Pro Bono Prisoners Rights

Representation: Getting Creative and

What to do When it Gets Personal

Mohammed v. Holder
07-cv-2697-MSKPaul Wolf, Esq.
December 17, 2015

Contents

Background to Mohammed v. Holder

Taking over a pro se case
Evaluating claims and amending the
complaint (Federal)
Special issues with litigating against
a prison system

Background to

Mohammed v. Holder

U.S. v bin Laden, 98-cr-1023 (SDNY)

Khalfan Khamis Mohammed was

convicted of numerous terrorism
offenses related to the bombings of
American embassies in Kenya and
Tanzania on August 7, 1998.
He was sentenced to life
imprisonment and is incarcerated in
the "H Unit" of the ADX Supermax
prison in Florence, CO.
Photo: The Denver Post

17 years later, his communications

with the outside world are still
restricted by "Special Administrative
Measures."

U.S. v bin Laden

Before the "war on terror," the invasion of Afghanistan

or the detention of prisoners of war at Guantanamo
Bay.

Civilian court, public trial, federal rules of evidence.

High profile case prosecuted by Patrick Fitzgerald.

Numerous co-defendants in this case are imprisoned in

the ADX and CMUs.

Mohammed is considered by the FBI to be a potentially

inspirational figure to other "radical islamists."

Administrative Maximum
Facility
(ADX or ADMAX) Florence, CO

Solitary Confinement

Includes:

Cement bed.

Cement desk and stool.

Shower/toilet apparatus.

Meal delivery to room.

Hermetically sealed.

TV and prison library

services.

30 min / wk outdoor rec

cage.

20 min / month phone.

* details subject to change without

Photo: Solitary Watch

Special Administrative Measures

(SAMs)

Restrictions on communications with other

inmates and persons outside of the prison,
including attorneys.
SAMs prisoners are "quarantined" together
in H Unit of ADX, and CMUs in Terra Haute
and Marion
Only about 40 of the prisoners in the ADX
are held under SAMs

"Upon direction of the Attorney General, the Director, Bureau of Prisons, may authorize the Warden
to implement special administrative measures that are reasonably necessary to protect persons
against the risk of death or serious bodily injury." - Title 28 Part 501.3 of the CFR.

Although the SAMs may only be imposed for a year

at a time, they are renewed in an almost automatic
process.

FBI Agent Decides

Office of Enforcement
Operations Approves

BOP Directed to Enforce SAMs

"Although he bristled at the characterization of OEO as just a rubber stamp,

Mr. OBrien acknowledged that the OEO had never rejected a recommendation
by the FBI for approval of a renewal or modification of SAMs for any inmate."
Findings of Fact, Conclusions of Law, and Order, R 396 at 9 n 7.

Deferential Standard of Review

The standard of review used by U.S. courts to evaluate

freedom of speech claims by prisoners differs from those
of the general public in several ways:
(1) the asserted governmental interest must only be
legitimate rather than compelling;
(2) the restriction must be rationally related,
rather than narrowly tailored to address the interest;
and
(3) it need not be the least restrictive means to
protect the government's interest.

Turner v. Safley, 482 U.S. 78 (1987)

(i) there must be a valid and rational connection between the

regulation and the legitimate governmental interest put forward
to justify it (put differently, the regulation may not be based on
arbitrary or irrational goals);
(ii) whether there are alternative means of exercising the
right;
(iii) the impact that accommodation of the asserted right would
have on other inmates, guards, and on the allocation of prison
resources generally; and
(iv) the presence or absence of ready alternatives to the
regulatory path chosen. Id. at 89-90.

Taking over a pro se case.

Taking over a pro se case

Handwritten filings
Client knows facts, you know
law
Leave to Amend Complaint
Motion to Reopen Discovery
Waiver and estoppel
Preserving issues for appeal

I had to just enter an appearance based on the

public filings of Mr. Mohammed, without being
allowed to communicate with him.

The government spent six months investigating me, before

finally approving me to represent the client. The
government claimed to have the power to choose Mr.
Mohammed's counsel for him, or at least veto his choice
based on unknown criteria.

Evaluating the Claims and Amending

the Complaint (Federal Prisoner)

The pro se prisoner complaint form really only distinguishes

federal and state prisoners. For whatever reason, Mr.
Mohammed's case was assumed to be a Bivens action, until
I argued that the court should apply the APA.

I appeared in a pro se case after Court

denied Motion for Summary Judgment.

This greatly simplified the issues in the case, since we could

only go to trial with the claims that had survived summary
judgment. Mohammed filed many other types of claims (ex.
8th Amend.) that were dismissed.
Claims:
1. Communication with ~35 persons outside of Plaintiff's
immediate family members.
- Abu Nidal incident resulted in new ADX policy

2. Communication with brother Nassor

- Mistaken identity with trial witness named Nassor

3. Delays in reviewing Plaintiff's communications

- Lost this claim. Court essentially deferred to the
FBI.

Possible Claims (Federal

Prisoner)
Personal Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971)
Against Defendant in Official
or Personal Capacity?

Official: Administrative Procedure Act,

Federal Tort Claims Act, 28 USC 1985
(for discrimination); Religious Freedom
Restoration Act ...

Think about whether the real claim is against an individual or

against the institution. Although the prisoner may, for example,
blame the warden personally, the real claim may be against the
government. Also, the Ramzi Yousef case (12-cv-2585) suggests
that these kinds of cases should not be brought as habeas
corpus actions.

Administrative Remedy Program

28 C.F.R. Part 542

Four levels of exhaustion required:

BP-8

Informal Resolution

BP-9

Initial Filing

(542.13)

(542.14)

BP-10 Appeal to Regional Director

( 542.15)

BP-11 Appeal to General Counsel

( 542.15)

Administrative Procedure Act

District Court reviews federal agency action.

Governs all federal agencies. US Govt Manual.

There must be an "administrative record."

Determination must be based on substantial evidence in the

administrative record. "substantial evidence on the record"

Discovery is often disallowed in APA cases. But that's

because the agency is presumed to have made investigation.

Injunctive relief. No money damages. Doesn't replace

Federal Tort Claims Act or Bivens remedy.

Formal vs informal resolution - due process

APA - 706 Scope of Review

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions
found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;

APA - 706 Scope of Review (2)

(C) in excess of statutory jurisdiction, authority, or limitations, or short of

statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556
and 557 of this title or otherwise reviewed on the record of an agency
hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial
de novo by the reviewing court.

APA:
Definitions

701 Definition of "agency"

Includes DOJ, FBI, BOP, EOUSA, OEO and others.

704 Presumption of reviewability of final agency action

Exhaustion requirement.

551(13) Definition of "agency action"

Includes imposing sanctions, granting relief, or failure to act.

APA: Definitions
(2)

"Sanctions" includes prohibitions, requirements,

limitations, or other conditions affecting the freedom of a
person; the imposition of penalties; the destruction,
taking, seizure or witholding of property; or taking other
compulsory or restrictive action. 551(10)(A), (C), (D) &
(G).

"Relief" includes the granting of money, assistance,

license, authority, or taking other action on the application
or petition of, and beneficial to, a person. 551(11).

APA is a vehicle through which constitutional

claims may be brought, but may also be
used in parallel with other claims.

Prisoner will not have met exhaustion

Claim 1: Fed Tort Claims Act
requirement with BP-8, etc. (ARP)
Violation of Constitutional Right Limited by Prison Litigation Reform Act
+
Claim 2: Violation of APA with
respect to Constitutional Right

Merits + Procedural Review

(no money damages, sorry)

The APA makes the court's job easier.

Court

Court

Magistrate

Agency

Special Master
Clerk

The APA saves the Court work by requiring Federal agencies to engage in
fact-finding and make determinations that can stand up to judicial review.

Due Process Issues in SAMs /

Administrative Remedy
Program
Parole
Prisoner is given advance notice of hearing.
Prisoner may have attorney at hearing.
Prisoner's attorney may submit written materials.
Prisoner may record hearing or obtain recording.
Prisoner advised of evidence against him.
Prisoner has right to cross-examine witnesses.
Prisoner is entitled to some discovery.
Prisoner advised of legal basis for determination.

Y
Y
Y
Y
Y
Y
Y
Y

ARP

N
N
N
N
N
N
N
N

See 28 CFR 2 et. seq. (Parole, Release, Supervision And Recommitment

Of Prisoners, Youth Offenders, And Juvenile Delinquents); 8 CCR 1511-1
CO Rules Governing the State Board of Parole and Parole Proceedings

Cruel and Unusual

Punishment

The Eighth Amendment to the U.S. Constitution

prohibits "cruel and unusual punishment."

Farmer v. Brennan, 511 U.S. 825 (1994)

To prevail on a conditions of confinement claim under the
Eighth Amendment, an inmate must establish that
(1) the condition complained of is sufficiently serious to
implicate constitutional protection, and
(2) prison officials acted with deliberate indifference to
inmate health or safety. (element of subjective intent)
Conditions must be imposed for the purpose of
punishment, rather than some other reason, such as
prison security or public safety. The "Eighth Amendment
does not outlaw cruel and unusual 'conditions;' it
outlaws cruel and unusual 'punishments.'" 511 U.S. at
837.

Hill v. Pugh, 75 Fed. Appx. 715 (10th Cir.

2003)

"We cannot conclude that Mr. Hill's Eighth Amendment

allegations state a claim upon which relief may be
granted. He contends that ADX conditions are cruel
and unusual in that he is isolated in his cell twentythree hours a day for five days a week and twenty-four
hours the remaining two days. He asserts that the
resulting sensory deprivation amounts to cruel and
unusual punishment. He admits, however, that his
minimal physical requirements - food, shelter, clothing
and warmth have been met. The situation
described ... shows neither an unquestioned and
serious deprivation of basic human needs, nor
intolerable or shocking conditions." Id. at 721.

International Law

Persuasive only, but may be very persuasive.

International Covenant on Civil

and Political Rights (ICCPR)

All persons deprived of their liberty must be treated with

humanity and with respect for the inherent dignity of the
human person. ICCPR, Article 10 1
The ICCPR also prohibits the "cruel, inhuman, or degrading
treatment or punishment"* of any person. Id. at Art. 7.
* The U.S. made a reservation when ratifying this treaty, interpreting this
term to be coextensive with violations fo the 5th, 8th and 14th
Amendments. However, "CIDT" may have achieved the status of
customary international law, and was considered a violation of
international law by the authors of the Restatement (Third) of Foreign
Relations Law of the United States, see 702 (1987).

Convention Against Torture and Other Cruel, Inhuman

or
Degrading Treatment or Punishment ("Torture
Convention")

Definition of Torture:
"... any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted
on a person for such purposes as obtaining from him
or a third person information or a confession,
punishing him for an act he or a third person has
committed or is suspected of having committed, or
intimidating or coercing him ..."
Note that this also includes element of subjective
intent on the part of the torturer.

Torture Convention in U.S. Law

Torture Convention is not self-executing.

U.S. implementing statute defines mental pain or suffering as the
mental suffering attendant to physical pain or suffering, the threat
of death, or the use of "mind-altering substances or other
procedures calculated to disrupt profoundly the senses or the
personality." 18 USC 2340.
U.S. made same reservation as in ICCPR:
"That the United States considers itself bound by the
obligation under Article 16 to prevent "cruel, inhuman or
degrading treatment or punishment," only insofar as the term
"cruel, inhuman or degrading treatment or punishment" means
the cruel, unusual and inhumane treatment or punishment
prohibited by the Fifth, Eighth, and/or Fourteenth Amendments

The U.N. Standard Minimum Rules

for the Treatment of Prisoners

allow for solitary confinement only in exceptional

circumstances.

require that solitary confinement be used sparingly.

prohibits all cruel, inhuman and degrading punishment.

require that special attention be paid to the

maintenance and
improvement of the relations between a prisoner and his
family.

While the Standard Minimum Rules are not a treaty

Airport Watch Listing

I was placed on airport watchlist during

pendency of this case. (~3 years)
6-8 hour delay to re-enter US while DHS
images laptop, USB, phone etc.
DHS photocopied client interview notes
from another case, with each page marked
worked product.
I filed notice of violation of protective order
with court but did not ask court to grant
relief.

Also, two members of the local JTTF arrived at my home under the pretense of
investigating the robbery of my car, which I had reported to the DC Metro Police.
Most of their questions were about my work as a human rights lawyer and why I
wanted to represent Mr. Mohammed. This can be VERY intimidating.