Jabarah v. Wray et al.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-01047-NYW-NRN
MOHAMMED MANSOUR JABARAH,
Plaintiff,
v.
CHRISTSOPHER WRAY, FBI Director,
M. CARVAJAL, BOP Director,
B. TRUE, ADX Warden, and
JOHN AND JANE DOES,
Defendants.
REPORT AND RECOMMENDATION ON
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(ECF No. 133)
N. Reid Neureiter
United States Magistrate Judge
This prisoner civil rights case is before the Court on an Order, ECF No. 136,
entered by Judge Nina Y. Wang referring Defendants Wray, Carvajal, and True’s
(“Defendants”) Motion for Summary Judgment, ECF No. 133. Plaintiff Mohammed
Mansour Jabarah (“Plaintiff”) filed a response, ECF No. 152, and Defendants filed a
reply, ECF No. 154.
The Court heard argument from the parties, has taken judicial notice of the
Court’s file, and considered the applicable Federal Rules of Civil Procedure and case
law. Now being fully informed and for the reasons discussed below, the Court
RECOMMENDS that Defendants’ Motion for Summary Judgment, ECF No. 133, be
GRANTED.
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BACKGROUND
The Court has set forth the factual background and procedural history of this
case in its prior Reports and Recommendations, see ECF Nos. 103 & 132, and will not
repeat it here.
Defendants move for summary judgment on Plaintiff’s sole remaining due
process claim, which relates to the Bureau of Prison’s (“BOP”) failure to provide him
with appropriate written notice after it rejected four religious books in 2019 and 2020.
This claim is asserted against Defendants in their official capacities, so Plaintiff can only
obtain injunctive relief. Defendants argue that the claim is moot because Plaintiff has
now received written rejection notices for the publications at issue and has challenged
the rejections using the BOP’s Administrative Remedy Program (“ARP”).
Defendants offer the following statement of material facts (“SMF”). See ECF No.
133 at 3–5, ¶¶ 1–14. The Court notes that Plaintiff did not specifically dispute any of
them, as required by the Federal Rules of Civil Procedure and Judge Wang’s Civil
Practice Standards. Instead, he merely states that Defendants “points” are “misleading
(at best) and totally false (at worst).” ECF No. 52 at 2.
Plaintiff is a convicted and sentenced federal prisoner who is incarcerated at the
ADX in Florence, Colorado. SMF ¶ 1. He is subject to Special Administrative Measures
(“SAMs”) restricting his communications pursuant to 28 C.F.R. § 501. SMF ¶ 2. Under
Section 9(a) in Plaintiff’s SAMs, he “may have access to all books that do not facilitate
criminal activity or present a substantial threat to national security or the security,
discipline, or good order of the institution.” SMF ¶ 3. The BOP, in conjunction with the
FBI, determines whether Plaintiff is given access to the book. Id.
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In October 2019, Plaintiff was sent two copies of the book Majmu Rasa’il wa
Fatawah by Sheikh Abdallah Bin Abd Al-Azi. SMF ¶ 4. These books were reviewed and
rejected on October 11, 2019. SMF ¶¶ 5–6. Plaintiff was verbally advised by Special
Investigative Services (“SIS”) Linguist Oliver of the denial of these books. SMF ¶ 6. On
April 20, 2023, pursuant to a request made by this Court, Plaintiff was given a letter
stating the two books were denied in October 2019 because they “contain inflammatory
material” and “incite[] violence.” SMF ¶ 7. On March 12, 2024, Plaintiff received a written
notice signed by Warden A. Ciolli explaining that the two books were rejected in
October 2019 because they “incit[e] violence and/or depict[], describe[] or encourage[]
activities that may lead to the use of violence or group disruption.” SMF ¶ 8.
In May 2020, Plaintiff was sent two additional books: (1) Shifa’ al-’Alil by Ibn
Qayyim al-Jawziyyah, and (2) Bada’I al-Fawaid by Ibn Qayyim al-Jawziyyah. SMF ¶ 9.
Plaintiff was again informed verbally by Mr. Oliver of the rejection of these books. SMF
¶¶ 10–11. On March 12, 2024, Plaintiff received a written notice signed by Warden Ciolli
explaining the two books were rejected in May 2020 because the publications were
“detrimental to the security and good order of the institution” as they “incite violence”
and/or “depict[], describe[] or encourage[] activities that may lead to the use of violence
or group disruption.” SMF ¶ 12. On March 21, 2024, Plaintiff filed an informal resolution
form, known as a BP-8, challenging the March 12, 2024, rejection notices he received
concerning the four books in October 2019 and May 2020, respectively. SMF ¶ 13.
Plaintiff has not filed a formal request for Administrative Remedy related to the rejection
notices (BP-9 form). SMF ¶ 14. However, Plaintiff states that he never received a
response to his BP-8 from the BOP. ECF No. 152 at 6.
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LEGAL STANDARDS
I. Pro Se Plaintiff
Plaintiff proceeds pro se. The Court, therefore, “review[s] his pleadings and other
papers liberally and hold[s] them to a less stringent standard than those drafted by
attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted). But the court may not “construct arguments or theories for the plaintiff in the
absence of any discussion of those issues,” Drake v. City of Fort Collins, 927 F.2d
1156, 1159 (10th Cir. 1991), and a plaintiff’s pro se status does not entitle him to an
application of different rules, Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
II. Motion for Summary Judgment under Rule 56
A motion for summary judgment serves the purpose of testing whether a trial is
required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). A court
shall grant summary judgment if the pleadings, depositions, answers to interrogatories,
admissions, or affidavits show there is no genuine issue of material fact, and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if
it might affect the outcome of the suit under the governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Furthermore, a judge’s function at
summary judgment is not to weigh the evidence and determine the truth of the matter,
but to determine if there is a genuine issue for trial. Tolan v. Cotton, 572 U.S. 650, 656
(2014).
The moving party bears the initial responsibility of providing the court with the
factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The
moving party may carry its initial burden either by producing affirmative evidence
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negating an essential element of the nonmoving party’s claim, or by showing that the
nonmoving party does not have enough evidence to carry its burden of persuasion at
trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only
admissible evidence may be considered when ruling on a motion for summary
judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.
1985).
If the movant properly supports a motion for summary judgment, the non-moving
party has the burden of showing there are issues of material fact to be determined.
Celotex, 477 U.S. at 322. That is, the opposing party may not rest on the allegations
contained in his complaint but must respond with specific facts showing a genuine
factual issue for trial. Fed. R. Civ. P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007)
(“The mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.”); see also Hysten v. Burlington N. & Santa
Fe Ry. Co., 296 F.3d 1177, 1180 (10th Cir. 2002). “[T]he content of summary judgment
evidence must be generally admissible and . . . if that evidence is presented in the form
of an affidavit, the Rules of Civil Procedure specifically require a certain type of
admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v.
Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). “The court views the record
and draws all inferences in the light most favorable to the non-moving party.”
Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th
Cir. 2005). However, conclusory statements based merely on conjecture, speculation,
or subjective belief do not constitute competent summary judgment evidence. Bones v.
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Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). Ultimately, the Court’s inquiry
on summary judgment is whether the facts and evidence identified by the parties
present “a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52
(1986).
ANALYSIS
The Tenth Circuit recently explained the doctrine of mootness:
The doctrine of mootness rests on a simple principle: the controversy that
existed at litigation’s commencement may dissipate before its conclusion.
United States v. Juvenile Male, 564 U.S. 932, 936, 131 S. Ct. 2860, 180 L.
Ed. 2d 811 (2011). We recognize two types of mootness: constitutional and
prudential. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d
1096, 1121 (10th Cir. 2010). Constitutional mootness stems from Article III’s
requirement that federal courts only adjudicate “Cases” or “Controversies.”
U.S. Const. art. III, § 2, cl. 1; see also Fletcher v. United States, 116 F.3d
1315, 1321 (10th Cir. 1997) (citing In re Texas Int’l Corp., 974 F.2d 1246,
1247 (10th Cir. 1992)). A case becomes constitutionally moot if it ceases to
“present a real and substantial controversy with respect to which specific
relief may be fashioned.” Fletcher, 116 F.3d at 1321 (citing Lewis v. Cont’l
Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 108 L. Ed. 2d 400 (1990)).
In a suit for declaratory or injunctive relief, we may hold the case moot
despite “[p]ast exposure to illegal conduct” if the plaintiff does not show
“continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488,
495–96, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974).
. . . .
[E]ven if a case survives our constitutional inquiry, we may dismiss it under
the doctrine of prudential mootness. Rio Grande Silvery Minnow, 601 F.3d
at 1121 (quoting Fletcher, 116 F.3d at 1321). Prudential mootness concerns
“not the power to grant relief but the court’s discretion in the exercise of that
power.” Chamber of Com. v. U.S. Dep’t of Energy, 627 F.2d 289, 291 (D.C.
Cir. 1980). Under the Supreme Court’s original formulation of this doctrine,
the movant must persuade the court that a “cognizable danger of recurrent
violation” exists, beyond a “mere possibility.” [Bldg. & Const. Dep’t v.
Rockwell Int’l Corp., 7 F.3d 1487, 1492 (10th Cir. 1993)] (quoting United
States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S. Ct. 894, 97 L. Ed. 1303
(1953)). Under this doctrine, if the circumstances of a controversy become
too attenuated, prudence counsels us not to reach the merits of the appeal.
Id. at 1491–92 (quoting Chamber of Com., 627 F.2d at 291). We will hold a
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suit prudentially moot if the “circumstances [have] changed since the
beginning of litigation that forestall any occasion for meaningful relief.” S.
Utah Wilderness All. v. Smith, 110 F.3d 724, 727–28 (10th Cir. 1997) (citing
13A Charles A. Wright et al., Federal Practice and Procedure § 3533.3 (2d
ed. 1984)).
Bacote v. Fed. Bureau of Prisons, 119 F.4th 808, 812–13 (10th Cir. 2024) (footnote
omitted).
“The party seeking to have the case dismissed bears the burden of
demonstrating mootness[,] and that burden is a heavy one.” Chen-Oster v. Goldman,
Sachs & Co., 251 F. Supp. 3d 579, 590 (S.D.N.Y. 2017) (alteration omitted) (quoting
Robinson v. Blank, No. 11 Civ. 2480 (PAC) (DF), 2013 WL 2156040, at *13 (S.D.N.Y.
May 20, 2013)). And a court will not dismiss under certain circumstances, including
where the defendant voluntarily ceases an allegedly illegal practice but is free to resume
it at any time. See Chihuahuan Grasslands All. v. Kempthorne, 545 F.3d 884, 892 (10th
Cir. 2008). “In other words, this exception exists to counteract the possibility of a
defendant ceasing illegal action long enough to render a lawsuit moot and then
resuming the illegal conduct.” Id. However, “[t]he voluntary cessation exception does not
apply, and a case is moot, ‘if the defendant carries the formidable burden of showing
that it is absolutely clear the allegedly wrongful behavior could not reasonably be
expected to recur.’” Prison Legal News v. Fed. Bureau of Prisons, 944 F.3d 868, 881
(10th Cir. 2019) (footnote omitted). For voluntary cessation to moot a case, the court
must be “convinced that ‘the allegedly wrongful behavior could not reasonably be
expected to recur, . . . not that there is no possibility of future enforcement,” as “[t]he
latter showing would likely be impossible in most cases.” Brown v. Buhman, 822 F.3d
1151, 1175 (10th Cir. 2016) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)).
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Here, Defendants argue that Plaintiff’s due process claim is constitutionally and
prudentially moot and the voluntary cessation exception does not apply. The Court
agrees.
Plaintiff’s only claim for relief is asserted against Defendants in their official
capacities and is based on Defendants’ alleged failure to notify Plaintiff in writing that
incoming religious books were rejected in October 2019 and May 2020. He can only
obtain injunctive relief for this claim; i.e., that he be provided with written notice
consistent with BOP policy so that he has a reasonable opportunity to protest the denial
decisions.1 The BOP has since provided Plaintiff with this written notice, and he has
sought an administrative remedy. He has not shown any continuing injury from the
alleged due process violation. See Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir.
2011) (“Past exposure to illegal conduct does not in itself show a present case or
controversy regarding injunctive relief if unaccompanied by any continuing, present
adverse effects.’”) (citation and alterations omitted). Therefore, the Court “cannot accord
[Plaintiff] prospective relief that would have any effect in the real world.” Id. at 1029.
Plaintiff’s due process claim is constitutionally and prudentially moot.
1 Plaintiff’s Seventh Amended Complaint also requests an “[i]njunction ordering
Defendants to abide by SAMs section (9)(a) access to books.” ECF No. 74 at 25. Rule
65 “requires that an injunction be reasonably specific in identifying what acts are
prohibited or required, both to give notice to the defendant of what is prohibited, and to
guide an appellate court in reviewing the defendant's compliance or noncompliance with
the injunction.” Keyes v. Sch. Dist. No. 1, 895 F.2d 659, 668 (10th Cir. 1990); see also
Fed. R. Civ. P. 65(d)(1)(C) (requiring that all injunctions “describe in reasonable detail—
and not by referring to the complaint or other document—the act or acts restrained or
required”). “[I]njunctions simply requiring the defendant to obey the law are too vague to
satisfy Rule 65.” Shook v. Bd. of Cnty. Comm’rs of Cnty. of El Paso, 543 F.3d 597, 604
(10th Cir. 2008) (quoting Monreal v. Potter, 367 F.3d 1224, 1236 (10th Cir. 2004)).
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The Court further agrees that Defendants have met their burden in showing that
the voluntary cessation exception does not apply. As an initial matter, Plaintiff’s claim
involves the rejection of four discrete books. He has received rejection notices for those
books. There is no further illegal conduct that Defendants can resume regarding these
publications. Moreover, although Plaintiff was not initially provided with the required
written notice of the rejection of the four books described above, his own pleading
shows that he has received rejection notices for other books or materials. See ECF No.
74-1 at 14–16, 20. It is also significant that Plaintiff was promptly verbally informed that
the books at issue in this case had been rejected. Although this initial notification did not
comply with BOP policy because it was not in writing, it does indicate that Defendants
were not engaging in “subterfuge” or seeking “to evade the jurisdiction of the court”
when they finally provided him with written notice. See Jordan, 654 F.3d at 1037. Under
these circumstances, the Court concludes that Defendants did not change course
simply to deprive the court of jurisdiction. Rio Grande Silvery Minnow, 601 F.3d at 1115.
The Court is convinced that the allegedly wrongful behavior cannot reasonably be
expected to recur, and the voluntary cessation doctrine does not save Plaintiff’s claim
from being moot.
Plaintiff argues in his response that he submitted a BP-8 informal grievance
regarding the denials, but never received a response. This argument is unpersuasive.
Defendants state that Plaintiff is still able to continue with the ARP by requesting and
filing a BP-9 formal grievance, which he has not done. See ECF No. 154-1 ¶¶ 6–8. And
Plaintiff is familiar with the process given that, in 2024 alone, he filed 22 administrative
requests and appeals, including six BP-9s. ECF No. 154-2 ¶ 9. Furthermore, Plaintiff
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explicitly states that he “already exhausted the BOP administrative remedy procedure
with respect to all of the four rejected books” before the Seventh Amended Complaint
was filed. ECF No. 152 at 7. Accepting this as true, he had an adequate post-
deprivation remedy and cannot maintain a due process claim. See Wilson v. United
States, 29 F. App’x 495, 497 (10th Cir. 2002) (“The prison provided Wilson with an
administrative remedy after the loss of his books. Thus, he was afforded a meaningful
post-deprivation remedy for the alleged loss and cannot assert a constitutional [due
process] claim.”).
Plaintiff further claims that the written notices must “cite in specific details [sic]
(i.e. page number) the problematic parts of the rejected publications, something
Defendants still have not satisfied.” ECF No. 152 at 8. The Court has already rejected
this argument as to the three non-religious books. See ECF No. 103 at 13–14. The
same holds true as to these four books. BOP regulations provide that “[w]here a
publication is found unacceptable, the Warden shall promptly advise the inmate in
writing of the decision and the reasons for it,” 28 C.F.R.§ 540.71(d), and provide the
sender of the unacceptable publication with a copy of the rejection letter, id. §
540.71(e). Although “[t]he notice must contain reference to the specific article(s) or
material(s) considered objectionable,” id., it does not require that page numbers be
provided or that more detail than what the BOP gave Plaintiff be included. Plaintiff
received written notice of what books were rejected and why. That moots his procedural
due process claim.
To summarize: a claim for injunctive relief is moot when (1) the issues presented
are no longer “live,” or (2) the parties lack a legally cognizable interest in the outcome.
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Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1242 (10th Cir. 2011)
(quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980)) (internal quotation
marks and citation omitted). Plaintiff complains that he did not receive written notice of
rejection as to four books. Now he has. There is no further injunctive relief the Court can
grant to redress Plaintiff’s injury. His claim is moot.
CONCLUSION
It is hereby RECOMMENDED that Defendant’s Motion for Summary Judgment,
ECF No. 133, be GRANTED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148–53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412–13 (10th Cir. 1996).
Dated at Denver, Colorado this 9th day of January, 2025.
_______________________
N. Reid Neureiter
United States Magistrate Judge
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