up” and walk through the hallway, as officers continued to beat him. [Id. at ¶ 40]. When Plaintiff and the officers “reached the end of the range-A, ” Mr. Mohamed was able to look up and see Defendant Armijo and Lieutenant Murton (“Defendant Murton”) watching Plaintiff limp in pain “while the officers continue[d] to maliciously and sadistically attack and abuse [him].” [Id. at ¶ 46]. Mr. Mohamed cried for help, but despite Defendants Armijo and Murton witnessing the use of force, they did not intervene; instead, Defendant Murton gave instructions to the officers “on how to beat [Plaintiff].” [Id. at ¶¶ 47-49, 60]. At the time, Defendant Armijo was the unit's lieutenant and was in charge “of the unit's daily operations and its officers.” [Id. at ¶ 50].

Defendant Murton ordered the officers to place Mr. Mohamed in the observation cell. [Id. at ¶¶ 60-61]. Mr. Mohamed was then “pushed into the [observation cell], ” where Defendant Miller hit Plaintiff in the face with his knee multiple times. [Id. at ¶¶ 54-55]. Defendant Murton continued to instruct the officers who were using physical force on Mr. Mohamed, instructing them to “put him against the wall, ” “bend him over, ” and “place him on the bed.” [Id. at ¶ 65]. In addition, while Officer Espinoza (“Defendant Espinoza”) hit plaintiff in the face and aggressively

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pulled his beard and ears up and down, Defendant Murton told him to “keep it to the body, ” which Plaintiff asserts suggests an effort to avoid creating evidence of the beating. [Id. at ¶¶ 66, 73]. Defendant Espinoza threatened Plaintiff by stating: “stupid little terrorist, . . . we got your Leader, Bin Laden, we soon gonna send you where he is . . . hell.” [Id. at ¶ 74]. Plaintiff states that, on information and belief, Defendants Murton, Brush, and Espinoza “all have [a] long history and reputation in abusing prisoners at the ADX including using . . . excessive force against them and then fabricating incident reports against those prisoners.” [Id. at ¶ 67].

While Plaintiff was being beaten in the observation, he heard P.A. Osagie (“Defendant Osagie”) “from the cell's door, very close to where [Plaintiff] was being beaten, saying approvingly ‘is he still resisting, '” even though Plaintiff was not resisting and was in full restraints. [Id. at ¶ 76]. Plaintiff states that he knows Defendant Osagie “from at least early 2002 and his voice and accent are obviously identifiable to [Plaintiff] and to anyone who [knows] him.” [Id. at ¶ 79]. Plaintiff alleges that, because he had been placed on a concrete bed which is “several feet high, ” Defendant Osagie “must have seen [him] and the beating very [easily] and without any efforts” and Defendant Osagie must have heard Mr. Mohamed's repeated insistence that he was not resisting. [Id. at ¶ 78]. According to Plaintiff, Defendant Osagie is both a fully trained prison guard and a medical professional, and “could have used either of these two positions he hold[s] to stop the abuses, ” but did not. [Id. at ¶ 83]. Plaintiff was later given an incident report for “attempting assault” against Defendant Brush; Plaintiff alleges Defendants Brush, Miller, and Office Baca fabricated reports to justify the beating of Plaintiff. [Id. at ¶¶ 107-08]. Plaintiff was found “guilty” of attempted assault by the ADX Florence's disciplinary officer. [Id. at ¶ 108]. Plaintiff still lives with excessive anxiety, a fear of prison guards, poor sleeping, and nightmares due to the August 23, 2018 use of force. [Id. at ¶ 126].

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The Confiscation of Plaintiff's Materials.

Mr. Mohamed was left in the observation cell for several hours after the beatings. [Id. at ¶ 86]. Defendant Brush approached Plaintiff and stated: “I am not finished . . . with you, I'm gonna kill you, and I saw your journals, and manuscripts and other shit[]...