Rezaq v. Nalley

FILED
United States Court of Appeals
Tenth Circuit

April 20, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

OMAR REZAQ,

Plaintiff-Appellant,
v. No. 11-1069
MICHAEL NALLEY; RON WILEY;
MICHAEL MUKASEY; FEDERAL
BUREAU OF PRISONS,

Defendants-Appellees.

MOHAMMED SALEH; EL-SAYYID
A. NOSAIR; IBRAHIM
ELGABROWNY,

Plaintiffs-Appellants,
v. No. 11-1072
FEDERAL BUREAU OF PRISONS,

Defendant-Appellee.

BEHAVIORAL SCIENTISTS;
CRIMINOLOGISTS; FORMER
CORRECTIONAL OFFICIALS;
SOCIAL PSYCHOLOGISTS,

Amici Curiae.
 APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. Nos. 1:07-CV-02483-LTB-KLM; 1:05-CV-02467-PAB-KLM;
1:06-CV-01747-PAB-KLM; and 1:07-CV-00021-PAB-KLM)

Laura Rovner, (Rhonda Brownstein and Brittany Glidden, with her on the briefs)
of the Student Law Office, University of Denver Sturm College of Law, Denver,
Colorado, for Plaintiff-Appellant.

Juan G. Villaseñor, Assistant United States Attorney, (John F. Walsh, United
States Attorney, with him on the brief), Office of United States Attorney, Denver,
Colorado, for Defendants-Appellees.

Hope R. Metcalf, Detention and Human Rights Project, Allard K. Lowenstein
International Human Rights Clinic, Yale Law School, New Haven, Connecticut,
filed an amici curiae brief for the Behavioral Scientists, Criminologists, Former
Correctional Officials, and Social Psychologists.

Before BRISCOE, Chief Judge, TYMKOVICH, Circuit Judge, and EAGAN *,
District Judge.

BRISCOE, Chief Judge.

In these consolidated cases, plaintiffs-appellants Omar Rezaq, Mohammed

Saleh, Ibrahim Elgabrowny, and El-Sayyid Nosair—all of whom are currently

incarcerated in the federal prison system—appeal the district court’s grants of

summary judgment in favor of appellee Federal Bureau of Prisons (BOP) and

certain named officials in these actions brought pursuant to 28 U.S.C. §§ 1331,

*
Honorable Claire V. Eagan, District Judge, United States District Court
for the Northern District of Oklahoma, sitting by designation.
2
1343(a)(4), 1346, 2201, and 2202. 1 Rezaq’s action was filed in 2007, and the

action by Saleh, Elgabrowny, and Nosair was filed in 2008. The plaintiffs

contend that they have a liberty interest in avoiding transfer without due process

to the Administrative Maximum Prison (ADX) in Florence, Colorado, where they

were formerly housed. In separate orders, the district court rejected this argument

and found that the plaintiffs lack a cognizable liberty interest in avoiding

confinement at ADX. While the BOP agrees with this reasoning, it also contends

that all of the plaintiffs’ claims became moot when they were transferred to other

prisons. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that these

cases are not moot and affirm on the merits.

I. Factual Background

The plaintiffs in these actions were all convicted of terrorism-related

offenses. Rezaq was convicted on one count of aircraft piracy for his

involvement in the 1985 hijacking of EgyptAir Flight 648, in which fifty-seven

passengers were killed. See United States v. Rezaq, 134 F.3d 1121, 1125-26

(D.C. Cir. 1998) (upholding conviction). Saleh, Elgabrowny, and Nosair were

convicted of crimes arising out of their assistance in the 1993 bombing of the

World Trade Center and related terrorist plots. See United States v. Rahman, 189

1
In Case Number 11-1069, Rezaq also brought a claim for judicial review
of federal administrative action pursuant to 5 U.S.C. § 702. See Aplt. App. Vol.
I(a) at 20, 33-34.
3
F.3d 88, 103 (2d Cir. 1999) (upholding convictions).

The plaintiffs were initially assigned to general population units at United

States Penitentiaries (USPs). Aplt. App. Vol. I(c) at 499; Vol. II(c) at 2063-64.

They were each subsequently transferred to the general population unit at ADX.

Rezaq was transferred from USP-Leavenworth to ADX shortly after his

conviction in 1996. Id., Vol. I(c) at 489, 498. The terrorist attacks of September

11, 2001, and ensuing national security concerns precipitated the other transfers.

In the hours after the attacks, Saleh, Elgabrowny, and Nosair were placed in

administrative segregation at their respective prisons and, over the course of the

next two years, they were transferred to ADX, without notice or hearing. Id.,

Vol. II(c) at 2064. The BOP cited prison safety and national security as reasons

for the transfers.

ADX is the most restrictive and secure prison operated by the BOP. Id. at

2058. As the only facility of its kind in the federal system, it is reserved for

inmates who require “the highest custody level that can be assigned to an inmate.”

Id., Vol. I(b) at 367. Prisoners housed in the general population unit at ADX

spend twenty-three hours a day confined to their cells. Id., Vol. II(c) at 2058.

The typical cell at ADX measures eighty-seven square feet and contains a bed,

desk, sink, toilet, and shower. Id. Inmates take their meals alone in their cells.

Id. Although BOP policy provides for ten hours of recreation per week,

recreation is frequently cancelled due to staff shortages, mass shakedowns, or

4
adverse weather. Id. at 2059-60, 2205-2226.

According to the BOP, these carefully controlled conditions serve two

primary penological interests. The stated missions of ADX include: (1)

“maintaining the safety of both staff and inmates, while eliminating the need to

increase the security of other penitentiaries”; and (2) “confin[ing] inmates under

close controls while providing them opportunities to demonstrate progressively

responsible behavior . . . and establish readiness for transfer to a less secure

institution.” Id., Vol. I(b) at 367.

Most inmates at ADX, like those in this case, were transferred there from

other prisons. An inmate may be transferred because he poses a physical threat to

other inmates or staff, presents an escape risk, or requires “increased monitoring.”

Id., Vol. II(d) at 2363. Other inmates are transferred to ADX for reasons

unrelated to their behavior. For example, some inmates “require high security but

can’t function in open population facilities due to cooperation with the

government or other protection needs.” Id. In some cases, the BOP may

designate an inmate to ADX directly following conviction. Id.

While each of the plaintiffs was transferred from a USP to ADX, they were

each transferred out of ADX during the course of this litigation to one of the

BOP’s two Communication Management Units (CMUs). CMUs are recently

created facilities designed to monitor inmate communications with the outside

world. Id., Vol. II(e) at 2750. These facilities are fully contained within

5
USPs—specifically, USP-Marion and USP-Terre Haute—and are more restrictive

than the general population units at the USPs. Id. But they are less restrictive

than the general population unit at ADX. Id. Rezaq was transferred from USP-

Leavenworth to ADX and later transferred to the CMU at USP-Marion. Id., Vol.

I(a) at 23. Saleh and Elgabrowny were transferred from USP-Florence to ADX

and later transferred to the CMU at USP-Marion. Id., Vol. II(d) at 2480, 2486.

Nosair was transferred from USP-Pollock to ADX and later transferred to the

CMU at USP-Terre Haute. Id. at 2484.

The plaintiffs did not receive hearings before they were transferred to

ADX. However, after this litigation was commenced, BOP regional director and

codefendant Michael Nalley issued revised procedures for wardens to follow

before referring an inmate to ADX. The parties refer to the document outlining

these procedures as the “Nalley Memorandum.” Relying on the revised transfer

procedures in the Nalley Memorandum, the BOP conducted retroactive transfer

hearings for those inmates who were transferred to ADX prior to 2008. Id., Vol.

II(f) at 2862. The procedures provided that the inmate being referred should

receive notice of the transfer hearing, an opportunity to participate in the hearing,

a written recommendation by the hearing officer, and administrative review of the

regional director’s decision by the BOP’s general counsel. See Defs.-Aplees.’

Mot. to Dismiss for Mootness at 23-25.

The plaintiffs allege that these hearings were provided solely as a result of

6
this litigation. Aplt. Br. at 15. The BOP concedes the plaintiffs were prioritized

in the hearing process because of the litigation. Aplt. App. Vol. II(f) at 2870. In

the end, every retroactive hearing resulted in a recommendation of continued

ADX placement. Id. at 2794. The plaintiffs allege that “[n]o prisoner has ever

successfully appealed a retroactive transfer hearing decision.” 2 Id. at 2762.

Inmates housed at ADX may improve their conditions of confinement by

seeking admission to the Step-Down Program, a “stratified system of less-

restrictive housing” that incentivizes inmates to adhere to the prison’s

expectations for their conduct. See id., Vol. II(d) at 2348. Once admitted to the

program, ADX inmates may progress from the general population unit through the

Intermediate, Transitional, and Pre-Transfer Units “with increasing degrees of

personal freedom at each stage.” Id. at 2349. ADX policy states that “[e]very

inmate has the opportunity to demonstrate he may be housed in a less-restrictive

unit.” Id.

The plaintiffs were repeatedly denied admission to the Step-Down Program.

2
In a motion to dismiss on mootness grounds filed in this court, the BOP
argued that the procedures established by the Nalley Memorandum are no longer
in force. See Defs.-Aplees.’ Mot. to Dismiss for Mootness at 6. The BOP
explained that the “Dodrill Memorandum,” issued by BOP Assistant Director D.
Scott Dodrill after summary judgment briefing in this case, revised the criteria for
referring an inmate to ADX. Id. Under the procedures set forth in the Dodrill
Memorandum, referrals to ADX are handled by the BOP’s Designation and
Sentence Computation Center (“DSCC”). Id. The inmate being referred receives
a hearing that may be appealed to the DSCC chief and the BOP’s general counsel.
Id.
7
Eventually, however, all of the plaintiffs were admitted to the program and later

transferred to other prisons. None of the plaintiffs are still housed at ADX. Each

is now housed in one of the BOP’s two CMUs. Id., Vol. II(e) at 2750.

II. Procedural Background

District Court Proceedings in Rezaq

Rezaq filed suit in 2007 against the BOP and several named officials to

challenge his transfer to ADX and his conditions of confinement under the Due

Process Clause. Id., Vol. I(f) at 1341-42. He argued that he had a liberty interest

in avoiding transfer to ADX without due process. Id. at 1341. He also argued

that his retroactive transfer hearing did not comply with the requirements of

procedural due process. Id.

The defendants moved for summary judgment, and the motion was referred

to a magistrate judge. The defendants contended that because Rezaq did not have

a liberty interest in avoiding the conditions of confinement at ADX, he was not

entitled to due process in the transfer determination. Id. at 1342. They also

argued that, if a liberty interest did exist, Rezaq received sufficient process. Id.

The magistrate judge recommended that summary judgment be granted for

the defendants. Id. at 1338, 1367. She agreed with the defendants that the

conditions of confinement at ADX did not give rise to a liberty interest, noting

that “to date no court in the Tenth Circuit has held” as much. Id. at 1350.

Applying the four factors from Estate of DiMarco v. Wyoming Department of

8
Corrections, 473 F.3d 1334 (10th Cir. 2007), the magistrate judge concluded that

a liberty interest was not implicated. Aplt. App. Vol. I(f) at 1364. First, she

concluded that the BOP transferred Rezaq to ADX for a legitimate penological

reason—namely, to manage the “legitimate safety issues” presented by an inmate

with military training who is a member of terrorist organizations. Id. at 1351-55.

Second, she determined that the conditions of confinement at ADX were not

extreme compared to the conditions at issue in Wilkinson v. Austin, the Supreme

Court case holding that inmates had a liberty interest in avoiding confinement at

Ohio’s supermax facility. Id. at 1355-60; see also Wilkinson v. Austin, 545 U.S.

209, 224 (2005). Third, she found no evidence that Rezaq’s placement at ADX

extended the length of his incarceration. Aplt. App. Vol. I(f) at 1361-62. Finally,

she concluded that Rezaq’s placement at ADX was not indefinite, even though he

was not admitted to the Step-Down Program for almost thirteen years. Id. at

1363. In sum, the magistrate judge determined that all four DiMarco factors

weighed against finding a liberty interest in avoiding confinement at ADX. Id. at

1364. As such, there was no need to consider whether Rezaq had received

sufficient due process protections. Id. at 1367.

The district court considered Rezaq’s objections to the recommendation and

concluded that the recommendation was correct. Id. at 1472-73. The court

entered judgment, and Rezaq filed a timely notice of appeal.

9
District Court Proceedings in Saleh

Saleh, Elgabrowny, and Nosair, who are represented by the same counsel as

Rezaq, brought similar procedural due process claims against the BOP in a 2008

consolidated complaint. See id., Vol. II(a) at 1525-26; Vol. II(g) at 3292. They

challenged both their transfers to the general population unit at ADX and their

repeated denials of admission to the ADX Step-Down Program. Id., Vol. II(g) at

3206-07. In a motion for summary judgment, the BOP argued that the claims

were moot because all of the plaintiffs had received retroactive transfer hearings

and had been admitted to the Step-Down Program. Id. at 3207. The BOP also

argued that, even if the claims were not moot, the plaintiffs did not have a liberty

interest in avoiding confinement at ADX or in being admitted to the Step-Down

Program. Id.

The case was referred to the same magistrate judge who handled Rezaq.

The magistrate judge rejected the BOP’s mootness arguments, but she determined

that the plaintiffs did not have a liberty interest and recommended granting

summary judgment in favor of the BOP. Id. at 3236. The district court

considered objections to the recommendation filed by both the plaintiffs and the

BOP and adopted the magistrate judge’s recommendation. Id. at 3302. The court

concluded that the transfer claim was not moot because the plaintiffs’ “ADX

placement continues to affect the conditions of . . . confinement despite . . .

transfer out of the institution.” Id. at 3294. Applying the DiMarco factors, the

10
court determined that the plaintiffs did not have a protected liberty interest in

avoiding the conditions of confinement at ADX. Id. at 3302. The court entered

judgment for the BOP, and this appeal followed.

III. Mootness

As a threshold matter, we must address the BOP’s contention that the

plaintiffs’ due process claims are moot. At different points in the course of this

litigation, all four of the plaintiffs were admitted to the Step-Down Program and

ultimately transferred out of ADX. After these appeals were filed, the BOP filed

a motion to dismiss on mootness grounds because (1) plaintiffs are no longer

housed at ADX, and (2) the challenged transfer procedures (the Nalley

Memorandum) are no longer in effect. The BOP argues that these developments

mooted plaintiffs’ challenges to their transfers to ADX (“the transfer claims”) and

their denials of admission to the Step-Down Program (“the Step-Down Program

claims”). Plaintiffs now concede the mootness of the Step-Down Program claims.

But they maintain that they still have a cognizable interest in the transfer claims

because they have not been returned to their pre-ADX prison conditions, which is

part of their requested relief.

Federal courts only have jurisdiction to consider live, concrete cases or

controversies. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d

1096, 1109 (10th Cir. 2010). A case becomes moot when factual developments

render a claim “no longer live and ongoing,” such that a decision on the merits

11
will not “affect[] the behavior of the defendant toward the plaintiff.” McAlpine

v. Thompson, 187 F.3d 1213, 1216 (10th Cir. 1999) (quotations omitted). “When

a case becomes moot on appeal, the ordinary course is to vacate the judgment

below and remand with directions to dismiss.” Kan. Judicial Review v. Stout,

562 F.3d 1240, 1248 (10th Cir. 2009). The burden of demonstrating mootness

“‘is a heavy one,’” Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979)

(quoting United States v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953)), and it

falls upon the BOP to carry that burden in this case.

The crux of the mootness inquiry in an action for prospective relief is

whether the court can afford meaningful relief that “‘will have some effect in the

real world.’” See Rio Grande, 601 F.3d at 1110 (quoting Wyoming v. U.S. Dep’t

of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005)). When prospective equitable

relief is requested, the requesting party must show an ongoing, personal stake in

the outcome of the controversy, a likelihood of substantial and immediate

irreparable injury, and the inadequacy of remedies at law. Jordan v. Sosa, 654

F.3d 1012, 1024 (10th Cir. 2011) (citing O’Shea v. Littleton, 414 U.S. 488, 502

(1974)). “Past exposure to illegal conduct does not in itself show a present case

or controversy regarding injunctive relief.” O’Shea, 414 U.S. at 495-96.

“Similarly, in the context of an action for declaratory relief, a plaintiff must be

seeking more than a retrospective opinion that he was wrongly harmed by the

defendant.” Jordan, 654 F.3d at 1025.

12
 The BOP’s first mootness rationale is that plaintiffs’ transfers out of ADX

render it speculative that they would again be subject to the same transfer

policies, especially because the challenged policies were superseded by revised

policies. Generally speaking, the “‘[w]ithdrawal or alteration of administrative

policies can moot an attack on those policies.’” Rio Grande, 601 F.3d at 1117

(quoting Bahnmiller v. Derwinski, 923 F.2d 1085, 1089 (4th Cir. 1991))

(alteration in original). “And the ‘mere possibility’ that an agency might rescind

amendments to its actions or regulations does not enliven a moot controversy.”

Id. (quoting Ala. Hosp. Ass’n v. Beasley, 702 F.2d 955, 961 (11th Cir. 1983)).

The BOP is correct that the procedures that controlled plaintiffs’ initial

transfers are no longer in force. But this point places undue focus on the policies

themselves, which detracts from the real issue: whether the BOP has sufficiently

mitigated the effects of any harm caused by the old policies. Even though the

new transfer policies may provide adequate process, the case is not moot if the

BOP made decisions under the old policies that have ongoing, long-term

consequences for the plaintiffs that could be mitigated by an award of prospective

relief. See Colvin v. Caruso, 605 F.3d 282, 295-96 (6th Cir. 2010) (concluding

that claim by transferred inmate was not moot where transferor prison’s removal

of inmate from kosher-meal status and its subsequent refusal to reinstate him had

long-term, post-transfer consequences for the inmate within the same prison

system); Randolph v. Rodgers, 170 F.3d 850, 857 (8th Cir. 1999) (holding that

13
transferred inmate’s claim for injunctive relief against state prison system was not

moot when inmate “claimed he is exposed to an actual future threat under the

control of the Department of Corrections”).

The BOP also argues that any pronouncement we make on the issues raised

would amount to an advisory opinion because all four plaintiffs have been

transferred from ADX to other facilities. Even though all four plaintiffs are now

housed in less-restrictive facilities when compared to ADX, they maintain that

their current conditions are still more restrictive than their pre-ADX conditions.

We conclude that the case is not moot for two reasons. First, the plaintiffs’

transfers to CMUs did not “completely and irrevocably eradicate[] the effects of

the alleged violation” because they have never been returned to their pre-ADX

placements in USP-GPs. See Davis, 440 U.S. at 631. The inmates are now held

in CMUs, which the BOP operates as fully contained facilities within the USPs in

Terre Haute, Indiana, and Marion, Illinois. The record indicates that, other than

ADX, the CMUs are the most restrictive facilities in the federal system. If the

inmates’ current conditions are a byproduct of their initial transfers to ADX, then

long-term consequences may persist and an injunction may serve to “eradicate the

effects of [the BOP’s] past conduct.” See 13C Charles A. Wright, Arthur R.

Miller & Edward H. Cooper, Federal Practice and Procedure § 3533.7 (3d ed.

2008); cf. Davis v. New York, 316 F.3d 93, 99 (2d Cir. 2002) (inmate’s action

claiming cruel and unusual punishment by exposure to second-hand smoke was

14
not mooted by his transfer or the implementation of a new smoking policy

because the same problems persisted).

Second, some prospective relief remains available. Assuming, only for

purposes of deciding whether the cases are moot, that the plaintiffs have a liberty

interest in avoiding transfer to ADX without due process and their retroactive

transfer hearings were constitutionally deficient, this court could award

meaningful relief in the form of additional process. The BOP has failed to show

that new due process hearings could not result in the plaintiffs’ return to general

population conditions. As the district court wrote in Saleh, the transfer claims

“challenge[] the process by which plaintiffs were placed at ADX. . . . Were the

Court to order the BOP to provide plaintiffs additional process to determine

whether their transfers to ADX were proper, this new process could result in a

finding that plaintiffs were not properly placed in ADX in the first place and thus

should be restored to their pre-ADX status and corresponding placements.” Aplt.

App. Vol. II(g) at 3294. Along the same lines, the magistrate judge wrote in

Rezaq that “the heart of Plaintiff’s request for relief is for transfer to a less-

restrictive facility. This remedy has not been provided to him and therefore,

prospective relief remains available.” 3 Id., Vol. I(f) at 1345. We agree. A case

3
Of course, Rezaq now resides in a less-restrictive facility. But to the
extent that a retroactive transfer hearing could result in a determination that he
should never have been transferred to ADX in the first place, the BOP could
decide to return him to his pre-ADX placement. So while the current (continued...)

15
is not moot when there is some possible remedy, even a partial remedy or one not

requested by the plaintiff. See Church of Scientology of Cal. v. United States,

506 U.S. 9, 12-13 (1992) (“While a court may not be able to return the parties to

the status quo ante[,] . . . a court can fashion some form of meaningful relief in

circumstances such as these.”). Even the possibility of a “partial remedy” is

“sufficient to prevent [a] case from being moot.” Id. at 13. Even if that

relief—such as new retroactive transfer hearings with adequate procedural

protections—is unlikely to result in transfers to less-restrictive conditions, it is

relief nonetheless.

In sum, if plaintiffs prevail on appeal, we could grant meaningful

prospective relief. Even though they are no longer housed at ADX, plaintiffs

retain “a legally cognizable interest in the final determination of the underlying

questions of fact and law.” Davis, 440 U.S. at 631. Therefore, we will proceed to

address on the merits whether plaintiffs have a liberty interest in avoiding

confinement at ADX.

IV. Liberty Interest/Due Process Claim

Plaintiffs argue that they have a protected liberty interest in avoiding the

conditions of confinement at ADX—a facility that, they maintain, creates an

“atypical and significant hardship . . . in relation to the ordinary incidents of

(...continued)

circumstances differ from those that the magistrate judge confronted, prospective
relief is still available.
16
prison life.” Aplt. Br. at 17 (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)).

Plaintiffs contend that the district court erred when addressing whether a liberty

interest existed: (1) by giving weight to the BOP’s asserted penological interest;

(2) by improperly comparing the conditions of confinement in this case to those at

the state supermax prison at issue in Wilkinson instead of “the ordinary incidents

of prison life” in the federal system; (3) by improperly relying on inapposite

precedent, thus “erroneously elevating the standard for determining whether the

challenged conditions were extreme”; and (4) by “not considering the

extraordinary length of their segregation” as a factor in determining whether a

liberty interest existed. Aplt. Br. at 17-18. They also argue that the district court

improperly granted summary judgment to the defendants because there were

genuine disputes of material fact as to key factors used by the district court in the

liberty interest analysis.

This court reviews de novo a district court’s entry of summary judgment,

viewing the facts in the light most favorable to the nonmoving party. McCarty v.

Gilchrist, 646 F.3d 1281, 1284 (10th Cir. 2011). Additionally, “‘[t]he

identification of the liberty interests that are protected by the Due Process Clause

is a question of federal constitutional law that we review de novo.’” DiMarco,

473 F.3d at 1339 n.3 (quoting Harper v. Young, 64 F.3d 563, 566 (10th Cir.

1995)).

The Fifth Amendment provides that no person shall “be deprived of life,

17
liberty, or property, without due process of law.” U.S. Const. amend. V. “A

liberty interest may arise from the Constitution itself, by reason of guarantees

implicit in the word ‘liberty,’ or it may arise from an expectation or interest

created by state laws or policies.” Wilkinson, 545 U.S. at 221 (internal citation

omitted). In the penological context, not every deprivation of liberty at the hands

of prison officials has constitutional dimension. This is so because incarcerated

persons retain only a “narrow range of protected liberty interests.” Abbott v.

McCotter, 13 F.3d 1439, 1442 (10th Cir. 1994) (quoting Hewitt v. Helms, 459

U.S. 460, 457 (1983)) (internal quotation marks omitted). For example, the

Supreme Court has recognized that “the Constitution itself does not give rise to a

liberty interest in avoiding transfer to more adverse conditions of confinement.”

Wilkinson, 545 U.S. at 221 (citing Meachum v. Fano, 427 U.S. 215, 225 (1976)).

A protected liberty interest only arises from a transfer to harsher conditions

of confinement when an inmate faces an “‘atypical and significant hardship . . . in

relation to the ordinary incidents of prison life.’” Id. at 223 (quoting Sandin, 515

U.S. at 484). Courts have struggled to identify the appropriate baseline for

assessing what constitutes an “atypical and significant hardship” on inmates. Our

own cases have taken two different approaches to the baseline question in

assessing conditions in segregated confinement. For example, this court has

explained that it is proper to consider whether the segregation at issue mirrors

that imposed on other inmates in the same segregation. Gaines v. Stenseng, 292

18
F.3d 1222, 1225-26 (10th Cir. 2002) (suggesting that a due process claim may be

dismissed at the summary judgment phase when “there is sufficient evidence to

establish that [the plaintiff’s] segregation mirrors conditions imposed upon

inmates in administrative segregation and protective custody”). In another case,

we compared conditions in segregated confinement to conditions in the general

prison population. Penrod v. Zavaras, 94 F.3d 1399, 1407 (10th Cir. 1996)

(“Even though the conditions in Living Unit II were more restrictive than those

imposed upon the general population, it offered inmates all of the same privileges

as the general population inmates.”).

Our sister circuits are certainly not in agreement regarding the correct

approach. While some circuits compare the conditions of confinement at issue to

those in the general prison population, see, e.g., Beverati v. Smith, 120 F.3d 500,

504 (4th Cir. 1997); Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996), amended

by 135 F.3d 1318 (9th Cir. 1998), others compare them to the conditions typically

found in administrative segregation, see, e.g., Wagner v. Hanks, 128 F.3d 1173,

1175-76 (7th Cir. 1997), or “the most restrictive conditions that prison officials,

exercising their administrative authority to ensure institutional safety and good

order, routinely impose on inmates serving similar sentences,” Hatch v. District

of Columbia, 184 F.3d 846, 847 (D.C. Cir. 1999). Wilkinson recognized the

divergent views on this issue among the circuit courts, but the Court declined to

resolve the baseline question because the conditions at issue in that case

19
“impose[d] an atypical and significant hardship under any plausible baseline.”

545 U.S. at 223.

Most recently, in DiMarco, we similarly declined to make “a rigid either/or

assessment” of proper comparator evidence, opting instead to outline four

potentially relevant, nondispositive factors. 4 473 F.3d at 1342. We noted that

[r]elevant factors might include whether (1) the
segregation relates to and furthers a legitimate
penological interest, such as safety or rehabilitation; (2)
the conditions of placement are extreme; (3) the
placement increases the duration of confinement, as it
did in Wilkinson; and (4) the placement is indeterminate
(in Wilkinson the placement was reviewed only
annually).

Id. While courts in this circuit have used these factors to guide the liberty

interest analysis, see, e.g., Matthews v. Wiley, 744 F. Supp. 2d 1159, 1171-73 (D.

Colo. 2010); Silverstein v. Fed. Bureau of Prisons, 704 F. Supp. 2d 1077, 1091

(D. Colo. 2010), we have never suggested that the factors serve as a constitutional

4
In an even more recent case, an inmate in the Colorado state prison
system claimed to have a liberty interest in avoiding prolonged confinement in
administrative segregation. See Toevs v. Reid, 646 F.3d 752 (10th Cir. 2011),
amended on reh’g by — F.3d —, 2012 WL 1085802 (10th Cir. 2012). While
Toevs involved a somewhat similar due process claim to those presented here, we
ultimately decided the case on qualified immunity grounds without determining
whether a liberty interest in fact existed. See id. at *4.
20
touchstone. 5 Rather, we continue to believe that the proper approach is a fact-

driven assessment that accounts for the totality of conditions presented by a given

inmate’s sentence and confinement. While the Supreme Court’s assessment of the

conditions in Wilkinson can be instructive in this endeavor, the conditions in that

case may not serve as helpful comparator evidence in all cases. The “ordinary

incidents of prison life” will differ depending on a particular inmate’s conviction

and the nature of nonpunitive confinement routinely imposed on inmates serving

comparable sentences. See Hatch, 184 F.3d at 856 (“‘[A]typicality’ . . . depends

in part on the length of the sentence the prisoner is serving.”). In cases involving

placement in nondisciplinary administrative segregation, it is appropriate to

compare the conditions at issue with those ordinarily experienced by inmates with

similar records and sentences. In making this assessment, we are mindful that

nondisciplinary administrative segregation “is the sort of confinement that

inmates should reasonably anticipate receiving at some point in their

5
Plaintiffs argue that the DiMarco factors are inconsistent with the
Supreme Court’s rulings in Sandin and Wilkinson. See Aplt. Br. at 22-36.
Because we are bound by prior panel decisions absent superseding en banc review
or Supreme Court decisions, we need not address these arguments. See United
States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000). We pause to note,
however, that DiMarco did not establish a rigid framework for determining
whether a liberty interest exists. The opinion merely outlined “a few key factors,
none dispositive, as the Supreme Court did in Wilkinson.” DiMarco, 473 F.3d at
1342. The four factors, which are not necessarily exhaustive, are in accord with
the Supreme Court’s direction to consider the nature and indeterminate duration
of the challenged prison conditions.
21
incarceration.” Hewitt, 459 U.S. at 468, overruled on other grounds by Sandin,

515 U.S. at 479-83.

We are not constrained to apply the four factors that the DiMarco court

considered potentially relevant, but we are satisfied that a similarly guided

inquiry is appropriate under the facts of this case. And while we also are not

bound to give more or less weight to any given factor, we recognize that

Wilkinson called the conditions of confinement in the Ohio supermax prison

“sever[e]” and “synonymous with extreme isolation” but ultimately placed the

weight of its analysis on the indeterminate duration of confinement and the effect

the placement had on an inmate’s parole eligibility. See Wilkinson, 545 U.S. at

214; see also Townsend v. Fuchs, 522 F.3d 765, 772 (7th Cir. 2008) (“Wilkinson

did not determine that the conditions in the Supermax prison created a liberty

interest by themselves. . . . [T]he Court based its holding largely on the fact that

placement was indefinite and disqualified otherwise eligible inmates from

consideration for parole.”). Thus, we read Wilkinson to say that extreme

conditions in administrative segregation do not, on their own, constitute an

“atypical and significant hardship” when compared to “the ordinary incidents of

prison life.” Sandin, 515 U.S. at 484.

1) The Segregation Relates to and Furthers the BOP’s Legitimate Penological
Interests

The district court concluded that the BOP’s legitimate interests in prison

22
safety and national security justified plaintiffs’ placements at ADX. Rather than

question the legitimacy of the BOP’s asserted interests or the rationality of

segregation in relation to those interests, the plaintiffs dismiss the factor itself as

“not relevant to the liberty interest inquiry.” Aplt. Br. at 24.

This court has upheld an inmate’s placement in segregation, even for an

extended period of time, for safety reasons. See DiMarco, 473 F.3d at 1342

(deferring to Wyoming prison’s determination that “DiMarco might be a risk if

introduced to the general population of the prison”). Here, each of the plaintiffs

was transferred to ADX for reasons of national security and institutional safety.

See Aplt. App. Vol. I(f) at 1354; Vol. II(g) at 3298. The BOP transferred Rezaq

to ADX because of the nature of his offense, his weapons and bomb-making

training, and his affiliation with terrorist organizations. Id., Vol. I(f) at 1353-54.

The BOP transferred Saleh, Nosair, and Elgabrowny, who were each convicted of

terrorism-related offenses, in the wake of the September 11 attacks because it

wanted to better monitor their communications with the outside world. Id., Vol.

II(c) at 2312. The district court in Rezaq observed that providing “more

restrictive quarters for nonpunitive reasons is well within the terms of

confinement ordinarily contemplated by a prison sentence.” Id., Vol. I(f) at 1359

n.13.

The First Circuit engages in a similar, albeit more stringent, inquiry when it

determines whether “the central condition—isolation from other prisoners—was

23
essential to its purpose.” See Skinner v. Cunningham, 430 F.3d 483, 487 (1st Cir.

2005). Because “administrative segregation is the sort of confinement . . .

inmates should reasonably anticipate receiving at some point in their

incarceration,” Hewitt, 459 U.S. at 468, we have not engaged in such exacting

scrutiny. See DiMarco, 473 F.3d at 1343 (suggesting an inquiry into whether “the

segregation relates to and furthers a legitimate penological interest” (emphasis

added)); Jordan, 191 F. App’x at 652 (inquiring into the reasonable relationship

between segregated detention and legitimate penological interests and security

concerns).

Plaintiffs argue that it is improper for the court to consider penological

interests in determining whether a liberty interest exists. They contend that any

inquiry into the necessity of restrictive confinement should be made at a due

process hearing, not in determining at the outset whether a liberty interest exists.

Aplt. Br. at 23. We disagree. Legitimate penological interests are a relevant

consideration under settled Tenth Circuit precedent. See DiMarco, 473 F.3d at

1342-43. And unlike plaintiffs, we do not read Wilkinson to suggest the inquiry

is inappropriate. In Wilkinson, the Supreme Court observed that the Ohio

supermax prison’s “harsh conditions may well be necessary and appropriate in

light of the danger that high-risk inmates pose both to prison officials and to other

prisoners,” but “necessity . . . does not diminish our conclusion that the

conditions give rise to a liberty interest in their avoidance.” 545 U.S. at 224.

24
That statement, read in concert with the Court’s earlier admonition that “federal

courts ought to afford appropriate deference and flexibility to state officials trying

to manage a volatile environment,” Sandin, 515 U.S. at 482, does not foreclose

our consideration of the relationship between the means chosen—segregated

confinement—and the ends asserted. As in DiMarco, we remain “mindful of the

primary management role of prison officials who should be free from

second-guessing or micro-management from the federal courts.” 473 F.3d at

1342. The BOP should not have to prove segregated confinement is essential in

every case. Instead, it is sufficient to show a reasonable relationship between

isolation and the asserted penological interests.

The government opened ADX to house inmates who, like plaintiffs, pose

unusual security and safety concerns. These concerns stem from a uniquely

federal penological interest in addressing national security risks by segregating

inmates with ties to terrorist organizations. The BOP established that continued

placement of these inmates in general population units could compromise prison

safety or, given the unique criminal backgrounds of these plaintiffs, national

security. We conclude that segregated confinement relates to and furthers the

penological interests asserted in this case.

2) ADX Conditions Are Not Extreme

The district court next considered whether the conditions of confinement at

ADX are extreme. Plaintiffs primarily challenge the district court’s use of the

25
Ohio supermax facility, at issue in Wilkinson v. Austin, as a basis for comparison.

Aplt. Br. at 26. They contend that the appropriate comparison is ordinary prison

life in the “particular prison system,” which would foreclose consideration of a

state supermax facility in a case involving federal inmates. Id. at 27. Plaintiffs

also contend that, even if the facility in Wilkinson is used as a comparator, the

conditions at ADX are not materially different than those at the Ohio supermax

prison. See Aplt. Reply Br. at 13-14 (chart comparing conditions at the two

facilities).

As we have noted, it is appropriate to compare the nature of the challenged

conditions to the type of nonpunitive confinement routinely imposed on inmates

serving comparable sentences. A comparison to the conditions at issue in

Wilkinson can also be instructive when considering conditions in segregated

confinement.

The conditions at ADX are undeniably harsh. When they were housed at

ADX, plaintiffs had control over the lights in their cells, the opportunity for

outdoor recreation, regular contact with staff, and the ability to occasionally

communicate with other inmates. 6 Aplt. App. Vol. I(a) at 207-10. Their cells,

6
While there is a factual dispute over the degree of human contact
permitted at ADX, see Aplt. Br. at 38-41; Aplee. Br. at 39-43, this dispute does
not affect our determination that the conditions are not extreme. Even viewing
the disputed facts in the light most favorable to plaintiffs, the limitations on
human contact were not “especially severe” in relation to most solitary
confinement facilities. See Wilkinson, 545 U.S. at 223-24.
26
while unquestionably small and stark, contained a television that aired black-and-

white educational and religious programming. Id., Vol. II(c) at 2061. The

inmates spent twenty-three hours per day in their cells. Id. at 2058. When they

were permitted outdoor recreation, the inmates remained alone in fenced-in areas

slightly larger than their cells. Id. at 2059. The inmates were permitted five “no

contact” social visits and two fifteen-minute phone calls per month. Id. at 2060-

61.

There are some similarities between the conditions at ADX and those at the

Ohio supermax prison in Wilkinson. Because the conditions at issue in Wilkinson

imposed an atypical and significant hardship on inmates “under any plausible

baseline,” it is clear that the Supreme Court did not intend for courts to make

side-by-side comparisons of challenged conditions and the conditions in that case.

But we must take note of the facts that led the Court to its conclusion. For

example, in Wilkinson, the Court found that “almost all human contact is

prohibited, even to the point that conversation is not permitted from cell to cell.”

545 U.S. at 223-24. There is some evidence that plaintiffs in the present cases

had to shout through doors to communicate with other inmates, and that they were

not permitted to do so. Aplt. App. Vol. I(e) at 1155. But there is also evidence

that plaintiffs could communicate with other inmates. Id., Vol. II(g) at 3300.

Second, the inmates in Wilkinson were restricted to “indoor recreation cells”

when they were permitted to leave their cells. 545 U.S. at 214. The inmates at

27
ADX are permitted outdoor recreation. Aplt. App. Vol. II(g) at 3300.

But we need not draw fine distinctions based on these comparisons. The

conditions at ADX, like those at the Ohio supermax prison in Wilkinson, do not,

in and of themselves, give rise to a liberty interest because they are substantially

similar to conditions experienced in any solitary confinement setting. See

Wilkinson, 545 U.S. at 224 (“Save perhaps for the especially severe limitations

on all human contact, these conditions likely would apply to most solitary

confinement facilities . . . .”). The conditions at ADX are comparable to those

routinely imposed in the administrative segregation setting. We conclude that the

conditions in the general population unit at ADX are not extreme as a matter of

law.

Finally under this factor, we must address plaintiffs’ contention that the

district court improperly incorporated Eighth Amendment and substantive due

process precedent to determine whether the challenged conditions were extreme.

Aplt. Br. at 27-29. While the district court used the phrase “the basic necessities

of life,” which is drawn from Eighth Amendment precedent, it is clear that the

court did not import a different standard to the liberty interest analysis. The

district court’s analyses were consistent with our approach in DiMarco.

3) ADX Placement Does Not Increase the Duration of Confinement

Transfer to a higher security facility may lengthen an inmate’s period of

incarceration if the transfer “disqualifies an otherwise eligible inmate for parole

28
consideration.” Wilkinson, 545 U.S. at 224. This factor counseled in favor of

finding a liberty interest in Wilkinson, where the Court found that transfer to the

Ohio supermax prison caused inmates who were “otherwise eligible for parole

[to] lose their eligibility while incarcerated” there. Id. at 215. In DiMarco, we

concluded that the state’s placement decision did not extend the term of the

inmate’s confinement. 473 F.3d at 1343. Similarly, this factor does not weigh in

favor of finding a liberty interest in these cases. There is no evidence that

confinement at ADX lengthened plaintiffs’ sentences.

4) The Plaintiffs’ Placements in ADX Were Not Indeterminate

Finally, the duration and indeterminacy of a placement in extreme

conditions is often a critical consideration in liberty interest analysis. See

Wilkinson, 545 U.S. at 224 (considering the indefinite duration of the

confinement and the frequency of reviews); DiMarco, 473 F.3d at 1343-44; see

also Harden-Bey v. Rutter, 524 F.3d 789, 792 (6th Cir. 2008) (concluding that

“most (if not all) of our sister circuits have considered the nature of the

more-restrictive confinement and its duration in determining whether it imposes

an ‘atypical and significant hardship’”).

Plaintiffs argue, essentially under this factor, that the duration of

segregated confinement itself is atypical and significant. This argument has some

support in Tenth Circuit precedent. See, e.g., Trujillo v. Williams, 465 F.3d

1210, 1225 (10th Cir. 2006) (reversing the 12(b)(6) dismissal of prisoner’s § 1983

29
claim, reasoning that where “the prisoner is subjected to a lengthy period of

segregation, the duration of that confinement may itself be atypical and

significant” (emphasis added)). Several other courts have determined that

prolonged placements in administrative segregation can constitute “atypical and

significant hardship.” See, e.g., Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000)

(concluding that “eight years in administrative custody, with no prospect of

immediate release in the near future, is ‘atypical’ in relation to the ordinary

incidents of prison life”). While duration is certainly an important consideration,

Wilkinson emphasized that duration is properly considered in tandem with

indeterminacy. In considering duration, the Court observed that “placement at

OSP is indefinite and, after an initial 30-day review, is reviewed just annually.”

Wilkinson, 545 U.S. at 224.

Here, the periodic review process at ADX included opportunities for

plaintiffs to participate. While plaintiffs were housed at ADX for many years,

they were given regular reevaluations of their placement in the form of twice-

yearly program reviews. See Aplt. App. Vol. I(f) at 1362-63; Vol. II(g) at 3301.

These periodic reviews included procedural protections, including the chance to

appeal decisions through an administrative process. Importantly, however, it is

not necessary for us to closely review the process at this stage. See DiMarco, 473

F.3d at 1343 (concluding that confinement was not indefinite where prisoner had

reevaluations every ninety days and had the opportunity to be heard at the

30
meetings). The availability of periodic reviews merely suggests that the

confinement was not indefinite. See Wilkinson, 545 U.S. at 224 (noting that,

after an initial thirty-day review, an inmate’s placement was only reviewed

annually). This factor weighs against finding a liberty interest.

5) Summary of DiMarco Factors

The totality of these factors indicate that the inmates did not have a liberty

interest in avoiding confinement at ADX. Because no liberty interest is

implicated, we do not reach the question of whether the inmates received

adequate process to justify their transfers to ADX.

V. Conclusion

Because this case presents a live controversy in which the court could

afford meaningful prospective relief, we DENY both the motion to dismiss and

the amended motion to dismiss filed by defendants. Yet the inmates lack a

cognizable liberty interest in avoiding the conditions of confinement at ADX, so

no due process protections were required before they were transferred to that

facility. We therefore AFFIRM the judgments of the district court.

31