from the United States District Court for the District of
Colorado (D.C. No. 1:14-CV-00041-CMA-BNB)
Connelly, Zonies Law LLC, Denver, Colorado, for Plaintiff -
Khalfan Ghailani filed a brief pro se.
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.
PHILLIPS and SEYMOUR, Circuit Judges. [*]
SEYMOUR, Circuit Judge.
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.
reverse for the reasons set out below.
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.
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).
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. 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.
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.
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
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.
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.
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.