Pro Bono Prisoners’ Rights Representation: Getting Creative and What to do When it Gets Personal

Mohammed v. Holder 07-cv-2697-MSK-Paul Wolf, Esq.

December 17, 2015

Contents

Background to Mohammed v. Holder Taking over a pro se case Evaluating claims and amending the

complaint (Federal) Special issues with litigating against

a prison system

Background to

Mohammed v. Holder

Khalfan Khamis Mohammed was convicted of numerous terrorism offenses related to the bombings of American embassies in Kenya and Tanzania on August 7, 1998.

He was sentenced to life imprisonment and is incarcerated in the "H Unit" of the ADX Supermax prison in Florence, CO.

17 years later, his communications with the outside world are still restricted by "Special Administrative Measures."

Photo: The Denver Post

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

U.S. v bin Laden

Before the "war on terror," the invasion of Afghanistan or the detention of prisoners of war at Guantanamo Bay.

Civilian court, public trial, federal rules of evidence.

High profile case prosecuted by Patrick Fitzgerald.

Numerous co-defendants in this case are imprisoned in the ADX and CMUs.

Mohammed is considered by the FBI to be a potentially inspirational figure to other "radical islamists."

Administrative Maximum Facility (ADX or ADMAX) Florence, CO

Solitary Confinement

Photo: Solitary Watch

Includes:

• Cement bed.• Cement desk and stool.• Shower/toilet apparatus.• Meal delivery to room.• Hermetically sealed. • TV and prison library

services.• 30 min / wk outdoor rec

cage.• 20 min / month phone.

* details subject to change without notice

Special Administrative Measures (SAMs)

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

Restrictions on communications with other inmates and persons outside of the prison, including attorneys.

SAMs prisoners are "quarantined" together in H Unit of ADX, and CMUs in Terra Haute and Marion

Only about 40 of the prisoners in the ADX are held under SAMs

Although the SAMs may only be imposed for a year at a time, they are renewed in an almost automatic process.

FBI Agent Decides

Office of Enforcement Operations Approves

BOP Directed to Enforce SAMs

"Although he bristled at the characterization of OEO as just a “rubber stamp,” Mr. O’Brien acknowledged that the OEO had never rejected a recommendation by the FBI for approval of a renewal or modification of SAMs for any inmate." Findings of Fact, Conclusions of Law, and Order, R 396 at 9 n 7.

The standard of review used by U.S. courts to evaluate freedom of speech claims by prisoners differs from those of the general public in several ways:

(1) the asserted governmental interest must only be legitimate rather than compelling;

(2) the restriction must be rationally related, rather than narrowly tailored to address the interest; and

(3) it need not be the least restrictive means to protect the government's interest.

Deferential Standard of Review

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

(i) there must be a valid and rational connection between the regulation and the legitimate governmental interest put forward to justify it (put differently, the regulation may not be based on arbitrary or irrational goals);

(ii) whether there are alternative means of exercising the right; (iii) the impact that accommodation of the asserted right would have on other inmates, guards, and on the allocation of prison resources generally; and

(iv) the presence or absence of ready alternatives to the regulatory path chosen. Id. at 89-90.

Taking over a pro se case.

Taking over a pro se case

Handwritten filings Client knows facts, you know

law Leave to Amend Complaint Motion to Reopen Discovery Waiver and estoppel Preserving issues for appeal

I had to just enter an appearance based on the public filings of Mr. Mohammed, without being allowed to communicate with him.

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

Evaluating the Claims and Amending the Complaint (Federal Prisoner)

The pro se prisoner complaint form really only distinguishes federal and state prisoners. For whatever reason, Mr. Mohammed's case was assumed to be a Bivens action, until I argued that the court should apply the APA.

I appeared in a pro se case after Court denied Motion for Summary Judgment.

Claims:

1. Communication with ~35 persons outside of Plaintiff's immediate family members.- Abu Nidal incident resulted in new ADX policy

2. Communication with brother Nassor- Mistaken identity with trial witness named Nassor

3. Delays in reviewing Plaintiff's communications- Lost this claim. Court essentially deferred to the FBI.

This greatly simplified the issues in the case, since we could only go to trial with the claims that had survived summary judgment. Mohammed filed many other types of claims (ex. 8th Amend.) that were dismissed.

Possible Claims (Federal Prisoner)

Against Defendant in Official or Personal Capacity?

Personal Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)

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

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

BP-8 Informal Resolution (§542.13)

BP-9 Initial Filing (§542.14)

BP-10 Appeal to Regional Director (§ 542.15)

BP-11 Appeal to General Counsel (§ 542.15)

Administrative Remedy Program28 C.F.R. Part 542

Four levels of exhaustion required:

Administrative Procedure Act

• District Court reviews federal agency action.• Governs all federal agencies. US Govt Manual.• There must be an "administrative record."• Determination must be based on substantial evidence in the

administrative record. "substantial evidence on the record"• Discovery is often disallowed in APA cases. But that's

because the agency is presumed to have made investigation.• Injunctive relief. No money damages. Doesn't replace

Federal Tort Claims Act or Bivens remedy.• Formal vs informal resolution - due process

APA - §706 Scope of Review

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

(2) hold unlawful and set aside agency action, findings, and conclusions found to be -

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

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

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

APA - §706 Scope of Review (2)

APA: Definitions

§701 Definition of "agency" Includes DOJ, FBI, BOP, EOUSA, OEO and others.

§ 704 Presumption of reviewability of final agency actionExhaustion requirement.

§ 551(13) Definition of "agency action" Includes imposing sanctions, granting relief, or failure to act.

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

"Relief" includes the granting of money, assistance, license, authority, or taking other action on the application or petition of, and beneficial to, a person. §551(11).

APA: Definitions (2)

APA is a vehicle through which constitutional claims may be brought, but may also be used in parallel with other claims.

Claim 2: Violation of APA with respect to Constitutional Right

Claim 1: Fed Tort Claims ActViolation of Constitutional Right

Merits + Procedural Review(no money damages, sorry)

Prisoner will not have met exhaustion requirement with BP-8, etc. (ARP)Limited by Prison Litigation Reform Act

+

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

Court

Magistrate

Special Master

Clerk

Court

Agency

The APA makes the court's job easier.

Due Process Issues in SAMs / Administrative Remedy Program

See 28 CFR 2 et. seq. (Parole, Release, Supervision And Recommitment Of Prisoners, Youth Offenders, And Juvenile Delinquents); 8 CCR 1511-1 CO Rules Governing the State Board of Parole and Parole Proceedings

Prisoner is given advance notice of hearing.

Prisoner's attorney may submit written materials.

Prisoner may have attorney at hearing.

Prisoner has right to cross-examine witnesses.

Parole ARP

Prisoner may record hearing or obtain recording.

Prisoner advised of legal basis for determination.

Prisoner advised of evidence against him.

Prisoner is entitled to some discovery.

YYYYYYYY

NNNNNNNN

Cruel and Unusual Punishment

The Eighth Amendment to the U.S. Constitution prohibits "cruel and unusual punishment."

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

To prevail on a conditions of confinement claim under the Eighth Amendment, an inmate must establish that

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

Hill v. Pugh, 75 Fed. Appx. 715 (10th Cir. 2003)

"We cannot conclude that Mr. Hill's Eighth Amendment allegations state a claim upon which relief may be granted. He contends that ADX conditions are cruel and unusual in that he is isolated in his cell twenty-three hours a day for five days a week and twenty-four hours the remaining two days. He asserts that the resulting sensory deprivation amounts to cruel and unusual punishment. He admits, however, that “his minimal physical requirements - food, shelter, clothing and warmth” have been met. The situation described ... shows neither an “unquestioned and serious deprivation of basic human needs,” nor intolerable or shocking conditions." Id. at 721.

International Law

Persuasive only, but may be very persuasive.

All persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person. ICCPR, Article 10 ¶ 1

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

International Covenant on Civil and Political Rights (ICCPR)

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Torture Convention")

Definition of Torture:

"... any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him ..."

Note that this also includes element of subjective intent on the part of the torturer.

Torture Convention is not self-executing.

U.S. implementing statute defines “mental pain or suffering” as the mental suffering attendant to physical pain or suffering, the threat of death, or the use of "mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality." 18 USC § 2340.

U.S. made same reservation as in ICCPR:

"That the United States considers itself bound by the obligation under Article 16 to prevent "cruel, inhuman or degrading treatment or punishment," only insofar as the term "cruel, inhuman or degrading treatment or punishment" means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States."

Torture Convention in U.S. Law

• allow for solitary confinement only in exceptional circumstances.

• require that solitary confinement be used sparingly.

• prohibits all cruel, inhuman and degrading punishment.

• require that special attention be paid to the maintenance and

improvement of the relations between a prisoner and his family.

While the Standard Minimum Rules are not a treaty obligating the United States, they are still persuasive authority.

The U.N. Standard Minimum Rules for the Treatment of Prisoners

Airport Watch Listing

• I was placed on airport watchlist during pendency of this case. (~3 years)

• 6-8 hour delay to re-enter US while DHS images laptop, USB, phone etc.

• DHS photocopied client interview notes from another case, with each page marked worked product.

• I filed notice of violation of protective order with court but did not ask court to grant relief.

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