Free Motion for Leave - 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"), by and through undersigned counsel, hereby move for summary judgment on all claims raised against them in the Third Amended Complaint, in accordance with Fed. R. Civ. P. 56. In support thereof, the Federal Officers state as follows: CLAIMS AND DEFENSES UPON WHICH JUDGMENT IS SOUGHT I. THE FEDERAL OFFICERS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE PLAINTIFF HAS FAILED TO SATISFY THE EXHAUSTION REQUIREMENTS AND THUS, THE ENTIRE COMPLAINT IS SUBJECT TO DISMISSAL UNDER THE TOTAL EXHAUSTION RULE. Burden of Proof Plaintiff bears the burden of demonstrating exhaustion of administrative remedies for all claims raised against all the Federal Officers, by either attaching copies of documents showing complete exhaustion, or by identifying with specificity the procedures invoked and their 1

A.

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outcome. Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1209-10 (10th Cir. 2003), cert. denied, __ U.S. __, 125 S.Ct. 344 (2004). A complaint "that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim upon which relief may be granted." Id. at 1210 (citation omitted). B. Elements of Exhaustion of Administrative Remedies Title 42 U.S.C. § 1997e(a), as amended by the Prison Litigation Reform Act of 1995 ("PLRA"), requires all inmates to exhaust "such administrative remedies as are available" prior to initiating suit over prison conditions. "[E]xhaustion in cases covered by § 1997e(a) is now mandatory . . . . Thus federal prisoners suing under Bivens . . . must first exhaust inmate grievance procedures . . . ." Porter v. Nussle, 534 U.S. 516, 524 (2002); see also Woodford v. Ngo, 126 S.Ct. 2378 (2006). The exhaustion requirement applies to all suits regarding prison life, whether they challenge general circumstances or particular episodes. Porter, 534 U.S. at 532. The fact that an inmate might perceive the administrative procedure as futile is unavailing; futility is not an exception to the exhaustion requirement. Id. at n. 6; see also Jernigan v. Stuchell, 304 F.3d 1030, 1032-33 (10th Cir. 2002). An inmate that begins the administrative procedure but does not complete it has not adequately exhausted it. Jernigan, 304 F.3d at 1032. An inmate's grievances do not have to specifically articulate legal theories, but must be sufficiently specific as to the nature of the grievance to give prison officials notice of the type of problem of which the inmate complains. Johnson v. Johnson, 385 F.3d 503, 517-18 and n. 9 (5th Cir. 2004) (citing Porter, 534 U.S. at 525); Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003).

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Similarly, the grievance does not have to identify involved individuals with precision, particularly where the inmate complains of systemic problems, but where discrete acts are involved, the inmate may be required to identify, by name or function, the responsible individuals. Johnson, 385 F.3d at 522-23. It is mandatory for an inmate to exhaust his available administrative remedies with respect to each of the claims prior to bringing the lawsuit and to do so properly (i.e., within the established time frames). Woodford,126 S. Ct. at 2387-89. The Tenth Circuit has held that the PLRA requires exhaustion of administrative remedies as a "precondition" to bringing litigation, and requires dismissal where a litigant has failed to complete such exhaustion prior to initiating a lawsuit. In Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134, 1140-41 (10th Cir. 2005), the Tenth Circuit adopted the Seventh Circuit's strict interpretation of the PLRA's exhaustion requirements, as set forth in Perez v. Wisconsin Dep't of Corrections, 182 F.3d 532, 534 (7th Cir. 1999). Significantly, the Tenth Circuit noted that "such a rule should apply even where it might otherwise serve the interest of judicial economy to resolve the merits of a case while it is currently before the court." Fitzgerald, 403 F.3d at 1141 (citing Perez, 182 F.3d at 535). Therefore, administrative remedies must be exhausted prior to filing suit; an inmate cannot file suit and then "cure" his failure to exhaust while the suit is pending. 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted."); Porter, 534 U.S. at 524. In the Tenth Circuit, the presence of an unexhausted claim requires dismissal of the entire action, not just the defective claim. Ross v. County of Bernalillo, 365 F.3d 1181, 1189-92 (10th

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Cir. 2004); see also Ajaj v. United States, No. 03-2564, 2005 WL 2704875 at *6 (D. Colo. Oct. 19, 2005) (Attached as Exhibit A-28). Thus, if Plaintiff fails to satisfy his burden of proving exhaustion for one of his claims against the Federal Officers, then the entire lawsuit must be dismissed. Id. The Bureau maintains a four-step administrative remedy program, by which inmates such as Plaintiff may raise grievances. 28 C.F.R. § 542.10 et seq. In Step 1, the inmate must attempt informal resolution of his complaint with the appropriate Bureau staff member. 28 C.F.R. § 542.13. Assuming no satisfactory resolution is achieved, the inmate must file an Administrative Remedy Request ("Form BP-9") within 20 calendar days of the event giving rise to the grievance. 28 C.F.R. § 542.14. If the inmate is dissatisfied with the outcome at Step 2, the inmate must file an appeal ("Form BP-10") to the Regional Director within 20 days. 28 C.F.R. § 542.15(a). If the Step 3 appeal is unsuccessful, the inmate must file an appeal (Form BP-11") to the General Counsel within 30 days. 28 C.F.R. § 542.15(a). The appeal to the General Counsel is the final administrative stage, and upon its conclusion the inmate has exhausted the available administrative remedy scheme. C. Elements of Claims That Cannot Be Proven by Plaintiff In their Motion to Dismiss Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (hereinafter "Rule 12(b)(6) Motion to Dismiss"), the Federal Officers set forth, in detail, why Plaintiff's proffered administrative remedies had not satisfied his burden of demonstrating exhaustion of administrative remedies for Claims Two, Three, Four and Five. (Docket No. 163). The argument and caselaw found at pages 9 to 15 of the Rule 12(b)(6) Motion to Dismiss

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(Docket No. 163) are incorporated herein by reference. See Fed. R. Civ. P. 10(c). Similarly, the argument and caselaw found at pages 2 to 6 of Federal Officers' Reply in Support of Motion to Dismiss Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (Docket No. 177) are incorporated herein by reference. See Fed. R. Civ. P. 10(c). In its May 11, 2006 Order, the Court rejected the Federal Officers' argument that Plaintiff had failed to exhaust his administrative remedies for all of his claims, and therefore, that the Complaint should be dismissed under the Tenth Circuit's total exhaustion rule articulated in Ross, 365 F.3d at 1189-92. (Docket No. 186). In so holding, the Court stated that: Mr. Ajaj exhausted administrative remedies with respect to Claims 2 through 5 prior to asserting them in this lawsuit. Although some of the claims were exhausted after the original Complaint was filed, they were not asserted in this action until after he availed himself of the BOP's grievance process. (Id. at 13). Thus, the Court's May 11, 2006 Order only addressed the argument offered by the Federal Officers with respect to those administrative remedies that were not exhausted prior to initiation of this lawsuit. However, the Court's May 11, 2006 Order did not address any of the remaining arguments presented in the Rule 12(b)(6) Motion to Dismiss as to why Plaintiff had not demonstrated exhaustion. The Court should dismiss the Third Amended Complaint, in its entirety under the total exhaustion rule, for Plaintiff's failure to demonstrate exhaustion of administrative remedies for all of the claims contained in the Third Amended Complaint. In rendering its May 11, 2006 Order, the Court did not address many of the arguments proffered by the Federal Officers as to why Plaintiff's demonstration of exhaustion of administrative remedies is insufficient. Notably, the Court's May 11, 2006 Order did not address the following arguments offered by the Federal 5

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Officers as to why the entire Third Amended Complaint is subject to dismissal under Ross for failure to exhaust administrative remedies: · Grievance 290668, offered to prove exhaustion of Claim Two, did not address the factual allegations in Claim Two that the Federal Officers have been deliberately indifferent to Plaintiff's medical needs. Johnson, 385 F.3d at 517-18; Grievance 288433 and Grievance 293372, both of which were offered to prove exhaustion of Claim Two, are inadequate because both fail to raise factual allegations related to Claim Two at all three levels of the Bureau's three-tiered prison grievance system. 28 C.F.R.§ 542.15(b)(2); see also Clark v. Colo. Dep't of Corr., No. 05-1121, 2005 WL 2423724, at *1 (10th Cir. Oct. 3, 2005) (attached as Exh. A-29) (finding plaintiff did not exhaust administrative remedies when raised issue for the first time in the last stage of administrative remedy process and where such process does not allow inmates to raise new issues on appeal); Grievance 302265, Grievance 286714 and Grievance 290668, all of which were offered to prove exhaustion of Claim Three, do not address Plaintiff's substantive allegations in that claim, namely, that Plaintiff's transfer to and indefinite detention at the ADX were done without the requisite procedural due process. Johnson, 385 F.3d at 517-18; and Grievance 317901, offered to prove exhaustion of Claim Four, does not address the factual allegations raised in that claim, namely, that Plaintiff has been denied "the opportunity to meaningful review in order to challenge the decision to deny him placement in the step-down program." Johnson, 385 F.3d at 517-18.

·

·

·

The Court should dismiss the Third Amended Complaint, in its entirety, because Plaintiff has not demonstrated exhaustion for all of his claims, as he is required to do under the PLRA and Ross.1

Moreover, the Federal Officers disagree with the Court's analysis in its May 11, 2006 Order that Plaintiff timely exhausted several of his administrative remedies, even though he filed these remedies after commencement of this lawsuit. Such a ruling runs counter to the Tenth Circuit's holding in Fitzgerald, 403 F.3d at 1141, and Congress' intent in passing the PLRA in the first instance, 42 U.S.C. § 1997e(a), which both require exhaustion as a precondition to bringing suit. 6

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II.

ALL OF PLAINTIFF'S CLAIMS AGAINST THE FEDERAL OFFICERS ARE TEMPORALLY LIMITED TO THE TIME PERIOD WHEN EACH OF THOSE OFFICERS WERE EMPLOYED AT THE ADX. Burden of Proof Plaintiff bears the burden of alleging facts sufficient to state a Bivens claim. "Pro se

A.

status `does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based . . . . [C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.'" Fogle v. Pierson, 435 F.3d 1252, 1263 n.7 (10th Cir. 2006) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). B. Elements of Claim Under Bivens, liability for a constitutional violation can be predicated only on a defendant's actual and knowing participation in the alleged unconstitutional conduct. Gates v. Unified Sch. Dist. No. 449 of Leavenworth Cty., 996 F.2d 1035, 1042 (10th Cir. 1993). Persons without personal involvement or participation in the alleged unconstitutional acts must be dismissed as Bivens defendants. Rizzo v. Goode, 423 U.S. 362, 372 (1976); cf. Chavis v. Kienert, No. 03-0039, 2005 WL 2452150 (N.D.N.Y. Sept. 30, 2005) (attached as Exh. A-1) (holding that correctional officer could not be liable for violating inmate's constitutional rights under § 1983 when correctional officer was not present on the dates when the allegedly unlawful conduct took place). C. Elements of Claim That Plaintiff Cannot Prove All of Plaintiff's claims against the various Federal Officers are temporally limited to the

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time period when each of those officers was employed at the ADX. Thus, Plaintiff cannot hold the Federal Officers liable for actions that occurred when those officers were not employed at the ADX. a. Hood was employed at the ADX from 2002 to April 2005. See Exh. A-2,

Deposition of Robert Hood ("Hood Deposition"), 7:3-12. b. Burrell was employed at the ADX from December 2001 to November 2003. See

Exh. A-3, Deposition of James Burrell ("Burrell Deposition"), 10:8-13. c. Chester was employed at the ADX from January 2004 until August 2005. See

Exh. A-4, Deposition of Claude Chester ("Chester Deposition"), 10:24-25; 11:1. d. Duncan was employed at the ADX from 2000 to February 2004. See Exh. A-5,

Deposition of David Duncan ("Duncan Deposition"), 10:13-14, 25; 11:1-2. e. Zuercher was employed at the ADX from February 2004 to August 2005. See

Exh. A-6, Deposition of Jerome Zuercher ("Zuercher Deposition"), 6:8-13. f. Thus, to the extent that Plaintiff seeks to hold the Federal Officers for any conduct

when they were not employed at the ADX, such claim must fail. More specifically, to the extent that Plaintiff seeks to hold any of the Federal Officers liable for conduct that occurred after August 2005, such claim must fail. III. HOOD, BURRELL, AND DUNCAN ARE ENTITLED TO SUMMARY JUDGMENT ON CLAIM TWO: EIGHTH AMENDMENT DELIBERATE INDIFFERENCE CLAIM. In Claim Two, Plaintiff alleges that Hood, Burrell, and Duncan violated his Eighth Amendment rights by being deliberately indifferent to Plaintiff's medical needs. (Third

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Amended Complaint, at ¶¶ 52-67). It appears that Claim Two raises two separate sub-claims. First, Plaintiff appears to be challenging his placement in a non-smoking single cell on a smoking unit at the ADX between September 2002 and September 2004 on the ground that it was medically necessary for him to be housed in a totally smoke-free environment. Second, Plaintiff appears to be challenging his placement at the ADX on the ground that it was medically necessary for him to be housed at a low altitude. A. Burden of Proof Hood, Burrell, and Duncan assert that they are entitled to qualified immunity on Claim Two. When the defense of qualified immunity is raised, "the plaintiff initially bears a heavy twopart burden." Reynolds v. Powell, 370 F.3d 1028, 1030 (10th Cir. 2004) (internal quotation marks and citations omitted). 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. 1. Plaintiff Bears the Burden of Proving Violation of a Constitutional Right.

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). 2. Plaintiff Bears Burden of Proving that the Law is Clearly Established.

"The relevant, dispositive inquiry in determining whether a right is clearly established is

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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). The inquiry of whether a legal right was clearly established "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201. As the Supreme Court observed in Brosseau v. Haugen, 125 S. Ct. 596 (2004), "in an obvious case, [general] standards can `clearly establish' the answer, even without a body of relevant case law." 125 S. Ct. at 599 (citing to Hope, 536 U.S. at 738). However, if "the case is far from the obvious one" where general propositions offer a basis for decision, the courts must ask whether, at the time of the conduct in question, it was clearly established in a "particularized sense" that the conduct violated the constitution. Id. Further, "[t]he degree of specificity required from prior case law depends in part on the character of the challenged conduct. The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004). B. Elements of Claim To state a claim for a violation of the Eighth Amendment, Plaintiff must demonstrate that

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the Federal Officers were deliberately indifferent to Plaintiff's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). The Tenth Circuit has stated that "[o]ur cases recognize two types of conduct constituting deliberate indifference" to a serious medical need. Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000). "First, a medical professional may fail to treat a serious medical condition properly." Id. Second, a prison official may "prevent an inmate from receiving treatment or deny him access to medical personnel capable of evaluating the need for treatment." Id. Here, Claim Three is alleging the latter type of deliberate indifference claim, given that the Federal Officers are not medical professionals. The concept of "[d]eliberate indifference involves both an objective and a subjective component." Id. at 1209. The objective component is met if the medical need is "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Id. (internal quotation marks omitted). "The subjective component is satisfied if the official knows of and disregards an excessive risk 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." Mata, 427 F.3d at 751 (internal quotation marks omitted). To satisfy the subjective test, the plaintiff must allege that the defendants acted with a "sufficiently culpable state of mind." Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 809 (10th Cir. 1999). Allegations of inadvertent failure to provide medical care or negligence are insufficient to establish the requisite culpable state of mind. Estelle, 429 U.S. at 105-06. It is only the

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unnecessary and wanton infliction of unnecessary pain that violates the Constitution. Id. at 105. C. Elements of Claim That Cannot Be Proven by Plaintiff Concerning Failure to House Plaintiff in a Totally Smokefree Environment. 1. Plaintiff Cannot Prove a Violation of His Eighth Amendment Rights Against Hood, Burrell, and Duncan.

Plaintiff does not have evidence to establish that Hood, Burrell, and Duncan's conduct in failing to place Plaintiff in a totally smokefree environment constituted deliberate indifference to Plaintiff's medical needs, in violation of the Eighth Amendment. 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-7,

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-8, Burrell Decl., at ¶ 15; Exh. A-9, Chester Decl., at ¶ 16; and Exh. A-10, Duncan Decl., at 15. c. Plaintiff cannot prove what levels of environmental tobacco smoke he was

exposed to in his non-smoking cell, if any, between September 2002 and September 2004 when smoking was permitted in certain areas of the ADX because he did not measure the smoke in his cell in parts per million and has no evidence of any other objective measure of his exposure to environmental tobacco smoke. See Exh. A-11, Deposition of Ahmed Ajaj ("Ajaj Deposition"), 134:3-12.

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d.

Plaintiff has no expert witness who can testify as to what levels of environmental

tobacco smoke he was exposed to between September 2002 and September 2004 when smoking was permitted in certain areas of the ADX. See Exh. A-12, Plaintiff's Expert Disclosures and Plaintiff's Supplemental Expert Disclosures. e. Plaintiff presently has no expert who will testify that his exposure to

environmental tobacco smoke, if any, between September 2002 and September 2004 caused him any serious risk of future harm. See Exh. A-12; see also Docket No. 215, Motion for Extension of Time to Designate Expert Due to Development of Conflict of Interest, at 2. f. Although it was a medical concern to house Plaintiff in a location where his

exposure to smoke would be limited, Plaintiff's medical records from the Bureau of Prisons do not reflect any medical order by a treating physician or medical professional from 2002 until the present necessitating that Plaintiff be housed in a totally smoke-free environment. See Exh. A13, Declaration of Steven Nafziger ("Nafziger Decl."), at ¶ 12. g. Medical transfer requests are generally referred to as a "770 transfer" or a "770

referral." These medical transfers are 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-13, Nafziger Decl., at ¶¶ 4-9. h. 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-13, Nafziger Decl., at ¶ 5.

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i.

A review of Plaintiff's medical records reveals that from September 2002 until

September 2004, no request for a medical transfer was ever made for Plaintiff by any treating physician or medical professional based upon a medical need for Plaintiff to be housed in a smoke-free environment. See Exh. A-13, Nafziger Decl., at ¶ 10. j. Because there were no 770 medical transfer requests from any of Plaintiff's

treating physicians requesting that Plaintiff be transferred to a different facility than the ADX so that he could be placed in a totally smoke-free environment, 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 deliberate indifference claim because he cannot prove that Hood, Burrell, and Duncan knew of and disregarded an excessive risk to Plaintiff's health or safety. a. Plaintiff cannot prove that Hood, Burrell, and Duncan had knowledge that

Plaintiff had a "serious medical need" to be in a totally smokefree environment because, as stated above, no medical professional or treating physician issued a 770 medical transfer request that Plaintiff be transferred to a totally smoke-free environment between September 2002 and September 2004 (i.e., the time period when smoking was permitted in certain designated areas of the ADX). See Exh. A-13, Nafziger Decl., at ¶ 10. Third, Plaintiff cannot prove that Hood, Burrell, and Duncan personally participated in any action or inaction that violated Plaintiff's Eighth Amendment rights.

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a.

Bureau of Prisons policy from September 2002 until September 2004 permitted

smoking in designated areas of the ADX. See Exh. A-15, Bureau of Prisons Program Statement 1640.03, Smoking/No Smoking Areas; Exh. A-16, Institutional Supplements FCC 1640.03c, Smoking/No Smoking Areas (July 3, 2001) and FCC 1640.03(d), Smoking/No Smoking Areas (October 4, 2002). Hood, Burrell, and Duncan had no involvement in the creation of the policy nor did they have the power to change that policy. See Exh. A-14, Hood Decl., at ¶ 13; Exh. A-8, Burrell Decl., at ¶ 14; Exh. A-10, Duncan Decl., at ¶ 14. Thus, to the extent that Plaintiff is suing Hood, Burrell, and Duncan because a Bureau policy permitted smoking at the ADX, Plaintiff does not state a cognizable claim against these defendants. b. To the extent that Plaintiff is alleging that Hood, Burrell, and Duncan are liable

simply because they reviewed and investigated Plaintiff's administrative remedies complaining about exposure to environmental tobacco smoke, this fails to state a claim. Mere participation in the grievance process is not enough to impose Bivens liability. See, e.g., Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (holding that responding to a grievance or participating in the grievance procedure is insufficient to trigger liability for a constitutional violation). c. To the extent that Plaintiff is attempting to hold Hood, Burrell, and Duncan liable

under a theory of respondeat superior for the actions of other persons under their supervision, this does not state a Bivens claim. Gates, 996 F.2d 1035, 1042 (10th Cir. 1993); Rizzo, 423 U.S. 362, 372 (1976). 2. Plaintiff Cannot Prove That the Law Was Clearly Established Such That Hood, Duncan and Burrell Knew That Their Conduct was Unlawful. As a general rule, for the law to be clearly established, "there must be a Supreme 15

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Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law as the plaintiff maintains." Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995). b. 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. 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, 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). c. 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, the Court held that "[c]onstruing the alleged facts most favorably to Mr. Ajaj, any amount of second-hand 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.) d. It is inappropriate to hold Hood, Burrell and Duncan liable for Claim Two. As

evidenced above, there is no 770 medical transfer request from any of Plaintiff's treating

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physicians stating that Plaintiff should be moved from the ADX to a totally smokefree environment. See Exh. A-13, 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 environmental tobacco smoke 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 Amendment rights. e. Moreover, no treating physician issued a 770 medical transfer request stating that

Plaintiff needed to be moved to a totally smokefree environment. See Exh. A-13, 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. f. To hold Hood, Burrell and Duncan liable would ignore the very principles of

qualified immunity, as there is no manner in which they could "anticipate when their conduct might give rise to liability for damages." Anderson, 483 U.S. at 646. Accordingly, Hood, Burrell, and Duncan are entitled to qualified immunity on Claim Two. D. Elements That Cannot Be Proven by Plaintiff Concerning Housing in a High Altitude Environment. 1. Plaintiff Cannot Prove a Violation of His Eighth Amendment Rights Against Hood, Burrell, and Duncan.

First, Plaintiff cannot meet the objective prong of the Eighth Amendment deliberative

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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 for Plaintiff relating to exposure to altitude. See Exh. A-13, Nafziger Decl., at ¶ 13. b. Dr. Craig Shapiro, an independent medical consultant who evaluated Plaintiff in

June 2003, determined that Plaintiff had no medical problems due to the altitude at the ADX. See Exh. A-13, Nafziger Decl., at ¶ 14. c. Plaintiff presently 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-12; see also Docket No. 215, Motion for Extension of Time to Designate Expert Due to Development of Conflict of Interest, at 2. 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-17, Expert Report of Dr. Marvin Schwartz. e. As noted above, treating physicians in the Bureau of Prisons have the authority to

request a 770 medical transfer 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 A-13, Nafziger Decl., at ¶¶ 4-9. f. A review of Plaintiff's Bureau medical records indicates that from September

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2002 until the present time, no requests for a 770 medical transfer have ever been sought for Plaintiff by any treating physician or medical professional based upon a medical need for Plaintiff to be housed at a low altitude. See A-13, Nafziger Decl., at ¶ 11. g. Because there were no 770 medical transfer requests from any of Plaintiff's

treating physician requesting that Plaintiff be transferred to a different facility than the ADX 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 since his arrival at the ADX 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 because he cannot prove that Hood, Burrell, and Duncan knew of and disregarded a serious medical need. 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, as stated above, no medical professional or 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 A13, 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-14, Hood Decl., at ¶ 15; Exh. A-8, Burrell Decl., at ¶¶ 16-17; Exh. A-10, Duncan Decl., at ¶¶ 16-17. As noted above, Dr.

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Shapiro found that Plaintiff had no medical problems due to the altitude at the ADX. See A-13, Nafziger Decl., at ¶ 14. 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) (holding that warden not liable for refusing to provide inmate with a certain course of medical treatment, when doctors did not recommend such course of treatment). Thus, Hood, Burrell, and Duncan cannot be liable for failing to move Plaintiff to a lower altitude based uponb a doctor's order. Third, Plaintiff cannot prove that Hood, Burrell and Duncan personally participated in any action or inaction that violated Plaintiff's Eighth Amendment rights. a. Duncan, in his capacity as Associate Warden for Operations, did not oversee the

health services department and had no involvement with that department. See Exh. A-10, Duncan Decl., at ¶ 2. Thus, he cannot be held liable for determining whether Plaintiff was housed at the proper altitude or for disregarding any medical necessity to move Plaintiff to an institution at a lower altitude. b. Plaintiff appears to be alleging that Hood, Burrell, and Duncan are liable simply

because they reviewed and investigated Plaintiff's administrative remedies complaining about the altitude at the ADX. Mere participation in the grievance process is not enough to impose Bivens liability. Shehee, 199 F.3d at 300 (holding that responding to a grievance or participating in the grievance procedure is insufficient to trigger liability for a constitutional violation). c. To the extent that Plaintiff is attempting to hold Hood, Burrell, and Duncan liable

under a theory of respondeat superior for the actions of other persons under their supervision, this

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does not state a Bivens claim. Gates, 996 F.2d 1035, 1042 (10th Cir. 1993); Rizzo, 423 U.S. 362, 372 (1976). 2. Plaintiff Cannot Prove that the Law Was Clearly Established Such That Hood, Duncan and Burrell Knew that Their Conduct was Unlawful. As a general rule, for the law to be clearly established, "there must be a Supreme

a.

Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law as the plaintiff maintains." Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995). b. In its May 11, 2006 Order, the Court held that Hood, Burrell, and Duncan were

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.) c. It is inappropriate to hold Hood, Burrell, and Duncan liable for Claim Two.

Because no treating physician issued a 770 medical transfer request stating that Plaintiff needed to be at a low 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. d. To hold Hood, Burrell and Duncan liable for failing to move Plaintiff to a low

altitude environment would ignore the very principles of qualified immunity, as there is no manner in which they could "anticipate when their conduct might give rise to liability for 21

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damages." Anderson, 483 U.S. at 646. Accordingly, Hood, Duncan and Burrell are entitled to qualified immunity on Claim Two. IV. HOOD, BURRELL, CHESTER AND DUNCAN2 ARE ENTITLED TO SUMMARY JUDGMENT ON CLAIM THREE: EIGHTH AMENDMENT CONDITIONS OF CONFINEMENT CLAIM. The Third Amended Complaint alleges that the Federal Officers were deliberately indifferent to Plaintiff's conditions of confinement at the ADX, in violation of the Eighth Amendment. (Third Amended Complaint, at ¶¶ 69-76). Those conditions of confinement include: "extreme isolation, lock-down for 23 or 24 hours a day, limitations on personal property rights, mail, and access to telephones, extremely limited outdoor recreation, and discipline for even minor offenses resulting in loss of already minimal privileges and programs." (Id. at ¶ 73). A. Burden of Proof The Federal Officers assert that they are entitled to qualified immunity on the Eighth Amendment conditions of confinement claim in Claim Three. Plaintiff bears the burden of proof. See Section III.A, supra. B. Elements of Claim To state a claim for deliberate indifference to conditions of confinement under the Eighth Amendment, a plaintiff must allege that: (1) he suffered substantial harm because of the
2

On July 11, 2006, Plaintiff filed a Motion to Amend Third Amended Complaint. In that motion, Plaintiff proposed dismissing Claim Three against Zuercher. The Federal Officers stipulate to the dismissal of Claim Three against Zuercher. Because both parties believe that Claim Three should be dismissed with respect to Zuercher, this summary judgment motion does not address whether Zuercher is also entitled to qualified immunity on Claim Three's conditions of confinement claim. To the extent that the Court does not dismiss Claim Three against Zuercher, he reserves the right to supplement this summary judgment motion and request qualified immunity on Claim Three. 22

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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). The objective component requires that a plaintiff demonstrate that the conditions of confinement involved the wanton and unnecessary infliction of pain, were grossly disproportionate to their crimes, or constituted a deprivation of minimal civilized measures of life's necessities. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). "To the extent that [an inmate's] conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Id. 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.'" Farmer, 511 U.S. 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 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. C. Elements of Claim That Cannot Be Proven by Plaintiff 1. Plaintiff Cannot Demonstrate That There Has Been a Violation of His Eighth Amendment Rights.

Assuming all of the facts that Plaintiff alleges to be true regarding his conditions of confinement at the ADX for the purposes of this Motion for Summary Judgment alone, as a matter of law, the conditions of confinement of which Plaintiff complains do not constitute a violation of the Eighth Amendment. 23

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a.

First, as a matter of law, Plaintiff's allegations of being held in "extreme

isolation" and "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) (attached as Exh. A-18) (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. Second, 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-19) (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-20) (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. Third, 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-21) (holding plaintiffs failed to state a claim under the Eighth Amendment because the restrictions on

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telephone privileges do not rise to the level of an Eighth Amendment violation). d. Fourth, 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 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-22, Gomez Decl., at ¶ 31. e. Thus, Hood, Burrell, Chester, and Duncan are entitled to qualified immunity on

the deliberate indifference claim to conditions of confinement because Plaintiff cannot state a viable claim under the Eighth Amendment. 2. Plaintiff Cannot Prove that Hood, Burrell, Chester, and Duncan Personally Participated in Creating Plaintiff's Conditions of Confinement. In his deposition, Plaintiff alleges that Hood was responsible for Plaintiff's

a.

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. A11, Ajaj Deposition, 72:16. b. Similarly, 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-11, Ajaj Deposition, 73:2-14, 74:1-15. c. To the extent that Plaintiff is attempting to hold Hood, Burrell, Chester, and

Duncan liable for Claim Three's conditions of confinement claim under a theory of respondeat

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superior, this does not state a Bivens claim. Gates, 996 F.2d 1035, 1042 (10th Cir. 1993); Rizzo, 423 U.S. 362, 372 (1976). V. HOOD, BURRELL, CHESTER, AND DUNCAN3 ARE ENTITLED TO SUMMARY JUDGMENT ON CLAIM THREE: DUE PROCESS CLAIM. Plaintiff alleges that Hood, Burrell, Chester, and Duncan violated his Fifth Amendment rights by "depriv[ing him] of a liberty interest by his transfer and indefinite confinement at Supermax without any procedural due process measures such as notice and a hearing, or of the ability to meaningfully challenge this placement." (Third Amended Complaint, at ¶ 75). It appears that Plaintiff is raising two separate sub-claims. First, Plaintiff is challenging his transfer to the ADX without procedural due process. Second, Plaintiff is challenging his continued confinement at the ADX without procedural due process. A. Burden of Proof Hood, Burrell, Chester, and Duncan assert that they are entitled to qualified immunity on the due process claim in Claim Three. Plaintiff bears the burden of proof. See Section III.A, supra. B. Elements of Claim "`The Due Process Clause guarantees due process only when a person is to be deprived of life, liberty, or property.'" Chambers v. Colorado Dep't of Corrections, 205 F.3d 1237, 1242

Because both parties believe that Claim Three should be dismissed with respect to Zuercher, this summary judgment motion does not address whether Zuercher is also entitled to qualified immunity on Claim Three's due process claim. However, Zuercher respectfully requests the opportunity to address this claim and reserves the right to assert the defense of qualified immunity in the event that the Court does not dismiss the claim against him. See n.1, supra. 26

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(10th Cir. 2000) (citation omitted). It is well established that lawfully incarcerated persons retain only a narrow range of protected liberty interests, Abbott v. McCotter, 13 F.3d 1439, 1442 (10th Cir. 1994), and "[t]he Due Process Clause standing alone confers no liberty interest in freedom from state action taken within the sentence imposed." Sandin v. Conner, 515 U.S. 472, 480 (1995) (quotation marks and citation omitted). "The transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence." Hewitt, 459 U.S. at 468; see also Bailey v. Shillinger, 828 F.2d 651, 652-53 (10th Cir. 1987) (per curiam). In those instances where a liberty interest does not arise directly under the Due Process Clause, the government may create a liberty interest through state policies or regulations. Wilkinson v. Austin, 545 U.S. 209, 125 S. Ct. 2384, 2393 (2005). Under the Supreme Court's decision in Sandin, the government may create a liberty interest protected by the Due Process Clause which is generally limited to freedom from restraint that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 515 U.S. at 484. In determining whether the government has imposed an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," as required by Sandin, courts must consider the conditions of confinement, including both its duration and degree of restrictions, as compared with other inmates. Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 809 (10th Cir. 1999). When considering whether the conditions, duration or restrictions of confinement are atypical as compared with other inmates, the Tenth Circuit has used comparisons either with inmates in the same segregation or inmates in the general population.

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Hill v. Fleming, No. 04-1166, 2006 WL 856201, at *4 (10th Cir. Apr. 4, 2006) (attached as Exh. A-23). C. Elements of Due Process Claim That Cannot Be Proven by Plaintiff Concerning His Transfer to the ADX Plaintiff claims that he was denied procedural due process prior to his transfer because he should have had notice, the opportunity to participate at an adversarial hearing where he could call witnesses and present evidence, the opportunity to attend a classification review, or the opportunity to review the information that formed the basis of his transfer. See Exh. A-11, Ajaj Deposition, 241:8-18. 1. Plaintiff Cannot Show Personal Participation by Hood, Burrell, Chester, or Duncan in the Decision to Transfer Plaintiff to the ADX. Plaintiff was transferred to the ADX on September 4, 2002. See Exh. A-14, Hood

a. Decl., at ¶ 3. b.

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

Plaintiff to the ADX in September 2002. See Exh. A-14, Hood Decl., at ¶ 4; Exh. A-8, Burrell Decl., at ¶ 5; Exh. A-9, Chester Decl., at ¶ 5; and Exh. A-10, 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-3, Burrell Deposition, 26:4-7. d. Hood lacked any authority to refuse or block the decision to transfer Plaintiff to

the ADX. See Exh. A-14, Hood Decl., at ¶ 4. e. Burrell lacked any authority to refuse or block the decision to transfer Plaintiff to

the ADX. See Exh. A-3, Burrell Deposition, 23-17-22; Exh. A-8, Burrell Decl., at ¶ 5.

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f.

Chester was not employed at the ADX in September 2002, when Plaintiff was

transferred to the ADX. See Exh. A-4, 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-9, Chester Decl., at ¶ 5. g. Duncan was not employed at the ADX in September 2002, when Plaintiff was

transferred to the ADX. See Exh. A-5, Duncan Deposition, 10:13-14, 25; 11:1-2. Thus, Duncan was not involved in any decision to transfer Plaintiff to the ADX. Notwithstanding, Duncan lacked any authority to refuse or block the decision to transfer inmates to the ADX. See Exh. A10, Duncan Decl., at ¶ 5. 2. Plaintiff Cannot Demonstrate That the Federal Officers Have Violated His Due Process Rights.

First, as a matter of law, Plaintiff has no liberty interest in remaining out of the ADX and at another institution. a. As a matter of law, 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, 125 S.

Ct. 2384, 2395 (2005),4 Plaintiff does not have a cognizable liberty interest in remaining out of
4

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 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. The 29

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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-24). An inmate's incarceration at the ADX does not impact his sentence duration. See Exh. A-22, Gomez Decl., at ¶ 18. Thus, the Ohio Supermax described in Wilkinson is factually distinguishable from the ADX. d. Because Plaintiff does not have a liberty interest in remaining outside of the ADX,

he was not entitled to due process before his transfer to the ADX. Sandin, 515 U.S. at 487; Meachum v. Fano, 427 U.S. 215, 224-25 (1976). Second, Plaintiff was afforded all of the process that he was due prior to his transfer to the ADX. a. Upon arrival at the ADX, an inmate has the opportunity to raise any concerns he

has about his transfer during his initial classification. See Exh. A-22, 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. A22, Gomez Decl., at ¶ 7. c. An inmate may also challenge his transfer to the ADX through the Bureau's

Court held that once an inmate establishes that he has a liberty interest, the next step is to consider what process is due under the framework set forth in Mathews v. Eldridge, 424 U.S. 319 (1976). Id. at 2495. 30

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Administrative Remedy Program, which is set forth in Program Statement 1330.13, Administrative Remedy Program. See Exh. A-22, 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 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-22, 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-22, Gomez Decl., at ¶ 26. f. Plaintiff did challenge his transfer to the ADX through the Administrative

Remedy Program. See Exh. A-22, Gomez Decl., at ¶ 56. g. 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, a hearing, notice of the decision, and an opportunity to appeal the decision) ought to have been extended to him. See 28 C.F.R. § 541.40 et seq.

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h.

Because Plaintiff is not and has never been housed in the Control Unit at the

ADX, he has no entitlement to any such procedural protections. See Exh. A-22, Gomez Decl., at ¶¶ 48, 57-58. i. Thus, because Plaintiff received all of the process that he was due prior to his

transfer to the ADX, Plaintiff fails to state a due process claim under the Fifth Amendment upon which relief can be granted. 3. Plaintiff Cannot Prove that the Law Was "Clearly Established" at the Time of His Transfer Such That the Federal Officers Knew that Their Conduct was Unlawful.

Because Plaintiff cannot factually establish that there was a violation of his due process rights arising from his transfer to the ADX, Hood, Burrell, Chester, and Duncan are entitled to qualified immunity and there is no need to proceed to the second prong of the qualified immunity inquiry (i.e., whether the law was clearly established). See Maestas, 351 F.3d at 1006-07. However, even if the Court found that the Federal Officers violated Plaintiff's due process rights at the time of Plaintiff's transfer to the ADX, the law was not clearly established that Plaintiff had a right to any sort of pre-transfer process. a. Decl., at ¶ 3. b. 13, 2005. c. At the time of Plaintiff's transfer to the ADX on September 4, 2002, an inmate The United States Supreme Court did not decide Austin v. Wilkinson until June Plaintiff was transferred to the ADX on September 4, 2002. See Exh. A-14, Hood

had no due process right to remain at a particular institution. See, e.g., Moore v. Cooksey, No.

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00-1109, 2000 WL 1838274, *1 (10th Cir. Dec. 14, 2000) (attached as Exh. A-25) (recognizing that conditions at the ADX are within "`the range of confinement to be normally expected for one serving'" a federal prison sentence and, therefore, the transfer to ADX did not involve an interest protected by the Due Process Clause) (quoting Sandin v. Conner, 515 U.S. 472, 487 (1995)). d. At the time of Plaintiff's transfer to the ADX on September 4, 2002, controlling

Supreme Court precedent held that an inmate had no due process right to notice or a hearing prior to being transferred to a particular institution. See, e.g., Meachum, 427 U.S. at 225 (explaining that the Due Process Clause does not protect a prisoner against transfer to a more restrictive prison). e. Plaintiff cannot meet his burden of showing that Hood, Burrell, Chester or

Duncan should have known that Plaintiff had a clearly established due process right in 2002. D. Elements That Cannot Be Proven 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. Initial classification is the initial Unit Team meeting whereby a careful review of the case and inmate's history are discussed and relevant programs are recommended. The purpose of the meeting is to clearly define for the inmate: (1) sentence information, including financial obligations; (2) educational programs; (3) security/custody levels; (4) release plans; and (5) work assignments. These programs reflect the needs of the inmate and are stated in measurable terms. See Exh. A-22, Gomez Decl., at ¶ 6.

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b.

Upon arrival at the ADX, the inmate has the opportunity to raise any concerns he

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

Gomez Decl., at ¶ 7. d. Subsequent meetings with the inmate's Unit Team are referred to as Program

Reviews. These meetings are held at least once every six months and are conducted to monitor and evaluate the inmate's progress in all program areas. Program participation is discussed in relation to the schedule developed at initial classification. New and/or revised goals are developed as necessary. See Exh. A-22, Gomez Decl., at ¶ 8. e. The Program Review Report (PP-55) is used as documentation of team meetings.

It includes references to all recommendations and discussions at team and notes any decisions made (e.g., change in custody, placement in the step-down program, etc.) The Program Review Report is signed by the inmate the team chairperson (usually the Unit Manager), and a copy is provided to the inmate. The original is filed in the inmate's central file. See Exh. A-22, Gomez Decl., at ¶ 9. f. Plaintiff received Program Review Reports on the following dates after his arrival

at the ADX: 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-22, Gomez Decl., at ¶ 10 & Attachment 1. g. 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. Generally, the Case Manager composes the Progress Report with input from other unit staff, work detail supervisors, and education instructors. See Exh. A-22, Gomez Decl., at ¶ 11. h. A Progress Report is required, at a minimum, once every three years. At the

ADX, the inmates are provided with a copy of the most current Progress Report. Upon request, an inmate may read and receive a copy of any Progress Report retained in the inmate's central file. See Exh. A-22, Gomez Decl., at ¶ 13. i. Plaintiff received a Progress Report on January 25, 2005. See Exh. A-22, Gomez

Decl., at ¶ 14 & Attachment 2. j. 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-22, Gomez Decl., at ¶ 55. k. 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-22, Gomez Decl., at ¶ 56. l. There is no evidence that the post-transfer process that Plaintiff received was

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defective or deficient. Therefore, Plaintiff received all of the post-transfer process to which he is legally entitled and cannot state a deprivation of due process. VI. THE FEDERAL OFFICERS ARE ENTITLED TO SUMMARY JUDGMENT ON CLAIM FIVE: EQUAL PROTECTION CLAIM. The Third Amended Complaint alleges that the Federal Officers have "singled out Ajaj as a result of his status as Palestinian Muslim for different and harsher treatment then other inmates similarly situated to him by continuously denying Ajaj placement in the `step-down' program." (Third Amended Complaint, at ¶ 95). A. Burden of Proof The Federal Officers assert that they are entitled to qualified immunity on the equal protection claim in Claim Five. Plaintiff bears the burden of proof. See Section III.A, supra. B. Elements of Claim The Fourteenth Amendment of the United States Constitution guarantees all persons "equal protection of the laws." U.S. Const. Amend. XIV. The Supreme Court has held that this same constitutional protection applies to the federal government through the Fifth Amendment. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499 (1954). An equal protection violation occurs when the government treats someone differently than another person who is "similarly situated." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996). When a plaintiff is neither alleging that he is a member of a constitutionally protected class nor that he has been denied a fundamental right, the government does not run afoul of the Equal Protection