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Case Name Saleh v. Federal Bureau of Prisons FA-CO-0010
Docket / Court 1:05-cv-02467 ( D. Colo. )
State/Territory Colorado
Case Type(s) Speech and Religious Freedom
Attorney Organization University of Denver Civil Rights Clinic
Case Summary
This is a case challenging the Federal Bureau of Prisons (BOP) policies towards certain incarcerated Arab-Muslim men immediately in the aftermath of the 9/11 attacks. On December 7, 2005, the plaintiff brought this suit, pro se, in the U.S. District Court for the District of Colorado. He sued the U ... read more >
This is a case challenging the Federal Bureau of Prisons (BOP) policies towards certain incarcerated Arab-Muslim men immediately in the aftermath of the 9/11 attacks. On December 7, 2005, the plaintiff brought this suit, pro se, in the U.S. District Court for the District of Colorado. He sued the U.S. Attorney General and the Director of the Federal Bureau of Prisons. The plaintiff sought injunctive and declaratory relief to be transferred back to general population prison after he was placed in solitary confinement at United States Penitentiary, Administrative Maximum Prison in Florence, Colorado (ADX) without notice or hearing. ADX is the most restrictive prison operated by the BOP. The plaintiff asserted that the BOP’s policies violated his Fifth Amendment’s Due Process and Equal Protection rights and the Eighth Amendment’s Cruel and Unusual Punishment Clause. The case was assigned to Magistrate Judge Boyd N. Boland.

The plaintiff was incarcerated for his role in the 1993 World Trade Center bombings; after the second World Trade Center attacks, the plaintiff was removed from the general population at the facility where he was incarcerated and placed in administrative segregation. He was then transferred to ADX where his freedoms were severely limited. The plaintiff was restricted to indefinite solitary confinement for 23 hours a day, discouraged from communicating with people in cells next to his, took his recreation and meals alone, was strip-searched, handcuffed, and shackled when transported back to his cell. The prison only provided limited access to mental health care and did not permit the plaintiff to participate in social or religious group activities or hold jobs in the prison system. The plaintiff was also prohibited from enrolling in the Step-Down Program, which allowed individuals to move from solitary confinement at ADX to a less restrictive housing assignment and eventually a less limiting facility.

The plaintiff filed an amended complaint on October 10, 2006. The amended complaint did not name the U.S. Attorney General and the Director of the Federal Bureau of Prisons defendants, but rather named eight BOP employees in their individual capacities only. In this amended complaint, the plaintiff alleged violations of his religious rights protected by the First Amendment’s Free Exercise Clause, RFRA, and the Religious Land Use And Institutionalized Persons Act (RLIUPA). The prison had denied the plaintiff access to an Imam, religious programs in Arabic, Islamic correspondence courses in the U.S., Halal food, lamb meat for Islamic feasts, and group prayers. The plaintiff also added a new cause of action for relief under the Alien Tort Claims Act and the Torture Victim Protection Act, claiming he was denied his required one hour of outdoor recreation time per day. He also alleged that the defendants violated his First and Fifth Amendment rights by repeatedly delaying the delivery of his incoming and outgoing mail.

On February 23, 2007, the plaintiff amended the complaint again. This complaint named two additional defendants, the previous warden at ADX and the FBI agent assigned to ADX. This complaint described the plaintiff’s claims in more detail and listed the administrative remedies the plaintiff had exhausted for his claims. Furthermore, the plaintiff added an Eighth Amendment claim that he was subjected to cruel and unusual punishment. Sometimes for weeks at a time, he was denied access to exercise, fresh air, and sunlight.

Up until this point, the plaintiff had been representing himself. On May 12, 2007, the Civil Rights Clinic at the University of Denver Sturm College of Law filed a notice of entry of appearance on behalf of the plaintiff. On July 30, 2007, the plaintiff filed a third amended complaint now naming the BOP, the Director of the Federal Bureau of Prisons and thirteen other defendants in their official capacities. The plaintiff added two new claims for violations of his Fourteenth Amendment rights to equal protection on the basis of national origin and religion. This complaint no longer claimed violations of RLIUPA, the Alien Tort Claims Act, the Torture Victim Protection Act, or plaintiff’s First and Fifth Amendment rights regarding his mail. Additionally, the new complaint sought relief for attorney’s fees.

The case was reassigned to Magistrate Judge Kirsten L. Mix on August 2, 2007.

Meanwhile, other individuals had filed separate, similar federal lawsuits regarding their confinement at ADX. The court consolidated this case with those two others (05-cv-02467, 06-cv-01747, and 07-cv-00021) on September 24, 2007. These two additional plaintiffs were also incarcerated for their roles in the 1993 World Trade Center bombings and, following 9/11, were moved to ADX. The plaintiffs filed their first consolidated complaint on September 28, 2007. This complaint removed the plaintiffs’ Fourteenth Amendment claims.

On October 18, 2007, the defendants filed a motion to dismiss the individually named defendants, asserting the suit was only properly brought against the BOP. Before this motion could be decided, the plaintiffs were granted leave to amend their complaint and they filed their first amended consolidated complaint on January 11, 2008. The plaintiffs included new facts regarding their transfers from general population to administrative segregation on September 11, 2001. They also added the U.S. Attorney General as a defendant. In response, the defendants moved to dismiss this first amended consolidated complaint on February 12, 2008, arguing that the statute of limitations barred plaintiffs’ Equal Protection claim and that the plaintiffs’ due process claim should be dismissed on jurisdictional, standing, and mootness grounds. They argued that the plaintiffs failed to state a claim that they had a liberty interest in placement in the Step-Down Unit Program or that the defendants’ delay or failure to place them in the program violated their Fifth Amendment due process right. Additionally, the defendants reasserted their motion to dismiss the individually named defendants.

On April 23, 2008, the parties voluntarily dismissed the plaintiffs’ claim that the defendants violated the cruel and unusual punishment clause of the Eight Amendment by limiting their access to outdoor exercise and recreation.

On July 29, 2008, Magistrate Judge Kirsten L. Mix addressed the motion to dismiss. She recommended that the court: (1) dismiss the individually named defendants with prejudice; (2) grant the defendants’ motion to dismiss the plaintiffs’ Fifth Amendment claim regarding their segregation from the general population prior to their transfer to ADX; and (3) dismiss the due process claim for the two plaintiffs who had been placed in the Step-Down program. But she recommended dismissing the motion for the individual who was not placed in that program and allowing that claim to proceed.

Over the next few months, the parties went back and forth objecting to the court’s report and recommendation.

As a result of these negotiations, the parties filed a stipulated settlement agreement on December 29, 2008, resolving the plaintiffs’ claims regarding violations of their right to free exercise of their religion, to practice religion in accordance with RFRA, and to equal treatment of their religious practices under the Equal Protection Clause. The agreement permitted the plaintiffs to conduct group prayers and religious activities, access high-quality Islamic materials, meet with a religious leader on at least a weekly basis, and participate in correspondence courses.

Pursuing the still outstanding claims, the plaintiffs filed their second amended consolidated complaint on February 6, 2009. The court ordered them to amend their complaint to add facts about one of the plaintiff’s removal from the Step-Down program which occurred after Judge Mix’s first recommendation. For that plaintiff, she had initially recommended the case's dismissal. In light of the amended complaint, the defendants agreed that the plaintiff now had standing again to bring a claim about the defendants barring him from the Step-Down program. Judge Mix submitted an amended report and recommendation on March 6, 2009, ordering that this claim was no longer moot for that plaintiff. In the following weeks, the plaintiffs filed an objection to the report and recommendation and the defendants responded to their objection.

On September 29, 2009, District Judge Philip A. Brimmer issued an order accepting in part and overruling in part Judge Mix’s recommendations. Judge Brimmer accepted the recommendation to dismiss the individual defendants and the plaintiffs' claim that they were unduly segregated after 9/11 because it was time-barred. Judge Brimmer, rejecting Judge Mix’s recommendation, ruled that the plaintiff who had been admitted to the Step-Down program nonetheless had standing to assert his due process claim related to his initial exclusion from the program. And Judge Brimmer accepted the recommendation permitting the two plaintiffs, who were not enrolled in the Step-Down program, to pursue their due process claims concerning their denial of entry into the program. 2009 WL 3158120.

For the next several months, the parties engaged in discovery. On March 22, 2010, both parties moved the court for summary judgment. On November 23, 2010, Magistrate Judge Mix issued a report and recommendation regarding the parties’ motions; she recommended that summary judgment be granted for the defendants on all claims and the plaintiffs’ motion for summary judgment be denied. She explained that the plaintiffs did not have a liberty interest protected by the due process clause from their confinement at ADX as it was not atypically restrictive. She found the defendants’ rationale to move the plaintiffs to ADX for their terrorism offenses despite the plaintiffs past good behavior compelling. Judge Mix recommended dismissing the plaintiffs’ claim that they were denied due process to be placed in the Step-Down program because the process of reviewing individuals for the program had changed significantly since the plaintiffs were initially denied access.

After filing their second amended consolidated complaint in February 2009, the prison had admitted each of the plaintiffs to the Step-Down program and moved them to less restrictive populations. One plaintiff was transferred to the marginally less-restrictive unit at ADX in April 2007. By May 2008, he was placed in a pre-transfer unit, awaiting eventual relocation from ADX. Another plaintiff was transferred to the less restrictive unit in October 2009. At the time of the defendant’s filing their motion for summary judgment, the third plaintiff had been transferred out of ADX.

On December 29, 2010, Judge Brimmer granted the defendant’s motion for summary judgment on all claims and entered judgment in favor of the defendants. As a result of that order, the plaintiffs filed an appeal in the United States Court of Appeals for the Tenth Circuit on February 15, 2011 (11-1072). The case was consolidated with that of a plaintiff who was also represented by the Civil Rights Clinic at the University of Denver (Rezaq v. Nalley, 07-cv-02483). The Rezaq plaintiff had been incarcerated for his involvement in the 1985 hijacking of EgyptAir Flight 648. He had similarly filed suit in 2007 against the BOP and other named officials challenging his transfer to ADX and the restrictive conditions of his confinement. District Court Judge Lewis T. Babcock had also granted summary judgement for the defendants in this case. At the time of the appeal, the plaintiffs had each been transferred out of ADX to less restrictive BOP facilities.

On July 4, 2011, the defendants filed a brief in the Tenth Circuit arguing that the plaintiffs’ claims were moot because they were no longer housed at ADX and the challenged procedures of transferring the plaintiffs to ADX without notice or hearing were no longer in effect.

In the Tenth Circuit, on April 20, 2012, Circuit Judge Mary B. Briscoe ruled that the plaintiffs’ claims were not moot because (1) they had never returned to their pre-ADX general population facilities but were held in Communications Management Units (CMU) which, other than ADX, are the most restrictive facilities operated by the BOP; and (2) there was still some meaningful prospective relief available for the plaintiffs. However, Judge Briscoe ruled that the plaintiffs did not have a liberty interest in avoiding the conditions of their confinement at ADX for four reasons: (1) the BOP had a unique penological interest in addressing national security risks that justified the plaintiffs’ placements at ADX; (2) the conditions at ADX are not extreme; (3) placement at ADX does not lengthen a person’s sentence; and (4) the plaintiffs’ placements at ADX were not indefinite. 677 F.3d 1001. Judge Briscoe affirmed the judgments of the district court. On July 23, the circuit court denied the plaintiffs motion for rehearing en banc. This case is now closed.

Devon Schmidt - 10/07/2021


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Equal Protection
Free Exercise Clause
Content of Injunction
Discrimination Prohibition
Defendant-type
Corrections
Discrimination-basis
Religion discrimination
General
Administrative segregation
Conditions of confinement
Religious programs / policies
Terrorism/Post 9-11 issues
National Origin/Ethnicity
Arab/Afgani/Middle Eastern
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action Ex parte Young (federal or state officials)
Ex Parte Young (Federal) or Bivens
Defendant(s) Department of Justice
Federal Bureau of Prisons
United States Penitentiary, Administrative Maximum Prison
Plaintiff Description Three individuals incarcerated at the Administrative Maximum Security Prison (“ADX”) in Florence, CO
Indexed Lawyer Organizations University of Denver Civil Rights Clinic
Class action status sought No
Class action status outcome Not sought
Filed Pro Se Yes
Prevailing Party Mixed
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Filed 12/07/2005
Case Closing Year 2012
Case Ongoing No
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Court Docket(s)
D. Colo.
07/31/2012
1:05-cv-02467-PAB-KLM
FA-CO-0010-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D.D.C.
12/07/2005
Complaint for Violation of Civil Rights [ECF# 1-1]
FA-CO-0010-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
12/29/2008
Stipulated Settlement Agreement [ECF# 244-2]
FA-CO-0010-0001.pdf | Detail
D. Colo.
02/06/2009
Second Amended Consolidated Complaint [ECF# 251]
FA-CO-0010-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
09/29/2009
Order Accepting in Part and Overruling in Part Magistrate Judge's Recommendations [ECF# 265]
FA-CO-0010-0004.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
12/29/2010
Order Accepting Magistrate Judge's Recommendations [ECF# 373]
FA-CO-0010-0005.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Brimmer, Philip A. (D. Colo.) show/hide docs
FA-CO-0010-0004 | FA-CO-0010-0005 | FA-CO-0010-9000
Mix, Kristen L. (D. Colo.) [Magistrate] show/hide docs
FA-CO-0010-9000
Plaintiff's Lawyers Brownstein, Rhonda Cheryl (Colorado) show/hide docs
FA-CO-0010-9000
Collins, Darryl (Colorado) show/hide docs
FA-CO-0010-0003
Dusenbury, Gabriel (Colorado) show/hide docs
FA-CO-0010-0003
Glidden, Brittany L. (Colorado) show/hide docs
FA-CO-0010-9000
Manville, Daniel E. (Michigan) show/hide docs
FA-CO-0010-9000
Owen, Elisabeth L. (Colorado) show/hide docs
FA-CO-0010-0003
Raghunath, Rajasimha (Colorado) show/hide docs
FA-CO-0010-0001 | FA-CO-0010-0003 | FA-CO-0010-9000
Rovner, Laura Lee (Colorado) show/hide docs
FA-CO-0010-9000
Defendant's Lawyers Brieschke, Ben (Colorado) show/hide docs
FA-CO-0010-0001
Chriss, Margaret J (District of Columbia) show/hide docs
FA-CO-0010-9000
Cook, Marcy Elizabeth (Colorado) show/hide docs
FA-CO-0010-0001 | FA-CO-0010-9000
Eid, Troy A. (District of Columbia) show/hide docs
FA-CO-0010-0001
Johnson, Michael Conrad (Colorado) show/hide docs
FA-CO-0010-9000
Pharo, William George (Colorado) show/hide docs
FA-CO-0010-9000
Prose, Susan Begesse (Colorado) show/hide docs
FA-CO-0010-9000
Rocque, Amanda Adams (Colorado) show/hide docs
FA-CO-0010-9000
Villasenor, Juan G (Colorado) show/hide docs
FA-CO-0010-9000

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