05-5768-cv (L)
Iqbal v. Hasty
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2006
Heard: October 4, 2006 Decided: June 14, 2007
Docket Nos. 05-5768-cv (L), 05-5844-cv (con), 05-6379-cv (con),
05-6352-cv (con), 05-6386-cv (con), 05-6358-cv (con),
05-6388-cv (con)
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JAVAID IQBAL,
Plaintiff-Appellee,
v.
DENNIS HASTY, former Warden of the Metropolitan
Detention Center, MICHAEL COOKSEY, former
Assistant Director for Correctional Programs
of the Bureau of Prisons, JOHN ASHCROFT, former
Attorney General of the United States, ROBERT
MUELLER, Director of the Federal Bureau of
Investigation, DAVID RARDIN, former Director
of the Northeast Region of the Bureau of
Prisons, MICHAEL ROLINCE, former Chief of the
Federal Bureau of Investigation’s International
Terrorism Operations Section, Counterterrorism
Division, KATHLEEN HAWK SAWYER, former Director
of the Federal Bureau of Prisons, KENNETH
MAXWELL, former Assistant Special Agent in
Charge, New York Field Office, Federal Bureau
of Investigation,
Defendants-Appellants.
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Before: NEWMAN, CABRANES, and SACK, Circuit Judges.
Appeal from the September 27, 2005, Order of the United States
District Court for the Eastern District of New York (John Gleeson,
District Judge), denying in part the Defendants-Appellants’ motions to
dismiss the Amended Complaint on the grounds of qualified immunity.
Affirmed in part, reversed in part, and remanded. Judge Cabranes
concurs in the judgment and opinion of the Court and files a
concurring opinion.
Michael L. Martinez, Wash., D.C. (Shari Ross
Lahlou, David E. Bell, Justin P. Murphy,
Matthew F. Scarlato, Crowell & Moring LLP,
Wash., D.C., on the brief), for Defendant-
Appellant Hasty.
Gregory G. Garre, Deputy Solicitor Gen.,
Dept. of Justice, Wash., D.C. (Peter D.
Keisler, Asst. Atty. Gen., Gregory G.
Katsas, Deputy Asst. Atty. Gen., Kannon K.
Shanmugam, Asst. to the Solicitor Gen.,
Barbara L. Herwig, Robert M. Loeb, Dept.
of Justice, Wash., D.C.; Dennis C.
Barghaan, Richard W. Sponseller, Larry Lee
Gregg, Asst. U.S. Attys., Alexandria, VA.;
R. Craig Lawrence, Asst. U.S. Atty.,
Wash., D.C., on the brief), for
Defendants-Appellants Ashcroft and
Mueller.
Mark E. Nagle, Troutman Sanders LLP, Wash.,
D.C. (William E. Lawler, III, Cheryl A.
Curtis, Nashiba D. Boyd, Vinson & Elkins,
L.L.P., Wash., D.C.; Raymond R. Granger,
New York, N.Y., on the brief), for
Defendants-Appellants Sawyer, Cooksey, and
Rardin.
Lauren J. Resnick, New York, N.Y. (Fernando
A. Bohorquez, Jr., Baker & Hostetler, LLP,
New York, N.Y.; Leslie R. Caldwell,
Morgan, Lewis & Bockius LLP, New York,
N.Y., on the brief), for Defendants-
Appellants Rolince and Maxwell.
Alexander A. Reinert, New York, N.Y. (Keith
M. Donoghue, Elizabeth L. Koob, Joan
Magoolaghan, Koob & Magoolaghan, New York,
N.Y.; Haeyoung Yoon, Urban Justice Center,
New York, N.Y.; Mamoni Bhattacharyya,
David Ball, Weil, Gotshal & Manges LLP,
New York, N.Y., on the brief), for
Plaintiff-Appellee Iqbal.
(Anil Kalhan, New York, N.Y., for amici
curiae Civil Rights Organizations in
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support of Plaintiff-Appellee.)
(Michael J. Wishnie, New York, N.Y., for
amici curiae Individuals and Religious
Organizations in support of Plaintiff-
Appellee.)
JON O. NEWMAN, Circuit Judge.
These interlocutory appeals present several issues concerning the
defense of qualified immunity in the aftermath of the events of 9/11.
Several current and former government officials from the Department of
Justice, the Federal Bureau of Investigation (“FBI”), and the Bureau
of Prisons (“BOP”) appeal from the September 27, 2005, Order of the
District Court for the Eastern District of New York (John Gleeson,
District Judge) denying in part their motions to dismiss on the ground
of qualified immunity. See Elmaghraby v. Ashcroft, No. 04 CV 1409,
2005 WL 2375202 (E.D.N.Y. Sept. 27, 2005) (“Dist. Ct. op.”).
Plaintiff-Appellee Javaid Iqbal alleges that the Defendants-Appellants
took a series of unconstitutional actions against him in connection
with his confinement under harsh conditions at the Metropolitan
Detention Center (“MDC”) in Brooklyn, after separation from the
general prison population. We conclude that the defense of qualified
immunity, to the extent rejected by the District Court, cannot be
sustained as to any Defendants at this preliminary stage of the
litigation except as to the claim of violation of procedural due
process rights, and we therefore affirm in part, reverse in part, and
remand.
Background
Parties. Iqbal is a Muslim Pakistani currently residing in
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Pakistan. Iqbal’s co-plaintiff was Ehad Elmaghraby, a Muslim
Egyptian. After Judge Gleeson’s ruling on the motions to dismiss, the
United States settled Elmaghraby’s claims by payment of $300,000.
Four groups of Defendants have filed appeals from Judge Gleeson’s
order. The first group consists of former Attorney General John
Ashcroft and current FBI Director Robert Mueller. The second group
consists of Michael Rolince, former Chief of the FBI’s International
Terrorism Operations Section, Counterterrorism Division, and Kenneth
Maxwell, former Assistant Special Agent in Charge of the FBI’s New
York Field Office (the “FBI Defendants”). The third group consists of
former BOP officials: Kathleen Hawk Sawyer, former BOP Director; David
Rardin, former Director of the Northeast Region of the Bureau of
Prisons; and Michael Cooksey, former Assistant Director for
Correctional Programs of the Bureau of Prisons (the “BOP Defendants”).
The fourth appeal was filed by Dennis Hasty, former MDC Warden. Other
Defendants include Michael Zenk, MDC Warden at the time the lawsuit
was filed, other MDC staff, and the United States.
Factual allegations. The complaint alleges the following facts,
which are assumed to be true for purposes of the pending appeals, as
we are required to do in reviewing a ruling on a motion to dismiss.
See Hill v. City of New York, 45 F.3d 653, 657 (2d Cir. 1995). The
Plaintiff was arrested by agents of the FBI and the Immigration and
Naturalization Service on November 2, 2001.1 Following his arrest, he
1
The complaint does not identify the charges on which Iqbal was
arrested, but Judge Gleeson’s opinion states that he was charged with
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was detained in the MDC’s general prison population until January 8,
2002, when he was removed from the general prison population and
assigned to a special section of the MDC known as the Administrative
Maximum Special Housing Unit (“ADMAX SHU”), where he remained until he
was reassigned to the general prison population at the end of July
2002. On this appeal, we consider only claims concerning the
Plaintiff’s separation from the general prison population and
confinement thereafter in the ADMAX SHU. We do not consider the
legality of his arrest or his initial detention in the MDC.
The complaint further alleges that in the months after 9/11, the
FBI arrested and detained thousands of Arab Muslim men as part of its
investigation into the events of 9/11. The fact of their detention,
its duration, and the conditions of confinement depended on whether
those arrested were classified as “of high interest.” Many of these
men, including the Plaintiff, were classified as “of high interest”
solely because of their race,2 religion, and national origin and not
conspiracy to defraud the United States and fraud with identification.
Dist. Ct. op. at *1 n.1.
2
Iqbal is a Muslim and a Pakistani, but not an Arab.
Nevertheless, his claim is fairly to be understood as alleging
unlawful treatment based on his ethnicity, even if not technically on
a racial classification. And his allegations of what was done to Arab
Muslims are fairly understood to mean that unlawful actions were taken
against him because officials believed, perhaps because of his
appearance and his ethnicity, that he was an Arab.
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because of any involvement in terrorism. In the New York City area,
all Arab Muslim men arrested on criminal or immigration charges while
the FBI was investigating a 9/11 lead were classified as “of high
interest. The FBI Defendants were responsible for making these
classifications for detainees arrested in the New York City area,
including the Plaintiff.
The complaint further alleges that Ashcroft and Mueller approved
a policy of holding detainees “of high interest” in highly restrictive
conditions until they were “cleared” by the FBI. In early October,
BOP Defendant Cooksey, with the knowledge of BOP Defendant Sawyer,
directed that all detainees “of high interest” be held in the most
restrictive conditions possible. FBI officials were aware that the
BOP was relying on this classification to hold detainees in
restrictive conditions.
The complaint further alleges that soon after 9/11, the MDC
created within the MDC an ADMAX SHU, the BOP’s most restrictive type
of confinement, to house the detainees “of high interest.” The
procedures for handling ADMAX SHU detainees were developed by MDC
staff, at the request of Defendant Hasty. ADMAX SHU detainees were
permitted to leave their cells only one hour each day, and all legal
and social interactions were non-contact. Movement outside their
cells required handcuffs and leg irons and four-officer escorts.
Movement inside their cells was monitored by video cameras. For many
weeks, the detainees were subject to a communications blackout.
The complaint further alleges that the MDC did not conduct any
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review of the detainees’ segregation in the ADMAX SHU. Instead, the
detainees remained in the ADMAX SHU until the FBI approved their
release to the general population. As a result, numerous detainees
were held in the ADMAX SHU for extended periods of time even though
there was no evidence linking them to terrorism.
The complaint further alleges that the Plaintiff was transferred
to the ADMAX SHU on January 8, 2002. He was kept in solitary
confinement. Until March, the lights in his cell were left on almost
24 hours a day, and MDC staff deliberately turned on air conditioning
during the winter and heating during the summer. MDC staff left the
Plaintiff in the open-air recreation area for hours when it was
raining and then turned on the air conditioner when he returned to his
cell. Whenever the Plaintiff was removed from his cell, he was
handcuffed and shackled. The Plaintiff was not provided with adequate
food and lost 40 pounds while in custody. MDC staff called him, among
other things, a “terrorist” and a “Muslim killer.”
The complaint further alleges that the Plaintiff was brutally
beaten by MDC guards on two occasions: upon his transfer to the ADMAX
SHU in January 2002 and again in March. Following the March beating,
the Plaintiff was denied medical care for two weeks even though he was
in excruciating pain. He was also subjected to daily strip and body-
cavity searches. The March beating was prompted by the Plaintiff’s
protestations to a fourth consecutive strip and body-cavity search in
the same room. MDC staff interfered with the Plaintiff’s prayers,
routinely confiscated his Koran, and refused to permit him to
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participate in Friday prayer services. They also interfered with the
Plaintiff’s communications with his defense attorney, for example, by
disconnecting the phone if the Plaintiff complained about his
conditions of confinement and delaying his receipt of legal mail for
up to two months.
The Plaintiff pled guilty on April 22, 2002, and was sentenced on
September 17, 2002. He was released from the ADMAX SHU at the end of
July 2002, after pleading guilty but before sentencing. Judge Gleeson
considered the Plaintiff to be a pretrial detainee throughout his
entire time in the ADMAX SHU. Dist. Ct. op. at *15 n.14. The
Plaintiff was released from the MDC on January 15, 2003, and
thereafter was removed to Pakistan (a fact not in the complaint but
undisputed).
Litigation in the District Court. The Plaintiff (and his co-
plaintiff) commenced this action in May 2004. Their complaint
asserted twenty-one causes of action, including both statutory claims
and constitutional tort claims pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The
causes of action, and the Defendants against whom they were asserted,
are set forth in the margin.3
3
The claims, in the order set forth in the complaint, are:
1. Fifth Amendment substantive due process claim based on the
conditions of confinement: Hasty and MDC staff.
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2. Fifth Amendment procedural due process claim based on
confinement in the ADMAX SHU: Ashcroft and Mueller, FBI
Defendants, BOP Defendants, Hasty, and MDC staff.
3-4. Fifth and Eighth Amendments excessive force claims: Hasty
and MDC staff.
5. Sixth Amendment interference with right to counsel claim:
Hasty and MDC staff.
6-7. Fifth and Eighth Amendments denial of medical treatment
claims: MDC staff (not at issue on this appeal).
8. Eighth Amendment conditions of confinement claim: Hasty and
MDC staff.
9. Fourth Amendment unreasonable search claim based on strip
and body-cavity searches: BOP Defendant Sawyer (but not
other BOP Defendants), Hasty, and MDC staff.
10. First Amendment claim based on interference with religious
practice: Hasty and MDC staff.
11. First Amendment claim based on religious discrimination:
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Ashcroft and Mueller, FBI Defendants, BOP Defendants, Hasty,
and MDC staff.
12. Fifth Amendment race-based equal protection claim: Ashcroft
and Mueller, FBI Defendants, BOP Defendants, Hasty, and MDC
staff.
13. Religious Freedom Restoration Act (“RFRA”) claim based on
conditions of confinement: Ashcroft and Mueller, FBI
Defendants, BOP Defendants, Hasty, and MDC staff.
14-15. RFRA claims based on interference with religious
practice and excessive force: Hasty and MDC staff.
16-17. 42 U.S.C. § 1985(3) claims for conspiracy to deprive
the Plaintiff of equal protection on the grounds of
religion, race, and national origin: Ashcroft and
Mueller, BOP Defendants, Hasty, and MDC staff.
18-20. Federal Tort Claims Act (“FTCA”) claims for assault and
battery, negligent denial of medical treatment,
intentional infliction of emotional distress: United
States.
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Ashcroft and Mueller, the FBI Defendants, the BOP Defendants,
Hasty, the MDC Warden, and an MDC medical assistant4 filed motions to
dismiss on the grounds that (1) a Bivens action was precluded by
“special factors”, (2) they were protected by qualified immunity, (3)
the supervisory defendants were not alleged to have sufficient
personal involvement, and (4) Ashcroft, Mueller, the FBI Defendants,
and the BOP Defendants were not subject to personal jurisdiction in
New York. In addition, the United States moved to be substituted as
the defendant on the ATCA claim (Count 21) and for dismissal of that
claim.
With a few exceptions, Judge Gleeson denied the motions to
dismiss. He first rejected Ashcroft’s argument that “special
factors,” namely the post-9/11 context, precluded a Bivens action in
this case. See Dist. Ct. op. at *14. Judge Gleeson then turned to the
substance of the Plaintiff’s Bivens claims. He denied Hasty’s motion
to dismiss the conditions of confinement claims (Counts One and
Eight), concluding that the Plaintiff had adequately alleged (1)
illegitimate reasons for the conditions of his confinement and (2)
Hasty’s personal involvement. See id. at *15-*17. He also found
21. Alien Tort Claims Act (“ATCA”) claim: Ashcroft and
Mueller, FBI Defendants, BOP Defendants, Hasty, and MDC
staff.
4
Zenk, the MDC Warden at the time the lawsuit was filed, and the
MDC medical assistant are not appealing Judge Gleeson’s ruling.
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adequate allegations of Hasty’s personal involvement in the claims of
excessive force (Counts Three and Four), interference with the
Plaintiff’s right to counsel (Count Five), unreasonable strip searches
(Count Nine), and interference with the Plaintiff’s exercise of
religion (Count Ten). See id. at *22, *27, *28. However, he found the
allegations insufficient to support the personal involvement of BOP
Defendant Sawyer in the unreasonable strip searches and dismissed this
claim against her. See id. at *27.
With respect to the procedural due process claim (Count Two),
Judge Gleeson found that the Plaintiff had alleged both a deprivation
of a liberty interest that involved “atypical and significant”
hardships compared to the conditions in the general prison population
and the absence of any due process protections, that the Plaintiff’s
right was clearly established, and that he could not assess the
objective reasonableness of the Defendants’ actions as a matter of law
at this stage of the litigation. See id. at *18-*20. He also found
that the Plaintiff had adequately alleged the personal involvement of
all the Defendants, observing that “the post-September 11 context
provide[d] support for [the P]laintiffs’ assertions that [the
D]efendants were involved in creating and/or implementing the
detention policy under which [the P]laintiffs were confined without
due process.” See id. at *20-*21. Finally, with respect to the
procedural due process claim, he limited the first stage of discovery
to the issue of the Defendants’ personal involvement in the alleged
denial of due process. See id. at *21.
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With respect to the Plaintiff’s Bivens claims of race and
religious discrimination (Counts 11 and 12), Judge Gleeson ruled that
the Plaintiff’s allegations that he was confined in significantly
harsher conditions solely because of his race and religion were
sufficient to state a cause of action. See id. at *29. He also
concluded that the Plaintiff had adequately alleged the personal
involvement of Ashcroft and Mueller, the FBI Defendants, and Hasty.
See id. However, because the Plaintiff had not alleged that the BOP
Defendants were involved in the challenged classification in any way,
Judge Gleeson concluded that the Plaintiff had not alleged the
personal involvement of the BOP Defendants, and he dismissed these
claims against them. See id.
Turning to the Plaintiff’s statutory claims, Judge Gleeson
dismissed the RFRA claims against all the Defendants, concluding that
they were entitled to qualified immunity because it was not clearly
established that RFRA applied to federal government officials. See id.
at *30-*31. He also dismissed the ATCA claim after first having
substituted the United States for the individual defendants. See id.
at *34-*35. Finally, he denied the motions to dismiss the section
1985(3) conspiracy claims, rejecting the Defendants’ arguments that it
was not clearly established that section 1985 applied to federal
officers and concluding that the Plaintiff had adequately alleged the
Defendants’ personal involvement, except with respect to the
allegation that the BOP Defendants had conspired to subject the
Plaintiff to unreasonable strip searches. See id. at *32-*33.
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Discussion
The Defendants appeal from the District Court’s order denying
their motions to dismiss on the ground of qualified immunity. Their
arguments with respect to qualified immunity fall into several broad
categories: (1) the Plaintiff’s allegations do not allege the
violation of a clearly established right, (2) do not allege sufficient
personal involvement of the Defendants in the challenged actions, (3)
are too conclusory to overcome a qualified immunity defense, and (4)
the Defendants’ actions were objectively reasonable. Permeating the
Defendants’ assertion of a qualified immunity defense is the
contention that, however the defense might be adjudicated in normal
circumstances, the immediate aftermath of the 9/11 attack created a
context in which the defense must be assessed differently and, from
their standpoint, favorably.
In addition, Ashcroft, Mueller, and FBI Defendant Rolince seek
review of the denial of their motion to dismiss for lack of personal
jurisdiction, arguing that the issue of personal jurisdiction is
available for review on this interlocutory appeal because the issue is
inextricably intertwined with that of qualified immunity.
Because many of the Defendants’ grounds for asserting an immunity
defense overlap with respect to several of the Plaintiff’s
allegations, it will be convenient to consider separately each of the
Plaintiff’s causes of action with respect to the one or more
Defendants against whom it is asserted, rather than consider
separately the claims asserted against each Defendant. Before turning
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to each of the Plaintiff’s allegations, we first consider the legal
standards that apply to nearly all of the Plaintiff’s claims and to
most of the grounds on which the Defendants assert their qualified
immunity defense.
I. General Principles of Qualified Immunity
(a) Standard of review. When a district court denies qualified
immunity on a Rule 12(b)(6) motion to dismiss, “we review the district
court’s denial de novo, accepting as true the material facts alleged
in the complaint and drawing all reasonable inferences in plaintiffs’
favor.” Johnson v. Newburgh Enlarged School District, 239 F.3d 246,
250 (2d Cir. 2001).
(b) Appealability. A district court’s denial of qualified
immunity is appealable as a collateral order if it turns on an issue
of law. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Thus, a
defendant may appeal a district court’s ruling denying qualified
immunity when, if a plaintiff’s allegations are assumed to be true,
the only question is whether the alleged conduct violated a clearly
established right. See Locurto v. Safir, 264 F.3d 154, 163 (2d Cir.
2001).
(c) The qualified immunity defense. Qualified immunity is an
immunity from suit and not just a defense to liability. See Saucier v.
Katz, 533 U.S. 194, 200 (2001). The first step in a qualified
immunity inquiry is to determine whether the alleged facts demonstrate
that a defendant violated a constitutional right. See id. at 201; see
also Scott v. Harris, 127 S. Ct. 1769, 1774 & n.4 (2007). If the
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allegations show that a defendant violated a constitutional right, the
next step is to determine whether that right was clearly established
at the time of the challenged action--that is, “whether it would be
clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” See Saucier, 533 U.S. at 202. A defendant
will be entitled to qualified immunity if either (1) his actions did
not violate clearly established law or (2) it was objectively
reasonable for him to believe that his actions did not violate clearly
established law. See Johnson, 239 F.3d at 250.
In determining whether a right was clearly established, the court
must assess whether “the contours of the right [were] sufficiently
clear in the context of the alleged violation such that a reasonable
official would understand that what he [was] doing violate[d] that
right.” Id. at 250-51 (internal quotation marks omitted). To that
end, the court should consider what a reasonable officer in the
defendant’s position would have known about the lawfulness of his
conduct, “not what a lawyer would learn or intuit from researching
case law.” Id. at 251 (internal quotation marks omitted).
Furthermore, the court need not identify “legal precedent addressing
an identical factual scenario” to conclude that the right is clearly
established. Id.; see also Tellier v. Fields, 280 F.3d 69, 84 (2d Cir.
2000) (noting that a law is “clearly established” so long as a ruling
on the issue is “clearly foreshadow[ed]” by this Circuit’s decisions).
(d) Personal involvement. Many of the Defendants claim qualified
immunity on the ground that the Plaintiff has failed to allege their
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personal involvement in the challenged actions. All of the appealing
Defendants are supervisory officials. The personal involvement of a
supervisor may be established by showing that he (1) directly
participated in the violation, (2) failed to remedy the violation
after being informed of it by report or appeal, (3) created a policy
or custom under which the violation occurred, (4) was grossly
negligent in supervising subordinates who committed the violation, or
(5) was deliberately indifferent to the rights of others by failing to
act on information that constitutional rights were being violated. See
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (discussing section
1983 liability).
Although a lack of personal involvement may be grounds for
dismissing a claim on the merits (a ruling that would not be subject
to an interlocutory appeal), such a lack is also relevant to a defense
of qualified immunity because it goes to the question of whether a
defendant’s actions violated a clearly established right. See
McCullough v. Wyandanch Union Free School District, 187 F.3d 272, 280
(2d Cir. 1999) (“Where there is a total absence of evidence of [a
violation], there is no basis on which to conclude that the defendant
seeking qualified immunity violated clearly established law.”
(internal quotation marks omitted)). “[O]ur task is to consider
whether, as a matter of law, the factual allegations and all
reasonable inferences therefrom are insufficient to establish the
required showing of personal involvement.” Johnson, 239 F.3d at 255.
(e) Pleading requirements. The parties dispute the extent to
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which a plaintiff must plead specific facts to overcome a defense of
qualified immunity at the motion-to-dismiss stage. Although most of
the Defendants disclaim requiring the Plaintiff to meet a heightened
pleading standard, beyond the requirement of Conley v. Gibson, 355
U.S. 41, 47 (1957), that a complaint “give the defendant fair notice
of what the plaintiff’s claim is and the grounds upon which it rests,”
see Fed. R. Civ. P. 8(a)(2), all the Defendants make the somewhat
similar argument that “conclusory allegations” will not suffice to
withstand a qualified immunity defense, especially with respect to
allegations of supervisory involvement, racial and/or religious
animus, or conspiracy. BOP Defendant Cooksey explicitly urges us to
adopt a heightened pleading standard in Bivens actions.
The pleading standard to overcome a qualified immunity defense
appears to be an unsettled question in this Circuit. Four Supreme
Court opinions provide guidance, although the guidance they provide is
not readily harmonized. In Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163 (1993), the Court
rejected a heightened pleading standard in a civil rights action
alleging municipal liability, applying instead only the traditional
requirement of “‘a short and plain statement of the claim showing that
the pleader is entitled to relief.’” Id. at 168 (quoting Fed. R. Civ.
P. 8(a)(2)). In reaching this conclusion, the Court distinguished
between municipalities’ immunity from respondeat superior liability
and government officials’ qualified immunity from suit. See id. at
166. Arguably, this distinction could permit requiring a plaintiff to
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satisfy a heightened pleading standard of a cause of action in order
to overcome a government official’s defense of qualified immunity.
However, the Court’s opinion in Leatherman suggests that heightened
pleading standards are never permissible except when authorized by
Rule 9(b) of the Federal Rules of Civil Procedure. See id. at 168
(noting that Rule 9(b) “do[es] not include among the enumerated
actions any reference to complaints alleging municipal liability under
§ 1983"). Indeed, the Court observed that, in the absence of
amendment to Rules 8 or 9, the courts could rely only on control of
discovery and summary judgment to “weed out unmeritorious claims.” Id.
at 168-69.
A more pertinent precedent is Swierkiewicz v. Sorema N.A., 534
U.S. 506 (2002), which concerned the adequacy of pleading a Title VII
complaint. The Court rejected what had been this Circuit’s rule
requiring employment discrimination plaintiffs to allege facts
constituting a prima facie case of employment discrimination. See id.
at 515. The Court again emphasized that the judicially imposed
heightened pleading standard conflicted with Rule 8(a) and that a
heightened pleading standard could be attained only “by the process of
amending the Federal Rules, and not by judicial interpretation.” Id.
(internal quotation marks omitted).
Leatherman and especially Swierkiewicz–-with their insistence
that courts cannot impose heightened pleading standards in the absence
of statutory authorization--indicate that a court cannot impose a
heightened pleading standard in Bivens (or other civil rights) actions
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against individual officials, a precept we have heeded since the
Supreme Court’s decision in Swierkiewicz. See, e.g., Phillip v.
University of Rochester, 316 F.3d 291, 298-99 (2d Cir. 2003) (general
allegation of racial animus); Phelps v. Kapnolas, 308 F.3d 180, 186-87
(2d Cir. 2002) (general allegation of knowledge).
However, a third Supreme Court case, decided between Leatherman
and Swierkiewicz, cryptically suggests that, in some circumstances, a
court could require “specific nonconclusory factual allegations” at
the pleading stage in claims against government officials. In
Crawford-El v. Britton, 523 U.S. 574 (1998), the D.C. Circuit had
recognized a heightened burden of proof in cases against government
officials alleging unconstitutional motive. See id. at 582-83. The
Court observed that the D.C. Circuit had adopted the heightened
standard in an attempt “to address a potentially serious problem:
Because an official’s state of mind is easy to allege and hard to
disprove, insubstantial claims that turn on improper intent may be
less amenable to summary disposition than other types of claims
against government officials.” Id. at 584-85 (internal quotation marks
omitted). Although the Supreme Court recognized this problem, it
rejected the heightened standard of proof.
The Court held that the D.C. Circuit’s rule was not compelled by
either the holding or the reasoning of Harlow v. Fitzgerald, 457 U.S.
800 (1982). In Harlow, the Court had stated that “bare allegations of
malice should not suffice to subject government officials either to
the costs of trial or to the burdens of broad-reaching discovery.” Id.
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at 817-18. However, as the Court explained in Crawford-El, this
statement merely concerned a plaintiff’s attempt to overcome a
legitimate qualified immunity defense by alleging malicious intent;
this holding was irrelevant to a plaintiff’s burden in alleging a
constitutional violation of which improper motive is an essential
element. See 523 U.S. at 588-89. Neither did Harlow’s reasoning
require a heightened burden of proof: the Court observed that there
existed other mechanisms for protecting officials from unmeritorious
actions, such as the requirement that the officials’ conduct violate
clearly established law, the need to prove causation, and procedural
protections. See id. at 590-93.
The Court acknowledged that the usual pleading standard would
sometimes not preclude at least limited discovery to amplify general
allegations. The Court observed that Harlow only “sought to protect
officials from the costs of ‘broad-reaching’ discovery” and that
limited discovery is sometimes necessary to adjudicate a qualified
immunity defense. See id. at 593 n.14. The Court concluded by
observing that “broad discretion” in the discovery process is more
“useful and equitable” than categorical rules such as that of the D.C.
Circuit. See id. at 601.
What Crawford-El gave civil rights plaintiffs with respect to
traditional notice pleading, however, it might have modified by
permitting some post-complaint detailing of a claim. In discussing
the procedural mechanisms available to judges in civil rights actions,
at least those alleging wrongful motive, the Court observed that,
-21-
before permitting discovery, a court could require a plaintiff to “put
forward specific, non-conclusory factual allegations that establish
improper motive causing cognizable injury in order to survive a
prediscovery motion for dismissal or summary judgment.” Id. at 598
(internal quotation marks omitted). Perhaps significantly, the Court
quoted the phrase “put forward specific, nonconclusory factual
allegations” from Justice Kennedy’s concurring opinion in Siegert v.
Gilley, 500 U.S. 226 (1991), in which he had explicitly advocated a
heightened pleading standard for civil rights actions requiring a
showing of malice. See id. at 235-36 (“There is tension between the
rationale of Harlow and the requirement of malice, and it seems to me
that the heightened pleading requirement is the most workable means to
resolve it.”).
The First Circuit has remarked that “[w]hatever window of
opportunity [it] thought remained open after Crawford-El has been
slammed shut by the Supreme Court’s subsequent decision in
Swierkiewicz.” Educadores Puertorriqueños en Acción v. Hernandez, 367
F.3d 61, 65 (1st Cir. 2004). Most Circuits appear to have rejected a
heightened pleading standard. See Doe v. Cassel, 403 F.3d 986, 988-89
& n.3 (8th Cir. 2005) (collecting cases); Galbraith v. County of Santa
Clara, 307 F.3d 1119, 1125 (9th Cir. 2002) (same).
Considerable uncertainty concerning the standard for assessing
the adequacy of pleadings has recently been created by the Supreme
Court’s decision in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955
(2007). If we were to consider only a narrow view of the holding of
-22-
that decision, we would not make any adjustment in our view of the
applicable pleading standard. Bell Atlantic held that an allegation
of parallel conduct by competitors, without more, does not suffice to
plead an antitrust violation under 15 U.S.C. § 1. See id. at 1961.
The Court required, in addition, “enough factual matter (taken as
true) to suggest that an agreement was made.” Id. at 1965. However,
the Court’s explanation for its holding indicated that it intended to
make some alteration in the regime of pure notice pleading that had
prevailed in the federal courts ever since Conley v. Gibson, 355 U.S.
41 (1957), was decided half a century ago. The nature and extent of
that alteration is not clear because the Court’s explanation contains
several, not entirely consistent, signals, which we consider (not
necessarily in the order set forth in the Court’s opinion).
Some of these signals point toward a new and heightened pleading
standard. First, the Court explicitly disavowed the oft-quoted
statement in Conley of “‘the accepted rule that a complaint should not
be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.’” Bell Atlantic, 127 S. Ct.
at 1968 (quoting Conley, 355 U.S. at 45-46). Bell Atlantic asserted
that this “no set of facts” language “has earned retirement” and “is
best forgotten.” Id. at 1969.
Second, the Court, using a variety of phrases, indicated that
more than notice of a claim is needed to allege a section 1 violation
based on competitors’ parallel conduct. For example, the Court
-23-
required “enough factual matter (taken as true) to suggest that an
agreement was made,” id. at 1965; “enough fact to raise a reasonable
expectation that discovery will reveal evidence of illegal agreement,”
id.; “facts that are suggestive enough to render a § 1 conspiracy
plausible,” id.; “allegations of parallel conduct . . . placed in a
context that raises a suggestion of a preceding agreement,” id. at
1966; “allegations plausibly suggesting (not merely consistent with)
agreement,” id.; a “plain statement” (as specified in Rule 8(a)(2))
with “enough heft” to show entitlement to relief, id.; and “enough
facts to state a claim to relief that is plausible on its face,” id.
at 1974, and also stated that the line “between the factually neutral
and the factually suggestive. . . must be crossed to enter the realm
of plausible liability,” id. at 1966 n.5., and that “the complaint
warranted dismissal because it failed in toto to render plaintiffs’
entitlement to relief plausible,” id. at 1973 n.14.
Third, the Court discounted the ability of “‘careful case
management,’” “to weed[] out early in the discovery process” “a claim
just shy of a plausible entitlement.” Id. at 1967 (quoting id. at 1975
(Stevens, J., dissenting)).
Fourth, the Court encapsulated its various formulations of what
is required into what it labeled “the plausibility standard.” Id. at
1968. Indeed, the Court used the word “plausibility” or an adjectival
or adverbial form of the word fifteen times (not counting quotations).
On the other hand, some of the Court’s linguistic signals point
away from a heightened pleading standard and suggest that whatever the
-24-
Court is requiring in Bell Atlantic might be limited to, or at least
applied most rigorously in, the context of either all section 1
allegations or perhaps only those section 1 allegations relying on
competitors’ parallel conduct. First, the Court explicitly disclaimed
that it was “requir[ing] heightened fact pleading of specifics,” id.
at 1974, and emphasized the continued viability of Swierkiewicz, see
id. at 1973-74, which had rejected a heightened pleading standard.
See also Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citing Bell
Atlantic’s citation of Swierkiewicz).
Second, although the Court faulted the plaintiffs’ complaint for
alleging “merely legal conclusions” of conspiracy, id. at 1970, it
explicitly noted with approval Form 9 of the Federal Civil Rules,
Complaint for Negligence, which, with respect to the ground of
liability, alleges only that the defendant “negligently drove a motor
vehicle against plaintiff who was then crossing [an identified]
highway,” Fed. R. Civ. P. App. Form 9. See Bell Atlantic, 127 S. Ct.
at 1970 n.10. The Court noted that Form 9 specifies the particular
highway the plaintiff was crossing and the date and time of the
accident, see id., but took no notice of the total lack of an
allegation of the respects in which the defendant is alleged to have
been negligent, i.e., driving too fast, crossing the center line,
running a traffic light or stop sign, or even generally failing to
maintain a proper lookout. The adequacy of a generalized allegation
of negligence in the approved Form 9 seems to weigh heavily against
reading Bell Atlantic to condemn the insufficiency of all legal
-25-
conclusions in a pleading, as long as the defendant is given notice of
the date, time, and place where the legally vulnerable conduct
occurred.
Third, the Court placed heavy emphasis on the “sprawling, costly,
and hugely time-consuming” discovery that would ensue in permitting a
bare allegation of an antitrust conspiracy to survive a motion to
dismiss, see id. at 1967 n.6, and expressed concern that such
discovery “will push cost-conscious defendants to settle even anemic
cases,” id. at 1967. These concerns provide some basis for believing
that whatever adjustment in pleading standards results from Bell
Atlantic is limited to cases where massive discovery is likely to
create unacceptable settlement pressures.
Fourth, although the Court expressed doubts about the ability of
district courts to “weed[] out” through case management in the
discovery process “a claim just shy of a plausible entitlement to
relief,” id. (emphasis added), the Court did not disclaim its prior
statement that “federal courts and litigants must rely on summary
judgment and control of discovery to weed out unmeritorious claims
sooner rather than later.” Leatherman, 507 U.S. at 168-69 (emphasis
added).5 Leaving Leatherman and Crawford-El undisturbed (compared to
the explicit disavowal of the “no set of facts” language of Conley)
further suggests that Bell Atlantic, or at least its full force, is
5
There is no possibility that the “weed out” language of
Leatherman was overlooked; it was called to the Court’s attention in
Justice Stevens’s dissent. See Bell Atlantic, 127 S. Ct. at 1982.
-26-
limited to the antitrust context.
Fifth, just two weeks after issuing its opinion in Bell Atlantic,
the Court cited it for the traditional proposition that “[s]pecific
facts are not necessary [for a pleading that satisfies Rule 8(a)(2)];
the statement need only ‘”give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests.”’ Erickson, 127 S.
Ct. at 2200 (quoting Bell Atlantic’s quotation from Conley) (omission
in original).
These conflicting signals create some uncertainty as to the
intended scope of the Court’s decision.6 We are reluctant to assume
that all of the language of Bell Atlantic applies only to section 1
allegations based on competitors’ parallel conduct or, slightly more
broadly, only to antitrust cases.7 Some of the language relating
6
The parties, not surprisingly, view Bell Atlantic entirely
differently. Defendant Hasty characterizes the Supreme Court’s
decision as a “sea change” in the pleading standard of Rule 8, see
Letter from Michael L. Martinez, counsel for Defendant Hasty, to the
Acting Clerk of this Court (May 25, 2007); the Plaintiff emphasizes
the antitrust holding of the decision, see Letter from Alexander A.
Reinert, counsel for Plaintiff Iqbal, to the Acting Clerk of this
Court (May 22, 2007).
7
For example, it would be cavalier to believe that the Court’s
rejection of the “no set of facts” language from Conley, which has
been cited by federal courts at least 10,000 times in a wide variety
of contexts (according to a Westlaw search), applies only to section
-27-
generally to Rule 8 pleading standards seems to be so integral to the
rationale of the Court’s parallel conduct holding as to constitute a
necessary part of that holding. See Pierre N. Leval, Judging under
the Constitution: Dicta about Dicta, 81 N.Y.U. L. Rev. 1249, 1257
(2006) (“The distinction [between holding and dictum] requires
recognition of what was the question before the court upon which the
judgment depended, how (and by what reasoning) the court resolved the
question, and what role, if any, the proposition played in the
reasoning that led to the judgment.”).
After careful consideration of the Court’s opinion and the
conflicting signals from it that we have identified, we believe the
Court is not requiring a universal standard of heightened fact
pleading, but is instead requiring a flexible “plausibility standard,”
which obliges a pleader to amplify a claim with some factual
allegations in those contexts where such amplification is needed to
render the claim plausible. We will say more about this approach as
we apply it below to some of the Plaintiff’s specific allegations.
Notwithstanding what we understand to be the essential message of
Bell Atlantic, we acknowledge that we see some merit in the argument
in favor of a heightened pleading standard in this case for two
reasons. First, qualified immunity is a privilege that is essential
to the ability of government officials to carry out their public roles
effectively without fear of undue harassment by litigation. In this
respect, the factors favoring a heightened pleading standard to
1 antitrust claims.
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overcome a qualified immunity defense are distinguishable from the
purely prudential and policy-driven factors that the Supreme Court
found inadequate to justify a heightened pleading standard in the
Title VII context. See Swierkiewicz, 534 U.S. at 514-15.
Second, some of the allegations in the Plaintiff’s complaint,
although not entirely conclusory, suggest that some of the Plaintiff’s
claims are based not on facts supporting the claim but, rather, on
generalized allegations of supervisory involvement. Therefore,
allowing some of the Plaintiff’s claims to survive a motion to dismiss
might facilitate the very type of broad-ranging discovery and
litigation burdens that the qualified immunity privilege was intended
to prevent.
Nevertheless, although Swierkiewicz was decided in the context of
Title VII, we are mindful of the Supreme Court’s statement in that
decision that heightened pleading requirements “must be attained by
the process of amending the Federal Rules, and not by judicial
interpretation.” Id. at 514 (internal quotation marks omitted).
Absent any indication from the Supreme Court that qualified immunity
might warrant an exception to this general approach and the explicit
disclaimer of a heightened pleading standard in Bell Atlantic,
reinforced by the reversal of the Tenth Circuit’s use of a heightened
pleading standard in Erickson, we conclude that a heightened pleading
rule may not be imposed. However, in order to survive a motion to
dismiss under the plausibility standard of Bell Atlantic, a conclusory
allegation concerning some elements of a plaintiff’s claims might need
-29-
to be fleshed out by a plaintiff’s response to a defendant’s motion
for a more definite statement. See Fed. R. Civ. P. 12(e). In
addition, even though a complaint survives a motion to dismiss, a
district court, while mindful of the need to vindicate the purpose of
the qualified immunity defense by dismissing non-meritorious claims
against public officials at an early stage of litigation, may
nonetheless consider exercising its discretion to permit some limited
and tightly controlled reciprocal discovery so that a defendant may
probe for amplification of a plaintiff’s claims and a plaintiff may
probe such matters as a defendant’s knowledge of relevant facts and
personal involvement in challenged conduct. In a case such as this
where some of the defendants are current or former senior officials of
the Government, against whom broad-ranging allegations of knowledge
and personal involvement are easily made, a district court might wish
to structure such limited discovery by examining written responses to
interrogatories and requests to admit before authorizing depositions,
and by deferring discovery directed to high-level officials until
discovery of front-line officials has been completed and has
demonstrated the need for discovery higher up the ranks. If discovery
directed to current or former senior officials becomes warranted, a
district court might also consider making all such discovery subject
to prior court approval.
We note that Rule 8(a)’s liberal pleading requirement, when
applied mechanically without countervailing discovery safeguards,
threatens to create a dilemma between adhering to the Federal Rules
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and abiding by the principle that qualified immunity is an immunity
from suit as well as from liability. Therefore, we emphasize that, as
the claims surviving this ruling are litigated on remand, the District
Court not only may, but “must exercise its discretion in a way that
protects the substance of the qualified immunity defense . . . so that
officials [or former officials] are not subjected to unnecessary and
burdensome discovery or trial proceedings.” Crawford-El, 523 U.S. at
597-98 (emphasis added). In addition, the District Court should
provide ample opportunity for the Defendants to seek summary judgment
if, after carefully targeted discovery, the evidence indicates that
certain of the Defendants were not sufficiently involved in the
alleged violations to support a finding of personal liability, or that
no constitutional violation took place. See Harlow, 457 U.S. at 821
(Brennan, J., concurring) (“[S]ummary judgment will also be readily
available whenever the plaintiff cannot prove, as a threshold matter,
that a violation of his constitutional rights actually occurred.”).
We give these matters additional consideration below with respect to
particular claims.
(f) The post-9/11 context. Several Defendants contend that even
if the Plaintiff’s complaint would survive a motion to dismiss in the
face of a qualified immunity defense under normal circumstances, the
post-9/11 context requires a different outcome. This argument is
advanced on three fronts. First, some Defendants contend that the
Government was entitled to take certain actions that might not have
been lawful before 9/11 because the Government’s interests assumed
-31-
special weight in the post-9/11 context. Second, some Defendants
contend that, even if the law was clearly established as to the
existence of a right claimed to have been violated, it was not clearly
established in the extraordinary circumstances of the 9/11 attack and
its aftermath. Third, some Defendants contend that the post-9/11
context renders their actions objectively reasonable, an argument we
do not reach in view of our disposition of their second contention.
We fully recognize the gravity of the situation that confronted
investigative officials of the United States as a consequence of the
9/11 attack. We also recognize that some forms of governmental action
are permitted in emergency situations that would exceed constitutional
limits in normal times. See Home Building & Loan Association v.
Blaisdell, 290 U.S. 398, 425-26 (1934) (“While emergency does not
create power, emergency may furnish the occasion for the exercise of
power.”). But most of the rights that the Plaintiff contends were
violated do not vary with surrounding circumstances, such as the right
not to be subjected to needlessly harsh conditions of confinement, the
right to be free from the use of excessive force, and the right not to
be subjected to ethnic or religious discrimination. The strength of
our system of constitutional rights derives from the steadfast
protection of those rights in both normal and unusual times.
With some rights, for example, the right to be free from
unreasonable searches, the existence of exigent circumstances might
justify governmental action that would not otherwise be permitted.
See, e.g., Michigan v. Tyler, 436 U.S. 499, 509 (1978) (exigent
-32-
circumstances permitted warrantless entry into home). But, as we
discuss below, see Part VI, the exigent circumstances of the post-9/11
context do not diminish the Plaintiff’s right not to be needlessly
harassed and mistreated in the confines of a prison cell by repeated
strip and body-cavity searches. This and other rights, such as the
right to be free from use of excessive force and not to be subjected
to ethnic or religious discrimination, were all clearly established
prior to 9/11, and they remained clearly established even in the
aftermath of that horrific event. To whatever extent exigent
circumstances might affect the lawfulness of the Defendants’ actions
or might have justified an objectively reasonable belief that their
actions did not violate clearly established law, we consider the
argument in connection with a particular claim.
With these general principles in mind, we turn to the Plaintiff’s
specific claims.
II. Procedural Due Process
The Plaintiff alleges that Ashcroft and Mueller, the FBI
Defendants, the BOP Defendants, and Hasty adopted a policy under which
he was deprived of a liberty interest without any of the procedural
protections required by due process of law. His allegation of the
deprivation of a liberty interest, even while lawfully confined
without bail on criminal charges, is based on his placement in
solitary confinement, where he was subjected to needlessly harsh
restrictions that were atypical and significant when compared to those
in the rest of the MDC population. The Defendants contend that (1)
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the Plaintiff did not allege that the confinement was punitive; (2) no
procedural due process right was violated because the Plaintiff did
not have a liberty interest in avoiding extended confinement in the
ADMAX SHU and, even if he did, he received all the process that was
due; (3) even if the Plaintiff’s procedural due process right was
violated, the contours of this right were not clearly established at
the time of the events in question; (4) the Defendants’ actions were
objectively reasonable in the post-9/11 context; and (5) the Plaintiff
has failed to allege personal involvement.
We are required by the Supreme Court’s decision in Saucier to
assess these arguments within a two-part framework, asking first
whether the alleged facts show a violation of a constitutional right,
see Saucier, 533 U.S. at 201, and, if so, “whether the right was
clearly established . . . in light of the specific context of the
case,” see id. The first, second, and fifth of the Defendants’
arguments bear on the initial issue of whether a violation has been
alleged; the third argument--whether the right was clearly
established--is precisely the second issue under Saucier; and the
fourth argument is often a further component of a qualified immunity
defense because even if the law was clearly established, it might have
been objectively reasonable, on the facts of a particular case, for a
defendant to believe that the actions taken did not violate that
established law, see Johnson, 239 F.3d at 250.
(a) Has a Violation of a Procedural Due Process Right Been
Adequately Pleaded?
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In assessing the adequacy of the Plaintiff’s pleading of a
procedural due process violation we first consider the basic question
of whether the Plaintiff has pleaded the existence of a liberty
interest and entitlement to procedures that were not provided and then
consider the Defendants’ arguments that punitive intent and personal
involvement were not adequately pleaded.
(i) The Plaintiff’s procedural due process right. In concluding
that the Plaintiff had a protected liberty interest, Judge Gleeson
relied on this Court’s decision in Tellier v. Fields, 280 F.3d 69 (2d
Cir. 2000). See Dist. Ct. op. at *17-*18. In Tellier, a federal
inmate allegedly was placed in administrative detention in the SHU for
more than 500 days without being informed of the reasons for his
placement or receiving any hearings. See 280 F.3d at 74. The
regulations governing administrative segregation, 28 C.F.R. § 541.22,
entitle inmates to “an administrative detention order detailing the
reasons for placing an inmate in administrative detention . . .
provided institutional security is not compromised thereby.” 28 C.F.R.
§ 541.22(b). Moreover, the regulations require a Segregation Review
Officer to “hold a hearing and formally review the status of each
inmate who spends seven continuous days in administrative detention,
and thereafter . . . hold a hearing and review these cases formally at
least every 30 days.” Id. § 541.22(c)(1). The regulations
specifically provide that administrative detention “is to be used only
for short periods of time except . . . where there are exceptional
circumstances, ordinarily tied to security or complex investigative
-35-
concerns.” Id.
In assessing whether a prisoner had a protected liberty interest
in avoiding administrative segregation, Tellier looked to Sandin v.
Conner, 515 U.S. 472 (1995), in which the Supreme Court held that
state-created liberty interests of prisoners were limited to freedom
from restraint that “imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Id. at
483-84. Since Sandin, the rule in this Circuit has been that a
prisoner has a protected liberty interest “‘only if the deprivation
. . . is atypical and significant and the state has created the
liberty interest by statute or regulation.’” Tellier, 280 F.3d at 80
(quoting Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir. 1997)) (omission
in original); see also Palmer v. Richards, 364 F.3d 60, 64 & n.2 (2d
Cir. 2004).
Numerous cases in this Circuit have discussed the “atypical and
significant hardship” prong of Sandin. Relevant factors include both
the conditions of segregation and its duration. See Palmer, 364 F.3d
at 64. Segregation of longer than 305 days in standard SHU conditions
is sufficiently atypical to require procedural due process protection
under Sandin. See id. at 65 (citing Colon v. Howard, 215 F.3d 227, 231
(2d Cir. 2000)). When confinement is of an intermediate duration--
between 101 and 305 days--“‘development of a detailed record’ of the
conditions of the confinement relative to ordinary prison conditions
is required.” Id. at 64-65 (quoting Colon, 215 F.3d at 232).
Applying these standards, Tellier first observed that the
-36-
prisoner had alleged confinement of more than 500 days “under
conditions that differ markedly from those in the general population,”
finding this sufficient to allege “atypical and significant”
hardships. 280 F.3d at 80. Turning to the language of the
regulations, the Court agreed that because the initial decision to
place a prisoner in administrative detention is a discretionary one,
the plaintiff did not have a “protected liberty interest that is
violated when the Warden removes him or her from the general
population.” Id. at 82. However, the Court found, the regulations
constrain the warden’s discretion in maintaining a prisoner in
detention and the procedures “are designed to ensure that a prisoner
is kept in SHU for no longer than is necessary.” Id. at 82-83.
Accordingly, the Court concluded that section 541.22 “creates a
protectable liberty interest when an official’s failure to adhere to
the [regulation] results in an atypical, significant deprivation.” Id.
at 83 (internal quotation marks omitted).
Relying on Tellier, Judge Gleeson concluded that the Plaintiff
had a clearly established protectable liberty interest in avoiding
continued detention in the ADMAX SHU. See Dist. Ct. op. at *18. On
appeal, the Defendants contend that Tellier is no longer good law in
light of the Supreme Court’s recent opinion in Wilkinson v. Austin,
545 U.S. 209 (2005). In Wilkinson, the Supreme Court considered
Sandin’s application to segregation in Ohio’s Supermax facility.
Inmates in the Supermax facility were detained in solitary confinement
indefinitely, they remained in their cells 23 hours a day, the lights
-37-
were turned on constantly, they could not go outside for recreation,
and they were limited to non-contact visits. See id. at 214-15. The
Court confirmed Sandin’s holding that “a liberty interest in avoiding
particular conditions of confinement may arise from state policies or
regulations, subject to the important limitations set forth in
Sandin,” id. at 222, but observed that “the touchstone of the inquiry
into the existence of a protected, state-created liberty interest in
avoiding restrictive conditions of confinement is not the language of
regulations regarding those conditions but the nature of those
conditions themselves in relation to the ordinary incidents of prison
life,” id. at 223 (internal quotation marks omitted). The Court
recognized that the courts of appeals had struggled to identify a
baseline for determining what constitutes an atypical and significant
hardship, but it concluded that confinement in the Supermax facility
“imposes an atypical and significant hardship under any plausible
baseline.” Id. Having found that the prisoner had a protected liberty
interest, the Court concluded that Ohio’s “informal, nonadversary
procedures” were sufficient to satisfy due process requirements. Id.
at 228-29.
The Defendants argue that Wilkinson abrogates Tellier or that it
at least renders the relevant standard unclear because it instructs
courts to consider the nature of the conditions, not the requirements
of the regulations. We disagree for two reasons. First, while
Wilkinson instructs courts to focus on the nature of the conditions,
it nonetheless explains that the “liberty interest in avoiding
-38-
particular conditions of confinement . . . arise[s] from state
policies or regulations.” Id. at 222. Following Tellier, Judge
Gleeson looked to the duration and conditions of confinement, as
instructed by Wilkinson. See Dist. Ct. op. at *18.
Second, and more significantly, for at least half (if not all) of
the Plaintiff’s confinement in the ADMAX SHU, he was a pretrial
detainee, not a convicted prisoner.8 This Court has said that Sandin
8
The Defendants do not seriously contest Judge Gleeson’s
characterization of the Plaintiff as a pretrial detainee, although
Ashcroft and Mueller briefly contend that his private interest in
avoiding detention in the ADMAX SHU after he pled guilty should be
evaluated “within the context of the prison system,” i.e., under
Eighth Amendment standards. The Plaintiff argues that he should be
treated as a pretrial detainee until he was sentenced, citing Fuentes
v. Wagner, 206 F.3d 335, 341 (3d Cir. 2000).
The circuits are divided as to whether to treat convicted, but
unsentenced, inmates as pretrial detainees. Compare id. (treated as
pretrial detainee) with Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir.
2000) (treated as prisoner), Whitnack v. Douglas County, 16 F.3d 954,
956-57 (8th Cir. 1994) (same), and Berry v. City of Muskogee, 900 F.2d
1489, 1493 (10th Cir. 1990) (same). Because none of the Defendants
seriously challenges Judge Gleeson’s characterization of the Plaintiff
as a pretrial detainee throughout his entire confinement in the ADMAX
SHU, we will refer to him as a pretrial detainee, a status that
-39-
does not apply to pretrial detainees and that, accordingly, pretrial
detainees need not show that an imposed restraint imposes atypical and
significant hardships to state deprivation of a liberty interest
protected by procedural due process. See Benjamin v. Fraser, 264 F.3d
175, 188-89 (2d Cir. 2001) (“Benjamin I”). In Benjamin I, this Court
affirmed the district court’s ruling that the imposition of painful
physical restraints during the movement of pretrial detainees required
“reasonable after-the-fact procedural protections to ensure that such
restrictions on liberty [would] be terminated reasonably soon if they
[had] no justification.” Id. at 188.
In sum, Wilkinson does not affect the validity of Judge Gleeson’s
ruling that the Plaintiff had a protected liberty interest because (1)
he considered the Plaintiff’s allegations of atypical and significant
hardships and (2) the Wilkinson and Sandin analysis does not apply to
the interval of the Plaintiff’s pretrial detention. Under this
Court’s case law, the Plaintiff’s confinement of more than six months
fell in the intermediate range, thereby requiring inquiry into the
conditions of his confinement, which he sufficiently alleges to have
been severe. Even under Wilkinson, the conditions under which the
Plaintiff alleges that he was confined--solitary confinement, repeated
plainly applies during the several months of confinement prior to the
Plaintiff’s plea. We do not consider the question of whether
convicted, but unsentenced, inmates are pretrial detainees under the
Supreme Court’s jurisprudence establishing criteria for evaluating
constitutional limits on conditions of confinement.
-40-
strip and body-cavity searches, beatings, exposure to excessive heat
and cold, very limited exercise, and almost constant lighting--as well
as the initially indefinite duration of confinement could be found to
constitute atypical and significant hardships. See 545 U.S. at 223-24.
The Plaintiff has alleged a protected liberty interest in avoiding
more than six months’ detention in the ADMAX SHU, especially in light
of his status as a pretrial detainee.
The Defendants also dispute the violation of a procedural due
process right by arguing that, even if the Plaintiff had a protected
liberty interest in avoiding extended detention in the ADMAX SHU, he
received all the process that was due by virtue of the FBI’s review.
This argument is unavailing at this preliminary stage of the
litigation. In Wilkinson, the Supreme Court applied the familiar
balancing test of Mathews v. Eldridge, 424 U.S. 319 (1976), to
determine whether the plaintiff received adequate procedural
protections. See 545 U.S. at 224-25. Under the second prong of this
test, the Court observed that inmates received “notice of the factual
basis leading to consideration for OSP placement and a fair
opportunity for rebuttal,” stating that “these are among the most
important procedural mechanisms for purposes of avoiding erroneous
deprivations.” Id. at 225-26. After weighing all the relevant
factors, the Court found that “[w]here the inquiry draws more on the
experience of prison administrators, and where the State’s interest
implicates the safety of other inmates and prison personnel, . . .
informal, nonadversary procedures” were sufficient. Id. at 228-29.
-41-
In the pending case, the Plaintiff alleges that he did not even
receive notice of the factual grounds on which he was being detained
in the ADMAX SHU nor did he have any opportunity for rebuttal.
We recognize that in the post-9/11 context the first Mathews
factor–-the gravity of the Government’s interest–-is appropriately
accorded more weight than would otherwise be warranted. It might be
that the combination of (1) the Government’s interest, accorded added
weight in the post-9/11 context, (2) the Plaintiff’s interest in
avoiding confinement under harsh conditions, and (3) the risk of an
erroneous determination of the need for such confinement would, on
balance, lead to the conclusion that the Government need not have
given the Plaintiff notice and a chance for rebuttal before placing
him in the ADMAX SHU. However, once it became clear that the
Plaintiff was going to be confined in the ADMAX SHU for an extended
period of time, some process was required. We cannot say in the
absence of a developed factual record whether the FBI’s clearance
procedure comported with the requirements of the Due Process Clause as
interpreted in Mathews and subsequent cases. The sparse record thus
far developed provides no indication as to what security-related steps
the Defendants were taking that might justify prolonged confinement.
Nor does that record indicate in what respect providing the Plaintiff
with some notice of the basis for his separation in the ADMAX SHU and
affording some opportunity for rebuttal would have impaired national
security interests or legitimate penological interests of the
Government. The Government has not as yet had an opportunity to
-42-
refute the Plaintiff’s allegation that there was no evidence
connecting him to terrorism. Accordingly, we cannot say whether the
Government’s national security interests rendered the clearance
procedure sufficient to satisfy procedural due process requirements or
whether more traditional procedural protections were required.
Nevertheless, because we are required at this stage of the litigation
to accept all of the Plaintiff’s allegations as true and draw all
reasonable inferences in his favor, we cannot say that the Plaintiff
has failed to plead a viable claim under the procedural component of
the Due Process Clause. Judge Gleeson dismissed the Plaintiff’s
procedural due process claim with respect to the initial confinement
in the ADMAX SHU, Dist. Ct. op. at *17 n.18, but properly ruled that
the Plaintiff had stated a procedural due process claim with respect
to his continued confinement, see id. at *18-*19.
(ii) Punitive intent. Ashcroft, Mueller, and Hasty, citing Bell
v. Wolfish, 441 U.S. 520 (1979), contend that the Plaintiff has not
stated a claim that the confinement in the ADMAX SHU violated his
procedural due process rights because he has not alleged that the
confinement was punitive. Preliminarily, we note that the complaint
alleges that the Defendants designed a policy under which the
Plaintiff was “arbitrarily designated to be confined in the ADMAX SHU”
and that “[k]eeping Plaintiff[] in isolation . . . amounted to the
willful, malicious, and unnecessary infliction of pain and suffering.”
This is sufficient to allege that the confinement was punitive in
nature.
-43-
More fundamentally, however, we deem unsupportable the
Defendants’ premise that the Plaintiff’s procedural due process claim
requires an allegation of punitive intent. Defendants Ashcroft and
Mueller cite Wolfish, 441 U.S. at 535, for the proposition that “in
evaluating the constitutionality of conditions or restrictions of
pretrial detention, the proper inquiry under the Due Process Clause is
whether the conditions ‘amount to punishment of the detainee.’”
However, Wolfish did not involve a claim that inadequate procedures
had been used to impose challenged conditions of confinement. The
claim there was that the challenged conditions of confinement, being
punitive, could not be imposed on pretrial detainees at all because
they had not been convicted. Although the Court did not consider the
challenged conditions punitive, it ruled that “under the Due Process
Clause, a detainee may not be punished prior to an adjudication of
guilt in accordance with due process of law.” Id. This ruling
implements the substantive component of the Due Process Clause.9
9
Since Wolfish prohibited punishment prior to the process of
adjudicating guilt, it could be considered a decision vindicating a
procedural claim. However, as the Supreme Court’s decisions in Wolff
v. McDonnell, 418 U.S. 539 (1974), Hewitt v. Helms, 459 U.S. 460
(1983), and Sandin, 515 U.S. 472, make clear, when the Court is truly
considering a claim that restrictions were imposed within a prison
without adequate procedures, it is focusing precisely on the
procedural requirements of the Due Process Clause, and not what in
reality is the substantive component that was at issue in Wolfish.
-44-
By contrast, the relevant line of authority for the Plaintiff’s
procedural due process claim begins with Wolff v. McDonnell, 418 U.S.
539 (1974), and continues through Hewitt v. Helms, 459 U.S. 460
(1983), and Sandin, 515 U.S. 472. Wolff outlined fairly extensive
procedures that must be observed before a prisoner’s liberty interest
in retaining good time credits could be impaired because of
disciplinary violations. 418 U.S. at 563-72. Helms required only
notice of charges and an opportunity to rebut in order to place a
prisoner in administrative segregation pending an investigation of
misconduct charges. 459 U.S. at 476. Sandin modified Helms by making
the existence of a prisoner’s liberty interest turn primarily on the
atypical nature of the challenged conditions of confinement, 515 U.S.
at 483-87, but did not alter the basic requirement that where a
prisoner’s liberty interest exists, its impairment requires some
procedural protections.
The Plaintiff’s liberty interest, based primarily on a federal
regulation, is entitled to some procedural protection regardless of
punitive intent. To the extent that the interest derives directly
from the Due Process Clause (and hence requires procedural protection
only when punishment is imposed, see Wolfish, 441 U.S. at 535), the
harsh conditions set forth in the complaint adequately meet the
criteria for punishment, see Kennedy v. Mendoza-Martinez, 372 U.S.
See Block v. Rutherford, 468 U.S. 576, 591 & n.12 (1984) (applying
Wolfish to pretrial detainees’ substantive due process claim and
distinguishing it from a procedural due process claim).
-45-
144, 168-69 (1963), whether or not such conditions were imposed with
punitive intent.
(iii) Lack of personal involvement. Defendants Ashcroft and
Mueller contend that the Plaintiff has not adequately alleged their
personal involvement in the denial of procedural due process because
the continued detention decision was made by FBI subordinates.
Applying the standards applicable to personal involvement outlined
above, we reject this claim at this stage of the litigation. Ashcroft
and Mueller are alleged to have condoned the policy under which the
Plaintiff was held in harsh conditions of confinement until “cleared”
by the FBI. Since the complaint adequately alleges, for purposes of
a motion to dismiss, that procedural due process required some
procedures beyond FBI clearance, the allegation of condoning the
policy of holding the Plaintiff in the ADMAX SHU until cleared
suffices, at the pleading stage, to defeat dismissal for lack of
personal involvement.
At the other end of the leadership chain, Defendant Hasty asserts
his lack of personal involvement because the continued detention
decision was made far above his level of responsibility. But this
defense also cannot prevail at this stage of the litigation. Cf.
Anthony v. City of New York, 339 F.3d 129, 138 (2d Cir. 2003)
(“Plausible instructions from a superior . . . support qualified
immunity where, viewed objectively in light of the surrounding
circumstances, they could lead a reasonable officer to conclude that
the necessary legal justification for his actions exists (e.g.[,]
-46-
. . . exigent circumstances).” (internal quotation marks omitted)).
Hasty is alleged to have known of the continued detention in the ADMAX
SHU and the absence of procedural protections for the Plaintiff.
Whether his conduct as a subordinate was objectively reasonable under
all the circumstances is an issue distinct from the adequacy of the
pleading of personal involvement.
Between these extremes in the official hierarchy, the lack of
adequate allegations of personal knowledge of, or involvement in, the
Plaintiff’s continued detention is also asserted by the FBI Defendants
and the BOP Defendants. However, the complaint at least implicitly
alleges the knowledge of the FBI Defendants by stating that they
“failed to approve post-September 11 detainees’ release to general
population.” With respect to the BOP Defendants, the complaint
alleges that BOP Defendant Cooksey “directed that all detainees ‘of
high interest’ be confined in the most restrictive conditions possible
until cleared by the FBI,” that BOP Defendant Sawyer approved this
policy, and that BOP Defendant Rardin, along with others, designed the
policy of arbitrary confinement in the ADMAX SHU. The FBI Defendants
also dispute their personal involvement in a procedural due process
violation by arguing that they could not reasonably be expected to
know about the BOP regulations. However, some factual development of
this claim would have to precede its determination. Moreover, even
absent the FBI Defendants’ knowledge of the BOP regulation, the
complaint can support the inference that the FBI Defendants understood
that their alleged role in the clearance procedure was linked to a
-47-
detainee’s release to the general population. This suffices to
overcome the defense of no personal involvement at this stage of the
litigation.
It is arguable that, under the plausibility standard of Bell
Atlantic, some subsidiary facts must be alleged to plead adequately
that Ashcroft and Mueller condoned the Plaintiff’s continued
confinement in the ADMAX SHU, that Hasty had knowledge of that
confinement, or that the mid-level Defendants knew the relationship
between their clearance procedure and the Plaintiff’s release to the
general population. However, all of the Plaintiff’s allegations
respecting the personal involvement of these Defendants are entirely
plausible, without allegations of additional subsidiary facts. This
is clearly so with respect to Hasty and the mid-level Defendants.
Even as to Ashcroft and Mueller, it is plausible to believe that
senior officials of the Department of Justice would be aware of
policies concerning the detention of those arrested by federal
officers in the New York City area in the aftermath of 9/11 and would
know about, condone, or otherwise have personal involvement in the
implementation of those policies. Sustaining the adequacy of a
pleading of personal involvement in these circumstances runs no risk
that every prisoner complaining of a denial of rights while in federal
custody anywhere in the United States can survive a motion to dismiss
simply by alleging that the Attorney General knew of or condoned the
alleged violation. And, like the Form 9 complaint approved in Bell
Atlantic, Iqbal’s complaint informs all of the Defendants of the time
-48-
frame and place of the alleged violations.
(b) Was the Plaintiff’s Right to Procedural Due Process Clearly
Established?
Although we conclude that the Plaintiff has adequately pleaded a
violation of a procedural due process right, we also conclude that in
this case “officers of reasonable competence could [have]
disagree[d],” Malley v. Briggs, 475 U.S. 335, 341 (1986), whether
their conduct violated a clearly established procedural due process
right. Accordingly, the Plaintiff’s right to additional procedures
was not clearly established with the level of specificity that is
required to defeat a qualified immunity defense. See Brosseau v.
Haugen, 543 U.S. 194, 199-200 (2004).
Several factors combine to create this lack of clarity in prior
case law. First, some uncertainty exists in determining when
administrative segregation procedures are required even in the
ordinary criminal context. Our case law would require an officer in
the Defendants’ situation to consider various factors including the
length of the Plaintiff’s confinement, the extent to which the
conditions of confinement were atypical, the text of relevant BOP
regulations, and the Plaintiff’s status as a pretrial detainee. See,
e.g., Tellier, 280 F.3d at 79-83. As noted above, no single factor is
dispositive in this case, which concerns administrative segregation of
approximately six months. Although the harshness of the conditions
alleged weigh in favor of requiring procedural protections, an officer
could reasonably note that the Plaintiff’s six-month continued
-49-
confinement was comparable to the duration of confinements in cases
that we characterized in Tellier as involving “relatively brief
periods of confinement.” See id. at 85.
Second, uncertainty in existing case law is heightened by the
fact that, even on the facts alleged in the complaint, which specified
that the “of high interest” designation pertained to the Government’s
post-9/11 terrorism investigation, the investigation leading to the
Plaintiff’s separation from the general prison population could be
reasonably understood by all of the Defendants to relate to matters of
national security, rather than an ordinary criminal investigation.
Prior to the instant case, neither the Supreme Court nor our Court had
considered whether the Due Process Clause requires officials to
provide ordinary administrative segregation hearings to persons
detained under special conditions of confinement until cleared of
connection with activities threatening national security. Cf. Forsyth,
472 U.S. at 534-35 (granting Attorney General qualified immunity for
warrantless wiretapping for national security purposes despite
prohibitions of warrantless wiretapping in criminal context).
Third, the BOP regulation on which the Plaintiff relies itself
contains potentially relevant exceptions that undermine certainty as
to established requirements of law. “Administrative detention is to
be used only for short periods of time except . . . where there are
exceptional circumstances, ordinarily tied to security or complex
investigative concerns,” 28 C.F.R. § 541.22(c)(1) (emphasis added),
and inmates are entitled to “an administrative detention order
-50-
detailing the reasons for placing an inmate in administrative
detention . . . provided institutional security is not compromised
thereby,” id. § 541. 22(b) (emphasis added).
In sum, these factors, taken together, would suffice to raise “a
legitimate question,” Forsyth, 472 U.S. at 535 n.12, among Government
officials as to whether the Due Process Clause required administrative
segregation hearings or any procedures other than the FBI’s clearance
system. See id. (“[W]here there is a legitimate question whether an
exception to [a constitutional requirement] exists,” failure to abide
by the requirement “cannot be said [to have] violate[d] clearly
established law.” (emphasis added)). Accordingly, we will direct
dismissal of the portions of the Plaintiff’s complaint alleging
violations of procedural due process rights. See Compl. ¶¶ 204-06.
III. Conditions of Confinement
Hasty contends that Judge Gleeson should have dismissed the
Plaintiff’s conditions of confinement claims against him on the ground
of qualified immunity because (1) the Plaintiff did not allege
conditions amounting to a violation of substantive due process rights,
(2) the Plaintiff failed to allege Hasty’s deliberate indifference to
the maintenance of the conditions of confinement, and (3) Hasty’s
actions were objectively reasonable under the circumstances.10
10
There is some question as to whether Hasty sought to dismiss the
substantive due process claim or the excessive force claim, see Part
IV, infra, in the District Court on the ground of qualified immunity,
as distinguished from the merits of the claim. However, the District
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Because the Plaintiff was a pretrial detainee during his
detention in the ADMAX SHU, his challenge to the conditions of his
confinement arises from the substantive component of the Due Process
Clause of the Fifth Amendment and not from the cruel and unusual
punishment standards of the Eighth Amendment. See Benjamin v. Fraser,
343 F.3d 35, 49 (2d Cir. 2003) (“Benjamin II”). Pretrial detainees
have not been convicted of a crime and thus “may not be punished in
any manner--neither cruelly and unusually nor otherwise.” Id. at 49-
50. Courts considering challenges to confinement brought by pretrial
detainees must first consider whether the circumstances of the
particular confinement render the confinement punitive; since some
restraint is necessary to confine a pretrial detainee, not all
uncomfortable conditions or restrictions are necessarily punitive. Id.
at 50. In Bell v. Wolfish, supra, the seminal case on the substantive
due process claims of pretrial detainees, the Supreme Court recognized
the following factors as relevant to the determination of whether a
condition of confinement is punitive:
“Whether the sanction involves an affirmative disability or
restraint, whether it has historically been regarded as a
punishment, whether it comes into play only on a finding of
scienter, whether its operation will promote the traditional
aims of punishment--retribution and deterrence, whether the
behavior to which it applies is already a crime, whether an
alternative purpose to which it may rationally be connected
Court understood all the Defendants to “seek dismissal of all claims
against them on qualified immunity grounds,” Dist. Ct. op. at *10, and
we are satisfied that we have jurisdiction of an appeal from the
rulings that are premised on that understanding.
-52-
is assignable for it, and whether it appears excessive in
relation to the alternative purpose assigned . . . .”
441 U.S. at 537-38 (quoting Mendoza-Martinez, 372 U.S. at 168-69). A
court may infer that a condition of confinement is intended as
punishment if it is not reasonably related to a legitimate government
objective. See id. at 539.
The complaint alleges, among other things, that MDC staff placed
the Plaintiff in solitary confinement, deliberately subjected him to
extreme hot and cold temperatures, shackled him every time he left his
cell, and repeatedly subjected him to strip and body-cavity searches,
and that these conditions were intended to be, and were in fact,
punitive. Applying Wolfish, Judge Gleeson found these allegations
sufficient to state a substantive due process claim, observing that
whether the conditions were reasonably related to legitimate
government objectives could not be determined on a motion to dismiss.
See Dist. Ct. op. at *16.
Hasty contends that Judge Gleeson did not properly consider
whether the Plaintiff alleged that he was “deprived of the minimal
civilized measure of life’s necessities” or whether Hasty was
deliberately indifferent to the Plaintiff’s health or safety. But
this Court has never applied those standards in this context. In
Benjamin II, we distinguished between challenges to disabilities
imposed purposefully on pretrial detainees, which are analyzed under
the Wolfish “punitive” inquiry, and pretrial detainees’ challenges to
prison environmental conditions. See 343 F.3d at 50. Recognizing that
the “punitive” standard is neither required nor helpful in the context
-53-
of environmental conditions, we adopted a modified version of the
Eighth Amendment’s deliberate indifference standard; we required a
showing of deliberate indifference but stated that such indifference
could be presumed from an absence of reasonable care. See id. We
explicitly rejected analogies to the Eighth Amendment that would
require a showing of wantonness on the part of the prison official,
see id. at 51, or a showing that the alleged conditions were so
inhumane as to constitute cruel and unusual punishment, see id. at 52
(citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)).
The Plaintiff has alleged the purposeful infliction of restraints
that were punitive in nature. Accordingly, the District Court need
not have considered whether a Defendant was “deliberately indifferent”
in inflicting the restraints or whether the restraints constituted
cruel and unusual punishment. The right of pretrial detainees to be
free from punitive restraints was clearly established at the time of
the events in question, and no reasonable officer could have thought
that he could punish a pretrial detainee by subjecting him to the
practices and conditions alleged by the Plaintiff.
The Plaintiff alleges that Hasty (1) requested that certain
officials develop procedures for the ADMAX SHU, (2) knew of the
conditions of confinement to which Plaintiff was subjected, (3)
approved the strip search policy, and (4) knew or should have known of
the practice or custom of beating detainees. Under a notice pleading
standard, reaffirmed in Bell Atlantic and Erickson, these allegations
are sufficient to state a claim that Hasty failed to remedy
-54-
constitutional violations of which he was aware. Moreover, the
general allegations of knowledge, which are sufficient under Phelps,
cited above, see Part I(e), are bolstered by the allegation that Hasty
directed other officers to set up procedures for the ADMAX SHU.
Hasty’s final argument is that, even if the Plaintiff has pled
the violation of a clearly established right, Hasty’s actions were
objectively reasonable in the post-9/11 context. He argues that the
actions were taken “in the immediate aftermath of September 11th
during the course of a large-scale investigation of unprecedented
scope in United States history, and Plaintiff was, at that time,
considered to be possibly complicit in the terrorist acts.” As
discussed above, see Part I(f), the post-9/11 context does not lessen
the Plaintiff’s right, as a pretrial detainee, to be free of punitive
conditions of confinement.
IV. Excessive Force
The only argument of a Defendant directed to the claim of
excessive force is Hasty’s contention that the complaint does not
allege his personal involvement.
The complaint alleges that Hasty knew or should have known of the
MDC practice of beating detainees in the ADMAX SHU, that he knew or
should have known of the propensity of his subordinates to beat the
Plaintiff unnecessarily, and that he was deliberately indifferent in
failing to take action to curtail the beatings. The complaint also
alleges that Hasty chose the officers who worked in the ADMAX SHU.
Applying the standards for supervisory liability, outlined above,
-55-
see Part I(d), the Plaintiff’s allegations, on a notice pleading
standard, see Part I(e), suffice to state a claim of supervisory
liability for the use of excessive force against the Plaintiff. See
Phelps, 308 F.3d at 187 n.6 (“[A] plaintiff’s allegation of knowledge
is itself a particularized factual allegation, which he will have the
opportunity to demonstrate at the appropriate time in the usual ways.”
(internal quotation marks omitted)). The plausibility standard
requires no subsidiary facts at the pleading stage to support an
allegation of Hasty’s knowledge because it is at least plausible that
a warden would know of mistreatment inflicted by those under his
command. Whether such knowledge can be proven must await further
proceedings.
V. Interference with Right to Counsel
Hasty argues that the Plaintiff did not adequately plead a
violation of his Sixth Amendment right to counsel because (1) the
complaint does not state that he was charged with criminal (as opposed
to immigration) offenses and (2) he failed to plead supervisory
involvement. Although, as Judge Gleeson observed, “the complaint
could have been more transparent regarding plaintiffs’ status as
pretrial detainees facing criminal charges,” see Dist. Ct. op. at *23,
the complaint does refer to interference with the Plaintiff’s
conversations with his “criminal attorney.” This allegation was
sufficient to give Hasty “fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.” Conley, 355 U.S. at 47. As for
the issue of supervisory liability, the complaint alleges that Hasty
-56-
“knew of and condoned the imposition of substantial restrictions on
Plaintiff’s right to communicate with counsel.” The Plaintiff’s
allegations of knowledge are sufficient to state a claim of
supervisory liability, and, for the reasons stated above, satisfy the
plausibility standard without an allegation of subsidiary facts.
VI. Unreasonable Searches
Hasty challenges Judge Gleeson’s conclusion that he is not
entitled to qualified immunity at this stage on the Plaintiff’s Fourth
Amendment claim on the grounds that (1) the law on prisoners’ Fourth
Amendment right to be free from strip and body-cavity searches was not
clearly established and (2) Judge Gleeson failed to explain why the
searches of the Plaintiff did not serve legitimate penological
interests.
As to whether the right to be free from strip and body-cavity
searches was clearly established, Hasty argues that “the Circuits
differ sharply on the existence of prisoner privacy rights under the
Fourth Amendment outside of prison cells.” This argument ignores the
fact that it is this Circuit’s law that determines whether a right is
clearly established for purposes of a qualified immunity defense, see
Tellier, 280 F.3d at 84, and Hasty does not reckon with the long line
of Second Circuit cases on strip and body-cavity searches in prisons
and jails. See, e.g., Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001);
Covino v. Patrissi, 967 F.2d 73 (2d Cir. 1992); Weber v. Dell, 804
F.2d 796 (2d Cir. 1986).
Under the Saucier framework for considering a qualified immunity
-57-
defense, discussed above, we must first decide whether, assuming the
Plaintiff’s allegations are true, his Fourth Amendment rights were
violated, which will require determining the proper standard for his
claim.
The Supreme Court has held that visual body-cavity searches of
pretrial detainees and prisoners after contact visits are not
unreasonable under the Fourth Amendment, even in the absence of
probable cause. See Wolfish, 441 U.S. at 558. Emphasizing that the
Fourth Amendment prohibits only unreasonable searches, the Court
instructed judges to consider “the scope of the particular intrusion,
the manner in which it is conducted, the justification for initiating
it, and the place in which it is conducted.” Id. at 558-59. Because
of the potential for smuggling money, drugs, and weapons into prisons,
the Court concluded that the practice of strip searching inmates after
contact visits was not facially unconstitutional. See id. at 559-60.
Applying Wolfish, this Court has concluded that, while it might be
reasonable to strip search a prisoner before initially placing him in
administrative detention, it would not be reasonable to conduct a
second strip search shortly after the first search if the prisoner was
under continuous escort the entire time. See Hodges v. Stanley, 712
F.2d 34, 35 (2d Cir. 1983).
Since Wolfish and Hodges, two lines of cases involving strip
searches have evolved in this Circuit. In Weber v. Dell, jail
officials conducted a visual body-cavity search on a woman arrested on
misdemeanor charges. See 804 F.2d at 799. This Court ruled that
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the Fourth Amendment precludes prison officials from
performing strip/body cavity searches of arrestees charged
with misdemeanors or other minor offenses unless the
officials have a reasonable suspicion that the arrestee is
concealing weapons or other contraband based on the crime
charged, the particular characteristics of the arrestee,
and/or the circumstances of the arrest.
Id. at 802; see Wachtler v. County of Herkimer, 35 F.3d 77, 81 (2d
Cir. 1994) (accepting Weber but upholding immunity defense on the
basis of reasonable suspicion of contraband); Walsh v. Franco, 849
F.2d 66, 69 (2d Cir. 1988) (applying Weber to hold a search
unconstitutional).
However, in Covino v. Patrissi, we applied the “legitimate
penological interests” standard outlined in Turner v. Safley, 482 U.S.
78, 89 (1987), to assess the constitutionality of a strip search of a
pretrial detainee held in a prison with sentenced inmates. The prison
in which Covino was detained had a policy of random visual body-cavity
searches. Covino, 967 F.2d at 75. Observing that the Supreme Court
applied Turner’s “legitimate penological interests” test to all claims
that prison regulations violate constitutional rights, see Washington
v. Harper, 494 U.S. 210, 223-24 (1990), we analyzed the random search
policy under the four factors of Turner:
(i) whether there is a valid, rational connection between
the prison regulation and the legitimate governmental
interest put forward to justify it; (ii) whether there are
alternative means of exercising the right in question that
remain open to prison inmates; (iii) whether accommodation
of the asserted constitutional right will have an
unreasonable impact upon guards and other inmates, and upon
the allocation of prison resources generally; and (iv)
whether there are reasonable alternatives available to the
prison authorities.
Covino, 967 F.2d at 78-79 (citing Turner, 482 U.S. at 89-90).
-59-
Applying these factors, we concluded that the regulation was
rationally related to legitimate security interests, there were no
alternative means of exercising the detainee’s right that would allow
the prison to achieve the same level of effectiveness, the regulation
accommodated the privacy rights of the detainee by conducting the
search behind closed doors, and there was no “alternative that fully
accommodates the prisoner’s rights at de minimis cost to valid
penological interests.” Id. at 79-80 (internal quotation marks
omitted).
In 2001, we attempted to reconcile these two lines of cases in
Shain v. Ellison, supra. Judge Pooler’s opinion for the majority
observed that the Turner test governs the constitutionality of prison
regulations. See Shain, 273 F.3d at 65. By limiting Covino to prison
regulations, she reconciled Covino and the “reasonable suspicion” line
of cases beginning with Weber, which all concerned events occurring in
jails. See id. at 65-66. In concurrence, Judge Katzmann remarked
that this Circuit’s precedents required a distinction “either between
misdemeanors and felonies or between jails and prisons,” but observed
that he did not find the distinction persuasive. See id. at 70.
Judge Cabranes, in dissent, criticized the jail/prison distinction and
argued that Weber’s “reasonable suspicion” rule was not good law in
light of Turner. Id. at 71-74; see also N.G. v. Connecticut, 382 F.3d
225, 234-35 (2d Cir. 2004) (rejecting the Turner standard for strip
searches in juvenile detention centers).
On this appeal, the parties assume, as did Judge Gleeson, see
-60-
Dist. Ct. op. at *26, that the proper inquiry is whether the Plaintiff
was housed at a jail or a prison. Finding that the MDC was most like
a prison, Judge Gleeson applied the Covino/Turner standard. See id.
This was correct. The Plaintiff was confined for an extended period
of time in a prison-like environment, and it appears that he was
charged with felonies, see 18 U.S.C. §§ 371, 1028. In the environment
where the Plaintiff was held, the lesser reasonable suspicion standard
would jeopardize prison officials’ ability to maintain security.
As Judge Gleeson recognized, even if the precise standard
governing intrusive searches of the Plaintiff at the MDC might not
have been clearly established in 2001, it was clearly established that
even the standard most favorable to prison officials required that
strip and body-cavity searches be rationally related to legitimate
government purposes. Cf. Hodges, 712 F.2d at 35 (holding that a
plaintiff stated a Fourth Amendment claim where consecutive body-
cavity searches were unnecessary). The complaint alleges that the
Plaintiff was routinely strip searched twice after returning from the
medical clinic or court and that, on one occasion, the Plaintiff was
subjected to three serial strip and body-cavity searches in the same
room. He also alleges that he was subjected to strip and body-cavity
searches every morning. These allegations may reasonably be
understood to claim that repeated strip and body-cavity searches were
unrelated to legitimate government purposes and apparently were
performed to punish. The Plaintiff has adequately alleged a
violation of his clearly established Fourth Amendment rights. Of
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course, the success or failure of these claims will turn on the
specific facts that are revealed after discovery or at trial.
Although exigent circumstances can justify some conduct that
would otherwise violate Fourth Amendment standards, see, e.g., Tyler,
436 U.S. at 509 (exigent circumstances justify warrantless entry into
a home), the post-9/11 context does not provide a basis for conducting
repeated and needless strip and body-cavity searches of a pretrial
detainee. See Part I(f), above.
VII. Interference with Religious Practices
Hasty also argues that Judge Gleeson should have dismissed the
Plaintiff’s First Amendment claim against him on qualified immunity
grounds because (1) BOP regulations “conclusively establish” a lack of
personal involvement and (2) the Plaintiff did not allege a violation
of his First Amendment rights.
Both arguments lack merit. Hasty contends that the only “policy”
on religion at the MDC was the official BOP policy, codified at 28
C.F.R. part 548, and that the Plaintiff has not indicated that these
policies were suspended or that he availed himself of available
complaint procedures, see 28 C.F.R. part 542. Hasty contends that he
“was under no clearly established constitutional obligation to take
affirmative steps to inquire whether Plaintiff observed particular
religious practices, but as the BOP regulations instruct, Plaintiff
had the responsibility to make his religious preferences known.” Br.
for Hasty at 47. But neither the complaint procedures nor the
official policy governing religion allowed Hasty to ignore violations
-62-
of detainees’ First Amendment rights. If Hasty is arguing that the
Plaintiff has forfeited his right to recover damages because he did
not follow administrative complaint procedures, this may be relevant
to the merits of the case, but it is not relevant to a qualified
immunity defense.
Similarly without merit, Hasty argues that he could not be
personally involved in any deprivations of religious freedom because
BOP regulations establish that prison chaplains “are responsible for
managing religious activities within the institution.” 28 C.F.R.
§ 548.12. As the Plaintiff points out, however, Hasty ignores other
regulations stating that the warden determines, among other things,
what religious items may be used by prisoners, see id. § 548.16, and
whether attendance at religious functions is open to all prisoners,
id. § 548.15.
Hasty’s second argument is that Plaintiff has not alleged a
violation of his First Amendment rights. He relies on O’Lone v.
Estate of Shabazz, 482 U.S. 342 (1987), which applied Turner’s
“legitimate penological interests” test to First Amendment claims, see
id. at 348-49. Though recognizing that a prison regulation precluded
some Muslim prisoners from attending Friday prayers, see id. at 345,
the Supreme Court found the regulation justified under Turner,
focusing on the officials’ legitimate security objectives and the
availability of other channels by which prisoners could exercise their
religious rights, see id. at 350-53. In the pending case, however,
the Plaintiff alleges that he was not allowed to attend Friday
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prayers, that prison guards banged on his door when he tried to pray,
and that his Koran was routinely confiscated.11 These allegations
suffice to preclude a qualified immunity defense at this stage of the
litigation. In particular, consideration of Hasty’s arguments--that
“restrictions on movement and possessions . . . were a necessary part
of the legitimate and proper functioning of the maximum security
procedures in the ADMAX SHU” and that such restrictions were
“justified by security concerns and other institutional needs,” Br.
for Hasty at 49-50--must await factual discovery so that the
Government’s asserted security interests can be assessed against a
factual record of what restrictions actually existed and what purpose
they served.
VIII. Racial and Religious Discrimination
The Defendants argue that they are entitled to qualified immunity
on the Plaintiff’s First Amendment claim of religious discrimination
and Fifth Amendment claim of racial or ethnic discrimination on three
grounds: (1) the Plaintiff has failed to state a violation of clearly
established rights, (2) the Plaintiff’s allegations of discriminatory
intent are too conclusory, and (3) the Plaintiff has not alleged the
personal involvement of Ashcroft and Mueller.12
11
Hasty’s arguments that the repeated banging on Iqbal’s cell
while he prayed shows that he was at least allowed to pray, and that
the repeated confiscation of his Koran shows that he was at least
permitted to have a Koran need no response.
12
Judge Gleeson dismissed the discrimination claims against the
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The arguments of Ashcroft and Mueller challenging the sufficiency
of the Plaintiff’s race, ethnic, and religious discrimination claims
misunderstand his complaint. They contend that his “complaint amounts
to an objection that most of those persons determined to be of high
interest to the 9/11 investigation were Muslim or from certain Arab
countries,” which they justify by pointing out that the 9/11 hijackers
were Muslims from Arab countries. However, what the Plaintiff is
alleging is that he was deemed to be “of high interest,” and
accordingly was kept in the ADMAX SHU under harsh conditions, solely
because of his race, ethnicity, and religion. The Plaintiff also
alleges that “Defendants specifically targeted [him] for mistreatment
because of [his] race, religion, and national origin.” These
allegations are sufficient to state a claim of animus-based
discrimination that any “reasonably competent officer” would
understand to have been illegal under prior case law. See Malley, 475
U.S. at 341; see also Hayden v. County of Nassau, 180 F.3d 42, 48 (2d
Cir. 1999) (stating that racial classifications violate Equal
Protection Clause where motivated by racial animus and having a
discriminatory effect). Accordingly, the Plaintiff’s racial, ethnic,
and religious discrimination claims cannot be dismissed on qualified
immunity grounds at this stage of the litigation.
Hasty also argues that the Plaintiff has failed to state a claim
of discrimination. Citing Reno v. American-Arab Anti-Discrimination
Committee, 525 U.S. 471 (1999) (“AAADC”), he argues that the Equal
BOP Defendants. See Dist. Ct. op. at *29.
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Protection Clause does not apply in the context of proceedings to
remove illegal aliens and that the Government can permissibly deem
nationals of a particular country to be a special threat. In AAADC,
the Supreme Court concluded that a provision of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C.
§ 1252(g), deprived the federal courts of jurisdiction to consider an
illegal alien’s selective enforcement challenge to deportation. See
525 U.S. at 487. The Court rejected the argument that it nevertheless
had jurisdiction to consider an alien’s constitutional arguments,
holding that “an alien unlawfully in this country has no
constitutional right to assert selective enforcement as a defense
against his deportation,” see id. at 488, even when the Government
deports the alien “for the additional reason that it believes him to
be a member of an organization that supports terrorist activity,” id.
at 492. AAADC affords the Defendants no relief. The Plaintiff is not
challenging his deportation or even his arrest on criminal charges.
Moreover, AAADC does not stand for the proposition that the Government
may subject members of a particular race, ethnicity, or religion to
more restrictive conditions of confinement than members of other
races, ethnic backgrounds, or religions.
The Defendants argue that the Plaintiff’s allegations of racial,
ethnic, and religious animus are too conclusory. But, as discussed
above, see Part I(e), Crawford-El indicates that courts cannot require
a heightened pleading standard for civil rights complaints involving
improper motive. In Phillip, 316 F.3d at 298-99, this Court held that
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Swierkiewicz’s notice pleading standard applied to a civil rights
complaint alleging racial animus. Although recognizing that the
complaint did not “contain many evidentiary allegations relevant to
intent,” see id. at 299, we found the allegations sufficient to state
a claim, observing that the complaint alleged that the plaintiffs were
African-American, described the defendants’ actions in detail, and
alleged that the plaintiffs were selected for maltreatment “solely
because of their color,” id. at 298.
The Plaintiff’s allegations suffice to state claims of racial,
ethnic, and religious discrimination. He alleges in particular that
the FBI Defendants classified him “of high interest” solely because of
his race, ethnic background, and religion and not because of any
evidence of involvement in terrorism. He offers additional factual
support for this allegation, stating that “within the New York area,
all Arab Muslim men arrested on criminal or immigration charges while
the FBI was following an investigative lead into the September 11th
attacks--however unrelated the arrestee was to the investigation--were
immediately classified as ‘of interest’ to the post-September 11th
investigation.” We need not consider at this stage of the litigation
whether these allegations are alone sufficient to state a clearly
established constitutional violation under the circumstances presented
because they are sufficient to state a violation when combined with
the Plaintiff’s allegation that he was singled out for mistreatment
and for unnecessarily punitive conditions of confinement based on his
racial, ethnic, and religious characteristics.
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Finally, Ashcroft and Mueller argue that the Plaintiff failed to
allege their personal involvement in any discrimination. However, the
complaint alleges broadly that Ashcroft and Mueller were instrumental
in adopting the “policies and practices challenged here.” The
complaint also alleges that the FBI, “under the direction of Defendant
Mueller,” arrested thousands of Arab Muslims and that Ashcroft and
Mueller “knew of, condoned, and willfully and maliciously agreed to
subject Plaintiff[] to these conditions of confinement as a matter of
policy, solely on account of [his] religion, race, and/or national
origin and for no legitimate penological interest.” The Plaintiff
acknowledges that the FBI Defendants made the determination that
Plaintiff was “of high interest,” but this allegation does not
necessarily insulate Ashcroft and Mueller from personal responsibility
for the actions of their subordinates under the standards of
supervisory liability outlined above, see Part I(d). As with the
procedural due process claim, the allegation that Ashcroft and Mueller
condoned and agreed to the discrimination that the Plaintiff alleges
satisfies the plausibility standard without an allegation of
subsidiary facts because of the likelihood that these senior officials
would have concerned themselves with the formulation and
implementation of policies dealing with the confinement of those
arrested on federal charges in the New York City area and designated
“of high interest” in the aftermath of 9/11. Whether or not the
issues of personal involvement will be clarified by court-supervised
discovery sufficient to support summary judgment remains to be
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determined.
IX. Section 1985(3) Conspiracy
The Defendants contend that they are entitled to qualified
immunity on the Plaintiff’s conspiracy claims under 42 U.S.C. §
1985(3) because (1) it was not clearly established that federal
officials were subject to liability under section 1985(3), and (2) the
Plaintiff’s allegations of conspiracy are too conclusory to state a
violation of clearly established law.
Clearly established law. A conspiracy claim under 42 U.S.C.
§ 1985(3) has four elements: (1) a conspiracy, (2) for the purpose of
depriving any person or class of persons of the equal protection of
the laws or of equal privileges and immunities under the laws, (3) an
act in furtherance of the conspiracy, and (4) whereby a person is
injured in his person or property or deprived of a right or privilege
of a citizen. See United Brotherhood of Carpenters & Joiners of
America, Local 610 v. Scott, 463 U.S. 825, 828-29 (1983). In
addition, the conspiracy must be motivated by some class-based animus.
See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).
In Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), this Court
considered a section 1985(3) claim against several federal officials
stemming from an allegedly false arrest. The Court first held that
the officials had absolute immunity from the false arrest claim. See
id. at 580-81. Turning to the section 1985(3) claim, the Court
rejected the plaintiff’s argument that “this language creates a claim
against any two persons who conspire to injure another for spite or
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other improper motives, apparently because to single out anyone for
illegal aggression is to deny him equal protection of the laws.” Id.
at 581. Gregoire has been interpreted by some lower courts to mean
that section 1985(3) does not apply to federal officials. See, e.g.,
Lofland v. Meyers, 442 F. Supp. 955, 957 (S.D.N.Y. 1977); Williams v.
Halperin, 360 F. Supp. 554, 556 (S.D.N.Y. 1973); see also Hobson v.
Wilson, 737 F.2d 1, 19 (D.C. Cir. 1984) (criticizing Gregoire).
In Griffin, the Supreme Court held that section 1985(3) contains
no requirement of state action and thus applies to private
conspiracies. See 403 U.S. at 101. Although this Court has had no
occasion since Gregoire to consider whether section 1985(3) applies to
conspiracies among federal officials, numerous courts of appeals,
applying Griffin, have concluded that section 1985(3) applies to
federal officials. See, e.g., Hobson, 737 F.2d at 20; Jafree v.
Barber, 689 F.2d 640, 643 (7th Cir. 1982); Gillespie v. Civiletti, 629
F.2d 637, 641 (9th Cir. 1980); Dry Creek Lodge, Inc. v. United States,
515 F.2d 926, 931 (10th Cir. 1975).13 We agree that the development
of case law since Gregoire has eroded any basis for interpreting that
decision to render section 1985(3) inapplicable to federal officials.
13
BOP Defendant Cooksey cites post-Griffin cases from the Fifth
and Third Circuits stating that section 1985(3) does not apply to
federal officials. See, e.g., Mack v. Alexander, 575 F.2d 488, 489
(5th Cir. 1978); Bethea v. Reid, 445 F.2d 1163, 1164 (3d Cir. 1971).
However, these cases cite pre-Griffin cases for this proposition and
neglect to consider Griffin.
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And we also agree that, in the absence of prior Second Circuit case
law on point, it was not clearly established in 2001 that section
1985(3) applied to federal officials. However, even without a
definitive ruling from this Court on the application of section
1985(3) to federal officials, federal officials could not reasonably
have believed that it was legally permissible for them to conspire
with other federal officials to deprive a person of equal protection
of the laws, at least where the officials’ conduct, alleged to have
accomplished the discriminatory object of the conspiracy, would
violate the Equal Protection Clause. As we have recently held, “[T]he
proper inquiry is whether the right itself--rather than its source--is
clearly established.” Russo v. City of Bridgeport, 479 F.3d 196, 212
(2d Cir. 2007) (collecting cases).
Adequacy of allegations. Applying the normal pleading rules
previously discussed, see Part I(e), even as supplemented by the
plausibility standard, we have no doubt that the Plaintiff’s
allegations of a conspiracy to discriminate on the basis of ethnicity
and religion suffice to withstand a motion to dismiss. Unlike the
situation in Bell Atlantic, we do not encounter here a bare allegation
of conspiracy supported only by an allegation of conduct that is
readily explained as individual action plausibly taken in the actors’
own economic interests.
X. Personal Jurisdiction
The final issue is whether Judge Gleeson erred in denying the
motions by Ashcroft, Mueller, and FBI Defendant Rolince to dismiss for
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lack of personal jurisdiction. Ordinarily, we would lack jurisdiction
over this issue on this interlocutory appeal concerning qualified
immunity. However, “[a] defendant who is entitled to immediate
appellate review of a qualified immunity decision is also entitled to
appellate review of pendant issues if those issues are inextricably
intertwined with the question of qualified immunity or are otherwise
necessary to ensure meaningful review of it.” Toussie v. Powell, 323
F.3d 178, 184 (2d Cir. 2003) (internal quotation marks omitted).
“Whether issues are inextricably intertwined is determined by whether
there is substantial factual overlap bearing on the issues raised.”
Id. (internal quotation marks omitted). Judge Gleeson recognized the
overlap between the Defendants’ personal jurisdiction arguments and
personal involvement arguments pertaining to qualified immunity. See
Dist. Ct. op. at *10.
Under New York’s long-arm statute, a court may exercise
jurisdiction over a non-domiciliary who “in person or through an agent
. . . commits a tortious act within the state” so long as the cause of
action arises from that act. See N.Y. C.P.L.R. § 302(a)(2). As the
District Court observed, see Dist. Ct. op. at *9-*10, personal
jurisdiction cannot be predicated solely on a defendant’s supervisory
position. See Ontel Products, Inc. v. Project Strategies Corp., 899
F. Supp. 1144, 1148 (S.D.N.Y. 1995). Rather, a plaintiff must show
that a defendant “personally took part in the activities giving rise
to the action at issue.” Id.
The same intertwining of the issue of personal involvement with
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the issue of personal jurisdiction that provides us with pendent
appellate jurisdiction also demonstrates that the pleading of personal
involvement suffices to establish personal jurisdiction, at least at
this preliminary stage of the litigation.
Conclusion
For the foregoing reasons, the order of the District Court is
affirmed as to the denial of the Defendants’ motions to dismiss all of
the Plaintiff’s claims, except for the claim of a violation of the
right to procedural due process, as to which we reverse. In affirming
almost all of the District Court’s ruling, we emphasize that we do so
at an early stage of the litigation. We recognize, as did Judge
Gleeson in ruling on the Plaintiff’s procedural due process claim, see
Dist. Ct. op. at *21, that carefully limited and tightly controlled
discovery by the Plaintiff as to certain officials will be appropriate
to probe such matters as the Defendants’ personal involvement in
several of the alleged deprivations of rights. We are mindful too
that, for high level officials, this discovery might be either
postponed until discovery of front-line officials is complete or
subject to District Court approval and additional limitations. We
also recognize that the Defendants will be entitled to seek more
specific statements as to some of the Plaintiff’s claims and perhaps
renew their claims for qualified immunity by motions for summary
judgment on a more fully developed record.
In sum, the serious allegations of gross mistreatment set forth
in the complaint suffice, except as noted in this opinion, to defeat
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the Defendants’ attempt to terminate the lawsuit at a preliminary
stage, but, consistent with the important policies that justify the
defense of qualified immunity, the defense may be reasserted in
advance of trial after the carefully controlled and limited discovery
that the District Court expects to supervise.
Affirmed in part, reversed in part, and remanded.
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JOSÉ A. CABRANES, Circuit Judge, concurring:
I concur fully in Judge Newman’s characteristically careful and comprehensive opinion, which seeks
to hew closely to the relevant Supreme Court and Second Circuit precedents, including the Supreme Court’s
decision in Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007). That said, it is worth underscoring that some of
those precedents are less than crystal clear and fully deserve reconsideration by the Supreme Court at the
earliest opportunity; to say the least, “the guidance they provide is not readily harmonized,” Maj. Op. at 18.
Most importantly, the opinion’s discussion of the relevant pleading standards reflects the uneasy
compromise—forged partially in dicta by the Supreme Court in Crawford El v. Britton, 523 U.S. 574
(1998)—between a qualified immunity privilege rooted in the need to preserve “the effectiveness of
government as contemplated by our constitutional structure,” Harlow v. Fitzgerald, 457 U.S. 800, 820 n.35
(1982), and the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure.
Here, that uneasy compromise presents itself in a case brought by Javaid Iqbal, a federally convicted
felon now residing in his native Pakistan. Iqbal does not challenge his arrest in the aftermath of 9/11, his
detention, his conviction, or his apparent subsequent deportation. Iqbal instead challenges his separation
from the general prison population at the Metropolitan Detention Center and his treatment during that
separation. He claims that his separation stemmed from a general policy authorized at the highest levels of
government in the wake of 9/11. But most, if not all, of the assertedly unlawful actions in his
complaint—including the decision to place plaintiff in the ADMAX SHU and the abuses which purportedly
ensued there—are alleged to have been carried out by defendants much lower in the chain of command.
Nevertheless, as a result of the Supreme Court’s precedents interpreting Rule 8(a), even as modified
by the “plausibility standard” established in Bell Atlantic, 127 S. Ct. at 1968, it is possible that the incumbent
Director of the Federal Bureau of Investigation and a former Attorney General of the United States will have
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to submit to discovery, and possibly to a jury trial, regarding Iqbal’s claims. If so, these officials—FBI
Director Robert Mueller and former Attorney General John Ashcroft —may be required to comply with
inherently onerous discovery requests probing, inter alia, their possible knowledge of actions taken by
subordinates at the Federal Bureau of Investigation and the Federal Bureau of Prisons at a time when
Ashcroft and Mueller were trying to cope with a national and international security emergency unprecedented
in the history of the American Republic. In Bell Atlantic, the Supreme Court has quite rightly expressed
concern that “careful case management” might not be able to “weed[] out early in the discovery process”
an unmeritorious claim in private civil antitrust litigation, see Bell Atlantic, 127 S.Ct. at 1967, and might have
limited success in “checking discovery abuse,” id. This concern is all the more significant in the context of
a lawsuit against, inter alia, federal government officials charged with responsibility for national security and
entitled by law to assert claims of qualified immunity. Even with the discovery safeguards carefully laid out
in Judge Newman’s opinion, it seems that little would prevent other plaintiffs claiming to be aggrieved by
national security programs and policies of the federal government from following the blueprint laid out by
this lawsuit to require officials charged with protecting our nation from future attacks to submit to prolonged
and vexatious discovery processes.
The decision in this case may be required by the faithful application of the relevant precedents by
a court of inferior jurisdiction. But a detached observer may wonder whether the balance struck here
between the need to deter unlawful conduct and the dangers of exposing public officials to burdensome
litigation—a balance compelled by the precedents that bind us—jeopardizes the important policy interest
Justice Stevens aptly described as “a national interest in enabling Cabinet officers with responsibilities in [the
national security] area to perform their sensitive duties with decisiveness and without potentially ruinous
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hesitation.” Mitchell v. Forsyth, 472 U.S. 511, 541 (1985) (Stevens, J., concurring in the judgment).1
1
The Supreme Court’s recognition in Bell Atlantic that “proceeding to . . . discovery can be expensive,” Bell Atlantic, 127
S. Ct. at 1967 has particular resonance where, as here, discovery would not only result in significant cost but would also deplete
the time and effectiveness of current officials and the personal resources of former officials. Indeed, as Justice Stevens noted,
“[p]ersons of wisdom and honor will hesitate to answer the President’s call to serve in these vital positions if they fear that
vexatious and [in some cases] politically motivated litigation associated with their public decisions will squander their time and
reputation, and sap their personal financial resources when they leave office.” Mitchell, 472 U.S. at 542 (Stevens, J. concurring in
the judgment); see also Harlow, 457 U.S. at 814 (noting the “danger that fear of being sued will dampen the ardor of all but the most
resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties” (alteration in original) (internal
quotation marks omitted)).
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