Sattar v. Holder

AHMED ABDEL SATTAR, Plaintiff,

v. ERIC H. HOLDER, JR., Attorney General of the United States,HARLEY LAPPIN, Director of the Federal Bureau of Prisons,HARRELL WATTS, Administrator of National Inmate Appeals forthe Federal Bureau of Prisons,BLAKE DAVIS, Warden, the United States Penitentiary - Administrative Maximum,UNKNOWN FBI AGENTS 1-5, MICHAEL NALLEY, Regional Director, North Central Region, andJOHN DOES 1-5, sued in their official capacity, Defendants.

Civil Action No. 07-cv-02698-PAB-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: March 15, 2012

Judge Philip A. Brimmer

ORDER

This matter comes before the Court on the Motion to Dismiss Plaintiff's Second Amended and Supplemental Complaint [Docket No. 203] filed by defendants and the Motion to Strike References to Improper Extrinsic Evidence in Defendants' Motion to Dismiss [Docket No. 214] filed by plaintiff. The motions are fully briefed and ripe for disposition. The Court exercises jurisdiction over this matter pursuant to 28 U.S.C. § 1331.

I. BACKGROUND¹

Plaintiff Ahmed Abdel Sattar is a prisoner in the custody of the Federal Bureau of Prisons ("BOP") serving a 24-year sentence for conspiracy to murder in a foreign country and solicitation of a crime of violence. Since December 2006, plaintiff has been detained at the United States Penitentiary - Administrative Maximum ("ADX") facility in Florence, Colorado. From the time of his arrest in April 2002 until December 2006, plaintiff was detained at the BOP's Metropolitan Correctional Center ("MCCNY") in New York, New York. While incarcerated at MCCNY, plaintiff "had all of the privileges and rights offered to other inmates," Docket No. 197 at 6, ¶ 14, until February 2, 2006, when he was transferred to MCCNY's most restrictive ward.

On February 2, 2006, plaintiff was informed that the defendant Attorney General of the United States² had instructed defendant Harley Lappin, Director of the Federal Bureau of Prisons, to implement Special Administrative Measures ("SAMs"). Plaintiffwas informed that the SAMs were implemented "based on information of [plaintiff's] proclivity for violence." Docket No. 197 at 7, ¶ 19. The SAMs took effect as of February 2, 2006 and were to remain in effect for one year. On December 19, 2006, plaintiff was transferred to ADX, a federal "supermax" facility. At ADX, inmates are housed in solitary confinement and are subject to highly restrictive conditions. SAMs inmates are detained in a "super restrictive" area of ADX, Docket No. 197 at 8, ¶ 22, called the H-Unit.

The Attorney General has authorized extending the SAMs upon their expiration each year and, as a result, the SAMs remain in place. Upon the extensions of the SAMs in previous years, plaintiff contends that he did not receive notice of the factual basis for their imposition. On May 19, 2011, however, plaintiff received an Amended Notification of Extension of Special Administrative Measures. Docket No. 197-4.³ The Amended Notification informed plaintiff that the government had "determined that there is a substantial risk that your communications or contacts 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." Id. at 1-2.

The current SAMs restrict plaintiff's interactions with other inmates. Prison officials "may permit [plaintiff] to communicate with other SAMs inmates orally only during certain predesignated times" determined by prison officials. Id. at 3, § 1.c.ii. Plaintiff may not share a cell with another inmate and is not permitted to "communicat[e]with any other inmate by making statements audible to other inmates or by sending notes to other inmates," except during the aforementioned predesignated times for interacting with other inmates. Id. at 12, § 6. While in the cellblock area, plaintiff is "kept separated from other inmates as much as possible" and is not supposed to communicate with other inmates. Id. at 12, § 7. Moreover, plaintiff is not permitted to engage in prayer with other inmates. See id. at 12, § 5.a.

The SAMs also place restrictions on plaintiff's communications with the outside world. Plaintiff's nonlegal⁴ telephone calls are limited to his immediate family members, who are defined as plaintiff's "spouse, natural children, parents, and siblings." Id. at 8, § 3.a.i. and n.7 ("Requests for additional nonlegal contacts may be submitted on a case-by-case basis."). Plaintiff is guaranteed a minimum of one call per month to his immediate family members. See id. at 8, § 3.a.ii. All telephone calls are contemporaneously monitored and recorded. See id. at 9, § 3.d.⁵ As for nonlegal visitors, plaintiff is "permitted to visit only with [his] immediate family members." Id. at 10, § 3.f.i.⁶ The nonlegal visits are also contemporaneously monitored.⁷

The SAMs also impose restrictions on plaintiff's receipt of mail. Plaintiff's nonlegal mail is restricted to his immediate family members. See id. at 10, § 3.g.i. "Volume and frequency of outgoing general correspondence with immediate family members may be limited to three . . . pieces of paper (not larger than 8½ x 11), double sided, once per calendar week to a single recipient . . . ." Id. at 10-11, § 3.g.i. Plaintiff's nonlegal mail is copied, forwarded to the FBI, and analyzed before being delivered to its destination. See id. at 11, § 3.g.iii. According to the SAMs, the analysis may take (1) a "reasonable time not to exceed fourteen business days for mail which is written entirely in the English language"; (2) a "reasonable time not to exceed sixty business days for any mail which includes writing in any language other than English, to allow for translation"; or (3) a "reasonable time not to exceed sixty business days for any mail where the federal government has reasonable suspicion to believe that a code was used, to allow for decoding." Id. at 11, § 3.g.iv. Plaintiff alleges that such analysis results in delays in the delivery of mail in English of "up to four months or more" and of longer periods of time for non-English mail. Docket No. 197 at 8, ¶ 24.

Plaintiff's access to reading material is subject to certain restrictions as well. Plaintiff is permitted access to "publications determined not to facilitate criminal activity or be detrimental to: national security; the security, good order or discipline of the institution; or the protection of the public." Docket No. 197-4 at 13, § 9.a.i. Similarly, plaintiff "may have access to all books which do not facilitate criminal activity or present a substantial threat to national security or the security, discipline, or good order of theinstitution." Id. at 14, § 10.a. Plaintiff has access to a television and radio. See id. at 13, § 9.b.

Plaintiff alleges that, since having been incarcerated, he has not encouraged or condoned violence in any way. Nor has plaintiff ever been found to have violated prison rules or regulations.

II. STANDARD OF REVIEW

Plaintiff argues that defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) impermissibly relies upon extrinsic evidence and, therefore, to the extent the Court will consider such evidence, the motion should be converted into a motion for summary judgment. See Docket No. 213 at 2 & n.1. As noted above, however, see supra n.1, the Court has limited its review to plaintiff's complaint and the May 2011 notice of the current SAMs, which is attached thereto. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (citations omitted). Consequently, the motion properly may be resolved pursuant to Rule 12(b)(6).

"The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's Complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations omitted). In doing so, the Court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quotation marks and citation omitted). At the same time, however, a court need not accept conclusory allegations. Moffett v.Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002).

Generally, "[s]pecific facts are not necessary; the statement need only 'give the defendant fair notice of what the claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (omission marks, internal quotation marks, and citation omitted). The "plausibility" standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible. Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). However, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950 (2009) (internal quotation marks and alteration marks omitted). Thus, even though modern rules of pleading are somewhat forgiving, "a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Bryson, 534 F.3d at 1286 (quotation marks and citation omitted).

Those allegations need to account for the context of the claims as well. See Gee, 627 F.3d at 1185 ("Iqbal establishes the importance of context to a plausibility determination."). "Nowhere in the law does context have greater relevance to the validity of a claim than prisoner civil-rights claims," because "the Supreme Court has repeatedly recognized that the role of the Constitution within their...