Free Motion for Summary Judgment - 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.

THE FEDERAL OFFICERS' MOTION FOR SUMMARY JUDGMENT

Defendants Robert Hood, James Burrell, David Duncan, C. Chester, and J. C. Zuercher ("the Federal Officers") hereby move for summary judgment on all claims raised against them in the Third Amended Complaint, in accordance with Fed. R. Civ. P. 56.1 CLAIMS AND DEFENSES UPON WHICH JUDGMENT IS SOUGHT I. HOOD, BURRELL, AND DUNCAN ARE ENTITLED TO QUALIFIED IMMUNITY ON CLAIM TWO: EIGHTH AMENDMENT DELIBERATE INDIFFERENCE CLAIM. Hood, Burrell, and Duncan assert that they are entitled to qualified immunity on Claim Two's deliberate indifference to medical needs claim. A. Burden of Proof and Elements for Overcoming Defense of Qualified Immunity When the defense of qualified immunity is raised, the plaintiff initially bears a heavy two-

On July 17, 2006, the Federal Officers requested leave to file a summary judgment motion and tendered a 42-page Motion for Summary Judgment. On July 19, 2006, the Court granted leave to file a summary judgment motion within the 20-page limit on whether the Federal Officers are entitled to qualified immunity.

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part burden. Reynolds v. Powell, 370 F.3d 1028, 1030 (10th Cir. 2004). The plaintiff must demonstrate that: (1) 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. Id. In performing this analysis, the first inquiry should be whether the facts alleged establish the violation of a constitutional right. Saucier v. Katz, 533 U.S. 194, 200-01 (2001). If no constitutional right was violated, it is unnecessary to proceed to the next inquiry ­ i.e., whether the law recognizing the constitutional right was "clearly established." Id.; Maestas v. Lujan, 351 F.3d 1001, 1006-07 (10th Cir. 2003). If the plaintiff shows that a cognizable constitutional right was violated, the next step is to determine if the law was clearly established at the time of alleged wrongful conduct. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. The unlawfulness of the official's act must be "apparent" in light of pre-existing law, Anderson v. Creighton, 483 U.S. 635, 640 (1987), such that the official had "fair warning" that his conduct was unlawful. Hope v. Pelzer, 536 U.S. 730, 739-41 (2002). "The law is clearly established when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other courts shows that the right must be as plaintiff maintains." Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1248 (10th Cir. 2003). B. Elements of Defense That Cannot Be Overcome by Plaintiff Concerning Failure to House Plaintiff in a Totally Smokefree Environment. 1. Plaintiff Cannot Prove a Violation of His Eighth Amendment Rights.

To state a claim for a violation of the Eighth Amendment, Plaintiff must demonstrate that the Federal Officers were deliberately indifferent to Plaintiff's serious medical needs. Estelle v. 2

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Gamble, 429 U.S. 97, 104 (1976); Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). This has an objective component and a subjective component. Mata, 427 F.3d at 751 First, Plaintiff cannot meet the objective prong of the deliberate indifference claim because he cannot prove that he had a "serious medical need" to be housed in a totally smokefree environment or that he was, in fact, exposed to unreasonably high levels of smoke. a. The ADX eliminated smoking from all areas in September 2004. See Exh. A-1,

Institution Supplement FLM 1640.04(a), Smoking/No Smoking (September 29, 2004). b. Between September 2002 and September 2004, Plaintiff was housed in a single,

non-smoking cell at the ADX. See Exh. A-2, Declaration of James Burrell ("Burrell Decl."), at ¶ 15; Exh. A-3, Declaration of Claude Chester ("Chester Decl."), at ¶ 16; Exh. A-4, Declaration of David Duncan ("Duncan Decl."), at ¶ 15. c. Plaintiff cannot establish what levels of environmental tobacco smoke ("ETS") he

was exposed to, if any, in his single non-smoking cell between September 2002 and September 2004. See Exh. A-5, Ajaj Deposition, 134:3-12. d. Plaintiff has no expert witness who can testify as to what levels of ETS he was

exposed to, if any, between September 2002 and September 2004. See Exh. A-6, Plaintiff's Expert Disclosures and Plaintiff's Supplemental Expert Disclosures. e. The objective medical evidence does not support Plaintiff's claim that he was

harmed by his alleged exposure to ETS, if any, while he was incarcerated at the ADX. A review of Plaintiff's medical records for the time period from September 2002 through September 2004 when he was allegedly exposed to ETS reveals that he was in no acute distress and that his blood oxygen saturation levels were well within the normal range. See Exh. A-7, Declaration of Steven

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Nafziger ("Nafziger Decl."), at ¶ 13. f. Plaintiff has no expert who will testify that his exposure to ETS, if any, between

September 2002 and September 2004 caused him any serious risk of future harm. See Exh. A-6. g. Although it was a medical concern to house Plaintiff in a location where his

exposure to smoke would be limited, no treating physician from 2002 until the present ordered that Plaintiff be housed where he would have no ETS exposure (i.e., be placed in a totally smokefree environment). See Exh. A-7, Nafziger Decl., at ¶ 12. h. Medical transfer requests are generally referred to as a "770 transfer" or a "770

referral." A 770 transfer request is appropriate if the treating physician determines that the inmate has a serious medical need that cannot be met at the institution where the inmate is housed. See Exh. A-7, Nafziger Decl., at ¶¶ 4-9. i. A treating physician or clinical director at a Bureau institution has the authority to

request a medical transfer. Medical transfers are approved by the Central Office Medical Designator in the Office of Medical Designations and Transportation (OMDT), Central Office. See Exh. A-7, Nafziger Decl., at ¶ 5. j. A review of Plaintiff's medical records reveals that from September 2002 until

September 2004 while smoking was permitted at the ADX, no 770 medical transfer request was ever made on behalf of Plaintiff by any treating physician based upon a medical need for Plaintiff to be housed in a totally smoke-free environment. See Exh. A-7, Nafziger Decl., at ¶ 10. k. Because there were no 770 medical transfer requests from any of Plaintiff's

treating physicians, Plaintiff cannot prove that he had a sufficiently serious medical need that had been diagnosed by a doctor or "that is so obvious that even a lay person would easily recognize

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the necessity" to be placed in a totally smoke-free environment. Matz, 427 F.3d at 751. Second, Plaintiff cannot establish the subjective prong for a deliberate indifference claim. a. 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. See Exh. A-7, Nafziger Decl., at ¶ 10. b. 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. 2. a. Plaintiff Cannot Prove That the Law Was Clearly Established. A review of Plaintiff's Third Amended Complaint reveals that Plaintiff believes

that he has a right to a totally smoke-free environment (i.e, that any exposure to ETS was unreasonable). b. An inmate has no right to a totally smoke-free environment. In Helling v.

McKinney, 509 U.S. 25, 35 (1993), the Supreme Court only stated that an Eighth Amendment claim can be asserted for future injury if it is alleged that the injury is due to exposure to "unreasonably high levels" of second-hand smoke. c. Neither the Supreme Court nor the Tenth Circuit have determined what "an

unreasonably high level of smoke" constitutes. Similarly, there is no clear direction from any of the circuit courts in this regard. See generally, Henderson v. Sheahan, 196 F.3d 839, 844-47 (7th Cir. 1999); Warren v. Keane, 196 F.3d 330, 331-33 (2nd Cir. 1999); Scott v. D.C., 139 F.3d 940,

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943 (D.C. Cir. 1998); Rochan v. City of Angola, LA, 122 F.3d 319, 320 (5th Cir. 1997); Oliver v. Deen, 77 F.3d 156, 157-60 (7th Cir. 1996). d. In its May 11, 2006 Order, the Court rejected the Federal Officers' argument that

the law was not clearly established concerning how much exposure to environmental tobacco smoke violates the Eighth Amendment. (Docket No. 186, at 17). As grounds therefore, the Court held that "[c]onstruing the alleged facts most favorably to Mr. Ajaj, any amount of secondhand smoke was unreasonably high given the doctor's recommendation, and the failure to move him to a smoke-free, low altitude environment constituted a delay in the doctor's prescribed course of treatment." (Id.) e. It would be contrary to law to hold Hood, Burrell and Duncan liable for Claim

Two. The issue is not whether a find of fact could ultimately conclude that the smoke level was unreasonably high, but whether at the time of the alleged wrongful conduct, established law put the defendants on notice that the smoke level Plaintiff was exposed to was unreasonably high. As evidenced above, there is no 770 medical transfer request from any of Plaintiff's treating physicians stating that Plaintiff should be moved from the ADX to a totally smokefree environment. See Exh. A-7, Nafziger Decl., at ¶ 12. Given that the circuits and the Supreme Court cannot agree on a standard as to how much smoke is too much smoke, it was not unreasonable for Hood, Burrell, and Duncan to assume that Plaintiff's medical needs were being accommodated in a single non-smoking cell. After all, since the courts cannot decide how much ETS meets the level of "unreasonably high," Hood, Burrell and Duncan could not have anticipated that their placement of Plaintiff at the ADX in a non-smoking cell at the ADX was exposing Plaintiff to "unreasonably high levels of smoke," in violation of Plaintiff's Eighth

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Amendment rights. f. No treating physician issued a 770 medical transfer request stating that Plaintiff

needed to be moved to a totally smokefree environment. See Exh. A-7, Nafziger Decl., at ¶ 10. Thus, there was no delay on the part of Hood, Burrell, and Duncan in following a prescribed course of treatment, given that there was no such course of treatment. C. Elements of Defense That Cannot Be Overcome by Plaintiff Concerning Housing in a High Altitude Environment. 1. Plaintiff Cannot Prove a Violation of His Eighth Amendment Rights.

First, Plaintiff cannot meet the objective prong of the 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. a. Plaintiff's medical records from 2002 until the present do not reflect any medical

complications relating to exposure to altitude. See Exh. A-7, Nafziger Decl., at ¶ 14. b. Dr. Craig Shapiro, an independent medical consultant, determined that Plaintiff

had no medical problems due to the altitude at the ADX. See Exh. A-7, Nafziger Decl., at ¶ 15. c. Plaintiff has no expert who will testify, contrary to the opinions of Dr. Shapiro

and the ADX medical staff, that the altitude at ADX caused Plaintiff any medical harm or risk of future harm. See Exh. A-6. d. Dr. Marvin Schwartz, 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. See A-8, Expert Report of Dr. Marvin Schwartz. e. From September 2002 until the present time, no requests for a 770 medical 7

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transfer have ever been sought for Plaintiff by any treating physician based upon a medical need for Plaintiff to be housed at a low altitude. See A-7, Nafziger Decl., at ¶ 11. f. Because there were no 770 medical transfer requests from any treating physician

requesting that Plaintiff be transferred from the ADX to a different facility so that he could be housed at a lower altitude, Plaintiff cannot prove that he had a sufficiently "serious medical need" that had been diagnosed by a doctor or "that is so obvious that even a lay person would easily recognize the necessity" to be placed in such an environment. Matz, 427 F.3d at 751. Second, Plaintiff cannot meet the subjective prong of the Eighth Amendment claim. a. Plaintiff cannot prove that Hood, Burrell, and Duncan had knowledge that

Plaintiff had a "serious medical need" to be at a lower altitude because 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. See A-7, Nafziger Decl., at ¶ 11. b. Hood, Burrell, and Duncan relied on the medical opinions and diagnoses of

Plaintiff's treating physicians as to whether or not there was a medical necessity requiring Plaintiff's transfer from the ADX to a different institution. See A-9, Declaration of Robert Hood ("Hood Decl."), at ¶ 15; Exh. A-2, Burrell Decl., at ¶¶ 16-17; Exh. A-4, Duncan Decl., at ¶¶ 1617. Dr. Shapiro found that Plaintiff had no medical problems due to the altitude at the ADX. See A-7, Nafziger Decl., at ¶ 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). 2. a. Plaintiff Cannot Prove that the Law Was Clearly Established. In its May 11, 2006 Order, the Court held that Hood, Burrell, and Duncan were

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not entitled to qualified immunity on Claim Two because the law was clearly established that a federal officer's delay in allowing an inmate to receive a prescribed course of treatment violates the inmate's Eighth Amendment rights. (Docket No. 186, at 17). Citing to Hunt v. Uphoff, the Court held, "[c]onstruing the alleged facts most favorably to Mr. Ajaj, . . . the failure to move [Plaintiff] . . . to a smoke-free, low altitude environment constituted a delay in the doctor's prescribed course of treatment." (Id.) b. Because no treating physician issued a 770 medical transfer request ordering that

Plaintiff be transferred to a lower altitude, there was no delay on the part of Hood, Burrell, and Duncan in following a prescribed course of treatment, given that there was no such course of treatment. II. HOOD, BURRELL, CHESTER AND DUNCAN ARE ENTITLED TO QUALIFIED IMMUNITY ON CLAIM THREE: EIGHTH AMENDMENT CONDITIONS OF CONFINEMENT CLAIM. Hood, Burrell, Chester and Duncan assert that they are entitled to qualified immunity on Claim Three's conditions of confinement claim. A. Burden of Proof and Elements for Overcoming Defense of Qualified Immunity Plaintiff bears the burden of proof. The elements that Plaintiff must demonstrate to overcome the qualified immunity defense have already been set forth. See Section I.A, supra. B. Elements of Defense That Cannot Be Overcome by Plaintiff 1. Plaintiff Cannot Demonstrate That There Has Been a Violation of His Eighth Amendment Rights. As a matter of law, Plaintiff's allegations of being held in "extreme isolation" and

a.

"lock-down for 23 or 24 hours a day" do not constitute deliberate indifference to humane conditions of confinement. See Hill v. Pugh, 2003 WL 22100960 (10th Cir. Sept. 11, 2003) 9

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(attached as Exh. A-10) (holding that plaintiff failed to state an Eighth Amendment violation where he complained of being held in lockdown for 23 hours a day for five days a week and 24 hours a day on the other two days a week). "Mere `inactivity, lack of companionship and a low level of intellectual stimulation do not constitute cruel and unusual punishment.'" Id. at *5 (citations omitted). b. As a matter of law, Plaintiff's allegations about deprivation of or restrictions on

his personal property do not meet the standard for stating an Eighth Amendment claim. See, e.g., Rhodes v. Alameida, No. 02-5476, 2006 WL 1652647, *5 (E.D. Cal. June 14, 2006) (attached as Exh. A-11) (dismissing inmate's claim that deprivation of property constituted deliberate indifference because it "does not rise to the level of an Eighth Amendment violation"); Hattley v. Goord, No. 02-2339, 2003 WL 1700435, *8 (S.D.N.Y. Mar. 27, 2003) (attached as Exh. A-12) (holding no Eighth Amendment violation where inmate alleged restrictions on personal property because such allegations did not meet the objective prong of the deliberate indifference test). c. As a matter of law, Plaintiff's allegations about restrictions on telephone

privileges do not state a cognizable claim under the Eighth Amendment. Collmar v. Wilkinson, No. 97-4374, 1999 WL 623708, *3 (6th Cir. Aug. 11, 1999) (attached as Exh. A-13) (holding plaintiffs failed to state a claim under the Eighth Amendment because the restrictions on telephone privileges do not rise to the level of an Eighth Amendment violation). d. As a matter of law, Plaintiff's allegations of having "extremely limited outdoor

recreation" do not state an Eighth Amendment claim. See, e.g., Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (holding that exposure to fresh air and sunlight for one hour a week, while restrictive, fails to state an Eighth Amendment claim). Moreover, Ajaj frequently refuses

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to go to recreation, and thus, he cannot claim that he is being denied recreation when he chooses not to avail himself of the opportunity to recreate. See Exh. A-17, Declaration of Tomas Gomez, ("Gomez Decl."), at ¶ 31. e. To the extent that Plaintiff is attempting to hold Hood, Burrell, Chester, and

Duncan2 liable for Claim Three's conditions of confinement claim under a theory of respondeat superior, this does not state a Bivens claim. Gates, 996 F.2d 1035, 1042 (10th Cir. 1993); Rizzo, 423 U.S. 362, 372 (1976). III. HOOD, BURRELL, CHESTER, AND DUNCAN ARE ENTITLED TO QUALIFIED IMMUNITY ON CLAIM THREE: DUE PROCESS CLAIM. Hood, Burrell, Chester, and Duncan assert that they are entitled to qualified immunity on Claim Three's due process claim. A. Burden of Proof and Elements for Overcoming Defense of Qualified Immunity Plaintiff bears the burden of proof. The elements that Plaintiff must demonstrate to overcome the qualified immunity defense have already been set forth. See Section I.A, supra. B. Elements of Defense That Cannot Be Overcome by Plaintiff Concerning Transfer. 1. Plaintiff Cannot Prove a Violation of His Due Process Rights.

First, Plaintiff cannot prove personal participation by the Federal Officers. a. Decl., at ¶ 3. Plaintiff was transferred to the ADX on September 4, 2002. See Exh. A-9, Hood

Plaintiff alleges that Hood was responsible for Plaintiff's conditions of confinement because "[h]e is the Warden. He is the one who ­ he is the one who run the institutions, and he controlled what is going on inside the institution . . . ." See Exh. A-5, Ajaj Deposition, 72:16. Plaintiff alleges that Burrell, Chester, and Duncan are all liable for imposing certain conditions of confinement on Plaintiff because "[t]hey are the one who run this institution." See Exh. A-5, Ajaj Deposition, 73:2-14, 74:1-15. 11

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b.

Hood, Burrell, Chester, and Duncan had no involvement in the decision to transfer

Plaintiff to the ADX in September 2002. See Exh. A-9, Hood Decl., at ¶ 4; Exh. A-2, Burrell Decl., at ¶ 5; Exh. A-3, Chester Decl., at ¶ 5; Exh. A-4, Duncan Decl., at ¶ 5. c. The decision to transfer Plaintiff was made by the Regional Director for the North

Central Regional Office, Bureau of Prisons. See Exh. A-14, Burrell Deposition, 26:4-7. d. Hood, Burrell, and Duncan lacked any authority to refuse or block the decision to

transfer Plaintiff to the ADX. See Exh. A-9, Hood Decl., at ¶ 4; Exh. A-2, Burrell Decl., at ¶ 5; Exh. A-4, Duncan Decl., at ¶ 5. e. Chester was not employed at the ADX in September 2002, when Plaintiff was

transferred to the ADX. See Exh. A-15, Chester Deposition, 10:24-25; 11:1. Thus, Chester was not involved in any decision to transfer Plaintiff to the ADX. Notwithstanding, Chester lacked any authority to refuse or block the decision to transfer inmates to the ADX. See Exh. A-3, Chester Decl., at ¶ 5. Second, as a matter of law, Plaintiff has no liberty interest in remaining out of the ADX and at another institution. a. There is no cognizable liberty interest in remaining out of the ADX. See, e.g.,

Miller v. Henman, 804 F.2d 421 (7th Cir. 1986) (rejecting the claim that inmates were entitled to a hearing prior to being placed at the ADX). b. Even in the wake of the Supreme Court's decision in Wilkinson v. Austin, __

U.S.__, 125 S. Ct. 2384, 2395 (2005),3 Plaintiff does not have a cognizable liberty interest in

Austin held that an inmate had a protected liberty interest in avoiding assignment to Ohio's supermaximum prison because of three components of the confinement: (1) the extreme limitation on human contact and confinement to a lighted cell for 23 hours a day; (2) the 12

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remaining out of the ADX. c. The case law since Wilkinson demonstrates that the Tenth Circuit has factually

distinguished the conditions at the Ohio Supermax from the conditions at other facilities, including the conditions of confinement at the ADX. See, e.g., Jordan v. Federal Bureau of Prisons, No. 04-1104, 2006 WL 1587456 at **10-11 (10th Cir. June 12, 2006) (attached as Exh. A-16). An inmate's incarceration at the ADX does not impact his sentence duration. See Exh. A-17, Gomez Decl., at ¶ 18. Thus, the Ohio Supermax described in Wilkinson is factually distinguishable from the ADX. Third, Plaintiff was afforded all of the process that he was due prior to his transfer. a. On arrival at the ADX, an inmate may raise any concerns about his transfer during

his initial classification. See Exh. A-17, Gomez Decl., at ¶ 22. b. Plaintiff received his initial classification on September 13, 2002, and thus, was

afforded an opportunity to raise any concerns he had about his transfer to the ADX. See Exh. A17, Gomez Decl., at ¶ 7. c. An inmate may also challenge his transfer to the ADX through the Bureau's

Administrative Remedy Program, which is set forth in Program Statement 1330.13, Administrative Remedy Program. See Exh. A-17, Gomez Decl., at ¶ 23. d. The procedure in Program Statement 1330.13 requires that an inmate first address

his complaint to the Warden. If dissatisfied with that response, the inmate may appeal his complaint to the Regional Director. If dissatisfied with the Regional Director's response, the

indefinite period of confinement which is only reviewed annually; and (3) the fact that confinement disqualifies an inmate for parole consideration. Austin, 125 S. Ct. at 2394-95. 13

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inmate may appeal to the Director, National Inmate Appeals, in the Office of the General Counsel in Washington D.C. Generally, an inmate has not exhausted his remedies until he has sought review at all three levels. Under this procedure, inmate complaints must be made within specific time frames. Ordinarily, a complaint must be made within 20 days of the time the incident complained of occurs. Failure to raise a complaint in a timely manner can result in lack of review. Procedures also exist to allow an inmate to bypass the initial level of review at the institution if there is some indication that the complaint is of a sensitive nature. Such complaints may be filed directly with the Regional Director. See Exh. A-17, Gomez Decl., at ¶¶ 24-25. e. Here, Plaintiff was afforded the opportunity to challenge his transfer to the ADX

through the Administrative Remedy program. See Exh. A-17, Gomez Decl., at ¶ 26. f. Plaintiff did challenge his transfer to the ADX through the Administrative

Remedy Program. See Exh. A-17, Gomez Decl., at ¶ 56.4 2. Plaintiff Cannot Prove That the Law Was "Clearly Established" at the Time of His Transfer. The Supreme Court did not decide Austin v. Wilkinson until June 13, 2005. At the time of Plaintiff's transfer to the ADX on September 4, 2002, an inmate

a. b.

had no due process right to remain at a particular institution. See, e.g., Moore v. Cooksey, No. 00-1109, 2000 WL 1838274, *1 (10th Cir. Dec. 14, 2000) (attached as Exh. A-18).

Plaintiff appears to be arguing that the procedural protections afforded to inmates who transferred to in the ADX for placement in the Control Unit ­ i.e., notice, hearing, and an opportunity to meaningfully challenge the decision concerning his placement ­ apply in his case. See Docket No. 165, Third Amended Complaint, at ¶ 75; see also 28 C.F.R. § 541.40 et seq. Plaintiff is not and has never been housed in the Control Unit at the ADX. See Exh. A-17, Gomez Decl., at ¶¶ 48, 57-58. Thus, Plaintiff has no entitlement to any such procedural protections that are afforded to inmates prior to their placement in the Control Unit. 14

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c.

At the time of Plaintiff's transfer to the ADX on September 4, 2002, an inmate

had no due process right to notice or a hearing prior to being transferred to a particular institution. See, e.g., Meachum v. Fano, 427 U.S. 215, 225 (1976). C. Elements of Defense That Cannot Be Overcome by Plaintiff Concerning His Continued Confinement to the ADX 1. Plaintiff Cannot Demonstrate That There Has Been a Violation of His Due Process Rights Concerning His Continued Confinement at the ADX. Inmates at the Bureau receive initial classification upon arrival at a new

a.

institution. See Exh. A-17, Gomez Decl., at ¶ 6. b. Inmates may raise any concerns about transfer during this initial classification.

See Exh. A-17, Gomez Decl., at ¶ 22. c. Plaintiff received his initial classification on September 13, 2002. See Exh. A-17,

Gomez Decl., at ¶ 7. d. Program Reviews, which are subsequent meetings with the inmate's Unit Team,

are held at least once every six months and are conducted to monitor and evaluate the inmate's progress in all program areas. The Program Review Report (PP-55) documents team meetings. It references all recommendations and discussions, and notes any decisions made (e.g., change in custody, placement in the step-down program, etc.). See Exh. A-17, Gomez Decl., at ¶¶ 8-9. e. Plaintiff received Program Review Reports on August 5, 2003; February 11, 2004;

August 9, 2004; January 13, 2005; July 12, 2005; November 30, 2005; and May 5, 2006. See Exh. A-17, Gomez Decl., at ¶ 10 & Attachment 1. f. A Progress Report is the primary document used by the Unit Team to evaluate the

behavior and activities of inmates. The Progress Report is a detailed comprehensive account of

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an inmate's case history, prepared by the Case Manager at prescribed intervals during the inmate's confinement. A Progress Report is required, at a minimum, once every three years. See Exh. A-17, Gomez Decl., at ¶¶ 11, 13. g. Plaintiff received a Progress Report on January 25, 2005. See Exh. A-17, Gomez

Decl., at ¶ 14 & Attachment 2. h. Plaintiff's continued housing at the ADX and advancement through the Step-

Down Program is reviewed every six months by members of his Unit Team. He is able to challenge any recommendations and decisions made by his Unit Team through the Administrative Remedy program. He may also request a Special Unit Team review at any time and challenge the recommendations and decisions through the Administrative Remedy Program. See Exh. A-17, Gomez Decl., at ¶ 55. i. Plaintiff has challenged his continued housing at the ADX and advancement

through the Step-Down Program through the Bureau's Administrative Remedy Program. See Exh. A-17, Gomez Decl., at ¶ 56. IV. THE FEDERAL OFFICERS ARE ENTITLED TO SUMMARY JUDGMENT ON CLAIM FIVE: EQUAL PROTECTION CLAIM. The Federal Officers assert that they are entitled to qualified immunity on Claim Five's equal protection claim. A. Burden of Proof and Elements for Overcoming Defense of Qualified Immunity Plaintiff bears the burden of proof. The elements that Plaintiff must demonstrate to overcome the qualified immunity defense have already been set forth. See Section I.A, supra.

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B.

Elements of Defense That Cannot Be Overcome by Plaintiff 1. Plaintiff Cannot Demonstrate That There Has Been a Violation of His Equal Protection Rights.

First, Plaintiff cannot prove personal participation by the Federal Officers. a. Plaintiff was denied the opportunity to step-down to K Unit on April 12, 2004,

October 22, 2004, and April 12, 2005. See Exh. A-17, Gomez Decl., at ¶ 47. b. Ajaj was not eligible for step-down placement from October 2002 until April

2004. Even though Ajaj was in general population and had clear conduct during that time period, he did not participate in any programs until October 9, 2003, and thus, was not eligible for stepdown. Ajaj was not eligible for step-down placement in October 2005 because he received an incident report in September 2005, and thus, did not meet the clear conduct requirements. See Exh. A-17, Gomez Decl., at ¶¶ 49-50. c. The decision-maker for determining which inmates at the ADX are placed in the

step-down units is the Warden of the ADX. See Exh. A-5, Ajaj Deposition, 270:9-18. d. Associate Wardens at the ADX serve on the Screening Committee for reviewing

whether inmates should be stepped down, but Associate Wardens do not have the authority to approve or deny step-down for any inmate. See Exh. A-9, Hood Decl., at ¶ 9; Exh. A-2, Burrell Decl., at ¶ 11; Exh. A-3, Chester Decl., at ¶¶ 11, 13; Exh. A-4, Duncan Decl., at ¶¶ 11, 13; Exh. A-19, Declaration of Jerome Zuercher ("Zuercher Decl."), at ¶ 10. e. Given that Plaintiff was not eligible for step-down or even considered for step-

down until April 12, 2004 after Burrell and Duncan had left the ADX, neither Burrell nor Duncan personally participated in any of Plaintiff's reviews or recommendations for participation in step-down. See Exh. A-2, Burrell Decl., at ¶ 13; Exh. A-4, Duncan Decl., at ¶ 13. 17

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Second, Plaintiff cannot show that he was treated differently than other similarly situated inmates, and thus, cannot establish a violation of his equal protection rights. a. On October 3, 2002, Plaintiff was placed in F Unit at the ADX, which is a general

population unit. See Exh. A-17, Gomez Decl., at ¶ 45. b. On July 27, 2005, Plaintiff was placed in the D Unit at the ADX. While Plaintiff

has been housed in D Unit, his status as a general population inmate has not changed and he is provided with all of the same privileges and restrictions as general population inmates. See Exh. A-17, Gomez Decl., at ¶ 46. c. Institution Supplement FLM 5321.06 provides that "[t]he most critical factor in

determining an inmate's readiness to progress to and through the step-down program will be whether the factors, which originally lead to the inmate's placement at ADX, have been sufficiently mitigated to indicate the inmate can function successfully in a less-restricted unit without posing a threat to the security or orderly running of the institution. Due to the very serious nature of the original placement factor, which is frequently complicated by the inmate's criminal history or involvement with criminal organizations, it may be appropriate for some prisoners to be deferred from the step-down program for longer periods of time." See Exh. A-20, Institution Supplement FLM 5321.06D(1), at 4, Institution Supplement FLM 5321.06E(1), at 4, and Institution Supplement FLM 5321.06, at 4. d. Other criteria that can be considered by the Unit Team when determining whether

an inmate in general population is eligible to be considered for step-down to an intermediate housing unit are: (1) whether the inmate has a minimum of 12 months of clear conduct while housed in a general population unit at the ADX; (2) whether the inmate actively participates in

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and completes all programs recommended by the inmate's unit team; (3) whether the inmate has positive overall institution adjustment, personal hygiene, and cell sanitation; and (4) whether the inmate has appropriate interaction with staff. See Exh. A-20, Institution Supplement FLM 5321.06D(1), at 2-3, Institution Supplement FLM 5321.06E(1), at 2-3, and Institution Supplement FLM 5321.06, at 2-3. e. Since his arrival at the ADX, Plaintiff was reviewed for consideration for step-

down placement into the K Unit on April 2004, October 2004, and April 2005. See Exh. A-17, Gomez Decl., at ¶ 47. f. On each occasion, Plaintiff has been denied step-down on the grounds that he has

not mitigated his reasons for being placed at the ADX in the first instance, and thus, does not meet the criteria for step-down. See Exh. A-17, Gomez Decl., at ¶ 60. g. Those inmates who have been stepped down from a general population unit at the

ADX since September 2002 have all met the criteria for receiving step-down, including the criteria of mitigating their reasons for being placed at the ADX in the first instance. See A-9, Hood Decl., at ¶ 11. h. Plaintiff has no evidence and cannot meet his burden of proof that the reason that

he has been denied placement in the K Unit is due to his ethnicity (Palestinian). i. Plaintiff has no evidence and cannot meet his burden of proof that the reason that

he has been denied placement in the K Unit is due to his religion (Muslim). j. Approximately 60 Muslim inmates have been stepped down from the general

population units at the ADX since September 2002. See Exh. A-17, Gomez Decl., at ¶ 52. k. Religion and ethnicity are not factors that were considered in whether to

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recommend Ajaj for step-down in April 2004, October 2004, and April 2005. See Exh. A-17, Gomez Decl., at ¶ 54. CONCLUSION The Federal Officers are entitled to qualified immunity on all claims as a matter of law. 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 28th day of July, 2006. WILLIAM J. LEONE United States Attorney s/ Amanda Rocque Amanda Rocque s/ Elizabeth Weishaupl Elizabeth Weishaupl Assistant United States Attorneys 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 28th day of July, 2006, I electronically filed the foregoing THE FEDERAL OFFICERS' 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 28th day of July, 2006, I served the foregoing THE FEDERAL OFFICERS' MOTION FOR SUMMARY JUDGMENT on the following nonCM/ECF participants via electronic mail: Christopher Synsvoll, Esq., as designated agent on behalf of the United States and the individual defendants, [email protected]

s/ Alexandra Medina Alexandra Medina Office of the U.S. Attorney

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