Salim v. AUSA_SDNY Office

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:22-cv-03374-CNS-STV
MAMDOUH SALIM,
Plaintiff,
v.
AUSA_SDNY OFFICE and
ADX WARDEN,
Defendants.
ORDER
Before the Court is Defendants’ Motion to Dismiss Amended Complaint, ECF No.
38, and United States Magistrate Judge Scott T. Varholak’s Recommendation to grant in
part and deny in part Defendants’ motion, ECF No. 94. Defendants partially objected to
Magistrate Judge Varholak’s Recommendation, ECF No. 102. Plaintiff did not object to
the Recommendation or respond to Defendants’ objection. For the following reasons, the
Court AFFIRMS and ADOPTS the Recommendation.
I. 	SUMMARY FOR PRO SE PLAINTIFF
On August 7, 2023, Defendants filed a motion to dismiss your Amended Complaint.
ECF No. 38. The Court referred Defendant’s motion to Magistrate Judge Varholak for
initial review. ECF No. 39. Upon reviewing Defendants’ motion, your response, and
Defendants’ 	reply, 	ECF 	Nos. 	38, 	80, 	and 	92, 	he 	recommended 	dismissing 	your
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Administrative Procedure Act (APA) claim but not your Religious Freedom Restoration
Act (RFRA) claim.
At the end of his Recommendation, Magistrate Judge Varholak advised that you
had 14 days after service of the Recommendation to file a written objection. Id. at 13. You
did not file an objection with respect to your APA claim or otherwise respond within that
window of time. As explained in more detail below, the Court has reviewed the
Recommendation concerning your APA claim and has determined that it is correct. That
claim 	is 	therefore 	dismissed. 	The 	Court, 	however, 	has 	determined 	that 	the
Recommendation is correct with respect to your RFRA claim, and thus, that claim may
proceed.
II. 	RELEVANT FACTUAL & PROCEDURAL BACKGROUND
Plaintiff Mamdouh Salim is incarcerated at the United States Penitentiary –
Administrative Maximum Facility (“ADX”) in Florence, Colorado. ECF No. 12 (Amended
Complaint) at 2. “In January 1999, [Plaintiff] and others were indicted on numerous
charges alleging a global terrorist conspiracy to murder United States citizens, including
charges relating to the August 7, 1998, bombings of United States embassies in Nairobi,
Kenya and Dar es Salaam, Tanzania.” United States v. Salim, 287 F. Supp. 2d 250, 259
(S.D.N.Y. 2003). Plaintiff was housed in the maximum-security wing of the Metropolitan
Correctional Center in New York during the pendency of that case. Id. “On November 1,
2000, [Plaintiff] stabbed corrections officer Louis Pepe in the left eye with a sharpened
comb.” Id. “[Plaintiff] testified that . . . he attacked [Officer] Pepe to get his keys, unlock a
visitation room . . . and attack his attorneys so that they would withdraw from representing
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him and [the presiding judge] would have to grant substitute counsel.” United States v.
Salim, 549 F.3d 67, 70 (2d Cir. 2008) (Salim I). “The weapon penetrated the corrections
officer’s eye and entered his brain.” Id. at 71. On April 3, 2002, Plaintiff pled guilty to a
charge of conspiracy to murder and attempted murder of a federal corrections officer.
Salim I, 549 F.3d at 70; ECF No. 12, ¶ 1. Plaintiff is currently serving a life sentence for
stabbing the corrections officer. United States v. Salim, 690 F.3d 115, 121 (2d Cir. 2012)
(Salim II); ECF No. 12, ¶ 1.
Plaintiff’s instant lawsuit concerns the Special Administrative Measures (SAMs)
that he has been subject to since at least 2013.1 ECF No. 12, ¶ 4. Since at least 2014,
the SAMs prohibit Plaintiff from all forms of communication with one of his sons, Dr.
Mu’ath. Id., ¶¶ 4, 7. Since 2014, every iteration of the SAMs imposed on Plaintiff has
included this prohibition on communication. Id., ¶ 8.
Plaintiff filed his Complaint on December 19, 2022, and he filed his operative
Amended Complaint on March 30, 2023. ECF Nos. 1, 12. The Amended Complaint
asserts claims against Defendants in their official capacities for violations of the RFRA
and APA. Plaintiff seeks various forms of injunctive relief aimed at lifting the SAMs that
prohibit him from communicating with his son. ECF No. 12 at 19. On August 7, 2023,
Defendants filed their motion to dismiss, seeking dismissal of both of Plaintiff’s claims.
1 Federal regulation permits the Attorney General to direct the Bureau of Prisons to “implement special
administrative measures [SAMs] that are reasonably necessary to protect persons against the risk of death
or serious bodily injury.” 28 C.F.R. § 501.3(a). These SAMs may include limiting certain privileges,
“including, but not limited to, correspondence, visiting, interviews with representatives of the news media,
and use of the telephone, as is reasonably necessary to protect persons against the risk of acts of violence
or terrorism.” Id. With approval, each SAM may be imposed for up to one year, but they may be extended
in one-year increments. Id. § 501.3(c). The inmate must be provided with written notification of the
restrictions imposed and the basis for these restrictions. Id. § 501.3(b).
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ECF No. 38. This Court asked Magistrate Judge Varholak to perform an initial review of
Defendants’ motion, ECF No. 39; he recommended dismissing Plaintiff’s APA claim but
allowing the RFRA claim to proceed. ECF No. 94. Defendants, but not Plaintiff, objected
to Magistrate Judge Varholak’s Recommendation. ECF No. 102.
III. 	STANDARD OF REVIEW AND LEGAL STANDARDS
A. 	Rule 72(b)(3)
When a magistrate judge issues a recommendation on a dispositive matter, the
presiding district judge must “determine de novo any part of the magistrate judge’s
[recommended] disposition that has been properly objected to.” Fed. R. Civ. 72(b)(3). An
objection to a recommendation is properly made if it is both timely and specific. United
States v. 2121 East 30th St., 73 F.3d 1057, 1059–60 (10th Cir. 1996). An objection is
sufficiently specific if it “enables the district judge to focus attention on those issues—
factual and legal—that are at the heart of the parties’ dispute.” Id. at 1059. In conducting
its review, “[t]he district judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.”
Fed. R. Civ. P. 72(b)(3).
B. 	Rule 12(b)(6)
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss,
a complaint must allege facts, accepted as true and interpreted in the light most favorable
to the plaintiff, to state a claim to relief that is plausible on its face. See, e.g., Mayfield v.
Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016). A plausible claim is one that allows the
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court to “draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If a complaint’s allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then a plaintiff
has failed to “nudge [the] claims across the line from conceivable to plausible.” Robbins
v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quotation omitted). In assessing a
claim’s plausibility, “legal conclusions” contained in the complaint are not entitled to the
assumption of truth. See Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214
(10th Cir. 2011). The standard, however, remains a liberal pleading standard, and “a well-
pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those
facts is improbable, and that a recovery is very remote and unlikely.” Dias v. City & Cnty.
of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quotation omitted).
C. 	Pro Se Litigants
“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). “The
Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The
Court, however, will not serve as a pro se litigant’s advocate, see Yang v. Archuleta, 525
F.3d 925, 927 n.1 (10th Cir. 2008), and the Court will hold a pro se litigant to the “same
rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th
Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
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IV. 	ANALYSIS
A. 	APA Claim
Plaintiff did not object to Magistrate Judge Varholak’s Recommendation to dismiss
his APA claim. The Court, therefore, “may review a magistrate [judge]’s report under any
standard it deems appropriate.” Summers v. State of Utah, 927 F.2d 1165, 1167 (10th
Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)). The Court is “accorded
considerable discretion” when reviewing “unchallenged” recommendations. Id. Here, with
regard to Plaintiff’s APA claim, the Court has reviewed Magistrate Judge Varholak’s
Recommendation and is satisfied that the Recommendation to dismiss the APA claim is
sound and that there is no clear error on the face of the record.
Accordingly, Plaintiff’s APA claim is dismissed.
B. 	RFRA Claim
Plaintiff’s 	RFRA 	claim 	asserts that the prohibition on 	contact with 	his 	son
substantially burdens his sincerely held religious beliefs.2 ECF No. 12, ¶¶ 20–33.
Defendants argue that Plaintiff does not plausibly plead an RFRA claim because the
contact ban is in furtherance of compelling governmental interests, and the prohibition is
the least restrictive means of furthering those interests. ECF No. 38 at 8–12; ECF No.
102 at 4. Magistrate Judge Varholak determined that the government’s national and
institutional security concerns are clearly compelling interests. ECF No. 94 at 12–13.
2 Plaintiff’s RFRA claim asserts that the communication ban burdens his sincerely held religious beliefs
because, in the Islamic faith, “[t]hose who sever their ties of kinship risk themselves to be cursed by God
(Allah) and God will sever them from HIM.” ECF No. 12, ¶¶ 22–27 (emphasis in Amended Complaint).
Plaintiff also alleges that his faith requires that parents treat their children equally. Id., ¶ 29. In their motion,
Defendants do not challenge the authenticity of his beliefs.
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However, he determined that the second element of this affirmative defense—whether
there are less restrictive means of furthering those interests—is fact dependent and thus
inappropriate for resolution at the motion to dismiss stage. Id. at 13. Defendants object to
this latter conclusion. ECF No. 102 at 5–10.
Defendants’ principal argument is that the least-restrictive-means element can be
decided at the motion to dismiss stage, where, as here, the government’s affirmative
defense is apparent from the documents. Id. at 7. Defendants cite two out-of-Circuit cases
in support. Id. at 7–8.
First, in Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C.), aff’d sub nom. Seven-Sky v.
Holder, 661 F.3d 1 (D.C. Cir. 2011), the district court dismissed the plaintiffs’ RFRA claim
that challenged the individual mandate provision of the Affordable Care Act under Rule
12(b)(6). Id. at 43. The court concluded that “the Government clearly has a compelling
interest in safeguarding the public health by regulating the healthcare and insurance
markets,” and Congress’s findings in enacting the individual mandate showed that it was
the least restrictive means of furthering that compelling interest.3 Id. at 43.
Second, in Lepp v. Gonzales, No. C-05-0566 VRW, 2005 WL 1867723 (N.D. Cal.
Aug. 2, 2005), aff’d sub nom. Harris v. Mukasey, 265 F. App’x 461 (9th Cir. 2008), the
plaintiffs alleged that they were Rastafarians and were required to possess, consume,
and distribute marijuana as mandated by their sincere religious beliefs. Id. at *9. The
district court acknowledged that Rastafarianism is a legitimate religion in which marijuana
3 The Mead court held that the plaintiffs failed to satisfy the first element, but even assuming that the
individual mandate placed a substantial burden on the exercise of the plaintiffs’ Christian faith, the court
proceeded to element two and held that the mandate was the least restrictive means of serving a compelling
governmental interest. Mead, 766 F. Supp. 2d at 43.
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plays a necessary and central role in the faith. Id. However, the court held that the
government satisfied both elements of its affirmative defense. The court first refused to
“second-guess Congress’ conclusion that marijuana presents a compelling threat to
individual health and social welfare.” Id. at *10. The court then found that the Controlled
Substances Act’s (CSA) prohibition on marijuana is the least restrictive means of
achieving this compelling interest. Id. The court thus dismissed the plaintiffs’ RFRA claim
under Rule 12(b)(6). Id.
The Court finds both Mead and Lepp distinguishable from the instant action. In
Mead, “when pressed” at oral argument, the plaintiffs could not “name a less restrictive
means of lowering health insurance premiums or otherwise improving access to health
care.” Id. In contrast, Plaintiff has made plausible assertions that there are feasible, less-
restrictive alternatives, and that those alternatives would advance the government’s
compelling interests. ECF No. 12, ¶¶ 18–21. Defendants argue that Plaintiff’s proposed
alternative is implausible because he has previously attempted to circumvent the SAMs
intended to prohibit communications with his son. ECF No. 102 at 10. But at this stage,
the Court agrees with Magistrate Judge Varholak that this question is better suited for
dispositive motions after the record is developed.
Lepp is also distinguishable because the plaintiffs there essentially challenged
Congress’s rationale and authority to regulate marijuana under the CSA. Lepp, 2005 WL
1867723, at *10. Plaintiff’s case is much more fact-dependent than Lepp, as he is merely
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challenging the manner in which Defendants apply SAMs and not their authority to
implement SAMs.4
* * *
Consistent with the above analysis, the Court overrules Defendants’ objection and
accepts Magistrate Judge Varholak’s Recommendation in its entirety.
V. CONCLUSION
Accordingly, the Court AFFIRMS and ADOPTS Magistrate Judge Varholak’s
Recommendation to grant in part and deny in part Defendants’ motion, ECF No. 94.
Defendants’ Motion to Dismiss Amended Complaint, ECF No. 38, is GRANTED in part
and DENIED in part.5
DATED this 13th day of March 2024.
BY THE COURT:
______________________
Charlotte N. Sweeney
United States District Judge
4 Magistrate Judge Varholak cites El Ali v. Barr, 473 F. Supp. 3d 479 (D. Md. 2020) for the proposition that
the least restrictive means inquiry “is best left for exploration at discovery.” ECF No. 94 at 13 (quoting id. at
525). Defendants’ attempt to distinguish El Ali is not persuasive. In that case, the district court denied the
defendants’ motion to dismiss the RFRA claims in part because whether the government’s implementation
of its Terrorism Screening Database policy aimed at protection the nation are in fact the least restrictive
means was “best left for exploration at discovery.” Id. Here, Defendants agree that the El Ali court’s
conclusions “make sense in the context of that case,” which “concerned the manner in which the
government implemented certain policies, i.e. the topic and length of questions it asked individuals whom
it detained and the characteristics of the individuals it decided to add to watchlists.” ECF No. 102 at 6–7.
But the root of Plaintiff’s allegation is not that different. He too is challenging the manner in which
Defendants implement their SAMs.
5 On March 11, 2024, the Court received Plaintiff’s motion requesting that Defendants sent him a copy of
their objection. ECF No. 103 (dated February 29, 2024, but filed in ECF on March 11, 2024). In that motion,
he also asked for a two-week extension to respond to Defendants’ objection. In light of the Court’s order
overruling Defendants’ objection, the Plaintiff’s motion, ECF No. 103, is DENIED as moot. However, the
Clerk of the Court is directed to mail a copy of Defendants’ objection, ECF No. 102, along with a copy of
this order to Plaintiff.
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