Salim v. AUSA_SDNY Office

OCR transcription for search; preserved printed pages are authoritative

Case No. 1:22-cv-03374-CNS-STV Document 188 _ filed 02/11/25 USDC Colorado
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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 United States Magistrate Judge Scott T. Varholak’s
Recommendation, ECF No. 175, to deny Plaintiffs Motion for Leave to File a
Supplemental to his Prisoner's Amended Complaint under Rule 15(d), ECF No. 140, and
Plaintiffs Motion for Leave to File the Attached Second Amended Complaint, ECF No.
160. For the following reasons, the Court AFFIRMS and ADOPTS the Recommendation.

I. SUMMARY FOR PRO SE PLAINTIFF

The Court referred your pending motion to supplement and motion to amend to
Magistrate Judge Varholak for initial review. He recommended denying both motions. 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. After granting you

two extensions of time to file an objection, you filed a 28-page objection. The Court struck

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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that objection as far exceeding the Court’s 10-page limit for written objections, but sua
sponte granted you leave to exceed the page limits by five pages (thus granting you a 15-
page limit for a renewed objection). Then, on January 20, 2025, you asked for a one-
week extension, up to January 28, 2025, to file a revised objection. The Court granted
that extension request, noting that your objection must be postmarked by the detention
facility on or before January 28, 2025. As of the date of this order, the Court has not
received a revised objection.
As explained in more detail below, the Court has reviewed the Recommendation
and has determined that it is correct. The Court thus affirms and adopts Magistrate Judge
Varholak’s Recommendation and denies your motion to supplement and motion to
amend.
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
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get his keys, unlock a visitation room . . . and attack his attorneys so that they would
withdraw from representing 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 pleaded 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 Religious
Freedom Restoration Act (RFRA) and Administrative Procedure Act (APA). Plaintiff seeks
various forms of injunctive relief aimed at lifting the SAMs that prohibit him from
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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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. 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. The Court affirmed and adopted Magistrate
Judge Varholak’s Recommendation. ECF No. 104.
On July 8, 2024, Plaintiff filed a Motion for Leave to file a Supplemental to his
Prisoner’s Amended Complaint. ECF No. 140. Then, on August 5, 2024, Plaintiff filed a
Motion for Leave to file the Attached Second Amended Complaint. ECF No. 160. Plaintiff
seeks to amend his Amended Complaint to add additional allegations in support of the
RFRA claim and new claims under the Due Process and Ex Post Facto Clauses.
Defendants object to the motions, ECF Nos.151, 171, and Plaintiff replied, ECF No. 164,
174. This Court referred Plaintiff’s motions to Magistrate Judge Varholak for initial
determination. ECF Nos. 141, 161. Magistrate Judge Varholak recommended denying
both motions. ECF No. 175.
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III. 	LEGAL STANDARD
A. 	Rule 72(b)(3) 2
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).
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
2 “Whether motions to amend are dispositive is an unsettled issue in the 10th Circuit.” Cano-Rodriguez v.
Adams Cnty. Sch. Dist. No. 14, No. 19-cv-01370-CMA-KLM, 2020 WL 6049595, at *1 n.2 (D. Colo. July 23,
2020), report and recommendation adopted, 2020 WL 4593219 (D. Colo. Aug. 11, 2020). Courts in this
District have treated denials of a motion to amend as dispositive “because it precludes the filing of certain
claims.” Crocs, Inc. v. Effervescent, Inc., No. 06-cv-00605-PAB-KMT, 2021 WL 941828, at *2 n.1. (D. Colo.
Mar. 11, 2021); Bullock v. Daimler Trucks N. Am., LLC, No. 08-cv-00491-PAB-MEH, 2010 WL 1286079, at
*1 (D. Colo. Mar. 29, 2010) (observing that it “makes good sense” to treat denying a motion to amend as a
recommendation). The Court therefore will treat the issue as dispositive.
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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)).
IV. 	ANALYSIS
When—as is the case here—a party does not object to a Magistrate Judge’s
Recommendation, the Court “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, the Court has
reviewed Magistrate Judge Varholak’s thorough Recommendation and is satisfied that it
is sound and that there is no clear error on the face of the record.
V. CONCLUSION
Consistent with the above analysis, the Court makes the following rulings:
(1) 	The 	Court 	AFFIRMS 	and 	ADOPTS 	Magistrate 	Judge 	Varholak’s
Recommendation, ECF No. 175, in its entirety as an order of this Court;
(2) 	The Court DENIES Plaintiff’s Motion for Leave to File a Supplemental to his
Prisoner’s Amended Complaint under Rule 15(d), ECF No. 140; and
(3) 	The Court DENIES Plaintiff’s Motion for Leave to File the Attached Second
Amended Complaint, ECF No. 160.
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DATED this 11th day of February 2025.