Rezaq v. Nalley

• Decision Date: 20 April 2012
• Docket Number: 11–1072.,Nos. 11–1069,s. 11–1069
• Citation: 677 F.3d 1001
• Parties: Omar REZAQ, Plaintiff–Appellant, v. Michael NALLEY; Ron Wiley; Michael Mukasey; Federal Bureau of Prisons, Defendants–Appellees.Mohammed Saleh; El–Sayyid A. Nosair; Ibrahim Elgabrowny, Plaintiffs–Appellants, v. Federal Bureau of Prisons, Defendant–Appellee.Behavioral Scientists; Criminologists; Former Correctional Officials; Social Psychologists, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

677 F.3d 1001

Omar REZAQ, Plaintiff–Appellant,

v.Michael NALLEY; Ron Wiley; Michael Mukasey; Federal Bureau of Prisons, Defendants–Appellees.Mohammed Saleh; El–Sayyid A. Nosair; Ibrahim Elgabrowny, Plaintiffs–Appellants,

v.Federal Bureau of Prisons, Defendant–Appellee.Behavioral Scientists; Criminologists; Former Correctional Officials; Social Psychologists, Amici Curiae.

Nos. 11–1069

11–1072.

United States Court of Appeals, Tenth Circuit.

April 20, 2012.

Laura Rovner, (Rhonda Brownstein and Brittany Glidden, with her on the briefs) of the Student Law Office, University of Denver Sturm College of Law, Denver, CO, for Plaintiff–Appellant.

Juan G. Villaseñor, Assistant United States Attorney, (John F. Walsh, United States Attorney, with him on the brief), Office of United States Attorney, Denver, CO, for Defendants–Appellees.

Hope R. Metcalf, Detention and Human Rights Project, Allard K. Lowenstein International Human Rights Clinic, Yale Law School, New Haven, CT, filed an amici curiae brief for the Behavioral Scientists, Criminologists, Former Correctional Officials, and Social Psychologists.Before BRISCOE, Chief Judge, TYMKOVICH, Circuit Judge, and EAGAN, ^* District Judge.BRISCOE, Chief Judge.

In these consolidated cases, plaintiffs-appellants Omar Rezaq, Mohammed Saleh, Ibrahim Elgabrowny, and El–Sayyid Nosair—all of whom are currently incarcerated in the federal prison system—appeal the district court's grants of summary judgment in favor of appellee Federal Bureau of Prisons (BOP) and certain named officials in these actions brought pursuant to 28 U.S.C. §§ 1331, 1343(a)(4), 1346, 2201, and 2202.¹ Rezaq's action was filed in 2007, and the action by Saleh, Elgabrowny, and Nosair was filed in 2008. The plaintiffs contend that they have a liberty interest in avoiding transfer without due process to the Administrative Maximum Prison (ADX) in Florence, Colorado, where they were formerly housed. In separate orders, the district court rejected this argument and found that the plaintiffs lack a cognizable liberty interest in avoiding confinement at ADX. While the BOP agrees with this reasoning, it also contends that all of the plaintiffs' claims became moot when they were transferred to other prisons. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that these cases are not moot and affirm on the merits.

I. Factual Background

The plaintiffs in these actions were all convicted of terrorism-related offenses. Rezaq was convicted on one count of aircraft piracy for his involvement in the 1985 hijacking of EgyptAir Flight 648, in which fifty-seven passengers were killed. See United States v. Rezaq, 134 F.3d 1121, 1125–26 (D.C.Cir.1998) (upholding conviction). Saleh, Elgabrowny, and Nosair were convicted of crimes arising out of their assistance in the 1993 bombing of the World Trade Center and related terrorist plots. See United States v. Rahman, 189 F.3d 88, 103 (2d Cir.1999) (upholding convictions).

The plaintiffs were initially assigned to general population units at United States Penitentiaries (USPs). Aplt.App. Vol. I(c) at 499; Vol. II(c) at 2063–64. They were each subsequently transferred to the general population unit at ADX. Rezaq was transferred from USP–Leavenworth to ADX shortly after his conviction in 1996. Id., Vol. I(c) at 489, 498. The terrorist attacks of September 11, 2001, and ensuing national security concerns precipitated the other transfers. In the hours after the attacks, Saleh, Elgabrowny, and Nosair were placed in administrative segregation at their respective prisons and, over the course of the next two years, they were transferred to ADX, without notice or hearing. Id., Vol. II(c) at 2064. The BOP cited prison safety and national security as reasons for the transfers.

ADX is the most restrictive and secure prison operated by the BOP. Id. at 2058. As the only facility of its kind in the federal system, it is reserved for inmates who require “the highest custody level that can be assigned to an inmate.” Id., Vol. I(b) at 367. Prisoners housed in the general population unit at ADX spend twenty-three hours a day confined to their cells. Id., Vol. II(c) at 2058. The typical cell at ADX measures eighty-seven square feet and contains a bed, desk, sink, toilet, and shower. Id. Inmates take their meals alone in their cells. Id. Although BOP policy provides for ten hours of recreation per week, recreation is frequently cancelled due to staff shortages, mass shakedowns, or adverse weather. Id. at 2059–60, 2205–2226.

According to the BOP, these carefully controlled conditions serve two primary penological interests. The stated missions of ADX include: (1) “maintaining the safety of both staff and inmates, while eliminating the need to increase the security of other penitentiaries”; and (2) “confin[ing] inmates under close controls while providing them opportunities to demonstrate progressively responsible behavior ... and establish readiness for transfer to a less secure institution.” Id., Vol. I(b) at 367.

Most inmates at ADX, like those in this case, were transferred there from other prisons. An inmate may be transferred because he poses a physical threat to other inmates or staff, presents an escape risk, or requires “increased monitoring.” Id., Vol. II(d) at 2363. Other inmates are transferred to ADX for reasons unrelated to their behavior. For example, some inmates “require high security but can't function in open population facilities due to cooperation with the government or other protection needs.” Id. In some cases, the BOP may designate an inmate to ADX directly following conviction. Id.

While each of the plaintiffs was transferred from a USP to ADX, they were each transferred out of ADX during the course of this litigation to one of the BOP's two Communication Management Units (CMUs). CMUs are recently created facilities designed to monitor inmate communications with the outside world. Id., Vol. II(e) at 2750. These facilities are fully contained within USPs—specifically, USP–Marion and USP–Terre Haute—and are more restrictive than the general population units at the USPs. Id. But they are less restrictive than the general population unit at ADX. Id. Rezaq was transferred from USP–Leavenworth to ADX and later transferred to the CMU at USP–Marion. Id., Vol. I(a) at 23. Saleh and Elgabrowny were transferred from USP–Florence to ADX and later transferred to the CMU at USP–Marion. Id., Vol. II(d) at 2480, 2486. Nosair was transferred from USP–Pollock to ADX and later transferred to the CMU at USP–Terre Haute. Id. at 2484.

The plaintiffs did not receive hearings before they were transferred to ADX. However, after this litigation was commenced, BOP regional director and codefendant Michael Nalley issued revised procedures for wardens to follow before referring an inmate to ADX. The parties refer to the document outlining these procedures as the “Nalley Memorandum.” Relying on the revised transfer procedures in the Nalley Memorandum, the BOP conducted retroactive transfer hearings for those inmates who were transferred to ADX prior to 2008. Id., Vol. II(f) at 2862. The procedures provided that the inmate being referred should receive notice of the transfer hearing, an opportunity to participate in the hearing, a written recommendation by the hearing officer, and administrative review of the regional director's decision by the BOP's general counsel. See Defs.-Aplees.' Mot. to Dismiss for Mootness at 23–25.

The plaintiffs allege that these hearings were provided solely as a result of this litigation. Aplt. Br. at 15. The BOP concedes the plaintiffs were prioritized in the hearing process because of the litigation. Aplt.App. Vol. II(f) at 2870. In the end, every retroactive hearing resulted in a recommendation of continued ADX placement. Id. at 2794. The plaintiffs allege that “[n]o prisoner has ever successfully appealed a retroactive transfer hearing decision.” ² Id. at 2762.

Inmates housed at ADX may improve their conditions of confinement by seeking admission to the Step–Down Program, a “stratified system of less-restrictive housing” that incentivizes inmates to adhere to the prison's expectations for their conduct. See id., Vol. II(d) at 2348. Once admitted to the program, ADX inmates may progress from the general population unit through the Intermediate, Transitional, and Pre–Transfer Units “with increasing degrees of personal freedom at each stage.” Id. at 2349. ADX policy states that “[e]very inmate has the opportunity to demonstrate he may be housed in a less-restrictive unit.” Id.

The plaintiffs were repeatedly denied admission to the Step–Down Program. Eventually, however, all of the plaintiffs were admitted to the program and later transferred to other prisons. None of the plaintiffs are still housed at ADX. Each is now housed in one of the BOP's two CMUs. Id., Vol. II(e) at 2750.

II. Procedural BackgroundDistrict Court Proceedings in Rezaq

Rezaq filed suit in 2007 against the BOP and several named officials to challenge his transfer to ADX and his conditions of confinement under the Due Process Clause. Id., Vol. I(f) at 1341–42. He argued that he had a liberty interest in avoiding transfer to ADX without due process. Id. at 1341. He also argued that his retroactive transfer hearing did not comply with the requirements of procedural due process. Id.

The defendants moved for summary judgment, and the motion was referred to a magistrate judge. The defendants contended that because Rezaq did not have a liberty interest in avoiding the conditions of confinement at ADX, he was not entitled to due process in the transfer determination. Id. at 1342. They also argued that, if a liberty interest did exist, Rezaq received sufficient process. Id.

The magistrate judge recommended that summary judgment be granted for the defendants. Id. at 1338, 1367. She agreed with the defendants that the conditions of confinement at ADX did not give rise to a liberty interest, noting...