Mohammed v. Holder

• Decision Date: 29 September 2011
• Docket Number: Civil Action No. 07-cv-02697-MSK-BNB
• Parties: KHALFAN KHAMIS MOHAMMED, Plaintiff, v. ERIC HOLDER, The U.S. Attorney, HARLEY LAPPIN, Director of B.O.P., RON WILEY, ADX Warden, and HARRELL WATTS, Administrator of National Inmate Appeals, and FEDERAL BUREAU OF INVESTIGATION, Defendants.
• Court: U.S. District Court — District of Colorado

KHALFAN KHAMIS MOHAMMED, Plaintiff,

v. ERIC HOLDER, The U.S. Attorney, HARLEY LAPPIN, Director of B.O.P.,RON WILEY, ADX Warden, and HARRELL WATTS, Administrator of National Inmate Appeals,and FEDERAL BUREAU OF INVESTIGATION, Defendants.

Civil Action No. 07-cv-02697-MSK-BNB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: September 29, 2011

Honorable Marcia S. Krieger

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION

FOR SUMMARY JUDGMENT

THIS MATTER comes before the Court on the Defendants' Motion for Summary Judgment (#167), to which Plaintiff Khalfan Khamis Mohammed responded (#214), and the Defendants replied (#223). Also at issue is Mr. Mohammed's Motion to Strike/or for Request to Response (#225) and the Defendants' response thereto (#226), Mr. Mohammed's Motion for Request to File Exhibits Under Seal (#216), which Defendants join and do not oppose (#219), and Defendants' Motion for Leave to Supplement (#230). Having considered the same,¹ theCourt FINDS and CONCLUDES as follows.

I. Jurisdiction

The Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

II. Issue Presented

Mr. Mohammed is serving a life sentence at the United States Penitentiary-Administrative Maximum prison facility ("ADX") in Florence, Colorado² for his conviction on several charges resulting from the August 7, 1998 bombing of the American Embassy in Dar es Salaam, Tanzania. United States v. Bin Laden, 156 F.Supp.2d 359 (S.D.N.Y. 2001). In this case, Mr. Mohammed asserts three violations of his constitutional rights as a result of the Special Administrative Measures ("SAMs") that have been imposed to limit his communication and conduct.³ He seeks 1) a declaration that the SAMs to which he has been subjected are unconstitutional and 2) injunctive relief in the form of an order revoking such SAMs. The Defendants move for summary judgment on all claims.

III. Factual Background

The Court has reviewed all of the parties' submissions. For purposes of this Motion only, the Court construes all disputed facts most favorably to Mr. Mohammed. The following summarizes some pertinent facts, although others are specifically addressed in the Court's analysis.

A. SAMs Generally

A Warden of a prison is authorized by 28 C.F.R. § 501.3 to "implement special administrative measures that are reasonably necessary to protect persons against the risk of death or serious bodily injury." 28 C.F.R. § 501.3(a). The decision to impose SAMs is made by the United States Attorney General or the Attorney General's delegate. Under the regulations, an inmate is provided written notice of the SAMs that are imposed and the basis for the restrictions "as soon as practicable." 28 C.F.R. § 501.3(b). SAMs limitations may be imposed for up to one year, but may be extended yearly upon a determination of the Attorney General that "there continues to be a substantial risk that the inmate's communications or contacts with other 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." 28 C.F.R. §501.3(c).

Inmates may challenge the imposition of SAMs or request modifications through the Bureau of Prison's ("BOP") Administrative Remedy Program, which provides various mechanisms for filing a grievance and several appeal steps. 28 C.F.R. § 501.3(e), 28 C.F.R. §§ 542.13, 542.14, 542.15. According to guidelines promulgated in November 2010, the request and comments of a SAMs inmate challenging the initiation or renewal of the SAMs conditionsare forwarded to the appropriate United States Attorney's office and the FBI. These agencies then advise the BOP's legal department of their position on the request. There has been no representation as to what person or agency makes the ultimate decision as to whether a modification is granted.

SAMs are annually reviewed, and inmates have the opportunity to comment in the review process. Three months before SAMs expire, the inmate is contacted and given the opportunity to provide comments and suggestions concerning renewal or modification of the SAMs. At ADX, an in-person meeting occurs with the inmate to discuss his comments. These comments are then provided to ADX personnel and combined with other relevant information about the inmate, including other requests, disciplinary information, correspondence to or from the inmate, telephone conversations, types of education and leisure materials requested, and participation in the various programming offered by the institution.

As of January 2011, 43 federal inmates were subject to SAMs; 27 were incarcerated at the ADX. Inmates subject to SAMs at ADX are housed in the H Unit to ensure that they do not have unauthorized communication with inmates not subject to SAMs. H Unit inmates generally are subject to the same types of restriction and housing conditions as the general population at ADX. For example, they have the opportunity to participate in a three-phase program called the Special Security Unit Program, which permits them to demonstrate progressively responsible behavior and thereby obtain increased privileges. Residents of H Unit begin at Phase One, a baseline phase. If the inmate advances to Phase Two, he is permitted three non-legal telephone calls per month and allowed access to an expanded commissary list and art and hobby craft items. The inmate is permitted to go to the shower unescorted five times a week and have tenhours of out-of-cell recreation per week. If he progresses to Phase Three, he may have physical contact with others and spend time with groups of other inmates. Inmates in Phase Three eat one meal together and engage in recreational activities, including watching television, reading, and playing cards, and again have greater access to commissary and art and hobby craft items. Each Phase has defined eligibility requirements; progression from one phase to another is subject to a specified process of review. As of September 2011, six H Unit inmates had been selected to participate in Phase Three.

B. Mr. Mohammed's arrest, conviction and prison conduct

Mr. Mohammed was convicted on May 29, 2001 of charges arising out of the Dar es Salaam Embassy bombing. He was arrested by South African authorities in 1999 for submitting false documents to obtain political asylum, and was interviewed by agents of the Federal Bureau of Investigation ("FBI") in October 1999. According to the Report of Interview, Mr. Mohammed stated that he was part of the group responsible for the Embassy bombing and that he was involved in a "jihad against America." He had been selected to participate in an al Qaeda training camp in Afghanistan several years prior to the bombing and had been specifically approached to participate in it. The Report of Interview states that Mr. Mohammed had significant involvement in the conspiracy leading up to the Embassy bombing, including obtaining transportation and real property used by the conspirators and providing other assistance in the making of the bomb, that he was aware of the goal of the plot and was "happy" that the bomb plot had succeeded, but "disappointed" that only Tanzanians had been killed. It reports that he was motivated by his study of history and Islam to participate in the bombing, and that he would have continued with such activities had he not been caught.

Mr. Mohammed disputes the accuracy of the Report of Interview, stating that he "is in the total denial that those statements are his statements in their entirety." Pl.'s Resp., # 214, at 14. He also claims his statements to the FBI were the result of torture.⁴ Although the parties dispute the details of the report, this Court need not resolve the discrepancy in their positions because Mr. Mohammed was convicted of numerous capital and non-capital counts.⁵ He was sentenced to life imprisonment, as well as several additional consecutive periods of incarceration, in October 2001. Mr. Mohammed was transferred to ADX on November 19, 2001.

Since his arrest, Mr. Mohammed has been involved in one significant disciplinary incident, which occurred on November 1, 2000, before his conviction. Mr. Mohammed washoused with a cell mate, Mamdoun Salim, at MMC New York. On that day, Mr. Salim was removed from the cell and escorted to a legal visit by a prison guard.⁶ While Mr. Salim was gone, Mr. Mohammed used wet toilet paper to obscure the cell security camera. When Officer Pepe escorted Mr. Salim back to the cell, Mr. Mohammed grabbed Officer Pepe's radio and Mr. Salim struck Officer Pepe in the legs, knocking him to the ground. Then Mr. Salim sprayed hot sauce into Officer Pepe's eyes, stabbed Officer Pepe in the left eye and handcuffed left wrist to restrain him. Mr. Salim and Mr. Mohammed locked Officer Pepe in the cell, then left and hid in the common area of the unit. They were found by staff, resisted capture, and were ultimately subdued. Mr. Mohammed waived his appearance at the disciplinary hearing on the matter and was found to have committed these acts.⁷ He was punished with loss of privileges and disallowance of good conduct time, but was not criminally prosecuted.⁸

Although he did not dispute the allegations in the disciplinary proceedings, Mr. Mohammed now argues that he had only a minimal role in the attack. See Salim, 287 F. Supp. 2d at 294-95 (noting Salim's testimony that Mr. Mohammed's only role in the attack was to obscure the video camera and to grab Officer Pepe's radio). There is no dispute, however, with the facts as recited in the Incident report.

C. SAMs regulating Mr. Mohammed's conduct and communication

SAMs were first imposed on Mr. Mohammed in 1999, before he convicted of the chargesarising out of the Embassy bombing, and have been renewed annually since first imposed. Prior to 2005, Mr. Mohammed's incoming and outgoing non-legal mail was not restricted to particular correspondents.⁹ Id. Although the content of such mail was...