Omar Rezaq, Mohammed Saleh, El-Sayyid Nosair and Ibrahim Elgabrowny, convicted
of terrorism-related offenses and confined at the federal supermax ADX facility
in Florence, Colorado, filed suit contending they had a liberty interest in
“avoiding transfer without due process to the high-security prison.” The
district court denied relief, which was affirmed by the Tenth Circuit on April
20, 2012.

ADX, according to the Bureau of Prisons (BOP), serves two primary penological
interests: 1) “maintaining the safety of both staff and inmates, while
eliminating the need to increase the security of other penitentiaries,” and 2)
“confin[ing] prisoners under close controls while providing them opportunities
to demonstrate progressively responsible behavior … and establish readiness
for transfer to a less secure institution.”

In this case the plaintiffs were transferred to ADX from a U.S. Penitentiary,
itself a high-security facility, but during the course of the litigation were
moved from ADX to one of the BOP’s two Communications Management Units (CMUs).
The CMUs are located in Marion, Illinois and Terre Haute, Indiana. [See: PLN,
Sept. 2012, p.26]. While CMUs are also highly-controlled, they include the
added feature of heavily-restricted communications with the outside world.

The plaintiffs’ complaints, later consolidated into one case before the Tenth
Circuit, revolved around the lack of hearings before the plaintiffs were
transferred to ADX.
Subsequent to the filing of the lawsuits, the BOP regional director issued new
procedures for future transfers to ADX which included hearings. Those
procedures provided for prisoners to receive notice of the transfer hearing, an
opportunity to participate in the hearing, a written recommendation by the
hearing officer and administrative review of the regional director’s decision
by the BOP’s general counsel. Retroactive hearings were held with respect to
the plaintiffs, all of which found their transfers to ADX to be appropriate.

The plaintiffs asserted due process violations and argued that the retroactive
transfer hearings did not cure those violations. The defendants – including the
BOP, the U.S. Attorney General, the BOP regional director and various other BOP
officials – moved for summary judgment, which was granted by the district

Applying the four factors from Estate of DiMarco v. Wyoming Department of
, 473 F.3d 1334 (10th Cir. 2007), the district court concluded that
a liberty interest did not attach. The court found that the plaintiffs’
transfers to ADX were for “legitimate safety issues,” and that “conditions of
confinement at ADX were not extreme.” Distinguishing the case of Wilkinson v.
Austin, 545 U.S. 209 (2005) [PLN, Aug. 2005, p.24], which the plaintiffs
heavily relied upon, the court concluded that while highly restrictive, ADX did
not have the same conditions at issue in Wilkinson, which involved Ohio’s
supermax facility.

The plaintiffs had supported their liberty interest claims by arguing that ADX
was a facility that created an “atypical and significant hardship … in
relation to the ordinary incidents of prison life” pursuant to Sandin v.
Conner, 515 U.S. 472, 484 (1995). They further averred that the district court
had given too much weight to the BOP’s penological interest; improperly
compared the conditions of confinement in Wilkinson to those at ADX; and relied
upon “inapposite precedent, thus ‘erroneously elevating the standard for determining
whether the challenged conditions were extreme,’ and ‘not considering the
extraordinary length of [the plaintiffs’] segregation.’”

On appeal, the Tenth Circuit noted that “A liberty interest may arise from the
Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ or
it may arise from an expectation or interest created by state laws or
policies,’ citing Wilkinson. “In the penological context, not every deprivation
of liberty at the hands of prison officials has constitutional dimension …
because incarcerated persons retain only a ‘narrow range of protected liberty
interests,’” the appellate court wrote. “For example, the Supreme Court has
recognized that the ‘Constitution itself does not give rise to a liberty
interest in avoiding transfer to more adverse conditions of confinement.’”

The Court of Appeals narrowed the issue to whether a prisoner suffers an
“atypical and significant hardship … in relation to the ordinary incidents of
prison life,” based on Sandin. The focus was not on the harshness of conditions
at ADX, but “whether the segregation at issue mirrors that imposed on other
inmates in the same segregation,” citing Gaines v. Stenseng, 292 F.3d 1222,
1225-26 (10th Cir. 2002) [PLN, June 2003, p.24].

The appellate court recognized the divergence of other circuits on the issue,
but held that “we continue to believe that the proper approach is a fact-driven
assessment that accounts for the totality of conditions presented by a given
inmate’s sentence and confinement. While the Supreme Court’s assessment of the
conditions in Wilkinson can be instructive in this endeavor, the conditions in
that case may not serve as helpful comparator evidence in all cases…. Here,
each of the plaintiffs was transferred to ADX for reasons of national security
and institutional safety.”

The Court of Appeals also concluded that, as in DiMarco, they must “remain
mindful of the primary management role of prison officials who should be free
from second-guessing or micro-management from the federal courts.” Accordingly,
the Court held the plaintiffs “did not have a liberty interest in avoiding
confinement at ADX,” and “[b]ecause no liberty interest is implicated, we do
not reach the question of whether the inmates received adequate process to justify
their transfers to ADX.”

The Tenth Circuit did, however, reject the BOP’s argument that the underlying
controversy was moot based on the fact that the plaintiffs were no longer
housed at ADX when the case was decided, finding the BOP could still transfer
them back to ADX at some future date. See: Rezaq v. Nalley, 677 F.3d 1001 (10th
Cir. 2012).

(First published by Prison Legal News and used here by permission)

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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