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Ghailani v. Sessions

United States Court of Appeals, Tenth Circuit

June 21, 2017

AHMED KHALFAN GHAILANI, Plaintiff - Appellant,
v.
JEFFERSON B. SESSIONS, III, United States Attorney General; UNITED STATES ATTORNEY'S OFFICE FOR THE SOUTHERN DISTRICT OF NEW YORK; FEDERAL BUREAU OF INVESTIGATION; OFFICE OF ENFORCEMENT OPERATIONS; FEDERAL BUREAU OF PRISONS; DAVID BERKEBILE, ADX Warden, Defendants - Appellees.

         Appeal from the United States District Court for the District of Colorado (D.C. No. 1:14-CV-00041-CMA-BNB)

          Sean Connelly, Zonies Law LLC, Denver, Colorado, for Plaintiff - Appellant.

          Ahmed Khalfan Ghailani filed a brief pro se.

          Joshua Waldman, Attorney, Appellate Staff (Benjamin C. Mizer, Acting Assistant Attorney General, John F. Walsh, United States Attorney, and H. Thomas Byron, III, Attorney, Appellate Staff, U.S. Department of Justice, Washington, D.C., with him on the briefs), U.S. Department of Justice, Washington, D.C., for Defendants - Appellees.

          Before PHILLIPS and SEYMOUR, Circuit Judges. [*]

          SEYMOUR, Circuit Judge.

         Ahmed Khalfan Ghailani is a prisoner at the United States Penitentiary, Administrative Maximum Facility in Florence, Colorado ("ADX Florence"). He was subjected to Special Administrative Measures ("SAMs") that limited his contact with the outside world due to his past terrorist activities and his connections with terrorist groups. One of the restrictions included a prohibition against participating in group prayer. Mr. Ghailani, as a pro se plaintiff, challenged the legality of his numerous restrictions. He requested a declaratory judgment proclaiming that the government's imposition and enforcement of the restrictions violated numerous constitutional provisions as well as the Religious Freedom and Restoration Act ("RFRA"), 42 U.S.C. § 2000bb. He also sought an injunction ordering the government to permit his participation in group prayer. The district court dismissed his suit for failure to state a claim. While his case was on appeal, the government allowed Mr. Ghailani's SAMs to expire. But he is still prohibited from participating in group prayer due to the housing restrictions at ADX Florence, a high security prison.

         We reverse for the reasons set out below.

         I.

         This case has its origin in the 1998 United States embassy bombings in Kenya and Tanzania, in which 224 people were killed and thousands were injured. United States v. Ghailani, 733 F.3d 29, 39 (2d Cir. 2013). Mr. Ghailani was an Al-Queda operative and part of the terror cell that perpetrated those bombings but, unlike several of his co-conspirators, he eluded authorities for six years before he was finally captured in 2004. Id. In 2006, he was transferred to Guantanamo Bay Detention Center and remained there until 2009, when he was transferred to New York, arraigned, and held in the Metropolitan Correctional Center while he awaited trial. Id. at 40.

         Mr. Ghailani was first subjected to SAMs upon his arrival in New York. SAMs are tools used to limit privileges for certain federal inmates. 28 C.F.R. § 501.3(a). They may be imposed if there is a finding "of a substantial risk that a prisoner's . . . contacts with 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." Id. The SAMs must be "reasonably necessary to protect persons against the risk of acts of violence or terrorism." Id. Moreover, they must be based on findings specific to the inmate which demonstrate the risk posed by the inmate's contacts and communications. The Attorney General must first instruct the Director of the Bureau of Prisons to issue the SAMs, and then the Director authorizes the prison warden to enforce them. Id. SAMs have a one-year limit and the only way they may be extended is upon written notification from the Attorney General stating 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." § 501.3(c). The inmate must be provided written notification of the basis for the SAMs, § 501.3(b), and an inmate subject to SAMs may seek administrative review of his restrictions, § 501.3(e).

         After his conviction, Mr. Ghailani was transferred to ADX Florence, where he remains today. His 2009 SAMs were extended every year through June 10, 2015. Imposition of each of the SAMs was justified by the Attorney General on the basis of Mr. Ghailani's "central role" in the embassy bombing, his "connections to and proclivity for terrorism, " and his "notoriety and ability to inspire and influence others to engage in acts of violence and terrorism." 2014 SAM, ROA, vol. I at 276-77.[1] In light of those concerns, the SAMs imposed limitations on Mr. Ghailani's contacts and communications that "could reasonably foreseeably result in [his] communicating information (sending or receiving) that could circumvent the SAM's intent of significantly limiting [his] ability to communicate (send or receive) terrorism-related information." Id. at 278. In addition to numerous specified limitations on his contacts with others both inside and outside the prison, the SAMs also specifically incorporated by reference all restrictive policies of the prison. Id. at 277. Most significantly for our present purposes, Mr. Ghailani was prohibited from engaging in group prayer with other inmates in accordance with his religion.

         In January 2014, Mr. Ghailani filed a six-count complaint in the district court. He challenged the SAMs on various grounds. He also challenged the prison's "policy created specifically to target plaintiff's ability to freely exercise his religion." Id. at 186. His religious exercise challenge was brought under both the First Amendment and RFRA and was based on the prohibition on his "participat[ing] in group prayer." Id. at 183. Mr. Ghailani sought to "pray Jumu'ah prayer"-which is a Muslim group prayer that occurs once a week and involves "five daily prayers in group, " id. at 186-but he was forbidden to do so. The remaining claims were all based solely on the SAMs and they included (1) a First Amendment claim challenging the deprivation of his right to use the mail to contact his friends, family, and sometimes his attorney; (2) a First Amendment claim challenging a SAM provision that prohibited him from talking to the news media; (3) a Fifth Amendment Due Process claim arguing that the SAMs constituted an atypical and significant hardship and deprived him of a significant liberty interest without due process; (4) an Eighth Amendment claim contending the SAMs provision that required his solitary confinement was cruel and unusual punishment; and (5) a Fifth Amendment claim arguing that the imposition and re-imposition of the SAMs violated the Fifth Amendment's prohibition of Double Jeopardy.

         The government filed a motion to dismiss. On November 3, 2014, the magistrate judge recommended dismissal of all of Mr. Ghailani's First Amendment claims and his RFRA claim because he failed to allege "sufficient facts to indicate the plausibility that the actions of which he complains were not reasonably related to legitimate penological interests." ROA, vol. I at 425 (quoting Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir. 2010) (emphasis in original)). The judge recommended dismissal of Mr. Ghailani's Fifth Amendment claim because he "failed to allege facts demonstrating that the SAMs implicate a liberty interest, " id. at 427, and dismissal of Mr. Ghailani's Eighth Amendment claim because his complaint "failed to allege an 'unquestioned and serious deprivation of basic human needs' or 'intolerable or shocking conditions, '" id. at 429 (quoting Hill v. Pugh, 75 F.App'x 715, 721 (10th Cir. 2003) (unpublished)). Finally, the magistrate judge recommended dismissal of Mr. Ghailani's Double Jeopardy claim because the SAMs did not arise out of criminal proceedings and the "risk to which the [Double Jeopardy] Clause refers is not present in proceedings that are not 'essentially criminal.'" Id. at 430 (alteration in original) (quoting Breed v. Jones, 421 U.S. 519, 528 (1975)).

         On January 30, 2015, the district court determined that "Magistrate Judge Boland's Report and Recommendation is correct and is not called into question by Plaintiff's objection, " id. at 533, and granted the government's motion to dismiss with prejudice. Mr. Ghailani appeals.[2]

         II.

         A. Mootness

         A majority of Mr. Ghailani's request for relief focused on the SAMs. On June 10, 2015, however, Mr. Ghailani's 2014 SAMs expired and they were not renewed. The government therefore contends Mr. Ghailani's claims are moot.

         "We review mootness de novo as a legal question." United States v. Fisher, 805 F.3d 982, 989 (10th Cir. 2015). In cases involving mootness, "[t]he starting point for [our] analysis is the familiar proposition that 'federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.'" DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246, (1971)). The mootness doctrine "derives from the requirement of Art. III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy." Id. The Supreme Court has described it as "the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). "The crucial question is whether granting a present determination of the issues offered will have some effect in the real world." Wyoming v. U.S. Dep't of Agric.,414 F.3d 1207, 1212 (10th Cir. 2005) (quoting Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1214, 1223 (10th Cir. ...


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