Rabbani v. Obama

• Decision Date: 19 December 2014
• Docket Number: Civil No. 05–1607 RCL
• Court: U.S. District Court — District of Columbia
• Parties: Mohammad Ahmad Ghulam Rabbani, Petitioner, v. Barack Obama, et al. Respondents.

76 F.Supp.3d 21

Mohammad Ahmad Ghulam Rabbani, Petitioner

v.Barack Obama, et al. Respondents.

Civil No. 05–1607 RCL

United States District Court, District of Columbia.

Signed December 19, 2014

John R. Holland, Law Offices of John Holland, Erica T. Grossman, Law Offices of John Holland, Anna Cayton–Holland, Denver, CO, Agnieszka M. Fryszman, Cohen Milstein Sellers & Toll PLLC, Barry J. Pollack, Miller & Chevalier Chartered, Reena Gambhir, Hausfeld LLP, Washington, DC, Clive A. Stafford Smith, R.J. Reynolds Tobacco Company, Winston Salem, NC, for Petitioner.

Peter James McVeigh, Scott Michael Marconda, Terry Marcus Henry, Alexander Kenneth Haas, Andrew I. Warden, James J. Gilligan, James J. Schwartz, Julia A. Berman, Kathryn Celia Davis, Kristina Ann Wolfe, Patrick D. Davis, Robert J. Prince, Olivia Hussey Scott, U.S. Department of Justice, Washington, DC, for Respondents.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, United States District Judge

Before the Court is the petitioner's motion for a preliminary injunction [306] seeking to enjoin the respondents (hereinafter, the government) from force-feeding hunger-striking detainees held at the United States Naval Base at Guantanamo Bay, Cuba. Upon consideration of the petitioner's motion [306], the government's opposition [319], the petitioner's reply [320], the petitioner's and government's respective briefs regarding any claims remaining to be decided in this case [341, 344], the petitioner's status report [346] filed December 16, 2014, the applicable law, and the entire record herein, the Court will DENY the petitioner's motion for a preliminary injunction.

I. BACKGROUND

Petitioner Mohammad Ahmad Ghulam Rabbani is a Pakistani national who has been detained at Guantanamo Bay for more than ten years without ever having been charged with a crime. Pet'r's Mot. Prelim. Inj. 1. Since February 2013, Rabbani, along with other detainees, has engaged in a hunger strike to protest his detention. Id. In response to Rabbani's hunger strike, the medical staff at Guantanamo Bay determined that it was necessary to forcibly feed the petitioner through an enteral feeding process. See Resp't's Opp'n 5–6, 13–14. On occasions when Rabbani has refused either to walk voluntarily to his enteral feeding session or to return to his cell following a session, Guantanamo Bay guards have employed Forced Cell Extraction (“FCE”) procedures to move the petitioner.Id. 15. Rabbani is not seeking to enjoin force feeding as a method for preventing death or serious bodily injury to hunger-striking detainees. Id. at 2 (The “[p]etitioner wishes to make clear that he is not seeking an injunction to permit him to continue his hunger strike until death.”). Instead, the thrust of Rabbani's grievance is that the enteral feeding process is unconstitutionally “forcible and violent.” See Mot. 41.

Confronting a force-feeding fact pattern substantially similar to—if not even more “forcible and violent” than—Rabbani's, Judge Kessler recently denied a petitioner's motion for a preliminary injunction to enjoin the methods and protocols governing the force-feeding process at Guantanamo Bay. Dhiab v. Obama, No. 05 Civ. 1457, 74 F.Supp.3d 16, 2014 WL 5795483 (D.D.C. Nov. 7, 2014). Prior to Judge Kessler's Memorandum Opinion, Petitioner Dhiab had narrowed his claims to those concerning (1) the insertion and removal of a nasogastric tube ; (2) the use of auscultation—“a procedure to ensure that the nasogastric tube is properly pushed into the stomach, rather than the lungs”; (3) the use of a Five Point Restraint Chair during enteral feeding; (4) force-feeding in the absence of imminent risk; and (5) whether non-medical officials have final authority to allow force-feeding. Id. at 21–22, 23–30, at *3, *5–10. In reaching the conclusion that Dhiab's petition was insufficient for a preliminary injunction, Judge Kessler evaluated the remaining force-feeding claims under the “deliberate indifference” standard established by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).¹ As Judge Kessler explained, the Estelle Court “ruled that in assessing whether the government has met its obligation to provide medical care for those whom it incarcerates, ‘a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.’ ” Dhiab, 74 F.Supp.3d at 23, 2014 WL 5795483, at *4 (quoting Estelle, 429 U.S. at 105, 97 S.Ct. 285 ).

Following Judge Kessler's denial of Dhiab's petition for a preliminary injunction, this Court ordered the parties to notify the Court of “what, if any, claims remain to be decided in this case that were not already addressed” by Judge Kessler in Dhiab. Order, Nov. 12, 2014, ECF No. 340. Petitioner Rabbani responded that the Court (1) “must decide whether this case implicates the Fifth Amendment due process right to refuse medical treatment,” and (2) must determine whether FCEs are lawful. Pet'r's Notification 1, Nov. 19, 2014, ECF No. 341. On the Fifth Amendment question, Rabbani argues that Judge Kessler erred in using the Estelle deliberate indifference standard, and instead should have employed the standard of proof articulated in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). In Turner, the Supreme Court held that “when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. ” Id. at 89, 107 S.Ct. 2254 (emphasis added). Rabbani, therefore, largely seeks to relitigate the legal standard of proof at issue in Guantanamo Bay force-feeding cases. According to Rabbani, then, the FCE question as well as a new question regarding the government's purported refusal to test Rabbani for lipoid pneumonia, which Rabbani raises for the first time in a status report filed December 16, 2014, are the only remaining fact-based inquiries not addressed by Judge Kessler in Dhiab.²

II. LEGAL STANDARD

To satisfy the requirements of the traditional four-factor test for a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; see also Abdullah v. Obama, 753 F.3d 193, 197 n. 4 (D.C.Cir.2014) (clarifying that “the traditional four-factor preliminary injunction test, unsurprisingly, applies to Guantanamo detainees”). Here, Rabbani fails demonstrate that he is likely to succeed on the merits of his force-feeding, FCE, and lipoid pneumonia testing claims, rendering analysis of the remaining three factors of the preliminary injunction test superfluous.

III. ANALYSIS

A. Force–Feeding

Rabbanie contends that the primary question before the Court is “whether this case implicates the Fifth Amendment due process right to refuse medical treatment.” See Notification 1. However, the Court need not answer such a question, and, thus, need not definitively determine whether Estelle's deliberate indifference standard or Turner's reasonably related standard applies to Rabbani's force-feeding claims because these claims fail, at the preliminary injunction stage, under either Estelle or Turner.

1. Deliberate Indifference Standard

Estelle's deliberate indifference standard governs a court's review of the adequacy of medical care received by prisoners under the Eighth Amendment's prohibition against “cruel and unusual punishments.” Estelle, 429 U.S. at 104, 97 S.Ct. 285 ; U.S. Const. amend. VIII. While Dhiab, like Rabbani, positioned his motion for a preliminary injunction as a Fifth Amendment due process claim, see Mot. Prelim. Inj. 20, Dhiab, No. 05 Civ. 1457 (D.D.C. Apr. 18, 2014), ECF No. 203 (citing Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 278–79, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), for the due process right to refuse unwanted medical treatment); Notification 1, Judge Kessler found that Dhiab was actually challenging the “day to day procedures” involved in carrying out force-feedings, rather than challenging a constitutional right to be free from force-feeding entirely, Dhiab, 74 F.Supp.3d at 21–22, 232014 WL 5795483, at *3, *5.

If deliberate indifference represents the appropriate standard of proof to apply to Rabbani's force-feeding-related claims, then this Court would adopt Judge Kessler's Memorandum Opinion in Dhiab, 74 F.Supp.3d 16,2014 WL 5795483.³ Without deciding the issue, the Court notes its belief that, for two reasons, it appears unlikely that Turner applies to Rabbani's motion for a preliminary injunction.

First, Turner applies when a prisoner's constitutional right is at stake. 482 U.S. at 89, 107 S.Ct. 2254. Here, while a purported right to be free from force-feeding may possibly qualify under the rubric of the constitutional right to refuse unwanted medical treatment, see Aamer v. Obama, 742 F.3d 1023, 1038–39 (D.C.Cir.2014), the Court agrees with its colleague, Judge Kessler, that challenges to individual procedures that the government uses to force-feed hunger-striking detainees—e.g., the use of nasogastric tubes, the method of auscultation, the use of Five Point Restraint Chairs, etc.—would likely not rise to a constitutional claim. See Dhiab, 74 F.Supp.3d at 23–24, 2014 WL 5795483, at *5. Rabbani admits that he is not claiming a categorical right to refuse force-feeding, Mot. Prelim. Inj. 2, 32 (The “[p]etitioner wishes to make clear that he is not seeking an injunction to permit him to continue his hunger strike until death.”)), but instead is challenging the process used to decide that force-feeding is appropriate as well as the methods used to accomplish the force-feeding procedure. Consequently, the question for the Court is not whether the government can force-feed Rabbani—it can—but rather...