Abdulrazzaq v. Trump

422 F.Supp.3d 281

Nashwan Al-Ramer ABDULRAZZAQ, Plaintiff,

v.Donald J. TRUMP, et al., Defendants.

Civil Action No. 17-1928(EGS)

United States District Court, District of Columbia.

Signed October 28, 2019

Brent Nelson Rushforth, Potomac, MD, Adam Marc Thurschwell, Meghan Suzanne Skelton, Susan Amelia Hensler, U.S. Department of Defense Military Commissions Defense Organization, Washington, DC, Robert L. Palmer, McKool Smith Hennigan, P.C., Los Angeles, CA, for Plaintiff.

Ronald James Wiltsie, Terry Marcus Henry, Andrew I. Warden, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

Petitioner Nashwan Al-Ramer Abdulrazzaq, a male Iraqi citizen detained at a prison facility in Guantanamo Bay, Cuba ("Guantanamo"), is awaiting trial before a military commission on non-capital charges of Denying Quarter, Attacking Protected Property, Using Treachery or Perfidity, Attempted Use of Treachery or Perfidity, and Conspiracy to Violate the Laws of War. Mot. to Dismiss Pet'r's Second Am. Pet. for a Writ of Habeas Corpus ("Mot. to Dismiss"), ECF No. 47 at 17.¹

On November 29, 2017, Petitioner filed a Second Amended Petition for a Writ of Habeas Corpus, raising four claims: (1) the conditions of his confinement at Guantanamo violate the Eighth Amendment; (2) the structure of the military commissions process violates the Due Process Clause of the Fifth Amendment ("conflict-of-interest" claim); (3) discrimination against him by reason of his nationality in violation of the equal protection guarantees in the Fifth Amendment ("equal protection" claim); and (4) violation of his right to counsel guaranteed by the Sixth Amendment and the Military Commissions Act ("MCA") ("interference-with-counsel-communications" claim). Pet'r's Opp'n to Resp'ts' Mot. to Dismiss Pet'r's Second Am. Pet. for a Writ of Habeas Corpus, ("Opp'n"), ECF No. 59 at 6-7.

Pending before the Court is the Respondents' motion to dismiss. Respondent argues that Petitioner has failed to state an Eighth Amendment claim, and that the Court lacks jurisdiction to consider the Petitioner's conflict-of-interest, equal protection, and interference-with-counsel-communications claims. In the alternative, Respondent argues that the court should abstain from deciding these three claims at this time. Upon careful consideration of the parties' submissions, the applicable law, and for the reasons discussed below, the Court GRANTS IN PART and HOLDS IN ABEYANCE IN PART Respondents' Motion to Dismiss. Petitioner's Eighth Amendment claim is DISMISSED . Petitioner's remaining claims are HELD IN ABEYANCE . Since the Court will abstain from resolving the merits of those claims pending the ultimate conclusion of the military commission proceedings, all proceedings relating to those claims are STAYED .

I. Background

A. Petitioner's Medical Condition

The following facts are alleged in Petitioner's Second Amended Petition for Writ of Habeas Corpus. Petitioner has been in the custody of the United States since 2006, first at one or more "black sites," and then at Guantanamo since April 2007. Second Am. Pet., ECF No. 164 ¶ 9. Petitioner's medical records show that "he has sought treatment for chronic and worsening back pain" throughout his detention. Id. ¶ 18. A computerized tomography scan ("CT scan") taken in 2008 showed "degenerative disc disease between the L4 and L5 vertebrae." Id. At that point, Petitioner's recurring back pain was deemed chronic. Id. In May 2008, an examination noted that he "seemed unsteady while standing" and in June 2008, his "back pain had increased to include pain that radiated down his right leg." Id. In August 2008, his doctors noted that he " ‘expressed concerns about the current back pain and the length of time’ it has taken to resolve the issue." Id. Petitioner "continued to seek treatment through 2008 and into 2009." Id. ¶ 19. In August 2009, he reported experiencing "flare-ups and pain radiating from his back to his left leg." Id. As a result, medical examiners "performed various diagnostic tests, but failed to cure the ailment or the pain." Id. "X-rays and CT scans continued to show degenerative disc disease." Id. "Throughout 2010, Petitioner continued to be seen for chronic back pain [and] [i]n June 2010, he again reported pain that ran down the side of his leg." Id. "Throughout 2010, he received physical therapy, traction table therapy, and regular treatments with a Transcutaneous Electrical Nerve Stimulator unit." Id. ¶ 21. However, "[t]hese therapies and treatments were ineffective." Id.

In September 2010, Petitioner was diagnosed with spinal stenosis, "an abnormal narrowing of his spinal canal" which can result in pain and "neurological deficits such as numbness and loss of motor control." Id. ¶ 22. As a result of this diagnosis, "a doctor proposed the possibility of surgery, though none was performed." Id. In November 2011, "Petitioner was again diagnosed with lumbar spine disc herniation and spinal stenosis," reporting "pain radiating to his right buttock." Id. ¶ 23. Petitioner continued to experience and be seen for chronic low back pain throughout the remainder of 2011 and 2012. Id. ¶¶ 23, 24. In January 2012, he "reported low back pain radiating to his left thigh" and in September 2012, "sharp pain radiating from his back toward his left knee." Id. ¶ 24. Doctors ordered testing, "but it is not clear from the medical records whether that testing was performed." Id. "In November 2012, [Petitioner] continued to report radiating pain from his low back down through his thighs, but for the first time, reporting feeling ‘pins and needles sensations’ in his toes." Id. ¶ 25.

Between 2013 and 2017, "Petitioner's condition continued to degrade and he continued to suffer from back pain." Id. ¶ 26. On January 9, 2017, Petitioner was subjected to "forcible cell extraction" ("FCE")² with "no accommodation ... made for his long-standing spinal and nerve diseases, well-known to Guantanamo personnel ... after which his lower back pain symptoms noticeably increased." Id. ¶ 27.

On January 23, 2017, another CT scan was performed revealing Petitioner's increased degeneration of the spine. Id. ¶ 28. "It was at this time, many years into Petitioner's history of accelerating symptoms, that an MRI was first proposed." Id. Independent medical experts informed Petitioner and Respondents that Petitioner's spinal condition, "if left untreated, could cause severe and permanent neurological impairment." Id. However, "Guantanamo personnel left this condition untreated for approximately 9 months by which time severe and permanent neurological impairment had either occurred or was imminent." Id.

In August 2017, Petitioner "began to experience an increase in the loss of sensation in both feet ... increased loss of sensation in both hands and both legs ... increase in his muscle weakness .. [and] an increase in the level, sharpness, and frequency of his pain." Id. ¶ 29. On August 10, 2017, following a medical examination, "[t]he doctor determined that Petitioner's deteriorating condition required transportation to the hospital for additional tests. Some tests were conducted, but, apparently, a prescribed CT scan could not be performed because the hospital staff failed to properly inject intravenous contrast dye for the exam." Id. ¶ 31.

On September 1, 2017, counsel for Petitioner addressed an "Emergency Request for Expert Assistance-Neurological Surgery" memorandum to Respondents. Id. ¶ 34. "The memorandum described the inability of Petitioner to obtain urgently needed medical care, the inability of Petitioner or his counsel to obtain current medical records concerning his status or care, and requested the intervention of the Convening Authority to appoint an independent medical specialist able to diagnose Petitioner's condition and recommend treatment." Id. ¶ 34. The memorandum was supported by a letter from doctors associated with Physicians for Human Rights who opined that Petitioner needed immediate emergency attention. Id. ¶ 35.

On September 5, 2017, a surgical team was flown to Guantanamo in the midst of Hurricane Irma to perform emergency back surgery on Petitioner. Id. ¶¶ 36-37.

B. Military Commission Proceedings

On June 2, 2014, the Convening Authority³ referred the charges against the Petitioner to a military commission for trial, Mot. to Dismiss, ECF No. 47 at 17, and pretrial proceedings have been ongoing since that time, Resp't Opp'n to Pet'r's Mot. to Lift Stay and for Prelim. Inj., ECF No. 149 at 6. Petitioner's trial is scheduled to begin September 19, 2020. Id. at 7. Petitioner has raised his equal protection, conflict-of-interest, and interference-with-counsel-communications claims with the military judge in motions during pretrial proceedings and received adverse rulings on each. Mot. to Dismiss, ECF No. 47 at 8, Reply; ECF No. 62 at 4.

II. Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a complaint." Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). The court will dismiss a claim if the complaint fails to plead "enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), "in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests," Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation and internal quotation marks omitted).

A complaint survives a Rule 12(b)(6) motion only if it "contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A claim is facially...