Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01959-MSK-PAC AHMED M. AJAJ, Plaintiff, v. UNITED STATES OF AMERICA, ROBERT A. HOOD, JAMES BURRELL, DAVID DUNCAN, C. CHESTER, and J.C. ZUERCHER, Defendants.

REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Defendants Hood, Burrell, Duncan, Chester, and Zuercher ("Defendants" or "the Federal Officers") hereby file this Reply in Support of Motion for Summary and state as follows: I. HOOD, BURRELL, AND DUNCAN ARE ENTITLED TO QUALIFIED IMMUNITY ON CLAIM TWO: EIGHTH AMENDMENT CLAIM. Burden of Proof and Elements for Overcoming Defense of Qualified Immunity The parties agree that Plaintiff bears the burden of proof once the defense of qualified immunity is raised, and that Plaintiff must show: (1) that the defendant's actions violated a constitutional right, and (2) that the right allegedly violated was clearly established at the time of the conduct at issue. (Docket No. 239, ("Response") at 2). B. Elements of Defense That Cannot Be Overcome by Plaintiff Concerning Failure to House Plaintiff in a Totally Smokefree Environment. Plaintiff concedes that to state a deliberate indifference claim, he must establish both an objective component and a subjective component. Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005); see also Response, at 3.

A.

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1.

Plaintiff Cannot Prove a Violation of His Eighth Amendment Rights Due To Exposure to Environmental Tobacco Smoke (ETS). a. Plaintiff's Assertions of Fact Regarding the Objective Component Are Not Supported by the Evidence.

Plaintiff argues that he can establish triable issues of fact as to the objective component because: (1) there were multiple "orders" contained in Plaintiff's medical records requiring him to be housed in a smokefree environment; (2) Plaintiff complained verbally and in writing to Hood, Duncan, and Burrell regarding his need to be housed in a smokefree environment; (3) Plaintiff was not kept in a smokefree environment between September 2002 and July 2005; (4) Plaintiff's expert will testify about the serious risk of future harm to Plaintiff resulting from his exposure to ETS and that Plaintiff has exhibited numerous medical symptoms as a result of his exposure to ETS; (5) Defendants have no expert to rebut these expert conclusions; (6) regardless of the lack of a medical transfer request by Plaintiff's treating physician, the Federal Officers could have "redesignated" Plaintiff without a medical transfer; and (7) the risks associated with ETS are so obvious that even a lay person would recognize the necessity of housing Plaintiff in a smokefree environment. (1) No BOP Physician Ever Issued a Medical Order Requiring Plaintiff's Housing in a Smokefree Environment

Plaintiff's Response misstates the evidence. Plaintiff argues that there were multiple "orders" contained in his medical records allegedly requiring his housing in a smokefree environment. This is simply not factually supported. A review of Plaintiffs' medical records reveal no such orders exist. Plaintiff confuses medical concerns with medical orders requiring action due to a serious medical concern. The Motion for Summary Judgment ("MSJ") established that BOP medical personnel have the authority to order a medical transfer of inmates with serious medical needs. These 770 medical transfer requests are appropriate if the treating physician determines that the inmate has a

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serious medical need that cannot be met at the institution where the inmate is housed. (MSJ, Exh. A-7, ¶¶ 4-9). In the instant case, the medical records express medical concern that Plaintiff be housed in a location where his exposure to ETS would be limited. However, the medical records establish, and Plaintiff impliedly admits in his Response, that no treating physician from 2002 until the present ordered that Plaintiff be transferred to a facility where he would have no ETS exposure (i.e., be housed in a totally smokefree environment). (Id. at Exh. A-7, ¶ 12; Response, at 5, ¶ f). Plaintiff does not dispute these facts and does not contest that no 770 order exists. Because no treating physician ever "ordered" that Plaintiff be either housed in a smokefree environment or transferred to a smokefree environment, Plaintiff has failed in his burden to establish that there was a serious medical concern that required his housing in a smokefree environment. Thus, Defendants are entitled to summary judgment. (2) Plaintiff's Complaints Do Not Necessitate His Transfer to a Smokefree Environment.

Plaintiff next argues that his verbal and written complaints to Hood, Duncan, and Burrell create a triable issue of fact barring entry of summary judgment. Plaintiff provides this Court with no authority that the bare complaints of an inmate who wishes to be housed in another BOP facility are of any relevance to this analysis. Defendants concede that Plaintiff used the administrative remedy process numerous times to complain about his housing. Plaintiff, like many other inmates at the ADX, does not wish to be housed at the ADX. However, the mere fact that he complained about his designation to the ADX does not in any way establish that he had a sufficiently serious medical need that satisfies the objective component of an Eighth Amendment violation. Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). Thus, the fact that Plaintiff complained about his designation to the ADX is of no relevance to the Court's analysis of an Eighth Amendment violation of deliberate indifference to a serious medical need.

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(3)

Plaintiff Had No Serious Medical Need to be Housed in a Smokefree Environment from September 2002 Until July 2005, and His Housing During This Timeframe Is Irrelevant.

Plaintiff argues that he was not kept in a smokefree environment between September 2002 and July 2005, and that this fact is sufficient to establish the objective component of an Eighth Amendment claim. This argument is not only unsupported by the undisputed facts in this case, but it is also circular in nature. First, as stated above, Plaintiff does not dispute that no physician ever issued a medical order requiring that Plaintiff be either housed or transferred to a smokefree environment. Thus, his housing in an environment where he may have had minimal contact with ETS cannot be said to be contrary to his serious medical needs. Second, it is undisputed that the ADX became a non-smoking facility in September 2004. The Response does not allege that there were smokers at the ADX who violated this policy from September 2004 to July 2005. Thus, it is undisputed that Plaintiff was in a smokefree environment from September 2004 to July 2005, and that his housing during this time period is irrelevant. As a result, this alleged fact does not meet Plaintiff's burden of establishing the objective component of an Eighth Amendment violation. (4)-(5) Plaintiff Mischaracterizes His Expert's Testimony and Defendants' Expert Rebuttal Testimony. The MSJ asserted that Plaintiff could not establish what level of ETS he had been exposed to at ADX or that his exposure to ETS had caused him any harm. Plaintiff fails to rebut this argument. First, the Response argues that Plaintiff has an expert who will testify regarding the serious risk of future harm to Plaintiff as a result of his exposure to ETS. Although it is true that Plaintiff's expert, Dr. Dennis Clifford, believes that any exposure to ETS is harmful "for persons with two lungs let alone people with one lung" (Exh. C-1, Deposition of Dr. Dennis Clifford, 64:3-4), Dr. Clifford does not know and cannot testify as to whether Plaintiff has suffered damage to his lungs by virtue of his exposure to ETS. (Id. at 65:17-21). Dr. Clifford has no evidence to support an opinion that Plaintiff 4

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suffered any "deleterious effect from the exposure to environmental tobacco smoke." (Id. at 67:10-12). Dr. Clifford has seen no objective evidence indicating that Plaintiff has suffered any damage at all by virtue of his exposure to ETS. (Id. at 65:21-25). Dr. Clifford simply believes that Plaintiff may have an increased risk of recurrence of his cancer, but admits that he could have such a recurrence of cancer with or without exposure to ETS. (Id. at 72:7-16). Second, Plaintiff also argues that Dr. Clifford will testify that Plaintiff has exhibited numerous medical symptoms as a result of his exposure to ETS. Dr. Clifford has no objective evidence as to what level, if any, of ETS Plaintiff was exposed, other than Plaintiff's subjective reports of being able to smell tobacco smoke. (Id. at 64:9-14). Third, Plaintiff argues that Defendants have no expert to rebut these claims. Defendants have designated Dr. Marvin Schwarz as an expert in this case. Dr. Schwarz does not believe that Plaintiff has been harmed as a result of his exposure to ETS. (MSJ, at Exh. A-8). Notwithstanding this point, Defendants need no expert opinion to rebut Dr. Clifford's conclusions, given that Dr. Clifford has not asserted any opinions that support Plaintiff's claims of future risk of harm or what level, if any, of ETS he was exposed to. (6)-(7) Defendants Had No Reason to Redesignate Plaintiff to a Nonsmoking Facility Because the Risks of Plaintiff's Exposure to ETS at ADX Were Not So Obvious. Plaintiff argues that regardless of the lack of a 770 transfer request by Plaintiff's treating physicians, Defendants should have "redesignated" Plaintiff without a medical transfer because the risks associated with ETS are so obvious that even a layperson would recognize the necessity of housing Plaintiff in a smokefree environment. (Response, at 5). Plaintiff's argument ignores the fact that Defendants are entitled to rely upon the medical advice of the BOP physicians. The BOP physicians did not believe that a transfer was necessary, and

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thus, never requested a 770 medical transfer. Plaintiff has failed to provide this Court with any authority that Defendants should have sua sponte requested that Plaintiff be transferred to a nonsmoking facility due to the mere fact that Plaintiff, who was in a single non-smoking cell and may have had de minimus exposure to ETS in the ADX, wanted to be housed in a totally smokefree environment. Therefore, Defendants' ability to request redesignation of Plaintiff is irrelevant to the Court's inquiry. In the same manner, Plaintiff provides this Court with no authority that a layperson's understanding of the risks associated with ETS required Defendants to transfer Plaintiff to a non-smoking facility. b. Plaintiff Cannot Establish the Subjective Component.

Plaintiff argues that "Defendants' failure to follow doctor's instructions demonstrate that they deliberately disregarded a substantial risk of harm to Plaintiff's medical needs by keeping him in an environment that was `smoke-free.'" (Response, at 6). In the MSJ, Defendants argued that Plaintiff cannot prove that Hood, Burrell, and Duncan had knowledge of a "serious medical need" that Plaintiff be housed in a totally smoke-free environment because no treating physician issued a 770 medical transfer request for Plaintiff to be transferred to such an environment between September 2002 and September 2004. (MSJ, Exh. A-7, ¶ 10). Given that no treating physician ordered that Plaintiff be housed in a smoke-free environment between September 2002 and September 2004, Hood, Burrell and Duncan cannot be faulted for failing to move Plaintiff to such an environment. Plaintiff's argument that emails between his health care providers constituted "orders" requiring that he be housed in a smokefree environment and necessitating his transfer is simply not supported by the evidence before the Court. As Plaintiff has failed to demonstrate the subjective component, summary judgment is appropriate on this claim. 3. The Law Concerning ETS Was Not "Clearly Established" at the Time of the Conduct. There is no dispute between the parties that exposure to a unreasonably high level of ETS can, 6

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in some circumstances, violate the Eighth Amendment. Helling v. McKinney, 509 U.S. 25 (1993). However, as argued in the MSJ, Plaintiff has the burden of establishing that the amount of smoke that he was exposed to was an unreasonably high level. As Defendants argued in the MSJ, there is no agreement among the circuits or controlling precedent in the Tenth Circuit defining how much smoke is too much smoke such that it violates the Eighth Amendment. In the case at bar, Plaintiff has failed in his burden to provide any evidence of a quantifiable level of his exposure to ETS. However, as Defendants argued in the MSJ, even if Plaintiff could provide such evidence, the law was not clearly established as to what level of ETS would trigger the Eighth Amendment's protection. In rebutting Defendant's argument, Plaintiff hangs his hat on this Court's May 11, 2006 Order. (Response at 7-8). However, there are two problems with Plaintiff's reliance on the Court's earlier ruling. First, as the MSJ asserted, the Court's ruling in that May 11 Order was based on the presumptions on the face of the Third Amended Complaint and the standard of review for a motion to dismiss under Rule 12(b)(6). Taking the allegations in the Third Amended Complaint as true, the Court made the assumption that one of Plaintiff's physicians had ordered that Plaintiff be housed in a totally smokefree environment. As noted above, none of Plaintiff's physicians have ever issued such an order. Second, the Court's May 11 Order assumed, for the purposes of a Rule 12(b)(6) motion to dismiss, that Defendants may have unreasonably delayed transferring Plaintiff to smokefree housing to accommodate his alleged medical needs. As noted above, no such order was ever issued by a BOP medical provider. Thus, there was no delay on the part of Defendants. Thus, even if the Court finds that Plaintiff can overcome the first prong of the qualified immunity defense, Hood, Burrell, and Duncan are entitled to qualified immunity on Claim Two because the law was not clearly established at the time of the conduct in question.

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C.

Elements of Defense That Cannot Be Overcome by Plaintiff Concerning Housing in a High Altitude Environment. Plaintiff Cannot Meet the Objective Component. Despite Plaintiff's argument to the contrary, Plaintiff cannot meet the objective prong of the

1.

Eighth Amendment deliberative indifference claim because he cannot prove that he had a "serious medical need" to be housed at a lower altitude than the altitude of the ADX. Plaintiff refers the Court to his interrogatory responses, in which he states that he has experienced shortness of breath and feels an inability to exercise. (Response, at 9). Thus, Plaintiff argues that he should have been and should be at the present time transferred to a BOP facility at a lower altitude. However, Plaintiff's own expert, Dr. Clifford, does not support Plaintiff's argument. Dr. Clifford has no opinion as to whether Plaintiff suffered any damage as a result of his exposure to altitude. (Exh. C-1, 79:9-14). Dr. Clifford has no opinions critical of Dr. Schwartz's opinions. (Id. at 80:2-4). Dr. Clifford also "does not believe that [Plaintiff] needs to be removed to a lower altitude. (Id. at 80:23-25, 81:1- 6). Dr. Clifford's opinions are consistent with all other medical testimony in this case. Plaintiff's medical records from 2002 until the present do not reflect any medical complications relating to exposure to altitude. (MSJ, Exh. A-7, ¶ 14). Dr. Craig Shapiro, an independent medical consultant, determined that Plaintiff had no medical problems due to the altitude at the ADX. (Id. at Exh. A-7, ¶ 15). Dr. Marvin Schwarz, Defendants' expert pulmonologist, has reviewed Plaintiff's medical records from the Bureau of Prisons and determined that Plaintiff had no serious medical need necessitating his transfer to an institution at a lower altitude and has suffered no harm from his continued housing at the ADX. (Id. at Exh. A-8). Thus, Plaintiff has failed in his burden and summary judgment is appropriate on this claim.

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2.

Plaintiff Cannot Meet the Subjective Component. First, Plaintiff does not contest that no treating physician issued a 770 medical transfer request

that Plaintiff be transferred to an institution with a lower altitude to accommodate any such medical need. (Response, at 9-10). Second, Hood, Burrell, and Duncan relied on the medical opinions and diagnoses of Plaintiff's treating physicians, as well as the independent medical consultant Dr. Shapiro, as to whether or not there was a medical necessity requiring Plaintiff's transfer from the ADX to a different institution at a lower altitude. (MSJ, at Exh. A-9, ¶ 15; Exh. A-2, ¶¶ 16-17; Exh. A-4, ¶¶ 16-17). Dr. Shapiro found that Plaintiff had no medical problems due to the altitude at the ADX. (Id. at Exh. A-7, ¶ 15). As a matter of law, a federal officer cannot be faulted for following the clinical recommendations of a treating physician. McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977). Plaintiff's argument that Defendants were aware of his need to be at a low altitude because of his administrative grievances ­ which contain his subjective complaints about his medical needs ­ does not negate this principle of law. Thus, because Plaintiff fails to meet the subjective component of a deliberate indifference claim, summary judgment is appropriate on Claim Two. II. HOOD, BURRELL, CHESTER AND DUNCAN ARE ENTITLED TO QUALIFIED IMMUNITY ON CLAIM THREE: EIGHTH AMENDMENT CLAIM. Burden of Proof and Elements for Overcoming Defense of Qualified Immunity. See Section I.A, supra. B. 1. Elements of Qualified Immunity Defense That Cannot Be Overcome by Plaintiff. Plaintiff's Allegations of His Conditions of Confinement in His Response ­ Even if Taken as True -- Do Not State a Violation of the Eighth Amendment. Plaintiff makes a number of conclusory allegations about his conditions of confinement at the ADX without citing to any evidence, including: (1) he has a limited ability to speak to other inmates

A.

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unless yelling; (2) he has limited no contact visits; (3) he has restraints each time he is moved within the institution; (4) he is subjected to strip searches when he enters and leaves his cell; and (5) he is exposed to high levels of noise. (Response, at 11). Plaintiff's own conclusory allegations about the conditions of his confinement ­ without any support from a declaration, deposition, or any other form of evidence ­ are insufficient to create a dispute of material fact. Annett v. University of Kansas, 371 F.3d 1233, 1237 (10th Cir. 2004) (noting that "unsupported conclusory allegations . . . do not create a genuine issue of fact"); Villereal v. Harrison, No. 99-1268, 1999 WL 1063830 at *3 (10th Cir. Nov. 23, 1999) (attached as Exh. C-2) (same). The only factual allegations concerning Plaintiff's conditions of confinement for which Plaintiff offers any evidentiary support are: (1) he is under lock down for 23 hours a day (Response, Ex. B-15, 143:19); (2) he does "not feel able to exercise at ADX" (Id. at Ex. B-15, 143:10-25); and (3) "outdoor recreation at the ADX is often cancelled and is not regularly provided" (Id. at Ex. B-4, ¶¶ 9-10). Thus, these are the only allegations that the Federal Officers will address in this Reply. Plaintiff first alleges that his lockdown for 23 hours a day violates the Eighth Amendment. As the Federal Officers argued in the MSJ, Plaintiff's allegation that he is under lockdown for 23 hours a day does not constitute deliberate indifference to humane conditions of confinement under the Eighth Amendment. Hill v. Pugh, 2003 WL 22100960 (10th Cir. Sept. 11, 2003) (MSJ, at Exh. A-10). Plaintiff presents no contrary case law to rebut this argument. Plaintiff next alleges that he "does not feel able to exercise at ADX." Assuming arguendo that this allegation is true, it has nothing to do with the conditions of confinement. Thus, it is not material for the Court's consideration in this analysis. The last of Plaintiff's allegations is that "outdoor recreation at the ADX is often cancelled and is not regularly provided." Specifically, Plaintiff claims that he was denied the opportunity for outdoor

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recreation for approximately his first year of incarceration at the ADX. (Response, Ex. B-15, ¶ 10). However, as demonstrated by the attached declaration of Captain Harvey Church and the Recreation Log for F Unit (where Plaintiff was incarcerated during his first year at the ADX), Plaintiff consistently refused to go to recreation during his first year at ADX. (Exh. C-3, Declaration of Harvey Church, at ¶ 9 & Att. 1). As illustrated by the F Unit recreation log, other inmates on Plaintiff's range consistently went to both indoor and outdoor recreation, whereas Plaintiff consistently refused to participate. (Id.) Thus, while it may be true that Plaintiff did not participate in recreation for much of his first year at the ADX, there is no merit to Plaintiff's claim that he was denied the opportunity to recreate, given that he voluntarily refused to participate in that activity.1 2. Plaintiff Has Failed to Demonstrate that the Federal Officers Knew of and Disregarded Plaintiff's Conditions of Confinement. A plaintiff asserting an Eighth Amendment claim for deliberate indifference to conditions of confinement must demonstrate that: (1) he suffered substantial harm because of the deprivation of humane conditions of confinement, and (2) that the government official acted with a "sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 837 (1994). With respect to the subjective component of this two-part test, "a plaintiff must establish that defendant(s) knew he faced a substantial risk of harm and disregarded that risk, `by failing to take reasonable measures to abate it.'" Id. at 847. "[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk

Even if the Court finds that Plaintiff's allegations concerning denial of outdoor recreation during the first year of his confinement at the ADX from September 2002 until September 2003 states a cognizable claim under the Eighth Amendment, the Court should dismiss Claim Three's conditions of confinement claim against Chester. Chester was not employed at the ADX until 2004. (MSJ, Exh. A-15, 10:24-25; 11:1). Accordingly, Chester cannot be held liable for denying Plaintiff outdoor recreation between 2002 and 2003 because he was not personally involved in that allegedly unconstitutional conduct. 11

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to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. Plaintiff alleges in a conclusory fashion that the Federal Officers were "aware" of Plaintiff's conditions of confinement. The Response states that "Mr. Ajaj verbally and in writing complained to Hood, Burrell, Chester and Duncan of his conditions of confinement. The Defendants were also aware of the conditions of confinement at ADX as a result of their employment as warden and associate wardens." (Response, at 12). Plaintiff offers no evidentiary support for this statement. Because Plaintiff has failed to provide any evidentiary support for his conclusory allegation that Hood, Burrell, Chester and Duncan were "aware" of Plaintiff's conditions of confinement, Plaintiff has failed to meet his burden. Plaintiff's Response has provided no evidence ­ beyond his own conclusory allegations ­ to show that Hood, Burrell, Chester or Duncan knew of and disregarded an excessive risk to Plaintiff's health or safety. Thus, summary judgment is appropriate on this claim. 3. Plaintiff Cannot Hold Hood, Burrell, Chester and Duncan Liable for This Claim Under a Theory of Respondeat Superior. Plaintiff's Response attempts to rebut the MSJ's respondeat superior argument by asserting that: (1) Hood is liable because he admitted that he "was responsible for the safety and care of the staff and inmates that reside at ADX"; and (2) "Defendants Burrell, Chester and Duncan were also responsible for the conditions of confinement at ADX as associate wardens with responsibilities that included supervision over inmate programs and departments in the ADX." (Response, at 13-14). The Response cites to no evidence that shows that Hood, Burrell, Chester, or Duncan personally participated in creating the conditions of confinement that Plaintiff complains of in this lawsuit. Simply because Hood was "responsible for the safety and care of . . . the inmates that reside at ADX" does not mean that Hood was personally responsible for creating the conditions of confinement that Plaintiff complains about in this lawsuit. Citing to Burrell, Chester and Duncan's description of 12

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their job duties as encompassing oversight of "inmate systems" does not mean that they engaged in conduct which created the conditions of confinement that Plaintiff is challenging as unconstitutional. Rather, Plaintiff is arguing that Burrell, Chester and Duncan are liable simply because of their supervisory responsibilities at the ADX. This is legally unsupportable. Rizzo v. Goode, 423 U.S. 362, 372 (1976). Thus, Defendants are entitled to summary judgment on this claim. III. HOOD, BURRELL, CHESTER, AND DUNCAN ARE ENTITLED TO QUALIFIED IMMUNITY ON CLAIM THREE: DUE PROCESS CLAIM. Burden of Proof and Elements for Overcoming Defense of Qualified Immunity. See Section I.A, supra. B. Elements of Qualified Immunity Defense That Cannot Be Overcome by Plaintiff Concerning Deprivation of Process in His Transfer to the ADX. Plaintiff Cannot Prove Personal Participation by Hood, Burrell, Chester or Duncan for Plaintiff's Transfer to the ADX. Burrell, Chester and Duncan are entitled to qualified immunity on the due process claim concerning Plaintiff's transfer to the ADX because Plaintiff concedes that these defendants had no personal participation in the decision to transfer Plaintiff. (Response, at 14). Plaintiff argues that Hood "is an appropriate Defendant with regards to this claim" because Hood had the power to recommend that Plaintiff be transferred to a different institution after Plaintiff had arrived at the ADX. (Id. at 15). However, Plaintiff's argument misses the mark. First, Hood's power to recommend transfer after an inmate has arrived at the ADX has nothing to do with whatever due process that Plaintiff believes he should have received prior to his transfer. Plaintiff can point to no personal involvement on the part of Hood in Plaintiff's transfer to the ADX in the first instance, or any personal involvement by Hood in depriving Plaintiff of notice or a hearing prior to that transfer. Second, Hood lacked the power to make a final determination as to whether an inmate, such as Plaintiff, would be granted a transfer out of the ADX. (Exh. C-4, Hershberger Deposition, 21:18-20; see also MSJ, Exh. A-9, ¶ 4). Thus, even if 13

A.

1.

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Hood had recommended that Plaintiff be transferred out of the ADX to a different institution sometime after September 2002, Hood lacked the authority to effectuate that recommendation. 2. Plaintiff Had No Liberty Interest in Remaining Outside of the ADX. Plaintiff relies on Wilkinson v. Austin, 125 S. Ct. 2384, 2395 (2005), and argues that his placement at the ADX deprived him of a protected liberty interest. In their MSJ, Defendants argued that Wilkinson has been distinguished by the Tenth Circuit in Jordan v. Federal Bureau of Prisons, 041104, 2006 WL 2135513 (10th Cir. July 25, 2006). (MSJ, at 13 & Exh. A-16), and that the Tenth Circuit had held that the conditions at the ADX were different than the conditions at the Ohio Supermax at issue in Wilkinson. Jordan held that "Wilkinson is not dispositive here, as the conditions of Mr. Jordan's administrative detention were obviously not as onerous, given 1) he admittedly had frequent contact with staff; 2) the length of his sentence was not affected by the administrative detention; and 3) his confinement was not indefinite but instead limited to the duration of the pending murder investigation." Jordan, 2006 WL 2135513, at *10. In his Response, Plaintiff attempts to distinguish Jordan from the instant case by arguing that Plaintiff's conditions of confinement are different than the conditions that the plaintiff in Jordan faced because: (1) unlike in Jordan, there is a factual dispute between Plaintiffs and Defendants as to how much contact Plaintiff has with staff and other inmates; (2) Plaintiff's confinement is "not based on his disciplinary history"; and (3) Plaintiff's confinement at ADX is allegedly "indefinite" because he is a terrorist (Response, at 16-17). Plaintiff's argument lacks merit. First, Plaintiff is correct in stating that there is a factual dispute between the parties concerning how much contact Plaintiff has with staff and other inmates. However, neither Wilkinson nor Jordan stated that this factor, standing alone, creates a liberty interest. Furthermore, nowhere in Jordan is there any indication that all three factors that the Tenth Circuit

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relied on in distinguishing the conditions at the ADX from the conditions of the Ohio Supermax must all be met. Second, the second factor that Jordan relied on in distinguishing Wilkinson is the fact that the plaintiff's confinement at the ADX did not lengthen his sentence. Plaintiff's sentence has not been lengthened due to his incarceration at the ADX. Contrary to the Response, the reason for Plaintiff's incarceration at ADX ­ whether for disciplinary reasons or otherwise ­ is irrelevant to the inquiry as to whether the duration of his sentence has been lengthened. Third, putting Plaintiff's conclusory assertions aside, Plaintiff is not being indefinitely detained at the ADX. As numerous witnesses have stated in their depositions, Plaintiff has the ability to be transferred out of the ADX if and when he meets all the conditions for such a transfer and there is no policy concerning the step-down of terrorist inmates. (Exh. C-5, Burrell Deposition, at 105-106:22-3; Exh. C-6, Chester Deposition, 76:19-24; Exh. C-4, Hershberger Deposition, 89:17-21). Therefore, as the Tenth Circuit held in Jordan, the conditions at ADX are distinguishable from the Ohio Supermax, such that Plaintiff cannot rely on Wilkinson for the proposition that he has a protected liberty interest in remaining outside of the ADX.2 3. Plaintiff Received All the Process that He Was Due, Prior to His Transfer. Plaintiff also argues that his due process rights have been violated because "Plaintiff was not afforded the process he was due prior to his transfer to the ADX," in that he should have been given: (1) notice and a hearing; and (2) an opportunity to review his transferring progress report. (Response, at 17-18).

Plaintiff also argues that the Federal Officers misstate the holding of Miller v. Henman, 804 F.2d 421 (7th Cir. 1986). (Response, at 16). The Federal Officers concede that Miller addressed what due process rights an inmate had prior to his transfer to USP Marion rather than to the ADX, as the Federal Officers mistakenly noted in the parenthetical cite. However, the holding of Miller is still applicable to Plaintiff's due process claim concerning what process, if any, he was entitled to before his transfer to the ADX. In Miller, the Seventh Circuit held that "[w]hen the jailer is free to move a prisoner for any or no reason, the due process clause does not require hearings." 804 F.2d at 423. Applying that reasoning to Plaintiff's due process claim, Plaintiff was not entitled to a hearing prior to his transfer to the ADX. 15

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Plaintiff was not entitled to notice and a hearing prior to his transfer to the ADX. Miller, 804 F.2d at 423. Plaintiff's Response does not present any case law to rebut Defendants' argument that the only process that Plaintiff was entitled to regarding his transfer was: (1) the opportunity to raise any concerns about his transfer during his initial classification; and (2) the opportunity to challenge his transfer to the ADX through the Bureau's Administrative Remedy Program. (MSJ, at 13-14). As explained in the MSJ ­ and not contested by Plaintiff in his Response ­ Plaintiff was afforded the opportunity to participate in the administrative remedy process and to raise concerns during his initial classification about his transfer. Thus, Plaintiff has been afforded all the process he is due.3 Plaintiff's allegation that he was denied due process because he did not have an opportunity to review and sign his progress report, in alleged violation of 28 C.F.R. § 524.43, lacks merit. First, Plaintiff presents no evidence ­ besides his own conclusory statement ­ that he was denied an opportunity to review and sign this progress report. (Response, at 15). Plaintiff does not attach the progress report to his Response, nor does Plaintiff cite to any declaration or deposition testimony stating that Plaintiff was denied the opportunity to sign his progress report prior to his September 2002 transfer to the ADX. Conclusory statements are insufficient to create a triable issue of fact. Annett, 371 F.3d at 1237. Second, Hood's alleged violation of 28 C.F.R. § 524.43 does not give rise to a cognizable due process claim. A failure to adhere to an administrative regulation does not equate to a constitutional violation. Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir. 1993); Templeman v. Gunter, 16 F.3d 367 371 (10th Cir. 1994).

As Gregory Hershberger pointed out in his deposition, inmates who are transferred to the ADX to be placed in the control unit are afforded notice and a hearing prior to their transfer. (Response, at Ex. B-17, 100:25, 101:1-11). However, those same due process protections are not afforded to other inmates. (Id.) In the case at bar, Plaintiff was never placed in the control unit at the ADX. (MSJ, Exh. A-17, ¶¶ 45-46). Thus, Plaintiff would not be entitled to the due process protections afforded to control unit inmates. 16

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Finally, assuming that Plaintiff was denied the opportunity to review and sign the transferring progress report, Plaintiff has not and cannot show that Hood was involved in this conduct. Hood stated in the declaration attached to the MSJ that he was not involved in Plaintiff's transfer. (MSJ, at Exh. A9). Thus, Hood would be entitled to qualified immunity and summary judgment is appropriate. 4. The Law Was Not Clearly Established at the Time of Plaintiff's Transfer. Plaintiff argues that although Austin v. Wilkinson had not been decided when Plaintiff was transferred to the ADX, the law was clearly established that Plaintiff was entitled to some due process prior to his transfer to the ADX. (Response, at 18). As support, Plaintiff cites to Sandin v. Connor, 515 U.S. 472. (Id.) At the time of Plaintiff's transfer to the ADX in September 2002, Supreme Court and Tenth Circuit precedent overwhelmingly stood for the proposition that an inmate does not generally have a protected liberty interest in remaining in the general population or in his classification or assignment within the prison system. Sandin, 515 U.S. at 486; Hewitt v. Helms, 459 U.S. 460, 468 (1983); Penrod v. Zavaras, 94 F.3d 1399, 1406-07 (10th Cir. 1996); Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996); Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir, 1994); cf. Meachum v. Fano, 427 U.S. 215, 223-225 (1976).4 In light of this extensive body of law, it cannot be said that it was "clearly established" that Plaintiff had a protected liberty interest in remaining outside of the ADX in September 2002. Nor can it be said that the Federal Officers should have been "on notice" that transferring Plaintiff to the ADX ­ without providing some sort of due process prior to that transfer ­

This conclusion is supported by numerous unpublished cases from the Tenth Circuit which have been decided both before and after the critical time frame. Muhammad v. Hood, No. 04-1002, 2004 WL 1240933, at *1 (10th Cir. June 7, 2004) (attached as Exh. C-7); Herrera v. Williams, No. 03-2248, 2004 WL 1098851, at *1 (10th Cir. May 18, 2004) (attached as Exh. C8); Hill v. Pugh, No. 02-1561, 2003 WL 22100960, at *4 (10th Cir. Sept. 11, 2003) (MSJ at Exh. A-10); Moore v. Cooksey, No. 00-1109, 2000 WL 1838274, *1 (10th Cir. Dec. 14, 2000) (MSJ at Exh. A-18). 17

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would somehow violate Plaintiff's due process rights.5 C. Elements of Qualified Immunity Defense That Cannot Be Overcome by Plaintiff Concerning Deprivation of Process in His Continued Confinement at the ADX. Plaintiff argues that he is "entitled to a hearing to challenge his placement at the ADX." (Response, at 20). He claims that he has never received such a hearing. (Id.) Plaintiff cites no case law or other authority for his argument that he is entitled to a hearing. Plaintiff's own conclusory statements about what process he believes he is entitled to are not sufficient to state a due process claim or to overcome the first prong of the qualified immunity defense. Annett, 371 F.2d at 1237. IV. THE FEDERAL OFFICERS ARE ENTITLED TO SUMMARY JUDGMENT ON CLAIM FIVE: EQUAL PROTECTION CLAIM. Burden of Proof and Elements for Overcoming Defense of Qualified Immunity See Section I.A, supra. B. 1. Elements of Qualified Immunity Defense That Cannot Be Overcome by Plaintiff Plaintiff Fails to Demonstrate Personal Participation for Burrell, Duncan, Chester and Zuercher. Plaintiff concedes that Claim Five should be dismissed against Burrell and Duncan for lack of personal participation. (Response, at 20). Claim Five should be dismissed against Chester and Zuercher for lack of personal participation.

A.

Plaintiff cites to Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 809 (10th Cir. 1999), for the proposition that whether an inmate "has been subjected to atypical and significant hardship is a factual issue and inappropriate for a determination in a motion for summary judgment." (Response, at 18). Plaintiff mischaracterizes the procedural posture and holding in Perkins. That case held that the district court should not have dismissed the plaintiff's due process claim under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, given that the court did not have any evidence before it for determining whether the inmate had been subjected to an atypical, significant deprivation that would implicate a liberty interest. 165 F.3d at 809. Here, the Federal Officers are not moving under Rule 12(b)(6) to dismiss Plaintiff's claim, but under Rule 56. Moreover, the Federal Officers are asserting that as a matter of law, the Court should dismiss Plaintiff's due process claim concerning his transfer because the law was not clearly established at the time of the conduct in question. 18

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Plaintiff mistakenly contends that "Defendants do not challenge personal participation by the remaining Defendants Hood, Chester and Zuercher in regards to the Equal Protection Claim." (Id. at 20-21). However, both Chester and Zuercher have challenged the assertion of Claim Five against them on personal participation grounds. (MSJ, at 17). As Plaintiff admitted in his deposition, the decisionmaker for determining which ADX inmates are placed in the step-down units is the Warden of the ADX. (Id. at Exh. A-5, 270:9-18). As Associate Wardens at the ADX, Chester and Zuercher lacked the authority to approve or deny step-down for any inmate. (Id. at Exh. A-3, ¶¶ 11, 13 & Exh. A-19, ¶ 10). In his Response, Plaintiff does not dispute this fact, and thus, concedes this point. Thus, Chester and Zuercher are entitled to summary judgment on Claim Five because Plaintiff has not rebutted the evidence presented in the MSJ and demonstrated that Chester and Zuercher personally participated in the decision to refuse Plaintiff the opportunity to step-down. 2. Plaintiff Has Not Presented Any Evidence, Besides His Own Self-Serving Declaration, that He Was Treated Differently Than Similarly Situated Inmates. First, Plaintiff presents no evidence to contradict the fact presented to the MSJ that 60 Muslim inmates have been stepped down between 2002 and 2006. Instead, Plaintiff states that "to [his] . . . knowledge, no Arab or Palestinian Muslim prisoners have been stepped down" since he was incarcerated at the ADX from September 2002 until August 1, 2006. (Response, Ex. B-4, ¶ 13) (emphasis added). Therefore, with regard to Plaintiff's claim in the Third Amended Complaint that Muslims are discriminated against in the ADX's step-down program, there does not appear to be a dispute of fact because Plaintiff has not met his burden of proof to dispute this matter. Second, Plaintiff presents no factual support for his contention that no "Arab or Palestinian Muslims" have been stepped down between September 2002 and August 2006, beyond his own unsubstantiated and conclusory personal belief as set forth in his self-serving declaration. This is not

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sufficient to survive a motion for summary judgment. Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991); see also Mohamed v. Tattum, 380 F. Supp. 2d 1214, 1222 & n. 52 (D. Kan. 2005). CONCLUSION The Federal Officers respectfully request that the Court grant them summary judgment on all claims in the Third Amended Complaint in accordance with Fed. R. Civ. P. 56. Respectfully submitted this 13th day of September, 2006. TROY A. EID United States Attorney s/ Amanda Rocque Amanda Rocque s/ Elizabeth Weishaupl Elizabeth Weishaupl 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0404 Email: [email protected] [email protected] Attorneys for Defendant

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CERTIFICATE OF MAILING I hereby certify that on this 13th day of September, 2006, I electronically filed the foregoing THE FEDERAL OFFICERS' REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Carmen Nicole Reilly [email protected] [email protected] John Robert Riley [email protected] I hereby certify that on this 13th day of September, 2006, I served the foregoing THE FEDERAL OFFICERS' REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT on the following non-CM/ECF participants via electronic mail: Christopher Synsvoll, Esq., as designated agent on behalf of the United States and the individual defendants, [email protected]

s/ Amanda Rocque Amanda Rocque Office of the U.S. Attorney

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